State v. Jordan

• Court: Superior Court of Delaware
• Decided: June 28, 2024
• Docket: 1810005053A&B
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) Case No. 1810005053A&B ) SEAN P. JORDAN, ) ) Defendant. )

Submitted: March 25, 2024 Decided: June 28, 2024

ORDER

Upon consideration of Defendant Sean P. Jordan’s Amended Motion for

Postconviction Relief and the responses thereto, Superior Court Criminal Rule 61,

statutory and decisional law, and the entire record in this case, IT APPEARS

THAT:

1. These are the facts as the Court finds them based on the record. On May

22, 2019, after a six-day jury trial, Jordan was convicted of Carrying Concealed

Deadly Weapon, Drug Dealing, Aggravated Possession, two counts of Possession of

a Firearm During the Commission of a Felony (“PFDCF”), Possession of Drug

Paraphernalia, Loitering for Drug Activity, Possession of a Firearm by a Person Prohibited (“PFBPP”), and Possession or Control of Ammunition by a Person

Prohibited (“PABPP”).1

2. Jordan’s convictions stem from an October 9, 2018, anonymous 911 call

concerning drug activity outside of 2206 Spruce Street in Wilmington, Delaware. The

complaint indicated that two Black males were selling narcotics out of a silver

Mercedes-Benz (the “Mercedes”). At approximately 7:14 a.m., Wilmington Police

Department Officers Johnson and Dickerson were dispatched to investigate the

complaint.

3. When Officers arrived near the area, they parked their marked vehicle

and approached the area on foot. While walking toward Spruce Street, they observed

two individuals who matched the description provided by the 911 caller. Terrance

Crosby was seated directly in front of the steps to 2204 Spruce Street (the

“Residence”) on a stool. The Residence was condemned as unfit for human

habitation. Jordan, observed using his cellphone, was seated on a folding chair

located on the sidewalk in front of the driver’s side door of the Mercedes. Without

waiting to verify any of the 911 caller’s statements regarding drug activity, the

Officers confronted the individuals.

1 Jordan’s PFBPP and PABPP charges were severed and separately tried before the same jury immediately following the jury’s verdict in the “A” case.

2 4. The Officers asked the gentlemen why they were sitting outside of the

Residence. Jordan responded that he was watching the house for its owner, Eleanor

Flemming. During this interaction, Officer Johnson noticed a white bag located under

Crosby’s stool. Crosby intermittently pushed the bag further backwards, then placed

his foot on top of the bag. After asking Jordan and Crosby for identification, the

Officers found Crosby had two outstanding warrants for his arrest. Crosby,

overhearing this information conveyed to the Officers via police radio, proceeded to

grab the white bag and attempt to leave. Officers quickly detained Crosby and secured

the white bag. Crosby, then, voluntarily professed that “everything in that bag is mine.

It has nothing to do with [Jordan].”2 A search of the white bag uncovered candy, a

box of condoms, and a loaded Smith & Wesson handgun (the “Firearm”).

5. In furtherance of the investigation, Officers contacted Flemming to

search inside the Residence and Flemming consented. In the Residence, Officers

found a Christmas bag on the floor that contained wrapping paper, 273 glassine bags

of heroin, 29 plastic vials of heroin, a cardboard box containing plastic sandwich bags,

a razor blade, and a digital scale. Flemming confirmed ownership of the Christmas

bag and related wrapping materials, but not the heroin and drug paraphernalia.

Flemming later clarified that although she asked Jordan to watch the Residence and

allowed him to sit on the porch in inclement weather, she did not give him permission

2 A154 at 61:13-14.

3 to go inside. Subsequently, the Officers obtained a warrant to search Jordan’s

Mercedes. Upon execution, a small amount of marijuana in a mason jar, a silver

grinder, and $914.00 were found in the Mercedes.3

6. Crosby consented to the search of his vehicle which revealed a digital

scale as well as five vials of heroin, empty heroin bags, and drug paraphernalia.

7. After arresting Jordan, Officers seized his two cellphones and later

obtained a warrant to extract data from the cellphones. The warrant sought:

any/all data stored by whatever means, and/or through the forensic examination of said cellular telephone, to include but not limited to registry entries, pictures, photographs, images, audio/visual recordings, multi-media messages, web browsing activities, electronic mail, telephone numbers, any similar information/data indicia of communication, and any other information/data pertinent to this investigation within the time frame of 01 May, 2018 to 09 October, 2018.4

8. The text messages extracted from one of Jordan’s cellphones pursuant to

the search warrant was used throughout his trial. In its opening statement, the State

represented these messages contained “lots and lots of messages about drug dealing”5

and that the evidence would show “the presence of a firearm consistent with drug

3 The record later reflects that there was a mistake in the original testimony in that the scale was found in Crosby’s truck, not Jordan’s Mercedes. See Reply to Amend. Mot. for Postconviction Relief at 12; A260-61. 4 A078-87. Jordan notes that there were two search warrants relating to his two cellphones, however, only evidence from the silver and black LG phone was admitted at trial. Therefore, the Court need not reach the issue related to the black Samsung cellphone. 5 A110-11.

4 trafficking.”6 Specifically, the State told the jury a drug expert will “talk about the

[Firearm] and how firearms are relevant to the drug trade.”7

9. At trial, Detective Alexis Schupp of the Wilmington Police Department

Drug and Organized Crime Unit testified as an expert witness that many of Jordan’s

text messages used language that was consistent with drug sales in Wilmington. For

example, the messages identified Jordan by his street name and indicated he possessed

heroin for sale at 2204 Spruce Street. After using the text messages to portray Jordan

as a drug dealer, Detective Schupp explained how firearms play a role in the drug

trade and that drug dealers use firearms to protect themselves from being robbed by

other drug dealers or purchasers. Finally, Detective Schupp explained that drug

dealers purposely keep their drugs and weapons in different locations to thwart police

investigations.

10. In its closing argument, the State cited to Jordan’s text messages,

emphasizing the “cell phone dump shows you that [Jordan] is actively engaged in the

sale of drugs from 2204 [] Spruce Street, and that one of the drugs he sells is heroin.”8

Relying on Detective Schupp’s testimony, the State argued that the cash, Firearm,

drugs, and text messages established Jordan possessed the heroin with intent to

6 A121. 7 A120. 8 A675.

5 deliver. As to the weapon related charges, the State reminded the jury of the need for

drug dealers to possess a weapon.

11. On May 21, 2019, Jordan was convicted. After a presentence

investigation, the Court sentenced Jordan to a total of 8 years at Level V unsuspended,

followed by probation, and ordered Jordan to pay fines totaling $250.9 On September

22, 2020, the Supreme Court affirmed Jordan’s convictions on direct appeal.10

12. Jordan timely filed his first motion for postconviction relief pro se

pursuant to Rule 61.11 Subsequently, Jordan filed a Motion for Appointment of

Counsel which was granted by this Court.12 Postconviction Counsel was appointed

to represent Jordan for purposes of seeking postconviction relief.13 Postconviction

Counsel filed an amended motion for postconviction relief (the “Motion”) on January

10, 2023.14 In his Motion, Jordan raised one claim – ineffective assistance of counsel.

Jordan’s trial counsel (“Trial Counsel”) and the State responded to Jordan’s

argument,15 and Jordan filed a reply in further support of his claim.16 The Court held

9 A801-08. 10 Jordan v. State, 239 A.3d 389, 2020 WL 5641869 at *2 (Del. Sept. 22, 2020) (TABLE). 11 D.I.A. 63; D.I.B. 35. 12 D.I.A. 65; D.I.B. 36. 13 D.I.A. 67; D.I.B. 38. 14 D.I.A. 85; D.I.B. 56. 15 D.I.A. 90 and 93; D.I.B. 61 and 64. 16 D.I.A. 96; D.I.B. 67

6 oral argument and the State and Postconviction Counsel filed supplemental

submissions addressing the issues developed at the hearing.

13. Before addressing the merits of any claim for postconviction relief, this

Court must determine whether the motion is barred procedurally under Superior Court

Criminal Rule 61.17 A motion for postconviction relief may be barred for timeliness

and repetition, among other things. A Rule 61 motion is untimely if it is filed more

than one year after final judgment of conviction.18 A defendant is also barred from

filing successive motions for relief under the Rule.19 Rule 61further prohibits motions

based on grounds for relief that were not asserted in the proceedings leading up to the

judgment of conviction, unless the movant demonstrates “[c]ause for relief from the

procedural default” and “[p]rejudice from violation of the movant’s rights.”20 Finally,

the Rule bars consideration for relief on grounds that previously were adjudicated in

the case.21

14. Jordan’s Motion was filed less than a year after his sentence became final

and therefore it is timely. Because this is Jordan’s first for postconviction relief it is

not barred as repetitive. Lastly, the Motion alleges ineffective assistance of counsel,

17 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 18 Super. Ct. Crim. R. 61(i)(1). 19 Id. at 61(i)(2); See id. at 61(d)(2)(i)-(ii) (regarding the pleading requirements for successive motions). 20 Id. at 61(i)(3)(A)-(B). 21 Id. at 61(i)(4).

7 which could not have been raised at any earlier stage in the proceedings; 22 ineffective

assistance claims may not be raised until postconviction proceedings.23 Accordingly,

the Motion will be decided on the merits.

15. When a claim of ineffective assistance of counsel is raised, the two-prong

test in Strickland governs the analysis.24 To prevail, a defendant must demonstrate

that: (1) trial counsel’s representation fell below an objective standard of

reasonableness; and (ii) there is a reasonable probability that, but for counsel’s errors,

the result of the proceeding would have been different.25 There is a strong

presumption that counsel’s representation was reasonable.26 Accordingly, a defendant

must make specific allegations of actual prejudice and substantiate them; mere

allegations or conclusory statements will not suffice.27 Jordan meets this burden.

16. Jordan contends Trial Counsel was ineffective because he failed to move

to suppress evidence obtained from the search of his cellphone, when there was no

nexus between the alleged crime committed and the device to be searched. The

22 Whittle v. State, 138 A.3d 1149 (Del. 2016); State v. Evan-Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016). 23 See, e.g., Malloy v. State, 16 A.3d 938, 2011 WL 1135107, at *2 (Del. Mar. 28, 2011) (TABLE). 24 Strickland v. Washington, 466 U.S. 668, 688-94 (1984); see also Neal v. State, 80 A.3d 935, 941-42 (Del. 2013). 25 Id. 26 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 27 Id.; see Monroe v. State, 2015 WL 1407856, at *3 (Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996)).

8 absence of a motion to suppress, allowed the State to introduce text messages at trial,

prejudicing Jordan. Therefore, Jordan also asserts that there is a reasonable

probability that but for the alleged errors, the result of the proceeding would have

been different. Jordan argues if the motion to suppress had been filed, it would have

been granted, and the State would have been barred from using the text messages at

trial. The illegally obtained evidence, Jordan contends, led to his wrongful

conviction. Considering the facts of the instant case, the Court finds Trial Counsel’s

representation fell below an objective standard of reasonableness because Trial

Counsel failed to file a motion to suppress, despite a strong likelihood of success. 28

Had the evidence been suppressed, there is a reasonable probability that trial would

have been different. The Court’s reasoning follows.

17. Trial Counsel should have filed a motion to suppress challenging

probable cause and the particularity requirement. The United States Constitution’s

Fourth Amendment guarantees “no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched,

28 Delaware courts have held an attorney’s failure to file a motion to suppress, when he had a reasonable belief that such motion would not be successful, does not fall below an objective standard of reasonableness. State v. Day, 2010 WL 2861852, at * 3 (Del. Super. 2010). But unlike Day, this case does not involve counsel who (i) analyzed whether a motion to suppress would be successful, and (ii) concluded otherwise. Id. Further, there is no indication in the record that Trial Counsel found the filing of a motion to suppress based on the known facts “meritless” or “frivolous.” See State v. McGlotten, 2011 WL 987534, at *11 (Del. Super. 2011).

9 and the persons or things to be seized.”29 The Delaware Constitution provides

substantially the same protections: “no warrant to search any place … or thing, shall

issue without describing them as particularly as may be; nor then, unless there be

probable cause supported by oath or affirmation.”30 Accordingly, the United States

and the Delaware Constitutions provide protections to those whose property is subject

to an investigatory police search and both require that a warrant be supported by

probable cause and describe the places and things to be searched with particularity.31

Delaware law establishes a “four-corners” test for probable cause.32 This means the

probable cause finding be supported only by those facts set forth within the warrant

affidavit or application.33 An affidavit establishes the requisite probable cause “only

where it contains a nexus between the items sought and the place to be searched.”34

“In its most basic form, an affidavit must point not only to the evidence to be seized

and the place to be searched, but also the reason why the affiant believes such evidence

will be found in the place searched.”35

29 U.S. Const. amend. IV. 30 Del. Const. Art. I § 6. 31 Terreros v. State, 312 A.3d 651, 661 (Del. 2024) (citing Fink v. State, 817 A.2d 781, 786 (Del. 2003)). 32 Id. at 662 (citing Valentine v. State, 207 A.3d 566, 570 (Del. 2019)). 33 Id. 34 State v. Adams, 13 A.3d 1162, 1173 (Del. Super 2008) (citing Hooks v. State, 416 A.2d 189, 203 (Del. 1980)). 35 Terreros, 312 A.3d at 662 (citing 11 Del. C. § 2306).

10 18. Here, the affidavit does not set forth sufficient facts to connect Jordan’s

device to the then-alleged drug activity. The affidavit contains only two references

related to Jordan’s cellphone. The first, in Paragraph 8, states that “immediately prior

to his arrest, Jordan was observed using this mobile device.” 36 The second, in

paragraph 10, provides that “persons involved in criminal acts will utilize Mobile

Electronic Devices such as cellular telephones to further facilitate their criminal acts

and/or communicate with co-conspirators.”37 Neither statement even suggests that

Jordan used his cellphone to communicate, much less used the cellphone to commit

or facilitate the drug offense or as an instrumentality of the drug offense. Also, in

Buckham v. State, the Supreme Court of Delaware found that generalized suspicions

such as “criminals often communicate through cellular phones” do not provide a

substantial basis to support a probable cause finding.38 The affidavit does not contain

any information that evidence of a crime would be found. Therefore, these statements

are unpersuasive and provide no basis to suspect that Jordan’s cellphone was likely to

contain evidence. The affidavit lacks adequate facts that would establish the evidence

of drug dealing would be found in Jordan’s cellphone. Accordingly, the cellphone

36 A080. 37 A081. 38 185 A.3d 1, 17 (Del. 2018).

11 evidence was seized before establishing probable cause which is unlawful under the

protections of the United States and Delaware Constitutions.39

19. In addition, the warrant does not satisfy the particularity requirement. To

meet the particularity requirement, the warrant must describe the things to be seized

and the places to be searched with particularity such that “nothing is left to the

discretion of the officer executing the warrant.”40 The Delaware Supreme Court

opines that insufficiently particular warrants fall into two categories: general warrants

and overbroad warrants.41 General warrants allow police officers to conduct an

indiscriminate search or exploratory rummaging and the fruits must be suppressed in

their entirety.42 Overbroad warrants explicitly allow law enforcement to search places

39 The State’s argument that it could have re-applied for a new warrant and that it would be upheld under the independent source doctrine is without merit. Assuming, without deciding, that the Court would permit a new warrant, the State still failed to articulate sufficient probable cause that would pass constitutional muster. 40 Terreros, 312 A.3d at 662 (citing Marron v. United States, 275 U.S. 192, 196 (1927); Groh v. Ramirez, 540 U.S. 551, 557 (2004)). 41 Id. (citing Maryland v. Garrison, 480 U.S. 79, 84 (1987) (“The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one ‘particularly describing the place to be searched and the persons or things to be seized.’ The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications and will not take on the character of the wide- ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is ‘defined by the object of the search and the places in which there is probable cause to believe that it may be found.’”). 42 Id. (citing Wheeler v. State, 135 A.3d 282, 292 (Del. 2016)).

12 and things when probable cause exists to search them and the portions of the search

lacking probable cause can be redacted.43

20. Here, although the warrant identifies a temporal period, it constitutes a

general warrant because the evidence sought comprises almost all the cellphone’s

data, none of which is supported by probable cause. Specifically, the police were

granted authority to search “any/all data stored” of the phone for evidence “pertinent

to the investigation.”44 This is exploratory rummaging. For this reason, too, the

warrant is invalid, and the search for and review of the text messages violated Jordan’s

rights under United States and Delaware Constitutions. Therefore, failing to file a

motion to suppress constituted ineffective assistance of counsel.

21. Without the evidence obtained from the illegal search, the outcome of

Jordan’s trial would have been different. Under Strickland’s second prong, Jordan

must establish actual prejudice. As previously determined, Trial Counsel’s

representation fell below an objective standard of reasonableness because he failed to

file a motion to suppress despite the likelihood such motion would have succeeded.45

If a motion to suppress had been filed, it would have been granted because no probable

cause or particularity existed for the search warrant.

43 Id. (citing Wheeler, 135 A.3d at 296). 44 A078. 45 See supra n.28.

13 22. The State argues the evidence, sans the text messages, was more than

sufficient for the jury to find Jordan guilty. The evidence without the text messages

included, a 911 call that two men were dealing drugs at a location near where Jordan

was found, the Firearm, located under Crosby’s stool which Crosby indicated

belonged to him and tried to abscond with, presence of Jordan’s DNA on the gun’s

trigger, Jordan’s possession of two cellphones, heroin and drug paraphernalia in the

Residence, testimony from Flemming that Jordan was not permitted inside the house,

and cash and marijuana in Jordan’s car. Absent the text messages, Jordan argues, the

State would have been limited to Jordan’s proximity to the contraband. The Court

agrees. As to Jordan’s DNA on the weapon, Trial Counsel created sufficient

reasonable doubt as to whether Jordan actually touched or possessed the weapon

during cross-examination of the State’s forensic DNA analyst.

23. As detailed above, the State presented content and interpretation of the

text messages throughout the trial. The cellphone evidence enabled the State to tie

Jordan to the heroin and Firearm. At trial, Detective Schupp read and interpretated

of 77 of the text messages. In conclusion, Detective Schupp testified that

“[e]verything we went through on the text messages indicated drug sales”46 and that

“firearms are used in the drug trade in order to protect themselves from other drug

dealers and/or purchasers that want to rob them of said drugs.” Thus, the State’s case

46 A606 at 37:7-8.

14 intertwined the drug and firearm charges by presenting the Firearm as an

instrumentality of Jordan’s drug dealing, which was established through the text

messages. Accordingly, there is a reasonable probability that had the cellphone

evidence been suppressed, the trial would have been different for Jordan.

24. In summary, Jordan has met his burden of demonstrating (i) Trial

Counsel’s performance objectively was unreasonable by not pursuing a motion to

suppress evidence obtained as a result of an illegal search; and (ii) Jordan was

prejudiced as a result of that alleged deficiency.

25. Postconviction relief due to ineffectiveness of counsel must be granted

in circumstances where the Court finds trial counsel’s efforts fell below reasonable

standard but for those errors, the outcome of the proceeding would have been

different. Those challenging hurdles were met here. For the foregoing reasons,

Jordan’s Motion is GRANTED.

IT IS SO ORDERED.

Patricia A. Winston, Judge

Original to Prothonotary (Criminal Division) Cc: John S. Taylor, Esquire, Department of Justice John S. Malik, Esquire Benjamin S. Gifford, Esquire Sean P. Jordan (SBI No. 282381)