DE: Whether a state tracking warrant permits tracking in NJ is avoided in favor of inevitable discovery

A tracking device was put on defendant’s Jeep by warrant, and it was tracked into New Jersey as well. The court offers that it’s a difficult question whether the vehicle could be tracked in New Jersey too, but decides the case on inevitable discovery. Metelus v. State, 2018 Del. LEXIS 556 (Dec. 10, 2018) (same: Ways v. State, 2018 Del. LEXIS 550 (Dec. 11, 2018)):

(21) The Superior Court denied her motion to suppress, ruling that out-of-state tracking was authorized by the MTD warrant because the Superior Court had the authority to approve attaching the MTD to a vehicle located in Delaware and the police installed the MTD in Delaware in accordance with the warrant. The court reasoned, “having the authority to order the attachment of the [MTD] within the [S]tate of Delaware is sufficient to authorize the police to follow that vehicle, whether it is within the jurisdictional boundaries of the perimeters of the [S]tate of Delaware or outside of it.”

(22) Because we conclude that the heroin found in the jeep inevitably would have been discovered, we do not address the difficult constitutional and statutory issues raised in this appeal, and we express no opinion thereon. “The ‘inevitable discovery’ exception to the exclusionary rule ‘provides that evidence, obtained in the course of illegal police conduct, will not be suppressed if the prosecution can prove that the incriminating evidence “would have been discovered through legitimate means in the absence of official misconduct.”‘” Here, even absent the out-of-state tracking, we are persuaded that the police inevitably would have relocated and searched the jeep and found the heroin.

(23) First and most importantly, the jeep search warrant application and affidavit did not rely on any information obtained solely as a result of the out-of-state tracking. The affidavit detailed how the police had been conducting “physical surveillance” of the jeep on November 4, 2016, and explained that the police observed Metelus get into the jeep and drive north through Delaware and into New Jersey. It continued, “On November 4, 2016, surveillance was maintained in [sic] Angeline Metelus who was still operating the Jeep . … Angeline Metelus was followed to a location known for high drug trafficking.” This information was obtained through visual surveillance. The affidavit did not recite any of the police observations that were made after the police lost (and subsequently regained) visual surveillance of the jeep.

(24) Second, even without the aid of the MTD to relocate the jeep in New Jersey, the police would have regained visual surveillance of the jeep once it returned to Delaware for two reasons. For one, the police had three units stationed at the Delaware Memorial Bridge awaiting its return and the jeep returned to Delaware via that route, meaning the police likely would have resumed visual surveillance at that point. In addition, the police could have—and it is reasonable to conclude they would have—set up a “geo fence” to alert them when the MTD (and thus the jeep) crossed back into Delaware and then used the MTD to track and thereby relocate the jeep in Delaware.

(25) For these reasons, we find under these circumstances that the police inevitably would have relocated the jeep in Delaware, executed the search warrant, and discovered the heroin. The Superior Court, therefore, did not err in denying Metelus’s motion to suppress.