CHAPTER 303

CRIMES AND PUNISHMENT PROVIDING METHODS BY AND CIRCUMSTANCES UNDER WHICH SEARCHES AND SEIZURES MAY BE MADE

AN ACT TO AMEND CHAPTER 155 OF THE'REVISED CODE OF DELAWARE, 1935, AS AMENDED, BY ADDING NEW SECTIONS THERETO PROVIDING THE METHODS BY AND CIRCUMSTANCES UNDER WHICH SEARCHES AND SEIZURES MAY BE MADE, AND A PROCEDURE TO PROTECT THE VICTIM OF AN UNLAWFUL SEARCH OR SEIZURE; PROHIBITING SEARCHES NOT MADE PURSUANT TO STATUTE; PERMITTING SEARCHES WITHOUT A WARRANT FOR A PERSON HOTLY PURSUED; PERMITTING SEARCHES WITHOUT A WARRANT WHERE NECESSARY AS AN INCIDENT TO A LAWFUL ARREST; PROVIDING A PROCEDURE TO OBTAIN SEARCH WARRANT, AND FORM OF COMPLAINT AND WARRANT; ENUMERATING THINGS FOR WHICH SEARCH WARRANT MAY BE OBTAINED; ENUMERATING THE CIRCUMSTANCES UNDER WHICH ARTICLES OR THINGS MAY BE SEIZED; PROVIDING A REMEDY FOR AN INVALID SEIZURE; PROVIDING FOR THE DISPOSITION OF PROPERTY SEIZED.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That Chapter 155 of the Revised Code of Delaware, 1935, as amended, be and the same is hereby further amended by inserting therein new Sections to be known as 5343-AA. Sec. 62. through 5343-11. Sec. 70., as follows:

5343-AA. Sec. 62. SEARCH OF HOUSE OR PLACE; WHEN PROHIBITED:--No person shall search any house or place without the consent of the owner (or occupant, if any) unless such search is authorized by and made pursuant to statute.

5343.-BB. Sec 63. SEARCH WITHOUT A WARRANT; HOT PURSUIT: A search of a house or other place may be made without a warrant if the search is made for a person hotly pursued, provided the pursuer has probable cause to believe that such person has committed a felony.

5343-CC. Sec. 64. SEARCH WITHOUT WARRANT; LAWFUL WHEN INCIDENT TO AN ARREST:--A search of a house or other place may be made without a warrant if:

(a) The search is made incidental to a lawful arrest; and

(b) The search is made contemporaneously with the arrest; and

(c) The arrest is made on the premises searched; and

(d) The premises are under the control of the person arrested; and

(e) The search is made in order to find and seize either (1) the fruits of the crime, or (2) the means by which the crime was committed, or (3) weapons and other things to effect an escape from custody; and

() The search without a warrant is necessary to prevent the escape or removal of the person or thing to be searched for.

5343-DD. Sec. 65. WARRANT TO SEARCH HOUSE OR PLACE; WHEN AND HOW ISSUED; COMPLAINT; HOW COMPLAINT EXECUTED; FORM OF COMPLAINT; HOW WARRANT DESCRIBED; FORM OF WARRANT; HOW WARRANT RETURNABLE; WHEN MAY BE EXECUTED AT NIGHT:--Any Judge of the Court of Oyer and Terminer, Court of General Sessions, the Court of Common Pleas, the Municipal Court of the City of Wilmington, or the Clerk of any of the foregoing Courts, or any Justice of the Peace, or any Magistrate authorized to issue warrants in criminal cases may, within the limits of their respective territorial jurisdictions, issue a warrant to search any house or place for each or any of the following:

(a) Papers, articles or things of any kind which were instruments of a criminal offense;

(b) Property obtained in the commission of a crime, whether the crime was committed by the owner or occupant of the place to be searched or by another;

(c) Papers, articles or things designed to be used for the commission of a crime and not reasonably calculated to be used for any other purpose;

(d) Papers, articles or things, the possession of which is unlawful;

(e) Persons for whom a warrant of arrest has been issued.

The application or complaint shall be in writing, signed by the complainant and verified by his oath or affirmation. It shall designate the house or place to be searched and the owner or occupant thereof (if any), and shall describe the things or persons sought as particularly as may be, and shall substantially allege the cause for which the search is made or the offense committed by or in relation to the persons or things searched for, and shall state that the complainant suspects that the same is concealed in the house or place designated and shall recite the facts upon which such suspicion is founded.

If the Judge, Clerk, Justice of the Peace or other magistrate shall find that the facts recited in the complaint constitute probable cause for the search, he may direct a warrant to any proper officer or to any other person by name for service; the warrant shall designate the house or place to be searched, and shall describe the things or persons sought as particularly as may be, and may be made returnable before any Judge, Justice of the Peace or Magistrate before whom it shall also direct to be brought the person or thing searched for if found, and the person in whose custody or possession the same may be found, to be dealt with according to law.

A search warrant shall not authorize the person executing it to search any dwelling house in the night time unless the Judge, Clerk, Justice of the Peace or Magistrate shall be satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for, and then the authority shall be expressly given in the warrant.

5343-EE. Sec. 66. CIRCUMSTANCES UNDER WHICH PAPERS, ARTICLES OR THINGS WHICH MAY BE THE SUBJECT-MAI-1TM OF A SEARCH WARRANT MAY BE SEIZED:--Any papers, articles or things which may be the subject-matter of a search warrant may be seized under each or any of the following circumstances:

(a) By any peace officer without a search warrant where such paper, article or thing is in plain view without the necessity of a search.

(b) Where such paper, article or thing is discovered pursuant to a valid search, with or without a search warrant, whether or not such paper, article or thing is an object of the search or is described in the search warrant.

Provided that the papers, articles and things seized, together with the person in whose possession or custody the same shall be found shall be brought forthwith before a Judge, Justice of the Peace or other Magistrate to be dealt with according to law.

5343-FF. Sec. 67. RETURN OF PAPERS, ARTICLES OR THINGS INVALIDLY SEIZED OR SEIZED AS THE RESULT OF AN INVALID SEARCH; APPLICATION TO COURT; BY WHOM MAY BE MADE:--Upon application to any Judge of the Court of General Sessions by the owner or occupant (if any) of the house or place searched and only upon such application of such owner or occupant, the Judge may direct that:

(a) Any papers, articles or things invalidly seized or seized as a result of an invalid search shall be returned to the person from whom the same were seized.

(b) Any papers, articles or things obtained as the result of an invalid search or seizure shall be suppressed and shall not be admitted as evidence in any criminal case whatsoever.

5343-GG. Sec. 68. DISPOSITION OF PROPERTY SEIZED: --The following disposition shall be made of any papers, articles or things validly seized:

(a) If the papers, articles or things were obtained as the result of the commission of a crime, they shall be returned to their lawful owner or owners.

(b) If the papers, articles or things were allegedly used in the commission of a crime, they shall be returned to the person from whom seized if such person is not thereafter duly convicted of the alleged crime; if such person is duly convicted of the alleged crime, the papers, articles and things shall be disposed of as the Court, in its discretion, shall direct.

(c) If possession of the papers, articles or things seized is unlawful, the same shall be disposed of as any Judge of the Court of General Sessions, in his discretion, shall, upon petition made, direct.

Provided that any papers, articles or things so seized may be retained by the police for a reasonable length of time for the purpose of apprehending the offender or using the papers, articles or things so seized as evidence in any criminal trial, or both.

5343-HH. Sec. 69. REPEAL OF OTHER STATUTES CONCERNING SEARCHES AND SEIZURES:--Any other Acts or parts of Acts relating to search warrants or searches and seizures including, but not with limitation thereto, the second full sentence of the first paragraph of 4058. Sec. 163. of the Revised Code of Delaware, 1935, all of 4483. Sec. 38. of the Revised Code of Delaware, 1935, and the provisions relating to searches and seizures in Subsections 7, 8, 9 and 11 of 6202. Sec. 73. of the Revised Code of Delaware, 1935, are hereby superseded and repealed.

5343-11. Sec. 70. SEVERABILITY:--If any provision of this Act or the application thereof to any person or circumstance is held to be unconstitutional, such unconstitutionality shall not affect other provisions or applications of the Act which can be given effect without the unconstitutional provision or application, and to this end the provisions of this Act are declared to be severable.

Approved June 5, 1951.