There’s an Illinois statute that covers this situation. It can be found at 730 ILCS 5/5-8-4. It’s important to have a lawyer covering all pending cases, and if you have a lawyer representing you on one case, but not the other, you have to tell your lawyer about the other case or cases. A failure to keep your lawyer informed can have disastrous consequences for the client.
Before going further, it’s important to give some definitions to terms. By a consecutive sentence, that means you serve one sentence, and then you serve another. So a one year sentence served consecutively to another one year sentence is a two year sentence. In Chicago, one street term I have heard to describe this situation is that the sentences are “running wild.” By a concurrent sentence, that means you serve both sentences at the same time, so a one year sentence concurrent to another one year sentence means you serve a one year sentence.
This statute should be read closely by both defense counsel and the client. It’s a really good idea to go over the statute with the client. In most cases, sentences will run concurrently under the law where you serve both at the same time. There are, however, some notable exceptions.
Under the law, sometimes judges have a choice (or “discretion”) whether or not to impose consecutive sentences. So because the choice whether to give a concurrent or consecutive sentence is up to the judge, whether a sentence should run consecutively or concurrently can be the subject of plea negotiations with the prosecutor and sometimes with the judge directly. When a judge has discretion, you would have to have your lawyer see if he/she can negotiate a concurrent sentence during the plea negotiations.
Sometimes however, consecutive sentences are mandatory which means the judge does not have a choice. For example, if a person gets arrested for a felony, and then gets out of custody on bail or some form of pre-trial release, and then while that case is going on, that person commits another felony, the sentences under the law if that defendant is found guilty on both cases must be consecutive in Illinois.
By mandatory, I mean the judge must do it. He or she doesn’t have a choice. So, if that’s your situation (and that’s not the only situation where sentences are mandatory consecutive), then you’re stuck. They can’t be concurrent because the legislature gave the judge no discretion.
The Law Office of William Wolf, LLC has many years of experience defending clients who face consecutive sentences because of multiple cases or multiple counts in a single case. If you or a loved one of yours is facing this situation, contact this Law Office to talk about it because that person requires quality representation. We can be reached by phone at (312) 888-1124 or by email at firstname.lastname@example.org.
In this case, the Defendant sought to suppress cell site location information that State Police acquired pursuant to a State wiretap statute. The purpose of obtaining the CSLI was to determine whether a public employee’s phone records matched work records.
The State argued that the application, affidavit, and order (collectively the “Application”), although not styled as a warrant, comport with the requirements for a search warrant. Additionally, the State contended that the CSLI would have been inevitably discovered, and in fact will be discovered a second time through a search warrant obtained on a later date.
III. LEGAL STANDARD
HN2 The burden is on the State to justify a warrantless search or seizure.3Link to the text of the note In a suppression hearing, the Court sits as the finder of fact and evaluates the credibility of the witnesses.4Link to the text of the note The party with whom the burden rests must persuade the Court by a preponderance of the evidence.5Link to the text of the note
A. The Carpenter decision applies to this case.
HN3 Under well-settled Fourth Amendment jurisprudence, government searches must generally be undertaken pursuant to warrants supported by probable cause or under circumstances falling within a specific exception to the warrant requirement.6Link to the text of the note The Fourth Amendment to the United States Constitution mandates that “no Warrants shall issue, but upon probable cause.” Similarly, the Delaware Code permits a judicial officer to issue a warrant only if he or she finds “that the facts [*4] recited in the complaint constitute probable cause for the search.”7Link to the text of the note
HN4 The United States Supreme Court recently held in Carpenter v. United States that citizens have a legitimate expectation of privacy in the records of their physical movements as captured through CSLI.8Link to the text of the note In Carpenter, prosecutors applied for an order under the Stored Communications Act (hereinafter the “SCA”) to acquire the defendant’s cell phone records, including historical CSLI, for a seven-day period and a 127-day period.”9Link to the text of the note The Carpenter court found that the compelled disclosure of the defendant’s CSLI constituted “a search within the meaning of the Fourth Amendment” that was conducted without a warrant and did not fall within a specific exception to the warrant requirement.10Link to the text of the note
Here, the Court finds that the Carpenter ruling — that HN5 law enforcement must generally obtain a search warrant supported by probable cause before acquiring CSLI from a wireless carrier — is directly applicable to the case at hand. Indeed, the State concedes the applicability of Carpenter, and in its response to the motion to suppress states that “a search within the meaning of the Fourth Amendment occurred.” HN6The language of the Wiretap Statute and of [*5] the SCA is functionally identical: Delaware’s statute requires a showing of “reason to believe” that the records sought are “relevant to a legitimate law-enforcement inquiry,”11Link to the text of the note while the SCA requires “reasonable grounds to believe” that the records “are relevant and material to an ongoing criminal investigation.”12Link to the text of the note
B. The order issued pursuant to the Application did not constitute a search warrant.
The State seeks to distinguish the facts of this case from those in Carpenter by arguing that the Application comported with all the requirements for a search warrant under the Delaware Code. In short, HN7 11 Del. C. § 2306 requires that the application or complaint for a search warrant be in writing, signed by the complainant, and verified by oath or affirmation, and that it designate the objects of the search, the reasons for the search, and the facts supporting the suspicion that the items sought will be found there.
The Court agrees that the validity of a warrant should not turn on formalistic considerations: a reviewing Court is to employ a “common sense” rather than a “hypertechnical” approach to the relevant documents.13Link to the text of the note Even so, the Court finds that HN8 the text of 11 Del. C. § 2423 makes clear that orders issued pursuant to the [*6] Wiretap Statute were not intended by the General Assembly to be search warrants.14Link to the text of the note This fact is relevant to the Court’s understanding of what the reviewing judge intended when the Application was granted and an order compelling disclosure was issued.
While the Application met many of the warrant requirements set forth in the Delaware Code, the critical inquiry in this case is whether the document purporting to be a warrant in this case fulfills the essential requirement demanded of all warrants, that it was issued upon probable cause.15Link to the text of the note On its face, the Application does not appear to satisfy that requirement: HN9 the Wiretap Statute does not require a showing or a finding of probable cause, and the order granting the Application did not note a finding of probable cause.16Link to the text of the note While the State argues that the information included in the Application would have been sufficient to support a finding of probable cause, no such finding was made. The order signed by the reviewing judge in this case reads only that there were “reasonable grounds” to believe that the cell phone records, including CSLI, were “relevant to an ongoing criminal investigation.” Nothing in the Application states or suggests that there [*7] was a fair probability that the CSLI would contain evidence of Defendant’s alleged falsification of business records.
The State has attempted to argue the applicability of the Delaware Supreme Court’s decision in Hope v. State, which the State cites for the proposition that “there is no requirement that a nighttime search warrant. . . contain a specific finding by the magistrate that probable cause exists to issue the nighttime warrant.”17Link to the text of the note By analogy, the State contends that there is no requirement that a search warrant contain a specific finding of probable cause that evidence of a crime will be found in the particular place to be searched. The analogy is inapt. HN11While “probable cause to search” and “probable cause to issue a nighttime warrant” are linguistically similar, the two requirements are born from separate sources of legal authority and follow different rules.
The requirement that a search warrant be issued upon a finding of probable cause arises from the Fourth Amendment to the United States Constitution; Article 1, Section 6 of the Delaware Constitution; and 11 Del. C. § 2307. In contrast, the requirement for a finding of “probable cause to issue a nighttime warrant” stems from 11 Del. C. § 2308, and is a separate requirement in addition to the “probable cause to [*8] search” requirement that all warrants must satisfy. HN12 11 Del. C. § 2308 provides additional protections to the people of Delaware by permitting nighttime searches only under certain circumstances, specifically, only when “the judge, justice of the peace or magistrate is satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for.” The Hope court correctly noted that 11 Del. C. § 2308 does not require a nighttime warrant “to list exigent circumstances or contain a specific finding by the magistrate that probable cause exists to issue the nighttime warrant.” 570 A.2d at 1188. The language used in 11 Del. C. § 2307 does, however, require a finding of probable cause to search, permitting the issuance of search warrants only if the magistrate “finds that the facts recited in the complaint constitute probable cause for the search.”18Link to the text of the note
The Court is aware of decisions in other jurisdictions that have held that formal findings of probable cause, or of certain facts supporting probable cause, are not essential for a warrant to be validly issued. In those cases, however, the lack of a formal finding was considered trivial because the issuance of the warrant implied a finding of probable cause,19Link to the text of the note or gave rise to [*9] a presumption that the reviewing judge concluded that there was probable cause.20Link to the text of the note The logic of those decisions does not apply to a case where the reviewing judge did not receive a document purporting to be a search warrant application, and did not issue a document purporting to be a search warrant.
The Court therefore finds that the search of Defendant’s CSLI was unsupported by warrant and, further, that the State has presented no facts or argument demonstrating an exception to the warrant requirement. Moreover, the intrusion upon Defendant’s privacy is more egregious than what was found intolerable in Carpenter. In Carpenter, the compelled disclosure of a “detailed and comprehensive record of the [defendant’s] movements”21Link to the text of the note for seven days constituted a search.22Link to the text of the note Here, Defendant’s particular movements were subjected to “tireless and absolute surveillance”23Link to the text of the note for a period of over two years.
C. The inevitable discovery doctrine is inapplicable, and whether evidence obtained through the August 2018 search warrant should be suppressed is not before this Court.
The State further argues that the related doctrines of inevitable discovery and independent source bar suppression of the evidence at issue. [*10] HN13 Pursuant to the inevitable discovery doctrine, evidence that “would inevitably have been discovered through independent, lawful means” is admissible.24Link to the text of the note Under the independent source doctrine, where the government engages in illegal investigatory activity but also obtains the evidence independently through lawful means, the court will admit the evidence. Id.
The State has failed to explain how the inevitable discovery doctrine applies to this case, and the Court finds it inapplicable. This is not a situation, as in Nix, where, at the time that law enforcement engaged in illegal activity (the interrogation of the defendant in violation of his Sixth Amendment rights leading to the disclosure of the location of the victim’s body), law enforcement had begun a lawful search that would have led to the discovery of the body; or as in Norman, where the Delaware Supreme Court found that the defendant’s incriminating statements would inevitably have been discovered in the course of a lawful investigation.
With regard to the independent source doctrine, the State argues that it could seek the evidence in question through a lawful, independent source, and has actually done so through the August 2018 warrant [*11] application. That search warrant, however, is not before the Court. Through this motion, Defendant seeks to suppress only evidence obtained through the Application, which was submitted in January 2018. Furthermore, it does not appear, based upon the State’s written submission and its statements at oral argument, that the State has yet obtained information pursuant to the August 2018 warrant. Finally, Defendant asserted through counsel at oral argument that he has independent grounds upon which to challenge the August 2018 warrant, and it would thus be inappropriate for the Court to consider the validity of that warrant in deciding the instant motion. Therefore, the Court cannot consider possible application of the independent source doctrine at this time.
WHEREFORE, for the foregoing reasons, Defendant’s motion to suppress must be GRANTED.
IT IS SO ORDERED.
/s/ Noel Eason Primos
Noel Eason Primos, Judge
1Link to the location of the note in the document
11 Del C. § 2423(d)(1).
2Link to the location of the note in the document
An application for a search warrant was filed on August 20, 2018 (after the current motion to suppress was filed), and was granted by the same judicial officer who had granted the initial application under the Wiretap Statute.
3Link to the location of the note in the document
State v. Holmes, 2015 Del. Super. LEXIS 462, 2015 WL 5168374, at *3 (Del. Super. Sept. 3, 2015), aff’d 149 A.3d 227 (Del. 2016).
4Link to the location of the note in the document
State v. Hopkins, 2016 Del. Super. LEXIS 590, 2016 WL 6958697, at *2 (Del. Super. Nov. 23, 2016).
5Link to the location of the note in the document
State v. Lambert, 2015 Del. Super. LEXIS 318, 2015 WL 3897810, at *3 (Del. Super. June 22, 2015).
6Link to the location of the note in the document
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-653, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995); Brigham City v. Stuart, 547 U.S. 398, 403, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006).
7Link to the location of the note in the document
11 Del. C. § 2307(a).
8Link to the location of the note in the document
138 S.Ct. 2206, 2217, 201 L. Ed. 2d 507(2018).
9Link to the location of the note in the document
Id. at 2212.
10Link to the location of the note in the document
Id. at 2220, 2221.
11Link to the location of the note in the document
11 Del. C. § 2423(d)(1).
12Link to the location of the note in the document
18 U.S.C. § 2703(d).
13Link to the location of the note in the document
Jensen v. State, 482 A.2d 105, 111 (Del. 1984).
14Link to the location of the note in the document
Orders requiring disclosure under § 2423(d) are not search warrants because the wiretap statute identifies “a search warrant from a court of competent jurisdiction” and “a court order requiring the disclosure under subsection (d) of this section” as separate justifications for compelling a service provider to disclose cell phone records. 11 Del. C. §§ 2423(c)(2)(b), 2423(c)(2)(c).
15Link to the location of the note in the document
HN10 “Probable cause” has been described by the United States Supreme Court as a “fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 214, 103 S. Ct. 2317, 76 L. Ed. 2d 527(1983).
16Link to the location of the note in the document
The Wiretap Statute requires only a showing of a reason to believe that the evidence to be found is “relevant to a legitimate law-enforcement inquiry,” not that the evidence sought constitutes evidence of a crime. 11 Del. C. § 2423(d)(1). In interpreting the similarly worded SCA, the Carpenter Court described the required showing of “reasonable grounds” of relevance to an ongoing investigation as falling “well short of the probable cause required for a warrant,” and “a ‘gigantic’ departure from the probable cause rule.” Carpenter, 138 S.Ct. at 2221.
17Link to the location of the note in the document
570 A.2d 1185, 1188 (Del. 1990).
18Link to the location of the note in the document
11 Del. C. § 2307(a) (emphasis added).
19Link to the location of the note in the document
Coleman Cty. Country Club v. State, 236 S.W.2d 558, 560 (Tex. Civ. App. 1951).
20Link to the location of the note in the document
Chruscicki v. Hinrichs, 197 Wis. 78, 221 N.W. 394, 396 (1928).
21Link to the location of the note in the document
Carpenter, 138 S.Ct. at 2217.
22Link to the location of the note in the document
Id. at 2217 n.3 (“we need not decide whether there is a limited period for which the Government may obtain an individual’s historical CSLI free from Fourth Amendment scrutiny, and if so, how long that period might be. It is sufficient for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth Amendment search.”).
23Link to the location of the note in the document
Id. at 2218.
24Link to the location of the note in the document
Norman v. State, 976 A.2d 843, 859 (Del. 2009) (citing Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)).
The case is State v. Rone, 2018 Del. Super. LEXIS 396 Superior Court of Delaware, (September 17).