Evidence in Milford attempted murder case tossed

DOVER — Cell phone evidence and statements made to police can’t be used against an Ellendale man charged with first-degree attempted murder during a shooting incident last spring, a judge ruled Monday.

Qualeel Wescott

Qualeel Westcott sought to suppress statements made to a Milford Police detective following an incident at an apartment complex on May 11, 2016. The state conceded that statements made after he requested to speak to a judge should be suppressed, according to a nine-page order issued by Superior Court Resident Judge William L. Witham Jr.

Mr. Westcott also argued successfully that a search warrant lacked probable cause “because the detective failed to provide a logical nexus between the mobile phone and the crime, and the warrant lacked sufficient particularity,” the judge decided.

A person was hospitalized in critical but stable condition after being shot at the Brightway Commons Apartment Complex in Milford. Mr. Westcott was taken into custody two days later and charged with first-degree robbery and other counts in addition to the attempted murder charge.

In the affidavit, according to the order, the state submitted allegations to a magistrate to establish probable cause — Mr. Westcott had committed the shooting, he was distributing heroin, and he owned mobile phones at an apartment in question.

According to police, three mobile phones were located in an apartment where Mr. Westcott was staying, including a Samsung near 91 bags of heroin and some marijuana. Another Samsung was allegedly found on Mr. Westcott’s bed and an iPhone was located on a dining room table.

A tenant reportedly told police the iPhone was not present before Mr. Westcott and another person arrived at the apartment. She did not know who the owner was, the order stated. The allegations prompted a detective to search “the three phones to look for physical evidence of a confession of the shooting or illegal distribution of heroin contained therein.”

Insufficient probable cause

There was not sufficient reason to connect Mr. Westcott to the phone or its contents, Judge Witham ruled.

“Missing in the State’s probable-cause analysis, however, is a logical nexus between Mr. Westcott’s ownership of the phone and the existence of digital evidence of the crimes on that phone,” Judge Witham determined.

According to Judge Witham, “The mere fact that a defendant owns a mobile phone is not, in and of itself, sufficient to warrant an inference that evidence of any crime he or she commits may be found on that mobile phone.”

Describing the warrant as “general” and noting it included three phones, the judge said it “failed to describe the data to be searched with particularity.”

The judge found that “police should have sought a more limited search warrant permitting the search of suitably recent data from the phones.”

Judge Witham believed the warrant provided “broad permission to rummage through the entire digital lives of the phones’ owners.”

Deputy Attorney General Stephen Welch argued for the Delaware Department of Justice, with attorney Edward Gill representing Mr. Westcott.

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