IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAMAR K. THOMPSON, § § No. 489, 2017 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § ID. No. 1209018130 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §
Submitted: May 9, 2018 Decided: July 24, 2018
Before VALIHURA, VAUGHN, and SEITZ, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Tasha M. Stevens, Esquire, of the Office of Fuqua, Willard, Stevens & Schab, P.A., Georgetown, Delaware for Appellant.
Abby Adams, Esquire, of the Department of Justice, Georgetown, Delaware for Appellee. VAUGHN, Justice:
In this appeal, Appellant Jamar K. Thompson challenges a Superior Court
finding that he violated his probation. He asserts three claims. He first contends
that his right to due process under Amendment XIV of the United States Constitution
was violated because he was provided with an untimely and incomplete disclosure
of the evidence against him, he was unavailable to testify, and a witness he intended
to call was not permitted to testify. He next contends that the Superior Court violated
his rights under Amendments IV and XIV of the United States Constitution and
Article I § 6 of the Delaware Constitution by refusing to consider his argument, made
at the hearing, that the evidence against him was the product of an unlawful search
and seizure and should be suppressed. Finally, he contends that the evidence against
him was insufficient to support a finding that he violated his probation. After
considering Thompson’s claims, we have concluded that the judgment of the
Superior Court should be affirmed.
FACTS AND PROCEDURAL HISTORY
On July 4, 2017, at about 12:47 p.m., Officer DeMalto of the Governor’s Task
Force was driving an unmarked sport utility vehicle on Route 13 southbound in the
area of Seaford. He noticed a gold Acura RL hastily weaving through traffic ahead
of him. Traffic was heavy and the car was not signaling lane changes. The officer
followed the Acura as it turned onto Brickyard Road. The driver of the Acura then
2 began following close behind a black sedan. Suddenly, the officer observed what
he termed an “explosion” in the front of the Acura. Smoke and fluid spewed from
under the hood. Believing the Acura had collided with the black sedan, the officer
followed it as it pulled into the parking lot of the Service Tire Truck Center at Route
13 and Brickyard Road.
The officer pulled his vehicle behind the Acura, intending to check and make
sure no one in the Acura was injured and to investigate why the car was following
so closely behind the black sedan. He exited his vehicle and approached the Acura.
The driver, Appellant Thompson, was the only one in the vehicle. The vehicle
appeared to be “unstable, unsafe, and inoperable. There was a large amount of green
fluid on the windshield and leaking from the hood area. There was a noticeable
amount of smoke and steam coming from the hood area . . . .”1
Thompson explained to the officer that something in the car had
malfunctioned, causing it to overheat and explode. For the safety of Thompson and
the officer, Thompson was asked to get out of the vehicle.
As Thompson spoke to the officer outside the vehicle, he appeared to be
nervous. He was looking off into the distance and avoided eye contact. He walked
around the vehicle and tried to open the hood, stating that he needed to get to a
nearby residence.
1 App. to Appellant’s Opening Br. at A42. 3 The officer asked Thompson for his driver’s license and returned to his patrol
vehicle to check Thompson’s history. He learned that Thompson was on probation,
and that he had an extensive criminal history with several drug and weapon offenses.
Due to Thompson’s nervous demeanor and his criminal history, the officer called a
Town of Blades police officer who he knew was nearby to assist him. The officer
also contacted a probation officer who was assigned to the Governor’s Task Force
to check on Thompson’s probation compliance.
Office DeMalto returned to Thompson and asked him questions about his
probation. Thompson told the officer he was compliant with his probation but he
could not remember on which day in the prior week he had reported. The officer
told Thompson that an officer with a K-9 would be arriving. Thompson then made
an odd statement that the K-9 would probably alert to the green fluid coming out of
his vehicle.
Officer DeMalto asked Thompson if he would consent to a search and
Thompson declined. When the Blades officer arrived, Officer DeMalto asked him
to use his narcotic-certified dog to conduct a free-air sniff of the vehicle. The K-9
alerted at the driver’s door. The officer asked Thompson if there was “anything
illegal inside the vehicle that would cause such an alert such as firearms, narcotics,
or drug paraphernalia. . . . Thompson advised that it was his girlfriend’s car and that
4 there wasn’t anything illegal in the car that belonged to him.” 2 The officer asked
Thompson to stand with the Blades officer, and he searched the Acura. As the search
began, Thompson told the officer that there was some marijuana in the center arm
rest. The officer located marijuana in the center arm rest, and also found a Smith &
Wesson 9 millimeter handgun concealed under the front passenger seat, within arm’s
reach of Thompson when he was in the driver’s seat. The gun was loaded with a
magazine containing fourteen 9 millimeter rounds. The officer asked Thompson if
his fingerprints would be on the gun, and Thompson said that they would. The
officer then searched Thompson. The officer found $755 in United States Currency.
The substance in the center arm rest field-tested positive for marijuana. The entire
encounter, up to the point where the officer located the firearm, took about 20
minutes.
Officer DeMalto took Thompson back to the state police barracks for
processing. Thompson told the officer the cash did not belong to him. Fingerprints
were lifted from the gun, but the test results were inconclusive. The gun was
analyzed for DNA, but the result was not known at the time of the violation of
probation (“VOP”) hearing. Thompson declined to be interviewed.
The Acura was registered to Sheneese Showell. Shortly after Thompson’s
arrest she called Officer DeMalto and informed him that the firearm found in the car
2 Id. at A47. 5 belonged to her and she would like to have it back. The officer told her it had been
admitted into evidence and would not be immediately available to her. The gun was,
in fact, registered to Ms. Showell.
Thompson was charged with Possession of a Firearm by a Person Prohibited,
Possession of Ammunition by a Person Prohibited, Carrying a Concealed Deadly
Weapon, Possession of Marijuana, and Following Too Closely. On July 13, 2017
the State dismissed the charges, subject to further investigation and a potential
indictment at a later date. Because of the new charges, however, Thompson was
also added to a VOP calendar scheduled for July 14. At that hearing, the State
indicated that it would pursue the VOP despite dismissing the charges, and the VOP
hearing was rescheduled for September 8, 2017.
On August 4, 2017 Thompson’s counsel filed a Request for Discovery under
Superior Court Criminal Rules 16 and 32.1. In early September, not having received
a response, defense counsel emailed a deputy attorney general about discovery. The
deputy responded that he had not received the request and forwarded a copy of the
police report to defense counsel the day before the scheduled hearing.
The hearing proceeded on September 8. At the beginning of the hearing,
Thompson’s counsel objected to having received the police report only the day
before the hearing. She also raised an objection that the disclosure of evidence was
inadequate. She argued that she believed there was relevant evidence that was not
6 included in the police report. The Superior Court judge dealt with her objections by
limiting the State’s presentation of evidence to only what was contained in the police
report that Thompson’s counsel had received. Thompson’s counsel also indicated
that she had a witness present, Ms. Showell, but that the State had recommended that
she obtain counsel to protect her against any criminal charges that may be brought
against her in connection with her ownership of the firearm.3 The judge indicated
that he would deal with that issue as it came up. The State then proceeded with
testimony from Officer DeMalto and Thompson’s probation officer.
When the State rested, Thompson’s counsel raised the issue of calling Ms.
Showell as a witness. Counsel indicated to the Court that she had planned on calling
Ms. Showell, who was present, as a witness, but that prior to the hearing the State
advised Ms. Showell that she would need an attorney because of possible charges
which might arise from her testimony. The judge then asked Thompson’s counsel
to proffer what her testimony would be. Thompson’s counsel then proffered, in
summary, that she would testify that she owned the gun, that the marijuana in the
car was hers, and that the car was hers. She further proffered that Thompson had
asked to borrow her car that morning to pick up his daughter. The judge then stated
that he would accept that proffer as evidence. Thompson’s counsel then indicated
3 What these charges might be does not seem to be explained in the record. 7 that she would have called Thompson as a witness, but that he chose to exercise his
Fifth Amendment right not to testify.
During closing arguments, Thompson’s counsel attempted to argue that the
new charges (except the traffic charge of following too closely) were the product of
an unlawful search and seizure and that the evidence supporting the new charges
should be suppressed. The judge responded that he would not consider such an
argument on the grounds that suppression does not apply in VOP hearings.
At the conclusion of the hearing, the judge found that Thompson had violated
his probation based on the evidence of the new charges.
On November 13, 2017, Thompson was indicted on the new charges. The
current status of the new criminal case, however, is not included in the record of this
proceeding.
STANDARD OF REVIEW
Our standard of review for constitutional challenges is de novo.4 To the extent
we review the sufficiency of the evidence, it is for an abuse of discretion.5 Our
review of a Superior Court judge’s revocation of a defendant’s probation is for an
abuse of discretion.6
4 Jenkins v. State, 2004 WL 2743556, at *2 (Del. 2004). 5 Id. 6 Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006). 8 DISCUSSION
I.
Thompson first contends that his right to due process under Amendment XIV
of the United States Constitution was violated because he was provided with an
untimely and incomplete disclosure of the evidence against him, he was unavailable
to testify, and a witness he intended to call was not permitted to testify. This Court
has previously recognized that a VOP hearing must satisfy requirements of due
process.7 Those requirements are set forth in Superior Court Criminal Rule 32.1.8
They include: (a) written notice of the alleged violation; (b) disclosure of the
evidence against the person; (c) an opportunity to appear and to present evidence on
the person’s own behalf; (d) the opportunity to question adverse witnesses; and (e)
notice of the person’s right to retain counsel.9
Thompson argues that the State failed to comply with the requirement that he
be given disclosure of the evidence against him because the disclosure was untimely
and incomplete. He contends that the disclosure was untimely because Officer
DeMalto’s police report was provided only a day before the hearing, giving him
inadequate time to prepare a defense. He contends that the disclosure was
incomplete because there was evidence that was not disclosed. He contends that the
7 Jenkins v. State, 8 A.3d 1147, 1153 (Del. 2010). 8 Id. 9 Super. Ct. Crim. R. 32.1(a). 9 undisclosed evidence includes a police report prepared by the Town of Blades police
officer, notes made by Officer DeMalto, SUSCOM recordings, any recording or
record of the attempt to interview Thompson, and a copy of the search warrant.10 He
contends the inadequacy of the disclosure deprived him of the opportunity to
effectively question adverse witnesses.
Although Thompson’s counsel did file a request for discovery, Rule 32.1 does
not require that the defendant request disclosure of the evidence to be used against
him at the VOP hearing. Disclosure of the evidence under Rule 32.1 is an affirmative
obligation of the State to be performed without any need for a request from the
defendant. In this case, the docket shows that the hearing date of September 8, 2017
was set on July 26. The best practice on the part of the State would have been to
send the police report to defense counsel promptly. Where, however, like here, the
disclosure is made only a short time before the hearing, the defendant’s remedy is to
request a continuance of the VOP hearing. Although Thompson objected to the
timeliness of disclosure at the hearing, he did not request a continuance.11 Moreover,
on appeal Thompson has not made a showing of any steps defense counsel could
have or would have taken to improve the defense if a more timely disclosure had
10 SUSCOM is the Sussex County branch of the Delaware State Police Communications Section. 11 At oral argument, counsel for Thompson stated that she thought requesting a continuance would be futile. Where, however, counsel can articulate why a continuance is appropriate, what can be accomplished by a continuance, and how denial of a continuance will prejudice the defendant, counsel should not hesitate to present those facts and circumstances to the judge. 10 been made. He has not made a showing that the disclosure the day before the hearing
actually caused him any prejudice. Therefore, we are unpersuaded by his argument
that the VOP should be reversed because of untimeliness of disclosure of the
evidence against him.
Turning to Thompson’s argument that the disclosure of evidence was
incomplete, we read Rule 32.1 as requiring disclosure of the evidence the State plans
to present at the hearing. When Thompson objected to the disclosure as being
insufficient, the trial court expressly limited the State to presentation of only that
evidence which had been disclosed. This action by the judge remedied Thompson’s
objection about the alleged inadequacy of disclosure.12
Thompson also argues that he was unavailable to testify. This argument is
based on the fact that he exercised his Fifth Amendment privilege not to testify
because of the potential future prosecution of the new charges. We have previously
ruled, however, that where new charges form the basis for a VOP, the State is not
obligated to pursue the new criminal charges before it proceeds with the VOP.13 The
“unavailability” of which Thompson speaks is simply a natural consequence of his
election to exercise his Fifth Amendment rights in the VOP proceeding.
12 The Superior Court’s discovery rule, Criminal Rule 16, does not apply to VOP hearings. Although the defendant is entitled to disclosure of the evidence to be used against him, he is not entitled to discovery in a VOP proceeding. 13 Diaz v. State, 2014 WL 1017480, at *2 (Del. 2014). 11 Thompson also argues that he was not permitted to present his witness’
testimony. This stems from Sheneese Showell’s apparent exercise of her Fifth
Amendment rights. However, the trial court accepted a proffer of her testimony
from defense counsel and accepted that proffer as evidence. As a result of the trial
court’s acceptance of the proffer as evidence, Thompson suffered no prejudice from
the fact that Showell did not testify.
II.
Thompson’s second claim is that the Superior Court violated his rights under
Amendments IV and XIV of the United States Constitution and Article I § 6 of the
Delaware Constitution by refusing to consider his argument, made at the hearing,
that the evidence against him was the product of an unlawful search and seizure and
should be suppressed.
In support of his argument that the exclusionary rule applies to VOP
proceedings, he relies upon two Delaware cases, both captioned Jenkins v. State, and
both involving the same defendant. In the first case, Jenkins was cited for a VOP
based upon new charges in 2005.14 He filed motions to suppress evidence in both
the VOP proceeding and the criminal proceeding involving the new charges. He
failed to appear for his hearing on the VOP, and the Superior Court judge issued a
bench warrant for Jenkins’ arrest and denied the suppression motion for “failure to
14 Jenkins v. State, 2006 WL 1911096, at *1 (Del. 2006). 12 prosecute.”15 Jenkins was subsequently arrested and the VOP hearing was
rescheduled. At that hearing, the motion to suppress was not renewed, and,
following testimony from the police officer who arrested Jenkins on the new
charges, Jenkins’ counsel conceded that a violation of probation had been
established. Subsequently, the motion to suppress in the criminal proceeding on the
new charges was granted, and the new criminal charges were dismissed. Jenkins
appealed his VOP adjudication, arguing that “the Superior Court’s finding that he
violated his probation must be reversed because that finding was based on evidence
that was later suppressed in the new criminal proceeding.”16 This Court affirmed
the VOP determination, finding that Jenkins waived renewing the motion to suppress
in the VOP proceeding.17
The second Jenkins decision, in 2010, also involved a VOP.18 This second
VOP proceeding was also based on new charges. Jenkins filed a motion to suppress
in the criminal proceeding involving the new charges. He did not, however, file a
motion to suppress in the VOP proceeding. The motion to suppress in the new
criminal case was granted and the charges were dismissed. Jenkins was found to
have violated his probation, however, and appealed that finding to this Court.
15 Id. 16 Id. at *2. 17 Id. 18 Jenkins v. State, 8 A.3d 1147 (Del. 2010). 13 In summarizing the first VOP proceeding, this Court observed that it had
affirmed the earlier VOP determination, “holding that Jenkins had waived his right
to present a motion to suppress in the 2005 VOP hearing.”19
Jenkins argued in the 2010 case that the Superior Court should have
considered his motion to suppress at the VOP hearing. This Court rejected that
contention, noting that Jenkins never filed a motion to suppress in the VOP
proceeding, noting that “it would have been improper for the sentencing judge to
decide the search warrant’s validity in the VOP hearing where that issue had not
been properly raised.”20
These cases, Thompson argues, establish that a motion to suppress may be
filed and considered in a VOP proceeding. However, in both of these cases, the
suppression issue was disposed of on procedural grounds. In addition, in the 2010
Jenkins case, the Court noted in a footnote that “[t]his Court has not yet addressed
whether the exclusionary rule should apply to violation of probation hearings [and]
‘[W]e do not reach the State’s argument that the exclusionary rule does not apply to
probation revocation proceedings.’”21 In those cases, this Court did not consider the
substantive question of whether the exclusionary rule applies to VOP proceedings.
19 Id. at 1150. 20 Id. at 1155–56. 21 Id. at 1155 n.41 (quoting Fuller v. State, 844 A.2d 290, 293 (Del. 2004)). 14 In Pennsylvania Board of Probation and Parole v. Scott, the United States
Supreme Court held that the exclusionary rule does not apply to parole revocation
proceedings.22 The Court reasoned that “[a]pplication of the exclusionary rule
would both hinder the functioning of state parole systems and alter the traditionally
flexible, administrative nature of parole revocation proceedings,” and “would
provide only minimal deterrence benefits.”23 In Gagnon v. Scarpelli, the Supreme
Court stated that it perceived no “difference relevant to the guarantee of due process
between the revocation of parole and the revocation of probation. . . .”24
In Bruton v. State, a parole violation case, this Court recognized that in Scott
the United States Supreme Court “has declined to extend the exclusionary rule to
proceedings other than criminal trials.”25
In addition, nine United States Circuit Courts of Appeal have held that the
exclusionary rule does not apply in probation revocation proceedings.26 In one of
those cases, the Third Circuit Court of Appeals explained the rationale of not
22 524 U.S. 357, 364 (1998). 23 Id. 24 411 U.S. 778, 782 (1973). 25 2001 WL 760842, at *1 (Del. 2001). 26 See, e.g., United States v. Armstrong, 187 F.3d 392, 393 (4th Cir. 1999); United States v. Finney, 897 F.2d 1047, 1048 (10th Cir. 1990); United States v. Bazzano, 712 F.2d 826, 830–34 (3rd Cir. 1983); United States v. Frederickson, 581 F.2d 711, 713 (8th Cir. 1978); United States v. Winsett, 518 F.2d 51, 53–55 (9th Cir. 1975); United States v. Farmer, 512 F.2d 160, 162–163 (6th Cir. 1975); United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973); United States v. Hill, 447 F.2d 817, 819 (7th Cir. 1971); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d Cir. 1970). 15 extending the exclusionary rule to probation revocation proceedings, in part, as
follows:
Application of the exclusionary rule to probation revocation proceedings would interfere significantly with the state’s ability to ensure that conditions of probation were being met. As a result, the state’s ability to protect society from additional antisocial acts committed by probationers, and ultimately its ability to achieve the remedial purposes of the probation system, would be impaired.27
No federal authority has been brought to our attention, and we aware of none,
which has held that the exclusionary rule applies to probation revocation
proceedings under the Federal Constitution. We have no reason not to follow what
appears to be the entirety of the federal weight of authority, and hold that the
exclusionary rule does not apply to probation revocation proceedings under
Amendments IV and XIV of the Federal Constitution.
We have not previously considered whether the exclusionary rule applies to
probation revocation proceedings under Article I § 6 of the Delaware Constitution.
In the Superior Court, Thompson did not separately argue that the Delaware
Constitution requires application of the exclusionary rule in probation revocation
proceedings. In his opening brief, Thompson does not undertake any analysis of
Delaware’s Constitution separate and apart from his general argument that the
exclusionary rule should apply. Our case law, however, establishes a framework to
27 Bazzano, 712 F.2d at 834. 16 be followed when one seeks to establish that the Delaware Constitution provides
greater rights than the Federal Constitution.28 Mere conclusory assertions that the
Delaware Constitution has been violated are not sufficient to present a question
whether such is the case.29 As we have previously said:
A proper presentation of an alleged violation of the Delaware Constitution should include a discussion and analysis of one or more of the following non-exclusive criteria: ‘textual language, legislative history, preexisting state law, structural differences, matters of particular state interest or local concern, state traditions, and public attitudes.’30
No such showing was made or attempted in Thompson’s opening brief.
Accordingly, Thompson’s argument that the exclusionary rule applies under
Delaware’s Constitution has been waived, and we do not here consider that
question.31
III.
Finally, Thompson contends that the evidence against him was insufficient to
support a finding that he violated his probation.
28 Jones v. State, 745 A.2d 856, 863–865 (Del. 1999). 29 Ortiz v. State, 869 A.2d 285, 291 n.4 (Del. 2005) (“In the future, conclusory assertions that the Delaware Constitution has been violated will be considered to be waived on appeal.”). 30 Wallace v. State, 956 A.2d 630, 637–638 (Del. 2008) (citations omitted). 31 In its answering brief, the State correctly argued that Thompson had not adequately raised whether his rights were violated under the Delaware Constitution in his opening brief. Thompson expanded upon his argument concerning his rights under the Delaware Constitution in his reply brief. Under Supreme Court Rule 14(c)(i), however, material that should have been included in a full and fair opening brief should not be presented for the first time in a reply brief. 17 Here the evidence included the officer’s observation of Thompson committing
a traffic violation by following too closely. The evidence also included Thompson’s
suspicious statement that the K-9 would probably alert to the green fluid, which can
reasonably be viewed as showing a consciousness of the marijuana in the center arm
rest. This consciousness was later confirmed by his admission that marijuana was
in the center arm rest. His statement that there was nothing illegal in the vehicle
“that belonged to him” also creates an inference that he was aware of the suspected
marijuana found by the officer in the vehicle. When asked, Thompson admitted that
his fingerprints would be found on the firearm, an admission which creates an
inference that he had held the firearm in his hand. Since he is a person prohibited,
possession of a firearm would be a violation of his probation.32 This evidence, taken
as a whole, is sufficient to support a finding that Thompson was in violation of his
probation. There was no abuse of discretion on the part of the trial judge by so
finding.
The judgment of the Superior Court is AFFIRMED.
32 Thompson is a person prohibited because of previous convictions. 18 SEITZ, Justice, concurring:
Although I believe there are constitutional issues that arise in a VOP hearing
that this Court might eventually address,33 those issues have not been adequately
raised in this appeal. Thus, I concur in the Panel’s decision to affirm the Superior
Court’s judgment in this case.
33 See, e.g., State v. Mosley, 179 A.3d 350 (N.J. 2018). 19