Swanson v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

KENNETH SWANSON, §
§ No. 364, 2024
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ ID No: 2306003673 (N)
STATE OF DELAWARE, §
§
Appellee. §

Submitted: October 15, 2025
Decided: December 31, 2025

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW and
GRIFFITHS, Justices, constituting the Court en banc.

Upon appeal from the Superior Court of the State of Delaware. AFFIRMED.

Nicole M. Walker, Esquire (argued); OFFICE OF THE PUBLIC DEFENDER,
Wilmington, Delaware, for Appellant Kenneth Swanson.

Kenneth J. Nachbar, Esquire, Julie M. Donoghue, Esquire (argued), DELAWARE
DEPARTMENT OF JUSTICE, Wilmington, Delaware, for Appellee State of
Delaware.
TRAYNOR, Justice:

The defendant asks this Court to overturn his conviction for possessing with

the intent to deliver 27 grams of cocaine, claiming that the cocaine police found on

his person was unlawfully seized in violation of the Fourth Amendment to the United

States Constitution. But the defendant did not move to suppress the damning

evidence in the trial court. Even so, he contends that we should review his Fourth

Amendment claim in the interests of justice under the plain-error standard of review.

Our rules of criminal procedure mandate that motions to suppress evidence be

filed before trial. The rules provide further that motions that are required to be, but

are not, filed before trial are waived. Although relief from the waiver is available

“for cause shown,” the defendant has not shown any cause here. Under these

circumstances and for the reasons stated below, we decline the defendant’s invitation

to review his untimely claim. Consequently, we affirm his conviction.

I

A
As of late-May 2023, Kenneth Swanson was subject to arrest under two

capiases issued by the Superior Court for violations of probation and one Family

Court capias, the reason for which the record does not disclose. Earlier that year, a

“past proven reliable confidential source” had told the police that Swanson was

“selling large amounts of crack cocaine throughout the Maryland Ave[nue] corridor”

2
in Wilmington. 1 Then, on June 7, 2023, that same informant reported to the police

that Swanson would be in the vicinity of Maryland Avenue and planned to conduct

a sale of cocaine at a predetermined location. According to the informant, Swanson

would be in a gray Nissan sedan bearing Washington registration plates.2

In response to the informant’s tip, several police officers, along with members

of the Safe Streets Task Force, surveilled the area surrounding the Maryland Avenue

corridor. They observed Swanson, accompanied by a passenger, driving along

Homestead Road in a car that matched the description of the vehicle provided by the

informant. When Swanson pulled over on Homestead Road, one of the detectives

witnessed another individual walk over to the vehicle, “reach inside,” and “appear

to exchange an unknown item with the occupants.”3 According to a detective on the

surveillance team, “these actions were consistent with a hand-to-hand drug

transaction.”4

Swanson then drove to a nearby gas station. When he stopped near the gas

pumps, Detective Anthony Randazzo of the New Castle County Police Department

pulled up behind him. Detective Randazzo approached the vehicle and confirmed

Swanson’s identity through the open drivers-side window. The detective then asked

1
App. to Answering Br. at B3.
2
Id.
3
Id.
4
Id. (included dashes).
3
Swanson to exit from the vehicle, and when Swanson complied, the detective cuffed

his hands behind his back.

Detective Randazzo patted Swanson down, reached into Swanson’s pockets

and found “some currency, a lighter,” and “some miscellaneous items.”5 Detective

Randazzo also pressed down on the fabric around Swanson’s groin area. The

detective felt “what appeared to be a hard object in a ball,” which “[d]idn’t seem like

it was part of the human anatomy.”6 Believing that Swanson was in possession of

crack cocaine, the detective called Probation Officer William Walker, who was at the

scene with numerous other officers, to retrieve the item.

Officer Walker put on a pair of gloves and approached Swanson. The officer

pulled Swanson’s pants slightly outward and reached down into his pants. At no

point during this search did Swanson’s pants or underwear fall below his waist,

exposing his pelvic region. Officer Walker recovered a plastic bag that was “knotted

at the top,” which contained what he believed to be crack cocaine.7 He handed the

bag over to Detective Randazzo.

Detective Randazzo placed Swanson and the suspected drugs in the patrol car

and drove them to the New Castle County Police Department. The substance in the

bag was sent to a lab for testing; the results confirmed that the substance was cocaine.

5
App. to Opening Br. at A16.
6
Id. at A16–17.
7
Id. at A45.
4
B

A grand jury indicted Swanson on one count of drug dealing, one count of

drug possession in a Tier 3 quantity (25 grams or more of cocaine), and one count of

driving a vehicle while his license was suspended or revoked.8 Within two months

of Swanson’s indictment, the State produced discovery materials to Swanson’s

counsel, including four body-worn camera clips. The clip from Detective

Randazzo’s body-worn camera clearly depicted his encounter with Swanson and

Officer Walker’s search. Other than a motion to dismiss for pre-indictment delay

Swanson filed no pretrial motions.

Swanson waived his right to trial by jury. The ensuing bench trial was brief.

The prosecution’s case-in-chief, which lasted little more than an hour, consisted of

testimony from Detective Randazzo and Officer Walker. During Detective

Randazzo’s testimony, his body-worn camera video was admitted as the State’s sole

evidentiary exhibit without objection. The defense refrained from calling any

witnesses or offering any evidence.

Before closing argument, the State informed the court that it was only seeking

a conviction on the Tier 3 drug possession charge and would eventually enter nolle

prosequi on the drug-delivery and driving-with-a-suspended license charges. The

court found Swanson guilty of the drug possession charge.

8
Id. at A1; id. at A5–6.
5
After a presentence investigation, the court granted the State’s motion to

declare Swanson a habitual offender subject to sentencing under 11 Del. C. § 4214(a)

and sentenced Swanson to ten years of Level V incarceration, suspended after six

years for decreasing levels of supervision.

C

In this appeal, despite his failure to move to suppress the fruits of the search

of his person after he was lawfully taken into custody, Swanson now contends that

the search, because of its invasive nature, was so unreasonable as to have required

the trial judge to suppress the fruits of the search sua sponte. Typically, we would

preface our analysis of an appellate claim with a statement of the standard of review.

But the question here is not how we should review Swanson’s argument; rather, the

question is whether we should review the argument at all. For the reasons that

follow, we conclude that appellate review is not appropriate.

II

A

Under Superior Court Criminal Rule 12, “[a]ny defense, objection, or request

which is capable of determination without the trial of the general issue may be raised

prior to trial.”9 But certain motions, among them motions to suppress evidence,

9
Super. Ct. Crim. R. 12(b) (emphasis added).
6
“must be raised before trial.”10 And under subparagraph (f) of Rule 12, failure by a

party “to make requests which must be made prior to trial . . . shall constitute waiver

thereof, but the court for cause shown may grant relief from the waiver.”

In this case, Swanson did not file a pretrial motion to suppress the evidence

seized from him when he was arrested and did not object to its admission during the

State’s case-in-chief. Nor has he attempted to show cause why he is entitled to relief

from his waiver. Instead, he skips past Rule 12’s requirements and waiver provision

and contends that we should review his Fourth Amendment claim under a plain-error

review standard.

To be sure, it is well established that, although “[o]nly questions fairly

presented to the trial court may be presented for review[],” in this Court,11 we may

consider arguments not presented to the trial court if the interests of justice require

it. Such a review, when allowed, proceeds under the plain-error standard. When we

apply that standard, our review is limited to errors that affect substantial rights in a

way that “jeopardize[s] the fairness and integrity of the trial process.”12

“[T]he doctrine of plain error is limited to material defects which are apparent on the

face of the record; which are basic, serious and fundamental in their character, and

10
Id.
11
Supr. Ct. R. 8.
12
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
7
which clearly deprive an accused of a substantial right, or which clearly show

manifest injustice.”13

In the context of this case, Swanson’s invocation of this doctrine is wide of

the mark. It elides the fact that, by not moving before trial to suppress the fruits of

the officer’s search, Swanson did not trigger the process by which our trial courts

adjudicate such motions. That process involves a pretrial evidentiary hearing at

which the trial court hears testimony and considers evidence relevant to the

reasonableness of the challenged search or seizure. If the search or seizure was

pursuant to a warrant, the defendant typically bears the burden of establishing the

invalidity of the warrant.14 When, as here, the search and seizure was conducted

without a warrant, the burden of proof is on the prosecution.15 Evidence that is

relevant to the reasonableness of a search or seizure is frequently irrelevant and

inadmissible at trial. Here, Swanson’s failure to move to suppress the challenged

evidence before trial effectively precluded the State from establishing an evidentiary

record that would support a finding by the trial court that the officers’ search of

Swanson at the scene of his arrest was constitutionally permissible. Under these

13
Id.
14
State v. Sisson, 883 A.2d 868, 875 (Del. Super. Ct. 2005).
15
Juliano v. State, 254 A.3d 369, 392 (Del. 2020) (quoting Hunter v. State, 783 A.2d 558, 560
(Del. 2001); see also 6 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment
§ 11.2(b) (6th ed. 2025) (observing that “most states follow the rule utilized in the federal courts:
if the search or seizure was pursuant to a warrant, the defendant has the burden of proof; but if the
police acted without a warrant[;] the burden of proof is on the prosecution.”).
8
circumstances, it would be fundamentally unfair for this Court to consider

Swanson’s Fourth Amendment claim.

Other reasons militate against allowing appellate review of a Fourth

Amendment claim that was not raised before trial. Under 10 Del. C. § 9902, the

State has an absolute right to appeal an order “suppressing or excluding substantial

and material evidence, upon certification by the Attorney General that the evidence

is essential to the prosecution[and] dismiss[al] of the complaint, indictment, or

information or any count thereof to the proof of which the evidence suppressed or

excluded is essential.”16 If the appellate court finds merit in the State’s appeal, the

appellate court “shall reverse the dismissal, [and] the defendant may be subjected to

trial.”17 If a trial court were to entertain a motion to suppress after jeopardy has

attached, the State would lose its right to appeal an adverse ruling on suppression.18

In addition to that, indiscriminate appellate review of suppression claims not

raised in accordance with the trial court’s procedural rules could have undesirable

practical effects. In particular, it would place our trial judges in an untenable

position, as illustrated by Swanson’s argument here. As mentioned, he contends that,

even though he did not move to suppress the challenged evidence, the trial court

should have nevertheless suppressed it. Thus, under Swanson’s reasoning, trial

16
10 Del. C. § 9902(b).
17
10 Del. C. § 9902(c).
18
See United States v. Ford, 34 F.3d 992, 994 n.2 (11th Cir. 1994).
9
judges should be on the lookout—presumably, during trial—for evidence that might

have been unlawfully seized, even though the lawfulness of searches and seizure is

not among the things the State must prove at trial. The impracticability of imposing

such a burden on trial judges is obvious.

Considering all these factors, we are convinced that the application of Rule

12’s waiver provision to the exclusion of plain-error review, absent good cause for

not filing a motion to suppress before trial, is entirely appropriate.

B

We acknowledge that decisions of this Court offer some support for

Swanson’s argument that his failure to move to suppress the cocaine found on his

person should be treated like a run-of-the-mill failure to object to evidence at trial.

On one side of the ledger, we have noted, in the absence of the pretrial suppression

motion, “there is not an adequate record upon which to review the [suppression]

claim.”19 On the other side, however, in those very cases, we have undertaken plain-

error review. But we do not view those cases as standing for the proposition that, as

Swanson has argued, we “must review . . . for plain error”20 the Fourth Amendment

issue he has raised for the first time in this appeal. To the contrary, we are satisfied

19
Mills v. State, 947 A.2d 1122, 2007 WL 4245464, at *4 (Del. Dec. 3, 2007) (TABLE); see also
Jones v. State, 882 A.2d 761, 2005 WL 2473789, at *1 (Del. August 22, 2005) (TABLE); Walley
v. State, 622 A.2d 1097, 1993 WL 78221, at *2 (Del. Mar. 17, 1993) (TABLE).
20
Reply Br. at 1.
10
that the straightforward application of the Superior Court Criminal Rule 12 supports

a finding of waiver here. This decision is consistent with the approach taken by the

majority of the federal Circuit Courts of Appeal, which we discuss next.

C

Like our Superior Court’s rules, the Federal Rules of Criminal Procedure

require defendants to raise any suppression issues before trial. Federal Criminal

Rule 12(b) provides that requests for the suppression of evidence “must be raised by

pretrial motion if the basis for the motion is then reasonably available and the motion

can be determined without a trial on the merits.” Before the federal rules were

amended in 2014, Rule 12(e) governed the consequences of an untimely motion:

A party waives any Rule 12(b)(3) defense, objection, or request not
raised by the deadline the court sets under Rule 12(c) or by any
extension the court provides. For good cause, the court may grant relief
from the waiver.21

In the 2014 the amendments, the word “waiver” was removed and was replaced with

the term “untimely”:

Consequences of not Making a Timely Motion Under Rule 12(b)(3).
If a party does not meet the deadline for making a Rule 12(b)(3) motion,
the motion is untimely. But a court may consider the defense, objection,
or request if the party shows good cause.22

The Advisory Committee explained why that decision was made:

21
Fed. R. Crim. P. 12(e) (before the 2014 amendment).
22
Fed. R. Crim. P. 12(c)(3) (emphasis in original).
11
Although the term waiver in the context of a criminal case ordinarily
refers to the intentional relinquishment of a known right, Rule 12(e) has
never required any determination that a party who failed to make a
timely motion intended to relinquish a defense, objection, or request
that was not raised in a timely fashion. Accordingly, to avoid possible
confusion the Committee decided not to employ the term “waiver” in
new paragraph (c)(3).23

In United States v. Chavez-Valencia,24 a case that predates the 2014

amendments and thus considered a waiver rule much closer to our Superior Court

Criminal Rule 12(f), the Fifth Circuit Court of Appeals applied Rule 12 to an

appellate claim of an unlawful motor vehicle stop that the defendant failed to raise

in a pretrial motion. In ruling that appellate review is barred when a defendant does

not raise a suppression claim in a timely manner under Rule 12, the court discussed

the important policy considerations served by the rule:

Allowing appellate review of suppression claims not raised in the
district court inflicts a significant cost on the criminal justice process.
If, at trial, the government assumes that a defendant will not seek to
suppress certain evidence, the government may justifiably conclude
that it need not introduce the quality or quantity of evidence needed
otherwise to prevail. Also, on appeal the government will be forced to
rely on an underdeveloped record in defending itself.

In another Fourth Amendment case, the Ninth Circuit Court of Appeals

expressed similar concerns:

As a general rule, an issue not presented to the trial court cannot be
raised for the first time on appeal. Several policies underlie this rule.
It would be unfair to surprise litigants on appeal by final decision of an

23
Fed. R. Crim. P. 12, Advisory Committee Note to 2014 Amendment.
24
116 F.3d 127 (5th Cir. 1997).
12
issue on which they had no opportunity to introduce evidence. Judicial
economy and sound judicial administration require that issues critical
to the conduct of the trial, such as grounds for suppressing evidence, be
presented initially to the trial judge for decision.25

This rule, which is followed in several other federal circuits,26 makes eminent

sense as is illustrated by the case now before us in which Swanson asks this Court

to assess the reasonableness of the warrantless search of his person. Had he raised

that issue in a pretrial motion as Rule 12(b) requires, the State would have had the

burden of proving the reasonableness of the search at a pretrial suppression hearing

presided over by the trial judge. Given the nature of Swanson’s claim—that the

search was unduly invasive and unnecessarily conducted in a “wide-open gas pump

bay area in view of the public”27—the State could have offered evidence countering

Swanson’s vague suggestion that the search was visible to others and explaining the

rationale for each investigative step taken at the scene. But because there was no

25
United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983).
26
See, e.g., United States v. Luciano, 329 F.3d 1, 9 (1st Cir. 2003); United States v. Martinez, 862
F.3d 223, 233–34 (2d Cir. 2017), cert. granted, judgment vacated sub nom. Rodriguez v. United
States, 588 U.S. 918 (2019); United States v. Sok, 115 F.4th 251, 266 (3d Cir. 2024); United States
v. Martinez-Hidalgo, 993 F.2d 1052, 1057–58 (3d Cir. 1993); United States v. Randolph, 27 F.3d
564, 1994 WL 273881, at *1 (4th Cir. June 22, 1994) (TABLE); United States v. Ibarra-Zelaya,
465 F.3d 596, 604 (5th Cir. 2006); United States v. Obiukwu, 17 F.3d 816, 820 (6th Cir. 1994)
(“Where, as here, a defendant neither filed a pre-trial suppression motion nor objected to the
introduction of the evidence at trial, we cannot review an assignment of error charging that the
evidence should have been suppressed.”); United States v. McMillian, 786 F.3d 630, 633, 35–36
(7th Cir. 2015); United States v. Green, 691 F.3d 960, 962–63 (8th Cir. 2012); Whitten, 706 F.2d
at 1012; United States v. Dirden, 38 F.3d 1131, 1139 n.10 (10th Cir. 1994) (“By failing to challenge
anything but the stop in the proceedings below, [the defendant] has waived any other challenges
on appeal”); United States v. Pou, 2006 WL 3228039, at *1 (11th Cir. Nov. 8, 2006).
27
Opening Br. at 9.
13
suppression hearing and the evidence that would be relevant to Swanson’s

suppression claim was not relevant at Swanson’s trial, the State was deprived of that

opportunity. Swanson should not be heard now to argue that the State did not sustain

its burden of proof.

To be clear, we hold that Superior Court Criminal Rule 12 means what it says:

motions to suppress “must be made prior to trial” and a failure to do so, absent cause,

“shall constitute waiver thereof.” We envision that “cause” could take various forms.

For instance, “[g]ood cause may be shown where the information supporting the

claim arose too late to file a timely Rule 12 motion.”28 We also leave the door open

to plain-error review of search warrants where the evidentiary record upon which

our review will be based is limited to information within the “four corners” of the

warrant.29 But here, as mentioned, Swanson has made no effort to establish cause

for his failure to file a motion to suppress before trial. We therefore decline to

address his claim on appeal.

III

We affirm the Superior Court’s judgment of conviction.

28
Sok, 115 F.4th at 263.
29
See, e.g., Buckham v. State, 185 A.3d 1, 16 (Del. 2018) (quoting Sisson v. State, 903 A.2d 288,
296 (Del. 2006)).
14