IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) ) v. ) ID. No. 1909006430 ) ) BRANDON HOLMES )
Submitted: September 9, 2022 Decided: September 9, 2022 Written Opinion Issued: September 20, 2022
MEMORANDUM OPINION AND ORDER
Upon Defendant Brandon Holmes’s Motion to Suppress, DENIED.
Daniel B. McBride, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE, Wilmington, Delaware, for the State of Delaware.
Eugene J. Maurer, Jr., Esquire, EUGENE J. MAURER, JR., P.A., Wilmington, Delaware, Stephen P. Patrizio, Esq., DRANOFF AND PATRIZIO, P.C., Philadelphia, Pennsylvania, for Mr. Holmes.
WALLACE, J. I. FACTUAL AND PROCEDURAL BACKGROUND
On July 17, 2019, Delaware State Police (“DSP”) officers responded to a
midday shooting inside the Market Street Grill located at 4304 North Market Street
in Wilmington.1 Two men—Daqwan Riley and Defendant Brandon Holmes—had
been shot there.2 Both men had left via private transport for Christiana Care’s
Wilmington emergency room before the police arrived; that arrival was about four
minutes after a 911 call had been received.3
When DSP detectives arrived at the Market Street Grill, they learned the
witnesses present during the shooting were Roderick Millwood, the restaurant
manager, and two restaurant employees, Danielle White and Jonathon Kornegay.4
After interviewing the restaurant employees, and observing large amounts of blood
on the dining room floor, it was determined that the shooting occurred inside the
restaurant’s public dining area.5 The detectives were also informed that the
1 Suppression Hr’g Tr. at 106, State v. Brandon Holmes, ID No. 1909006430 (Del. Super. Ct. July 8, 2022) (D.I. 68) (hereinafter “Hr’g Tr.”); State’s Resp., Oct. 20, 2021 (D.I. 53), Ex. C (Search Warrant Application and Affidavit) (hereinafter “Search Warrant”) ¶ 2; Def.’s Mot. to Suppress ¶ 1, July 8, 2021 (D.I. 43); State’s Resp. ¶¶ 1-2. 2 Hr’g Tr. at 107; Def.’s Mot. to Suppress ¶ 1; State’s Resp. ¶¶ 1-2. 3 State’s Resp. ¶¶ 1-2; see Def.’s Mot. to Suppress ¶ 1; Search Warrant ¶ 2. The restaurant’s surveillance system reflects that the shooting occurred at 2:45 p.m and both parties seem to agree that the police responded at approximately 2:49 p.m. 4 State’s Resp. ¶ 2; Hr’g Tr. at 53, 99; Search Warrant ¶ 2; see Hr’g Tr. at 149-50. 5 State’s Resp. ¶¶ 1-2; Def.’s Mot. to Suppress ¶ 1; see Hr’g. Tr. at 112-13.
-2- restaurant had a surveillance system equipped with several interior and exterior
cameras that likely captured footage of the shooting and images its perpetrator(s).6
At some point during the initial on-scene investigation, Rashan Jason Baul—
a purported co-owner of the Market Street Grill—arrived at the restaurant.7 Mr. Baul
contacted Delaware Camera Systems Inc., the company that installed the Grill’s
surveillance equipment, and requested that technicians come to the restaurant and
assist detectives with reviewing and recovering the surveillance footage.8
With the help of the Delaware Camera Systems’ technicians, DSP detectives
were able to watch the surveillance footage on video monitors at the restaurant and
download data onto a DSP-owned external hard drive.9 Because they weren’t
convinced the footage “successful[ly] transfer[red],” the police also took the
surveillance system’s hard drive as a backup.10 Soon thereafter, a detective assisting
the lead investigators applied for and obtained a search warrant before the hi-tech
6 Hr’g Tr. at 111-12. 7 Id. at 25. According to a State of Delaware business license application, Mr. Baul and a Duane Holmes (identified at the hearing as Brnadon Holmes’s mother), are co-owners of the restaurant. Id., State’s Ex. 2 (Business License Application). Mr. Baul and Ms. Holmes are also the named tenants in the restaurant lease agreement. Id., Def.’s Ex. 1 (Lease Agreement). Despite this, Mr. Holmes contends that he is a part-owner—if not sole owner—of the Market Street Grill. See Def.’s Mot. to Suppress ¶ 8. As revealed below, the Court need not definitively determine the “ownership” of the restaurant to resolve this motion. 8 Hr’g Tr. at 25-26, 139. 9 Id. at 114-16. 10 Id.
-3- forensics detectives accessed the restaurant footage stored on the collected hard
drive.11
The search warrant’s supporting affidavit describes what the detectives
observed on the surveillance recording’s playback while at the restaurant.12 The
shooter is described as entering the restaurant, briefly looking at a menu, and then
pulling a handgun from his vest and shooting both Messrs. Holmes and Riley at close
range.13 The shooter appeared to be clad in “a construction helmet, sunglasses and
a traffic control style shirt.”14 After shooting the two victims, the assailant “calmly
exited” the restaurant.15
It wasn’t until after rewatching the surveillance recording several times that
detectives noticed Mr. Holmes sat up and got to his knees just after being shot.16
Mr. Holmes is then observed gesturing to Mr. Millwood and Ms. White. Despite
multiple gunshot wounds and profuse bleeding, Mr. Holmes is able to stand with
Ms. White’s assistance. Once standing, Mr. Holmes then appears to remove a
handgun from his waistband and hand it off to Mr. Millwood, who then gave it to
11 Hr’g Tr. at 116-17. 12 See Search Warrant ¶ 6. 13 Id. 14 Id. 15 Id. 16 Hr’g Tr. at 154-55; State’s Resp. ¶ 5.
-4- Mr. Kornegay.17 Mr. Kornegay is seen walking towards and into the employee
bathroom, where he emerges seconds later emptyhanded.18 Finally, Mr. Millwood
is observed assisting Mr. Holmes exit the restaurant.19
Within a week of the shooting, the police returned to the Market Street Grill
to execute a search warrant in hopes of finding the handgun they believe they saw
Mr. Holmes pass off. Their search came up empty.20
Mr. Holmes has been indicted on the following felony charges: one count of
Possession of a Firearm by a Person Prohibited (“PFBPP”); one count of Tampering
with Physical Evidence; and one count of Conspiracy Second Degree.21 The trial of
those charges is set to begin today. And this is the Court’s written decision on
Mr. Holmes’s motion to suppress the Market Street Grill surveillance footage.
II. PARTIES’ CONTENTIONS
A. MR. HOLMES’S MOTION TO SUPPRESS
Mr. Holmes seeks to exclude all evidence obtained from the restaurant’s
surveillance footage.22 He initially raised three challenges, but after the suppression
17 State’s Resp. ¶ 5. 18 Id. 19 Id. 20 Id. ¶ 6. 21 Indictment, Sept. 16, 2019 (D.I. 1). 22 Def.’s Mot. to Suppress at 1.
-5- hearing, he narrowed that to two.23 First, Mr. Holmes argues that the detectives’
initial, on-scene watching of the surveillance footage was an illegal search or seizure
because that viewing was conducted without a warrant and unsupported by exigent
circumstances.24 Second, Mr. Holmes argues the subsequent surveillance video
search warrant lacked temporal limitations, thereby constituting an impermissible
“general warrant.”25
B. THE STATE’S OPPOSITION
First, the State contends that Mr. Baul gave the detectives valid permission to
collect the surveillance footage.26
Second, the State asserts that the search warrant for the surveillance system
was valid because temporal limitations were included as the affiant noted a 30-day
timespan in relation to the investigation, i.e., the surveillance system only stores a
maximum of one-month’s worth of data at a time.27
In its supplemental briefing, the State makes two additional arguments. Third,
that—if a search or seizure occurred—the immediate warrantless watch of the
23 At the suppression hearing, his counsel confirmed that Mr. Holmes is not pursuing the Franks issue he first posited. Hr’g Tr. at 65; see generally Franks v. Delaware, 438 U.S. 154 (1978) (allowing a criminal defendant to challenge evidence collected on the basis of a warrant granted on false statements of facts). 24 Def.’s Mot. to Suppress ¶¶ 7-10. 25 Id. ¶¶ 16-20. 26 State’s Resp. ¶¶ 15-16. 27 Id. ¶¶ 17-19.
-6- surveillance footage at the Market Street Grill was valid under the emergency
doctrine exception to the warrant requirement.28 And last, that Mr. Baul’s actions
were more than mere consent—he proactively volunteered the surveillance footage
to the detectives.29
The State initially argued that Mr. Holmes lacked standing to challenge the
collection of the surveillance footage because he failed to demonstrate a personal
connection or actual expectation of privacy in the restaurant’s surveillance system.30
In supplemental briefing, the State said it was no longer contesting Mr. Holmes’s
standing.31 Given this concession, the Court presumes without deciding that
Mr. Holmes has sufficient standing to bring his challenge.
III. STANDARD OF REVIEW
Mr. Holmes’s Motion to Suppress challenges what he terms: (1) a warrantless
search and seizure—the immediate on-scene viewing of Market Street Grill’s dining
room surveillance footage and subsequent collection of the digital drive containing
that video; and (2) a search for which a subsequent warrant had been issued—the
later viewing and collection of the shooting footage from that digital drive by hi-tech
28 State’s Supp. Resp. ¶ 15, Aug. 31, 2022 (D.I. 71). 29 State’s Supp. Resp. ¶¶ 3-5. 30 State’s Resp. ¶¶ 9-14. 31 State’s Supp. Resp. ¶ 2.
-7- forensics detectives. As each arguably invokes a different standard of review, the
respective challenges will be analyzed accordingly.
A. MOTION TO SUPPRESS – WARRANTLESS SEARCH OR SEIZURE
The United States and Delaware Constitutions guarantee protection from
“unreasonable searches and seizures” by government actors.32 On a defendant’s
motion to suppress evidence that was obtained without a warrant, the State must
substantiate the propriety of the challenged intrusion by a preponderance of the
evidence.33 To do so, the State must establish that “the challenged seizure comported
with the rights guaranteed by the United States Constitution, the Delaware
Constitution, and relevant statutes.”34
As a general matter, “[a] warrantless search [or] seizure is presumptively
unreasonable, subject to certain exceptions.”35 And while it is a rather odd
circumstance that instigates Mr. Holmes’s challenge here—i.e., the immediate on-
scene police investigation of his victimization where the police watched and seized
a recording of that very crime, which also happened to include evidence of Mr.
32 U.S. CONST. amend. IV; DEL. CONST. art. I, § 6. 33 State v. Henderson, 906 A.2d 232, 235 (Del. Super. Ct. 2005) (citing Hunter v. State, 783 A.2d 558, 560 (Del. 2001)). 34 State v. Roundtree, 2017 WL 4457207, at *2 (Del. Super. Ct. Oct 4, 2017) (citing State v. Lambert, 2015 WL 3897810, at *3 (Del. Super. Ct. June 22, 2015), aff’d 149 A.3d 227 (Del. 2016)). 35 Id. (citing State v. Hedley, 593 A.2d 576, 582 (Del. Super. Ct. 1990)).
-8- Holmes’s own illegal gun possession—some of those exceptions, directly or by
analogy, do apply and assist in the analysis here.
1. Exigent Circumstances – The Emergency Exception Doctrine
Delaware courts recognize the emergency exception doctrine as but one
species of exigent circumstances;36 this exception permits an otherwise disallowed
intrusion if there is an immediate need for the assistance of police.37 A warrantless
intrusion is lawful under the emergency doctrine if the State can establish that:
(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.38
To be valid, the search (or, here, seizure) must have a direct relationship between
that intruded upon place (or, here, item) and the emergency.39
2. Plain View
Another well- and long-accepted exception is the plain view doctrine, which
allows officers to seize evidence in their direct observation.40 A warrantless seizure
is valid under the plain view doctrine if the State can establish that: “(1) the officer
36 See Hall v. State, 14 A.3d 512, 515-18 (Del. 2011). 37 Roundtree, 2017 WL 4457207, at *2 (citing Guererri v. State, 922 A.2d 403, 406 (Del. 2007)). 38 Guererri, 922 A.2d at 406. 39 See Roundtree, 2017 WL 4457207, at *3. 40 Hardin v. State, 844 A.2d 982, 985 (Del. 2004).
-9- is lawfully in a position to observe the [item], (2) the item’s evidentiary value is
immediately apparent, and (3) the officer has a lawful right of access to the item.”41
3. Consent
Yet one more recognized exception to the warrant requirement is for searches
conducted pursuant to valid consent.42 To be valid, consent must be voluntary—
whether express or implied43—and the consenting individual must have the authority
to grant the consent.44 “Third party authority to consent to a search must include
both possession and equal or greater control, vis-à-vis the owner, over the area to be
searched.”45
“[A] third party’s consent to a warrantless search cannot be implied from a
mere property interest, since the authority justifying such consent is not derived from
the law of property. Rather, it rests on mutual use of the property by persons
generally having joint access or control for most purposes[.]” 46 Upholding this
41 McDougal v. State, 2015 WL 7272051, at *2 (Del. Nov. 16, 2015) (quoting Hardin, 844 A.2d at 985). Although that case law uses the term “contraband” in addition to “item,” that is of no moment as both concern seizing that which has obvious immediate evidentiary value, whether that seized is an illegal narcotic or a digital recording. 42 Scott v. State, 672 A.2d 550, 552 (Del. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 221-22 (1973)). 43 Cooke v. State, 977 A.2d 803, 855 (Del. 2009) (“Consent may be express or implied, but this waiver of Fourth Amendment rights need not be knowing and intelligent.” (citing Schneckloth, 412 U.S. at 241)). 44 Id. (citing United States v. Matlock, 415 U.S. 164, 171 (1974)). 45 Scott, 672 A.2d at 552 (citing Ledda v. State, 564 A.2d 1125, 1128 (Del. 1989)). 46 State v. Passerin, 449 A.2d 192, 197 (Del. 1982) (citation omitted); see also State v. Devonshire, 2004 WL 94724, at *1 (Del. Super. Ct. Jan. 20, 2004) (explaining that Delaware’s -10- principle in DeShields v. State, the Delaware Supreme Court explained: “Police may
conduct a warrantless search if consent is obtained from a third party who possesses
common authority over or other sufficient relationship to the premises or effects
sought to be inspected.”47 Common authority is a factual question requiring the trial
court to determine:
the use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that others have assumed the risk that one of their number might permit the common area to be searched.48
Thus, one “who shares common authority over otherwise private space
assumes the risk that the other person will allow in unwanted people.”49
Delaware and federal authorities are in sync with respect to third-party
consent based on actual authority.50 However, the consent of a third-party with
apparent authority—that is simply appearing to have authority—is invalid unless
actual consent is found.51 Just like a search or seizure conducted pursuant to an
consent exception is generally narrow and doesn’t recognize a good faith exception to its Constitutional search warrant requirement (citing Dorsey v. State, 761 A.2d 807, 819-20 (Del. 2000))). 47 534 A.2d 630, 643 (Del. 1987). 48 Id. (emphasis added) (citation omitted); see Donald v. State, 903 A.2d 315, 320 (2006). 49 Devonshire, 2004 WL 94724, at *3. 50 Id. 51 Id. at *4 (holding that a house-sitter generally has actual authority to allow visitors into a home; however, the house-sitter didn’t have common authority over the defendant’s bedroom to consent to a search thereof. Despite the house-sitter’s limited permission to enter the bedroom for incidental purposes, she lacked apparent authority to consent to its search because she “appeared -11- invalid warrant cannot stand, one occurring “under the consent exception to the
warrant requirement cannot be valid unless valid consent is actually present.”52
When determining whether consent was given voluntarily, courts consider
the totality of the circumstances surrounding the consent, including (1) knowledge of the constitutional right to refuse consent; (2) age, intelligence, education, and language ability; (3) the degree to which the individual cooperates with police; and (4) the length of detention and the nature of questioning, including the use of physical punishment or other coercive police behavior.53
B. MOTION TO SUPPRESS – WARRANT CHALLENGES
On a motion to suppress contesting the validity of a search warrant, the
defendant shoulders the burden of establishing that the challenged search or seizure
was unlawful.54 The Delaware Constitution provides that a search warrant may be
issued only upon a showing of probable cause.55
“It is well-settled that the Court must employ a ‘four-corners’ test to determine
whether an application for a warrant demonstrates probable cause.”56 Under the test,
to be no more than what she was, a temporary house sitter.” Thus, her apparent authority to consent was trumped by her lack of actual authority, and the search was deemed invalid.). 52 Id. at *6. 53 Cooke, 977 A.2d at 855 (citation omitted). 54 State v. Sisson, 883 A.2d 868, 875 (Del. Super. Ct. 2005) (internal citations omitted). 55 See DEL. CONST. art. I, § 6 (“The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or thing, shall issue without describing them as particularly as may be; nor then, unless there be probable cause supported by oath or affirmation.”). 56 Sisson, 883 A.2d at 876 (citing Pierson v. State, 338 A.2d 571, 573 (Del. 1975)).
-12- a reviewing court must discern whether the supporting affidavit “set[s] forth
sufficient facts on its face for a judicial officer to form a reasonable belief that an
offense has been committed and that seizable property would be found in a particular
place.”57 In addition to being “supported by probable cause,” a search warrant must
“be as particular as possible.”58 Specifically, “[t]he warrant must describe the things
to be searched with sufficient particularity and be no broader than the probable cause
on which it is based.”59
The judicial officer who made the initial finding of probable cause is owed
great deference, and such a finding won’t be “invalidated by a hypertechnical, rather
than a common sense, interpretation” of the affidavit.60 The reviewing court must
view the application “as a whole and not on the basis of its separate allegations.”61
57 Id. (internal quotations and citations omitted). 58 Taylor v. State, 260 A.3d 602, 613 (Del. 2021). 59 Wheeler v. State, 135 A.3d 282, 299 (Del. 2016) (citation omitted); see Taylor, 260 A.3d at 616 (rejecting warrant as not sufficiently limited because it “authorized a search of ‘any and all data’ on the smartphones[,]” instead of “limit[ing it] to smartphone data tied specifically to the probable cause supporting the warrant”). 60 Cooper v. State, 228 A.3d 399, 404 (Del. 2020) (quoting Jensen v. State, 482 A.2d 105, 111 (Del. 1984)). See Carroll v. United States, 267 U.S. 132, 146 (1925) (“The Constitution does not forbid search, as some parties contend, but it does forbid unreasonable search.”). 61 Jensen, 482 A.2d at 111 (citations omitted).
-13- IV. DISCUSSION
MR. HOLMES CERTAINLY WAS THE VICTIM OF A SHOOTING, BUT NOT OF ANY DISCERNIBLE CONSTITUTIONAL VIOLATION PERPETRATED BY THE POLICE TRYING TO SOLVE THAT CRIME.
A. THE IMMEDIATE ON-SCENE VIEWING AND COLLECTION OF THE MARKET STREET GRILL SURVEILLANCE FOOTAGE WAS EMINENTLY REASONABLE.
As a starting point, again, the United States and Delaware Constitutions afford
protection from “unreasonable searches and seizures.”62 Both guarantee that one’s
“persons, houses, papers, and effects,” will not be subject to certain government
intrusion.63 But as the text of both make clear, it is only an unreasonable search or
seizure that violates one’s rights.
An unreasonable search or seizure, under both Constitutions, occurs if (1) an
“‘individual manifested a subjective expectation of privacy in the object of the
challenged search,’ and [(2)] ‘society [is] willing to recognize that expectation as
reasonable.’”64 But “[w]hat a person knowingly exposes to the public, even in his
own home or office, is not a subject of Fourth Amendment protection.”65 This test,
62 U.S. CONST. amend. IV; DEL. CONST. art. I, § 6. 63 U.S. CONST. amend. IV; DEL. CONST. art. I, § 6 (protecting “persons, houses, papers and possessions”). 64 Everett v. State, 186 A.3d 1224, 1229 (Del. 2018) (addition in original) (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001)). 65 Katz v. United States, 389 U.S. 347, 351 (1967).
-14- first recognized in Katz v. United States,66 requires that both parts—subjective
expectation of privacy, a factual inquiry, and objective societal expectation, more of
a legal inquiry—be satisfied.67
These concepts provide an important backdrop to resolving this particular
challenge, where the recorded activity occurred in what was, at the time, in a wholly
public place. One might rightly wonder whether the investigating officers’
immediate on-scene watching and collection of the restaurant’s surveillance
implicate the Fourth Amendment or Article One, Section Six at all. And one can
easily reject Mr. Holmes’s proposition that without first obtaining a warrant, the
police immediately responding to the Market Street Grill should have never entered
the business’s office, watched the recorded footage of the shooting that had just
occurred there, nor collected that recording as evidence.
Perhaps upon trying to fit this challenged police activity into a constitutional
framework, one could stretch to assume the first prong of Katz might be met, but
likely not the second. That is because society recognizes no objective reasonable
expectation of privacy in readily observable activity occurring in the public dining
66 Id. 67 Everett, 186 A.3d at 1229; State v. Howard, 728 A.2d 1178, 1181 (Del. Super. Ct. 1998).
-15- area of a restaurant during regular business hours.68 So it is hard to fathom, under
these circumstances, that the recording of such would warrant the level of protection
Mr. Holmes now tries to attach to it.
As the United States Supreme Court has explained, there is no Fourth
Amendment protection for what a person exposes to the public.69 Here, the
surveillance footage captured the dining area of a restaurant, which was open to the
public.70 It was in fact this public access of the restaurant that allowed the shooter
to enter.71 Anyone was free to enter or exit that dining area and watch what was
going on there. Mr. Holmes suggests that he sought to “preserve as private”72 the
area where the shooting occurred and his discard of his own gun (or more aptly the
recording of such), but it is important to recall that this part of the restaurant was
held open to the public even if the recording of its goings-on was not.
And because the test is objective, in that it asks what society’s expectation is,
common sense would dictate that it matters not the purpose Mr. Holmes had when
recording what the restaurant’s surveillance camera detected; what matters is
68 Smith v. Bd. of Cty. Comm’r for Cty. of Otero, N.M., 316 Fed. Appx. 786, 789 (10th Cir. 2009) (affirming the district court’s finding that the appellant restaurant owners “retain[] no reasonable expectation of privacy in the public areas of their restaurant”). 69 Katz, 389 U.S. at 351. 70 See Hr’g Tr. at 152. 71 See id. 72 Katz, 389 U.S. at 351.
-16- whether there is a reasonable expectation of privacy in what is recorded on it. There
isn’t.
So at this very first stage, it is hard to glean how Mr. Holmes establishes that
he both has a subjective expectation of privacy in the recording and there existed an
objectively reasonable societal expectation of privacy therein such that any
warrantless seizure thereof, in these particular circumstances, would be
unreasonable.73 And application of some of the concepts mentioned earlier
demonstrates just why that is so.
B. IMMEDIATE INVESTIGATION OF MR. HOLMES’S SHOOTING AND POSSIBLE IDENTIFICATION OF HIS ASSAILANT PRESENTED EXIGENT CIRCUMSTANCES.
Under the emergency doctrine, police may conduct what might otherwise be
deemed an illegal entry, search, or seizure where “there is an immediate need for the
assistance of police to protect life or property.”74 When challenged, the State must
establish that a direct relationship existed between the area searched (or the item
seized) and the emergency.75
No doubt, the events that transpired here—a spontaneous, unprovoked,
daytime shooting inside of a restaurant, with the fleeing shooter still at large—is an
73 Everett v. State, 186 A.3d 1224, 1229 (Del. 2018). 74 Roundtree, 2017 WL 4457207, at *2 (citing Guererri, 922 A.2d at 406). 75 Guererri, 922 A.2d at 407.
-17- exigent circumstance requiring “immediate need for the assistance of police to
protect life or property.”76
The police responded to the Market Street Grill to investigate a shooting at
2:49 p.m. Based on the surveillance system’s real-time clock, the shooting occurred
at 2:45 p.m. So, police were on the scene almost immediately, arriving four minutes
after the shots were fired.77
Once on scene, police observed large pools of blood inside the restaurant’s
dining room and were informed there were both internal and external surveillance
cameras.78 Knowing that the shooter—who discharged a firearm and seriously
injured two men four minutes prior to their arrival—was still at large, the detectives’
otherwise warrantless entry into the back office of the restaurant to watch the
surveillance footage was directly related to their need to both understand what had
just occurred there and immediately identify and apprehend the offender.79 An at-
large shooter surely is a circumstance requiring immediate police action to protect
life or property.80
76 Roundtree, 2017 WL 4457207, at *2 (citing Guererri, 922 A.2d at 406). 77 See State’s Resp. ¶¶ 2, 4. 78 Id. ¶ 2. 79 Hr’g Tr. at 108-09. 80 See, e.g., Dixon v. State, 996 A.2d 1271, 1278-79 (Del. 2010) (contents of a 911 call were non- testimonial because exchange therein “was necessary to resolve a present emergency . . . [and] that was true even of the operator’s effort to establish the identity of the assailant”) (cleaned up). -18- Given the mere minutes that had passed between the shooter fleeing and police
responding, an ongoing emergency requiring immediate police attention was indeed
present. Under any reasonable view of the situation, the police were right that
unnecessary delay in accessing the surveillance system and viewing its recording
might have frustrated legitimate police objectives, further endangered others, and
allowed more distance between the shooter and investigators. Mr. Holmes is simply
mistaken that because “the crime had been completed and the suspect had escaped”
the scene there was no urgency to getting to the restaurant’s recording.81 Quite to
the contrary, the completed crime resulting in serious bodily injury and the gunman’s
then at-large status is exactly the circumstance that made the warrantless review of
the surveillance tape vital.82
Exigent circumstances were manifest here, and the police were justified in
promptly watching the restaurant’s recording to, at the very least, aid in the imminent
apprehension of a fleeing shooter.
81 Def.’s Mot. to Suppress ¶ 10. 82 Indeed, other courts have recognized the exigency of seizing and securing surveillance footage that might have recorded a crime or critical evidence thereof because of the nature of recording technology itself. Rameriz v. State, 174 N.E.3d 181, 188-90 (Ind. 2021) (finding exigent circumstances existed to seize the recording device of an external security camera while executing “a search warrant to photograph/videotape [the defendant’s] parents’ property” since the officers reasonably believed “the recorder contained ‘potentially fleeting evidence’ that was ‘clearly critical to the investigation”); People v. Tran, 255 Cal.Rptr.3d 26, 32-35 (Cal. Ct. App. 2019) (finding exigent circumstances existed to seize the defendant’s dash camera, since it was clear that camera contained evidence which could be destroyed either intentionally or inadvertently).
-19- C. THE PLAIN VIEW DOCTRINE ALSO SUPPORTS THE COLLECTION OF THE DIGITAL DRIVE CONTAINING THE RECORDING OF MR. HOLMES SHOOTING. Once the police knew there was recorded surveillance footage that likely
captured the shooting—whether they had viewed its contents on-scene or not—that
footage could be lawfully seized as an item in plain view.83 A warrantless search is
valid under the plain view doctrine if the State can establish that: “(1) the officer is
lawfully in a position to observe the [item], (2) the item’s evidentiary value is
immediately apparent, and (3) the officer has a lawful right of access to the item.”84
It is indisputable that the police were lawfully in a position to observe the
recording devices—both cameras in the dining room and recorder in the office—
while securing and investigating the scene (that being the whole of the Market Street
Grill) of what clearly was an attempted homicide. No doubt, the police had a lawful
right of access to any of the on-scene physical evidence of that crime. And even
without knowing its specific contents, the digital drive’s evidentiary value was
immediately apparent. Common sense would tell any investigator that the digital
device had as much evidentiary value, if not more, than fingerprints lifted, blood
stains photographed and swabbed, shell casings collected, or projectiles dug out of
a wall. As did those other forms of physical evidence, the hard drive just needed a
bit more processing to uncover its full evidentiary worth.
83 Hardin, 844 A.2d at 985. 84 McDougal, 2015 WL 7272051, at *2 (quoting Hardin, 844 A.2d at 985).
-20- That said, the on-scene viewing of the footage on that drive—which the Court
has already deemed valid—revealed that it had captured the shooting as it occurred.85
While Mr. Holmes dauntlessly insists otherwise, there is likely no more prized
evidence than a real-time recording of a crime like this as it occurs. Any argument
contesting the immediately apparent evidentiary value of the footage of the shooting
and its proximate surroundings is fallacious.
The collection of the Market Street Grill’s surveillance hard drive was
permissible under the plain view doctrine.
D. THE POLICE HAD VALID CONSENT TO VIEW AND COLLECT THE RESTAURANT’S SURVEILLANCE RECORDING.
In addition to the above, the police also had valid consent to view and seize
the hard drive containing the surveillance footage; that consent being granted by
Mr. Baul.
The credible evidence demonstrates that Mr. Baul would be considered at least
a part owner or controller of the Market Street Grill property. While Messrs. Holmes
and Baul both downplayed Mr. Baul’s involvement there,86 the facts demonstrate
sufficient acts and control for anyone to deem Mr. Baul able to grant valid consent
to the collection of the property’s surveillance footage.
85 Hr’g Tr. at 115, 150. 86 Hr’g Tr. at 37-41, 78; State’s Hrg. Ex 2.
-21- Mr. Baul signed the restaurant’s lease agreement.87 He had access to the
restaurant’s bank account such that he would sometimes write checks from the
restaurant to pay for services rendered.88 Mr. Baul’s name was on the restaurant’s
state business license.89 And the provider who installed the Market Street Grill’s
surveillance system, Art Wheeler a.k.a. “the camera guy,” averred that he believed
Mr. Baul was an owner of the business.90 Given all this, the Court finds Mr. Baul
had common authority over or other sufficient relationship to the restaurant and its
effects—including the surveillance system.
Now, Mr. Holmes says that the police were at some point told by Mr. Baul
that he was not “an owner” of the Market Street Grill. So, according to Mr. Holmes,
even if Mr. Baul had given his consent to collect the restaurant’s surveillance
footage, that consent was not valid.91 But in Mr. Holmes’s supplemental brief92 he
admits that it was only after police viewed the footage on-scene and collected the
surveillance system’s hard drive that a detective spoke to Mr. Baul in any detail.93
87 Hr’g Tr. at 35-36. 88 Id. at 31, 62. 89 Id. at 38-40; State’s Hr’g Ex. 2. 90 Id. at 22, 50-51, 78; Joint Hr’g Ex. 2 (Affidavit of Art Wheeler). 91 Def.’s Supp. Br. ¶¶ 1-2, Aug. 15, 2022 (D.I. 70). 92 Mr. Holmes submitted both a supplemental brief and an additional reply to the State’s supplemental brief. The Court ordered only one post-hearing filing for each side. See Hr’g Tr. at 160; see also D.I. 67. That notwithstanding, to be complete, the Court has fully considered Mr. Holmes’s unsolicited reply. 93 Def.’s Supp. Br. ¶ 2; Hr’g Tr. at 27-29.
-22- This timing is important because when police collected the hard drive they were
operating under the very reasonable understanding that Mr. Baul had actual authority
to consent to the viewing and seizure of the surveillance footage.94
Mr. Baul arrived at the restaurant shortly after the shooting occurred and
cooperated with, no, was insisting that, the police should get the video to “find out
who did this.”95 And so Mr. Baul, of his own accord—not necessarily because of
any police prompting—initiated a call to Delaware Camera Systems to send
technicians to help police obtain the recorded surveillance.96 Given the totality of
credible evidence of Mr. Baul’s involvement with the Market Street Grill’s business
structure, initial setup, and ongoing operations, the Court finds he had actual
authority to consent. Indeed, Mr. Holmes himself had imbued him with such
authority.97
94 Id. at 114. 95 Id. at 25-26, 45-46, 51, 128-29, 139. 96 Id. at 25-26, 128-29, 139. 97 THE COURT: Okay. And from what you had said, the reason you put Mr. Baul on all these things is basically you trusted him with your business? MR. HOLMES: Yes. THE COURT: You trusted him – MR. HOLMES: Yes. THE COURT: -- financially? You trusted him to be on the lease? You trusted him with the surveillance stuff? MR. HOLMES: Yeah. Id. at 97-98.
-23- So, though Mr. Baul testified that he was never expressly asked by the police
if he “consented” to them accessing the camera system,98 his actions in calling
Mr. Wheeler to send technicians to assist the police are sufficient to establish by a
preponderance of the evidence that he at the very least implicitly consented to the
seizure.99 Clearly, the technicians operated on directions from Mr. Baul to get the
footage to the police.100 And there is nothing in the record that would invalidate
either his authority or his aid and consent in allowing its collection. 101
E. WHILE LIKELY UNNECESSARY, THE WARRANT ALLOWING ACCESS TO THE HARD DRIVE’S CONTENTS WAS NONETHELESS VALID.
A valid search warrant must be particular, specifically identifying “the place
to be searched, and the persons or things to be seized.”102 The particularity
requirement prevents the issuance of general warrants that may be overly intrusive
and not narrowly tailored to their justifications.103 A supporting affidavit must “set
forth sufficient facts to warrant a reasonable man in concluding that a crime has been
committed and that the property sought to be seized would be found in a particular
98 Id. at 29. 99 Flonnory v. State, 109 A.3d 1060, 1063 (Del. 2015) (“consent may be express or implied, but this waiver of Fourth Amendment rights need not be knowing and intelligent.”) (quoting Cooke, 977 A.2d at 855). 100 See Hr’g Tr. at 45-46, 50-51, 139. 101 See Cooke, 977 A.2d at 855. 102 Wheeler, 135 A.3d at 295-96. 103 Id. at 299.
-24- place.”104 To establish probable cause, “a nexus [must appear] between the items . .
. sought and the place to be searched.”105
Here, the first eight paragraphs of the affidavit of probable cause sufficiently
detail the surrounding events of the Market Street Grill shooting such that a
reasonable person would conclude that a crime had been committed and that relevant
evidence would be found on the drive collected.
The affidavit describes the life-threatening injuries sustained by the two
victims and their subsequent emergent surgeries, and what actions the police took
during their initial response to and on-scene investigation of the restaurant
shooting.106 It details the officers’ discovery of the surveillance system that has
“various remote cameras positioned throughout the restaurant that record and store
data.”107
Further described is what the officers observed on the surveillance system’s
recorded playback of the incident and that that previous viewing was done with the
help of the technicians who installed the surveillance system.108 The detectives were
informed that the drive contained “approx. 1 month of video storage.”109 After
104 Blount v. State, 511 A.2d 1030, 1032-33 (Del. 1986) (citation omitted). 105 Hooks v. State, 416 A.2d 189, 203 (Del. 1980) (citations omitted). 106 Search Warrant ¶¶ 1-8. 107 Id. ¶ 3. 108 Id. ¶¶ 4-6. 109 Id. ¶ 9.
-25- observing the recording, the surveillance system technicians “attempted to copy just
the timeframe of the incident itself to a Delaware State Police external hard drive.”110
It was later discovered that transfer failed. In turn, the drive that was collected out
of an abundance of caution111 needed to be accessed.112
The authoring detective, after citing the foregoing in the supporting affidavit
and search warrant application, requested: “All video surveillance data from all
available camera views stored on the WD Purple video surveillance hard drive.”113
While Mr. Holmes suggests that there should have been either some temporal or
content limitations placed, his cramped view and citation to cases with far different
factual circumstances are unavailing.
First, unlike a smart phone, computer or other like device, the hard drive here
had only one form of data or information—recorded video images of the happenings
at the Market Street Grill. Second, Mr. Holmes offers no evidence that his time-
partitioned examination of that data was technically feasible—i.e. that when
110 Id. ¶ 8. 111 Hr’g Tr. at 129-32, 139. 112 From the warrant’s averments (and even the expanded record now before the Court), it is reasonable to infer that the collected drive contains no other data or information but the silent video images recorded from the restaurant’s cameras. So it is likely the detectives didn’t need a search warrant to again access the footage that had already been seen. Yet, as a prophylactic, the hi-tech crime unit applied for a judicial authorization warrant before again viewing and extracting the footage. That unit’s detectives routinely apply for search warrants before taking such action. See Bradley v. State, 51 A.3d 423, 436 (Del. 2012). But their caution in obtaining the search warrant does not mean the previously discussed warrant exceptions were not present or met. 113 Search Warrant at 1.
-26- exploring the drive itself one would be forensically capable of honing in on just the
shooting footage. Third, Mr. Holmes—who in one breath unconvincingly argues
the police didn’t really need to collect the surveillance footage at all—ignores the
investigative value of examining the entire 30 days of footage to determine if the
shooter had for instance cased the scene before the shooting. Last, Mr. Holmes’s
implicit suggestion that one seeking or authorizing the warrant should expect that
the police must stop viewing it as soon as the shooter leaves the restaurant, ignores
the obvious investigative value of putting together the immediate aftermath also.114
Put plainly, sufficient nexus exists between the Market Street Grill shooting
on July 17, 2019, and the recorded contents of the entire hard drive. It is manifest
from the four corners of the affidavit that “all video evidence stored on the cameras”
was written with knowledge that any such evidence only included one-month’s
worth of recorded restaurant video. The warrant and supporting affidavit requested
“all video surveillance data from all available camera views”115 to be “used or
intended to be used for [the investigation of]: Assault 1st Degree: DE 11/0613 . . .
.”116 The affiant also explained that a search of the hard drive “may be valuable in
the discovery of evidence pertinent to the planning of this shooting by the suspect or
114 Hr’g Tr. at 129-32, 139. 115 Search Warrant at 1. 116 Id.
-27- any associated accomplices.”117 This is hardly an overreach or a broad “general
warrant” allowing the police snatch up more than evidence necessary for the
shooting investigation.
That search warrant allowing extraction of the footage—that, again, had
already been validly watched and collected by the police at the crime scene—
satisfied the particularity requirements.
V. CONCLUSION
The dynamics of the initial investigation of the shooting of Brandon Holmes
at the Market Street Grill allowed for the police to access, view, and collect the
restaurant’s surveillance footage of what occurred in its public dining area. To put
it in constitutional terms, each step was permitted under one, the other, or each of
the plain view, exigent circumstances, or consent doctrines.
The search warrant, if necessary, to later access that footage on the
surveillance system’s digital drive: met the constitutional particularity
requirements; does not fail for lack of temporal limitations; and was supported by
sufficient probable cause.
Accordingly, Mr. Holmes’s Motion to Suppress must be DENIED.
IT IS SO ORDERED.
__________________________ Paul R. Wallace, Judge 117 Id. ¶ 9.
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