Subchapter I. General Provisions
TITLE 11
Crimes and Criminal Procedure
Criminal Procedure Generally
CHAPTER 23. SEARCH AND SEIZURE
Subchapter I. General Provisions
§ 2301. Search to accord with statute or Constitution.
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.;
§ 2302. Search without warrant in hot pursuit.
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.;
§ 2303. Search without warrant incident to arrest.
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.;
§ 2304. Persons authorized to issue search warrants.
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.;
§ 2305. Objects of search warrant.
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.;
§ 2306. Application or complaint for search warrant.
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.;
§ 2307. Issuance contents; execution and return of search warrants.
(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.;
§ 2308. Search at nighttime.
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.;
§ 2309. Grounds for seizure of subject matter of search.
(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.;
§ 2309A. Objects subject to search and seizure.
(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.;
§ 2310. Short form of affidavit, application and search warrant.
(a) The following shall be sufficient form of affidavit and application
for search warrant:
IN THE (NAME OF COURT)
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 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 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)
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.;
§ 2311. Disposition of property validly seized.
(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 § 1448(a)(1) or (a)(3) of this title, or prohibited under § 1448(a)(8) 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, subject only to any claim that has been asserted on the part of any third party claiming ownership in the weapon or ammunition.
Code 1935, § 5343-GG; 48 Del. Laws, c. 303; 11 Del. C. 1953, § 2311; 75 Del. Laws, c. 106, § 2; 76 Del. Laws, c. 99, § 2.;