by Sam Rutherford

The Supreme Court of Delaware granted postconviction relief to a prisoner because his defense attorney provided ineffective assistance of counsel by failing to challenge the search of his cellphone. The Court held that the defendant did not provide valid consent to search the cellphone and that the warrant police subsequently obtained to conduct the search was an unconstitutional general warrant. There was no strategic reason for defense counsel’s failure to submit a motion to suppress, which was prejudicial because evidence obtained from the phone was both material and significant to the State’s otherwise circumstantial case.

Background

Antoine Terry and Shaheed Matthews were friends. Just after midnight on December 28, 2017, police discovered Terry’s body lying on the sidewalk in New Castle, Delaware. He had been shot several times. According to Matthews’ girlfriend, Devon Johnson, Terry and Matthews were together at her house watching basketball earlier that evening. They left, however, while she was upstairs changing. Matthews later called her for a ride from a nearby church around 10:45 p.m., just under two hours before Terry’s body was discover. Matthews was alone when Johnson picked him up.

Police interviewed Matthews about Terry’s death. During the interview, police officers told Matthews that they had a warrant to search his phone and that he needed to turn it over to them so they could “dump” its contents onto a computer and then they would return it. Matthews relinquished the phone to police believing they had a warrant, when in fact they did not obtain the warrant until the following day.

Matthews was subsequently charged with Terry’s murder. The State acknowledged at trial that its case was “entirely circumstantial.” The State’s case consisted of evidence from Matthews’ cellphone, witness testimony, video camera footage of varying quality, and gunshot residue of an unknown origin found on Matthews’ jacket. Defense counsel did not move to suppress evidence seized from Matthew’s cellphone.

Text messages and internet search history from Matthews’ phone showed he had been attempting to purchase a gun not long before the murder, but nothing established he actually did so. No gun was ever recovered. The jury convicted Matthews, and he was sentenced to life plus three years in prison. Matthews timely appealed, arguing that evidence obtained from his phone was wrongfully admitted under Evidence Rule 404(b). The Delaware Supreme Court rejected this claim and affirmed the conviction and sentence.

Acting pro se, Matthews filed a postconviction petition in the superior court, arguing that his trial attorney provided ineffective assistance by failing to move to suppress evidence obtained and derived from his cellphone. The court ruled that Matthews had validly consented to the search of his phone and therefore denied the motion. Matthews timely appealed to the Delaware Supreme Court, which reversed and remanded for a new trial.

Analysis

The sole issue on appeal was whether Matthews’ trial attorney provided ineffective assistance of counsel by failing to submit a motion to suppress evidence seized from his cellphone. The Sixth Amendment guarantees the right to effective assistance of counsel. To establish ineffective assistance, a defendant must show (1) that his counsel’s performance was deficient and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668 (1984). Performance is deficient when it falls below an objective standard of reasonableness. Starling v. State, 130 A.3d 316 (Del. 2015) (discussing Strickland standard). Prejudice is established if the deficient performance creates a reasonable probability that, absent counsel’s mistakes, the result of the proceeding would have been different. Id.

Applying this standard, the Court concluded that Matthews’ attorney provided deficient performance by failing to move to suppress the cellphone evidence on two grounds: “(1) the warrant for Matthews’s cellphone was an unconstitutional general warrant; and (2) Matthews did not provide valid consent to the police to search the contents of his cellphone.”

First, the warrant used to search Matthews’ phone was identical to the “general warrants” used to search electronic devices previous cases found unconstitutional. See Buckham v. State, 185 A.3d 1 (Del. 2018); Wheeler v. State, 135 A.3d 282 (Del. 2016). Relying on these cases, the Superior Court ruled that the warrant in Matthews’ case was also an invalid general warrant that authorized police to conduct an “exploratory rummaging” through the contents of Matthews’ phone. Defense counsel should have known about and relied on these cases. The State did not meaningfully challenge this conclusion, so the Delaware Supreme Court affirmed it.

The conclusion that counsel’s failure to challenge the warrant was the product of deficient performance rather than reasonable trial strategy was buttressed by the fact that counsel unsuccessfully attempted to exclude the cellphone evidence under Evidence Rule 404(b). In other words, defense counsel recognized the importance of excluding the evidence, he just did not know the correct legal basis for doing so. The Court observed that this is the essence of deficient performance because defense counsel “has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland.

Nevertheless, even if the search warrant was an impermissible general warrant, the State argued that the search of Matthews’ cellphone was still lawful because it was based on his consent prior to the warrant being issued, so trial counsel’s deficient performance in failing to challenge the warrant was irrelevant. Searches conducted pursuant to valid consent, which may be either express or implied, do not violate the Fourth Amendment. Cabrera v. State, 173 A.3d 1012 (Del. 2017); Cooke v. State, 977 A.2d 803 (Del. 2009). But the State bears the burden of establishing that consent was given voluntarily, which “cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543 (1968).

The Superior Court concluded that Matthews provided valid consent because he “offered to provide his phone to police” and did so “before officers notified him that they had already obtained a warrant for the phone.” But the record simply did not support this conclusion, according to the Court.

Matthews had consented to give the officers his phone number, not his phone, prior to them mentioning the warrant. It was not until officers said they had a warrant—apparently for his phone number, which was not true—when he turned the phone over to them. The Court determined that Matthews did not “unequivocally” consent to a search of his phone based on these facts, explaining that any ambiguity regarding consent is resolved in finding against consent. See State v. Harris, 642 A.2d 1242 (Del. Super. 1993); United States v. Taverna, 348 F.3d 873 (10th Cir. 2003).

The Court reasoned that, at most, he consented to a search of his phone only after officers advised him that they had a warrant. But under Bumper, “there can be no consent where the official conducting the search has first asserted that they have a warrant,” the Court stated. Thus, the Court concluded that the State failed to carry its burden regarding the voluntariness of Matthews’ purported consent.

Having determined that Matthews’s defense attorney provided constitutionally deficient performance by failing to challenge the seizure and search of his cellphone, the next issue was whether that error was sufficiently prejudicial. The Court noted that the State’s case was relatively weak and entirely circumstantial. No direct evidence linked Matthews to the shooting. “Without the cellphone evidence, the State’s case is significantly weaker,” the Court stated.

The prosecutor relied extensively on call logs, text messages, and internet search history from the phone to connect Matthews to the crime during opening statements, witness examination, and closing argument. The Court stated that the trial record conclusively established that the cellphone evidence was “material and significant” and that trial counsel’s failure to suppress it created “a reasonable probability that the outcome of Matthews’ trial would have been different.” Thus, the Court ruled that trial counsel’s deficient performance was prejudicial.

Conclusion

Accordingly, the Court reversed the Superior Court’s denial of Matthews’ pro se petition for postconviction relief, reversed his conviction, and remanded the case for a new trial at which the State will not be permitted to introduce any evidence obtain or derived from his illegally seized cellphone. Matthews v. State, 319 A.3d 891 (Del. 2024).  

Subscribe today

Already a subscriber? Login