TITLE 11

Crimes and Criminal Procedure

Criminal Procedure Generally

CHAPTER 23. SEARCH AND SEIZURE

Subchapter I. General Provisions


No person shall search any person, house, building, conveyance, place or other thing without the consent of the owner (or occupant, if any) unless such search is authorized by and made pursuant to statute or the Constitution of the United States.

Code 1935, § 5343-AA; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2301; 53 Del. Laws, c. 359, § 1; 56 Del. Laws, c. 422, § 1.;

A search of a person, house, building, conveyance, place or other thing 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 or a misdemeanor.

Code 1935, § 5343-BB; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2302; 56 Del. Laws, c. 422, § 2.;

A search of a person, house, building, conveyance, place or other thing may be made without a warrant if:

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

(2) The search is made in order to find and seize:

a. The fruits of a crime;

b. The means by which the crime was committed;

c. Weapons and other things to effect an escape from arrest or custody; and

d. Evidentiary matter pertaining to the commission of a crime.

Code 1935, § 5343-CC; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2303; 56 Del. Laws, c. 422, § 3.;

Any Judge of the Superior Court, the Court of Common Pleas, 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 person, house, building, conveyance, place or other thing for each or any of the items specified in § 2305 of this title.

Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2304; 49 Del. Laws, c. 220, § 9; 53 Del. Laws, c. 359, § 1; 56 Del. Laws, c. 422, § 4; 71 Del. Laws, c. 176, § 16.;

A warrant may authorize the search of any person, house, building, conveyance, place or other things for any of the following:

(1) Papers, articles or things of any kind which were instruments of or were used in a criminal offense, the escape therefrom or the concealment of said offense or offenses;

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

(3) 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;

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

(5) Papers, articles or things which are of an evidentiary nature pertaining to the commission of a crime or crimes;

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

Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2305; 53 Del. Laws, c. 359, § 1; 56 Del. Laws, c. 442, § 5.;

The application or complaint for a search warrant shall be in writing, signed by the complainant and verified by oath or affirmation. It shall designate the house, place, conveyance or person 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 such persons or things are concealed in the house, place, conveyance or person designated and shall recite the facts upon which such suspicion is founded.

Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2306; 53 Del. Laws, c. 359, § 1; 70 Del. Laws, c. 186, § 1.;

(a) Issuance of search warrants; contents — If the judge, justice of the peace or other magistrate finds that the facts recited in the complaint constitute probable cause for the search, that person may direct a warrant to any proper officer or to any other person by name for service. The warrant shall designate the house, place, conveyance or person to be searched, and shall describe the things or persons sought as particularly as possible.

(b) Execution and return with inventory — The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made forthwith and shall be accompanied by a written inventory of any property taken. The inventory shall be made and signed by the officer executing the warrant in the presence of the person from whose possession or premises the property was taken, if they are present, or if they are not present, in the presence of at least 1 witness. The judge shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2307; 49 Del. Laws, c. 220, § 9; 53 Del. Laws, c. 359, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 314, §§ 1, 2, 3, 4.;

A search warrant shall not authorize the person executing it to search any dwelling house in the nighttime unless the judge, justice of the peace or magistrate is 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. For purposes of this section the term "nighttime'' shall mean the period of time between 10:00 p.m. and 6:00 a.m.

Code 1935, § 5343-DD; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2308; 49 Del. Laws, c. 220, § 9; 63 Del. Laws, c. 308, § 1.;

(a) Any papers, articles or things which are the subject matter of a search warrant may be seized:

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

(2) 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.

(b) The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made forthwith and shall be accompanied by a written inventory of any property taken. The inventory shall be made and signed by the officer executing the warrant in the presence of the person from whose possession or premises the property was taken, if they are present, or, if they are not present, in the presence of at least 1 witness. The judge shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

Code 1935, § 5343-EE; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2309; 73 Del. Laws, c. 314, § 5.;

(a) When used in this subchapter, the terms "property'' and "papers, articles or things'' shall, in addition to their ordinary meanings, include any funds placed in a bank or other monetary account.

(b) Any papers, articles, things or other property which represent or is traceable to the fruits of a crime or which represent or is traceable to the proceeds obtained, directly or indirectly, as a result of the commission of a crime, shall be subject to search and seizure pursuant to this subchapter.

75 Del. Laws, c. 106, § 1.;

(a) The following shall be sufficient form of affidavit and application for search warrant:

IN THE (NAME OF COURT)

STATE OF DELAWARE

STATE OF DELAWARE

IN THE MATTER OF:

                   AFFIDAVIT AND AP-

(NAME OF PERSONS, HOUSE,                 PLICATION FOR

PLACE OR THING TO BE                         SEARCH

SEARCHED)

STATE OF DELAWARE

COUNTY    SS.

Be it remembered that on this....... day of......., A.D. 20...., before me (name of judge or justice of peace and designation of court), personally appeared (name and rank of affiant and designation of police department of which affiant is a member), who being by me duly sworn (or affirmed) deposes (or depose) and says (or say):

That the affiant (or affiants) has (or have) reason to believe and does (or do) believe that in the (house, place, conveyance or person known as............. designate and describe briefly,) the owner(s) (or occupant(s)) is (are) (name and owner or owners, occupant or occupants) there has been and/or there is now located and/or concealed certain property in said house, place, conveyance and/or on the person or persons of the occupants thereof, consisting of property, papers, articles or things which are the instruments of a criminal offense, and/or obtained in the commission of a crime, and/or designated to be used in the commission of a crime, and not reasonably calculated to be used for any other purpose and/or the possession of which is unlawful and, in particular, (describe the property or person expected to be found) which said property, papers, articles or things were, are, or will be possessed and/or used in violation of Title 11, Chapter......., Section......., Delaware Code, in that (designate offense by name and brief statement of its commission).

And that the facts tending to establish probable cause for believing that the foregoing grounds for the application exist are as follows:

(State briefly only. Also, if authority is sought to search a dwelling house in the nighttime, set forth briefly the facts which show that the nighttime search is necessary to prevent the escape or removal of the person or thing to be searched for.)

WHEREFORE, this (these) affiant(s) prays (or pray) that a search warrant may be issued authorizing a search of the aforesaid (house, place, conveyance, person or persons, or occupant or occupants) in the manner provided by law.

                                                 

Affiant   

                                                 

Affiant   

SWORN to (or affirmed) and subscribed before me this............. day of............., A.D. 20.......

                                       

(Judge or Justice of Peace —

Designate name, title and court)

(b) The following shall be a sufficient form of search warrant where search of a dwelling house in the nighttime is not authorized:

IN THE (NAME OF COURT) STATE OF DELAWARE

IN THE (NAME OF COURT) STATE OF DELAWARE

IN THE MATTER OF:

(NAME OF PERSON, HOUSE,               SEARCH WARRANT

PLACE OR THING TO BE

SEARCHED)

THE STATE OF DELAWARE TO: (Name and rank of person or persons directed to make search and designation of police department of which such persons are members) with the assistance of any police officer or constable or any other necessary or proper person or persons or assistance.

GREETINGS:

Upon the annexed affidavit and application or complaint for a search warrant, as I am satisfied that there is probable cause to believe that certain property, namely (describe the property) used or intended to be used for

,

is being concealed on the (premises) (person) described in the annexed affidavit and application or complaint;

NOW THEREFORE, YOU ARE HEREBY COMMANDED within 10 days of the date hereof to search the above-named person, persons, house, conveyance or place for the property specified in the annexed affidavit and application, and to search any occupant or occupants found in the house, place, or conveyance above named for such property, serving this warrant and making the search in the daytime, or in the nighttime if the property to be searched is not a dwelling house, and, if the property, papers, articles or things, or any part thereof, be found there, to seize it, giving to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, or leaving the copy and receipt at the place from which the property was taken, and to prepare a signed inventory of the goods seized in the presence of the person from whose possession or premises the property was taken, if they are present, or, if they are not present, in the presence of at least 1 witness, and to return this warrant, accompanied by the written inventory, to me forthwith.

DATED the............. day of...........,

A.D. 20......

                                       

                                       (Judge or Justice of Peace —

                                       Designate name, title and court)

(c) The following shall be sufficient form of search warrant where search of a dwelling house in the nighttime is authorized:

IN THE (NAME OF COURT) STATE OF DELAWARE

IN THE (NAME OF COURT) STATE OF DELAWARE

IN THE MATTER OF:

(NAME OF PERSON, HOUSE,               SEARCH WARRANT

PLACE OR THING TO BE

SEARCHED)

THE STATE OF DELAWARE TO: (Name and rank of person or persons directed to make search and designation of police department of which such persons are members) with the assistance of any police officer or constable or any other necessary or proper person or persons or assistance.

GREETINGS:

Upon the annexed affidavit and application or complaint for a search warrant, as I am satisfied that there is probable cause to believe that certain property, namely (describe the property) used or intended to be used for

,

is being concealed on the (premises) (person) described in the annexed affidavit and application or complaint; and that search of the premises in the nighttime is necessary in order to prevent the escape or removal of the person or thing to be searched for;

NOW THEREFORE, YOU ARE HEREBY COMMANDED within 3 days of the date hereof to search the above-named person, persons, house, place or conveyance for the property specified in the annexed affidavit and application, and to search any occupant or occupants found in the house, place or conveyance above named for such property serving this warrant and making the search in the daytime, or in the nighttime and, if the property, papers, articles or things, or any part thereof, be found there, to seize it, giving to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, or leaving the copy and receipt at the place from which the property was taken, and to prepare a signed inventory of the goods seized in the presence of the person from whose possession or premises the property was taken, if they are present, or, if they are not present, in the presence of at least 1 witness, and to return this warrant, accompanied by the written inventory, to me forthwith.

DATED the..................... day of....................,

A.D. 20...........

                                       

                                       (Judge or Justice of Peace —

                                       Designate name, title and court)

11 Del. C. 1953, § 2310; 53 Del. Laws, c. 359, § 2; 57 Del. Laws, c. 428; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 314, §§ 6, 7.;

(a) The following disposition shall be made of any papers, articles or things validly seized:

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

(2) If the papers, articles or things were property which represents or is traceable to the fruits of a crime or which represents or is traceable to the proceeds obtained, directly or indirectly, as a result of the commission of a crime and the person from whom they are seized is duly convicted of the alleged crime, the court may order that the property be disposed of or dispersed in a manner consistent with § 4106 of this title or otherwise disposed of as the court directs;

(3) 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; but if such person is duly convicted of the alleged crime, the papers, articles and things shall be disposed of as the court directs;

(4) If possession of the papers, articles or things seized is unlawful, they shall, upon petition, be disposed of as any Judge of the Superior Court directs.

(b) Any papers, articles or things validly 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.

(c) A deadly weapon or ammunition which was validly seized from a person who is prohibited from purchasing, owning, possessing or controlling a deadly weapon as a result of a felony conviction under Delaware law, federal law or the law of any other state, or who is otherwise prohibited under § 1448 of this title may be disposed of by the law-enforcement agency holding the weapon or ammunition, after the exhaustion of any right of direct appeal, and after proper notice of the intent to dispose of such deadly weapon or ammunition 6 months from the date of the notice, unless such deadly weapon or ammunition has been claimed by the owner or a third party. If the deadly weapon or ammunition shall remain unclaimed after 6 months from the date of notice, then no party shall thereafter have the right to assert ownership thereof, and the law-enforcement agency may dispose of such deadly weapon or ammunition following the expiration of the period set forth in subsection (d) of this section. For purposes of this section, "disposition'' may include the sale or transfer of the firearms to a federal licensed dealer, defined as a person licensed as a firearms collector, dealer, importer, or manufacturer under the provisions of 18 U.S.C. § 922 et seq., or destruction of the firearms and ammunition.

(1) Any person requesting the return of any deadly weapon or ammunition hereunder shall have the burden to prove that he or she is the owner thereof and is not otherwise prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition.

(2) Any third party requesting the return of any deadly weapon or ammunition hereunder shall also have the burden to prove ownership by devise, gift, sale or other legally-recognized process for conveying ownership.

(d) Any law-enforcement agency denying an owner or a third party the possession of any deadly weapon or ammunition pursuant to this section shall not dispose of such deadly weapon or ammunition until the expiration of 60 calendar days from the date of denial.

(e) Notwithstanding anything in this section to the contrary, any law-enforcement agency holding a deadly weapon or ammunition validly seized from a person who is subject to a Family Court protection from abuse order pursuant to § 1448(a)(6) of this title may dispose of such deadly weapon or ammunition after the expiration or termination of such order and after proper notice is provided to the owner in accordance with subsections (c) and (d) of this section.

(f) For purposes of this section:

(1) "Last-known address'' shall mean the last known address of the owner of any deadly weapon or ammunition hereunder as determined through the Delaware Criminal Justice Information System (DELJIS), the Family Court of the State or the address noted on the owner's most recent driver's license, vehicle registration or Division of Motor Vehicle identification card. In accordance with this section, the Family Court is authorized to provide to law-enforcement the most recent address of an owner who was, or is, a party to any Family Court proceeding.

(2) "Proper notice'' shall mean notice of a law-enforcement agency's intention to dispose of a deadly weapon or ammunition in accordance with this section by written notice, via certified letter, return receipt requested, to the owner's last known address and by publication in a local or statewide newspaper at least once a week for 2 consecutive weeks. Such notice shall state that the local law-enforcement agency may not dispose of said deadly weapon or ammunition until the expiration of the notice period set forth in this section.

(3) "Third party'' shall mean any person requesting the return of any deadly weapon or ammunition hereunder who is not the party to whom notice was sent in accordance with subsection (c) of this section.

(g) If a law-enforcement agency denies any request for the return of a deadly weapon or ammunition hereunder, the person or third party so denied shall have the right to file a petition in any court of competent jurisdiction for the return of the deadly weapon or ammunition, in addition to any other rights such person may have. A law-enforcement agency shall not dispose of a deadly weapon or ammunition subject to such a petition until a final adjudication and the expiration of any appeal period. The petition filed pursuant to this subsection shall include the following:

(1) A complete description of the property including all identification and registration numbers if applicable;

(2) The name and last known address of the owner or owners of the property;

(3) The names and addresses of any persons who claim to or have an interest or lien in the subject property;

(4) A statement of the value of the subject property; and

(5) A statement by the petitioner that he or she requested the return of a deadly weapon or ammunition from a law-enforcement agency, and that such request was denied.

(h) Upon receipt of a petition which is made pursuant to subsection (g) of this section, the court shall send a notice and a copy of the petition to the law-enforcement agency holding the deadly weapon or ammunition and to all other owners and/or lienholders of said property identified in the petition. Such notice shall include:

(1) A statement that a petition has been made with the court;

(2) A statement that the owner or other person has a legal right to a hearing in the courts and that if a hearing is desired then the owner or other person shall file with the court an answer to the petition;

(3) A statement that if an answer is filed a hearing will be promptly scheduled and the owners or other interested persons may appear to contest the claim;

(4) A statement that the court will enter a judgment in favor of the petitioner unless an answer is filed within 20 days after the date on which the notice was mailed;

(5) A statement that the person may be liable for costs if a judgment is entered in favor of the petitioner.

(i) If the court receives an answer described in paragraph (h)(3) of this section, the court shall notify the petitioner and all parties of the hearing date to determine ownership of the deadly weapon or ammunition. If no answer is filed pursuant to paragraph (h)(3) of this section, then the court shall issue an order declaring that the petitioner has full right, title and interest to the said deadly weapon or ammunition.

Code 1935, § 5343-GG; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2311; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 106, § 2; 76 Del. Laws, c. 99, § 2; 78 Del. Laws, c. 135, §§ 1-5, 10.;