                          SUPERIOR COURT
                                OF THE
                         STATE OF DELAWARE

JOHN A. PARKINS, JR.                             NEW CASTLE COUNTY COURTHOUSE
      JUDGE                                  500 NORTH KING STREET, SUITE 10400
                                             WILMINGTON, DELAWARE 19801-3733
                                                    TELEPHONE: (302) 255-2584



                          April 11, 2017


Mark A. Denney, Jr., DAG           Natalie S. Woloshin, Esquire
John W. Downs, DAG                 Woloshin Lynch & Natalie, P.A.
Department of Justice              3200 Concord Pike
Carvel State Office Building       P.O. Box 7329
820 North French Street            Wilmington, Delaware 19803
Wilmington, Delaware 19801

Cleon L. Cauley, Sr., Esquire
The Cauley Firm
One Customs House
704 King Street, Suite 600
Wilmington, Delaware 19801

                  Re: State of Delaware
                      v. Jacquez Robinson
                      ID Nos. 1411017691A&B

Dear Counsel:

      The oft-delayed trial in this murder case is scheduled to

begin on July 11, 2017.         On April 3, Defendant moved to

suppress (a) a drawing he made which was seized from his prison

cell and (b) his statement made during a prison-intake interview.

The State has not had an opportunity to respond to this recently
filed motion. Because the trial date is rapidly approaching, the

court has taken it upon itself to research the issues presented in

these motions with the goal of perhaps reducing the time needed

to resolve them. It finds that the motion to exclude the drawing is

frivolous and that motion will be denied without requiring a

response from the State.     It further finds that the motion to

exclude the defendant’s statement presents narrow issues which

require additional development.


           (a) The drawing seized from Defendant’s cell

     Prison officials seized a drawing from Defendant’s cell which

appears to be gang-related symbols and mottos. Defendant’s

motion to suppress that drawing is without merit because

Defendant had no reasonable expectation of privacy in his cell.

     It goes without saying that not all seizures of a person’s

property implicate the Fourth Amendment. Rather the “capacity

to claim the protection of the Fourth Amendment depends . . .

upon whether the person who claims the protection of the

Amendment has a legitimate expectation of privacy in the invaded




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place.”1 The United States Supreme Court has held that, for

purposes        of   the     Fourth      Amendment,           a    prisoner        has   no

expectation of privacy in his cell. In Hudson v. Palmer it wrote:

              Notwithstanding our caution in approaching claims
              that the Fourth Amendment is inapplicable in a
              given context, we hold that society is not prepared
              to recognize as legitimate any subjective expectation
              of privacy that a prisoner might have in his prison
              cell and that, accordingly, the Fourth Amendment
              proscription against unreasonable searches does
              not apply within the confines of the prison cell. The
              recognition of privacy rights for prisoners in their
              individual cells simply cannot be reconciled with the
              concept of incarceration and the needs and
              objectives of penal institutions.2

Defendant cites this court’s opinion in State v. Ashley3 for the

proposition that this court “insinuated” that warrantless searches

of a cell must be routine or required by some exigency. It is true

that this court expressly found that Ashley had “standing” to

assert a Fourth Amendment claim. More than thirty years ago

the United States Supreme Court expressly abandoned “standing”

terminology in its Fourth Amendment vocabulary, holding that

the determination of whether a defendant is asserting his own

Fourth Amendment right (as opposed to one belonging to another


1  Rakas v. Illinois, 439 U.S. 128, 143 (1979); Minnesota v. Carter, 525 U.S. 83
(1998)(same).
2 Hudson v. Palmer, 468 U.S. 517, 525 (1984).
3 1998 WL 110149 (Del. Super. Jan. 26, 1998).




                                              3
person)      is   “more       properly      placed      within      the     purview      of

substantive        Fourth       Amendment           law     than     within      that    of

standing.”4 The appropriate inquiry is whether the defendant

“personally has an expectation of privacy in the place searched,

and that his expectation is reasonable.”5 This court’s finding in

Ashley that the defendant had standing therefore suggests that it

found the defendant had some expectation of privacy in his cell.

However, this court did not cite Hudson v. Palmer and gave no

indication it was even made aware of that opinion by the litigants.

Importantly, none of the cases cited in Ashley post-dated Hudson

v. Palmer. To the extent, therefore, that Ashley may be read as

suggesting a prisoner may have a constitutional expectation of

privacy in his cell, that holding is no longer good law and the

court will not follow it.              Defendant’s motion to suppress the

drawing seized from his cell is therefore DENIED.




4   State v. Manuel, 2009 WL 1228573, at *3 (Del. Super. May 5, 2009) (citing Rakas v.
Illinois, 439 U.S. 128, 140 (1979)).
5   Id. (citing Minnesota v. Carter, 525 U.S. 83, 88 (1998)).



                                             4
          (b) Defendant’s statements during his admission
              interview

     Defendant told a Department of Correction employee that he

was a member of the TMG gang and had been since its inception.

The record is undeveloped, but for the purpose of context the

court notes that the information is contained in a form entitled

“Security Threat Group/Offender Screening Work Sheet.” That

sheet is a pre-printed form with questions such as:

        Are you a member of a gang?

        Do you anticipate having any problems at this
         institution with any member or suspected member of a
         gang?

        Have you ever been involved in a disturbance with a
         large group of inmates at another institution?

On the surface, at least, it appears this sheet and the interview

were used to determine if Defendant was a member of a gang and,

if so, whether that membership posed any security risks to the

Defendant or other inmates.

     Defendant contends that he was entitled to be advised of his

Miranda rights before the officer conducted this interview and

completed the form.   Miranda, of course, is a prophylactic rule

which applies to custodial interrogations. Defendant asserts,

                                5
without citation to pertinent authority, that “defendant was

clearly in custody as he was in jail.” It may be that this was a

custodial interrogation, but that is not self-evident from the fact

that Defendant was incarcerated. According to the United States

Supreme Court:

               [S]tandard conditions of confinement and associated
               restrictions on freedom will not necessarily implicate
               the same interests that the Court sought to protect
               when it afforded special safeguards to persons
               subjected to custodial interrogation. Thus, service of
               a term of imprisonment, without more, is not
               enough to constitute Miranda custody.6

Whether Defendant was “in custody” will need to be developed in

future briefing and proceedings.

       Aside from the question whether Defendant was “in

custody,” there is another Miranda issue which needs to be

addressed.        Many courts, including the Third Circuit Court of

Appeals,       have      recognized        a    routine      booking       exception        to

Miranda.7        Under this exception “[i]t is well established that

Miranda does not apply to biographical data necessary to

complete booking or pretrial services.”8 Although there is a split


6  Howes v. Fields, 565 U.S. 499, 512 (2012).
7  United States v. Bishop, 66 F.3d 569, 572 n.2 (3d. Cir. 1995) (“we join the other courts of
appeals that have addressed the issue and recognize that there is a ‘routine booking
exception’ to the requirements of Miranda v. Arizona”).
8 United States v. Horton, 873 F.2d 180, 181 n.2 (8th Cir. 1989).




                                               6
of authorities, many jurisdictions have found that this exception

applies to questions about gang affiliation. For example, a few

months ago, a North Carolina federal district court wrote:

              Here, the government asserts that officer Smith's
              questions to defendant were part of a standard
              booking procedure aimed, in part, at addressing
              safety concerns. This is in keeping with the rationale
              justifying other courts' application of the “routine
              booking question” exception to questions about
              gang affiliation. See, e.g., Washington, 462 F.3d at
              1133 (“[A]gents routinely obtain gang moniker and
              gang affiliation information ... in order to ensure
              prisoner safety. The question regarding [defendant]'s
              gang moniker therefore was a routine booking
              question.”).    Accordingly,     where    defendant's
              admission of his gang affiliation falls under the
              “routine booking question” exception to Miranda,
              the court denies the relief requested.9

There are opinions which cut the other way. For example, the

California Supreme Court has held that “questions about gang

affiliation exceed [the booking exception].”10

       Because the present record is inadequate, the court will

DEFER a ruling on the motion to exclude the statements made

during the screening sheet interview.                   The parties will submit

simultaneous briefs on the applicability the so-called booking

exception and, if Defendant desires an evidentiary hearing, he


9  United States v. Sanmartin, 2016 WL 4506990, at *2 (E.D.N.C. Aug. 26, 2016); accord
United States v. Edwards, 563 F. Supp. 2d 977 (D. Minn. 2008).
10 People v. Elizade, 351 P.3d 1010, 1018 (Cal. 2015).




                                            7
should provide the court with a letter explaining specifically why

one is necessary.    The court will conduct a teleconference to

schedule these submissions. Counsel is advised that the court

must impose a tight schedule in order to ensure timely resolution

before trial.

      It is SO ORDERED.



                               Very truly yours,


                               John A. Parkins, Jr.




oc:   Prothonotary




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