State v. Viquez

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
v. ) ID No. 2409008211
)
CYNTHIA VIQUEZ, )
)
Defendant. )

Submitted: July 17, 2025
Decided: July 28, 2025

Upon Defendant Cynthia Viquez’s Motion to Suppress
DENIED

ORDER

Ipek Kurul, Esquire, Brianna Mills, Esquire, Deputy Attorneys General,
DEPARTMENT OF JUSTICE, 820 North French Street, 7th Floor, Wilmington, DE
19801, Attorneys for the State.

Erika LaCon, Esquire, Matthew Keating, Esquire, Assistant Public Defenders,
OFFICE OF DEFENSE SERVICES, 820 North French Street, 3rd Floor,
Wilmington, DE 19801, Attorneys for Defendant.

WHARTON, J.
This 28th day of July 2025, upon consideration of Defendant Cynthia Viquez’s

(“Viquez”) Motion to Suppress,1 the State’s Response to Defendant’s Motion to

Suppress (“State’s Response”),2 and the suppression hearing held on July 17, 2025,3

it appears to the Court that:

1. On September 3, 2024, a concerned neighbor contacted Wilmington

police to request a welfare check of Leonor Gonzalez Ortiz (“Ortiz”), the

homeowner of 402 S. Jackson Street.4 The neighbor called the police after the

neighbor had not seen Ortiz for a few days and became concerned that she was not

following her daily routine.5

2. At the time, Viquez and Luis Burgos (“Burgos”) were living at Ortiz’s

home as renters.6 When the police officers arrived at Ortiz’s home for the welfare

check, Viquez was not there, but the police obtained Viquez’s cell phone number

from the neighbor.7 The officers called Viquez and she told them that she was

dropping off a friend at the bus stop and would return to meet them soon.8

1
D.I. 12.
2
D.I. 16.
3
D.I. 21.
4
State’s Resp. at 1, D.I. 16.
5
Id.
6
Id. at 1-2.
7
Id. at 2.
8
Id.
2
3. Viquez returned to the residence and met with the officers.9 She

claimed that she spoke to Ortiz that morning.10 She then voluntarily let the officers

inside the residence.11 Upon entering the residence, the officers immediately noticed

that it was unusually cold inside.12 The officers noted that the thermostat was set to

60 degrees, and the temperature inside the house was also showing 60 degrees.13

4. The officers were unable to locate Ortiz after looking through the first

and second floors of the house.14 The basement door was locked and barricaded

with clothes.15 The officers requested Viquez to unlock the door to allow them to

search the basement.16 Viquez originally told the officers that she did not have a key

to the basement door and Burgos locked it and took the key.17 Shortly after this

exchange, the officers obtained Viquez’s key chain and located the basement key on

it.18 The officers used the key to unlock the basement door and enter the basement.19

9
Id.
10
Id.
11
Id.
12
Id.
13
Id.
14
Id.
15
Id.
16
Id.
17
Id.
18
Id. at 2-3.
19
Id. at 3.
3
5. The officers discovered a “makeshift coffin” used to conceal Ortiz’s

body in the basement.20 It consisted of pieces of miscellaneous wood and piles of

clothes and blankets with Ortiz’s feet protruding from the bottom of the pile.21

6. Prior to the officers locating Ortiz’s body, Viquez told them that Ortiz

was fine and that she was located in Columbia when she spoke to her that morning.22

Viquez offered to call and did call Ortiz’s contact number in Columbia.23 A man

answered the phone.24 One of the officers asked the man to put Ortiz on the phone.25

The man claimed Ortiz was asleep and refused to wake her up at the request of the

officer.26

7. Once the officers went into the basement, Viquez became visibly upset

and started to cry.27 It was at this time that she began to intimate that Ortiz was

deceased.28 Viquez kept telling the police that she could not lose her grandmother

after also losing her mother and son.29

20
Id.
21
Id.
22
Id.
23
Id.
24
Id.
25
Id.
26
Id.
27
Id.
28
Id.
29
Id. at 4.
4
8. Viquez started to implicate Burgos in Ortiz’s death during her post-

Miranda interview with Det. Kane at the Wilmington police station.30 Viquez

volunteered that she had two phones: her iPhone and a phone given to her by the

“NYPD.”31 She told Det. Kane that she gave Burgos her “NYPD” phone.32 Soon

after the start of the interview, Viquez said Burgos was using her iPhone to write

texts during the timeframe in question.33 She said that Burgos texted her new

boyfriend, Martin Johnson (“Johnson”), about hitting Ortiz.34 Viquez also said

Burgos was trying to make it look like she was the one who killed Ortiz.35

9. Det. Kane requested permission to search Viquez’s iPhone.36 Det. Kane

told Ortiz, “I’m just interested in these text messages, and anything related to what

we are talking about, okay?”37 Det. Kane addressed Ortiz’s questions about the

download.38 He made it clear several times that police would download the entire

contents of the iPhone.39

30
Id. (A transcript of portions of that interview relevant to the motion is attached to
the State’s Response as Ex. A. It was also introduced as State’s Ex. 2 at the
suppression hearing. A corresponding video was introduced as State’s Ex. 1.)
31
Id.
32
Id.
33
Id.
34
Id.
35
Id.
36
Id.
37
Id. at 4-5 (quoting Ex. A, 34:32-36).
38
Id. at 5.
39
Id.
5
10. Viquez asked Det. Kane questions, including, “[a]re you guys able to

see everything like, you know, as in like messages that he wrote?”40 Det. Kane

answered in the affirmative.41 Viquez wanted to know if they would be able to see

deleted content regarding anything that Burgos may have deleted on her phone.42

Again, Det. Kane answered in the affirmative.43

11. Viquez also seemed concerned about the sexual content on her phone,

and Det. Kane told her that he would not look at any sexual content.44 Det. Kane

added, “[t]he sole purpose of us handling this phone is for us to get stuff that has to

do with what’s going on with your grandma, okay?”45 Viquez said, “I need to explain

to you exactly what’s in there, too.”46 Even though Det. Kane confirmed at times

throughout the interview that he would be looking at messages, he also repeated,

“the only thing we’ll be searching is just searching the phone[.]”47

12. Viquez volunteered in the interview that Burgos kept using cleaning

products in the house, told her to not go into the basement, and mentioned how the

house felt so cold.48 Viquez provided more areas of the phone to search as she

40
Id. (quoting Ex. A, 37:27-30).
41
Id. at 5.
42
Id.
43
Id.
44
Id.
45
Id. (quoting Ex. A, 41:4-8).
46
Id. (quoting Ex. A, 41:18-19).
47
Id. (quoting Ex. A, 45:19-20).
48
Id. at 5.
6
implicated Burgos in the commission of the crime.49 For example, she responded

to a question by Det. Kane about Google searches by stating that she searched “[h]ow

long would it take if [Burgos] did something to [Ortiz]?”50

13. Viquez signed the consent form after reviewing it with Det. Kane.51

The State asserts that Viquez did not put any limitations on the consent to search her

iPhone and points out that she included her password on the form.52 The State also

asserts that Viquez’s consent to search was voluntary and knowing.53

14. After signing the consent form, Viquez showed Det. Kane numerous

incriminating text messages on her phone between her and Johnson.54 These text

messages discussed the sight of bruises and cuts on the body where Viquez allegedly

hit Ortiz, the fact that no one else had access to the house, and that the body was

starting to cause an odor.55

15. The police downloaded the entire content of Viquez’s iPhone pursuant

to the consent form.56 The police then located various types of data that were related

49
Id. at 5-6.
50
Id. at 6 (Ex. A, 47:9-10).
51
Id. at 6 Ex. B and suppression hearing State’s Ex. 3).
52
Id.
53
Id.
54
Id.
55
Id.
56
Id.
7
to what happened to Ortiz.57 It included text messages, Google searches, and

Facebook messages between Viquez and Burgos.58

16. On September 16, 2024, Det. Kane also applied for and received a

warrant to search the contents of Viquez’s iPhone including text messages, call logs,

web browsing activities, and social media.59

17. On May 30, 2025, Viquez filed the Motion to Suppress pertaining to all

social media evidence on her iPhone.60 The State’s Response was filed on June 24,

2025.61 The Court held a suppression hearing on July 17, 2025.62

18. Viquez moves to suppress all social media evidence seized pursuant to

the search warrant.63 She asserts that the search warrant fails to establish a nexus

between the charged offenses and the social media on her iPhone.64 She states that

the search warrant violates her rights under the Fourth and Fourteenth Amendments

of the United States Constitutions, Article I § 6 of the Delaware Constitution, and

Delaware case law.65

57
Id.
58
Id.
59
Id. at 7.
60
D.I. 12.
61
D.I. 16.
62
D.I. 21.
63
Viquez’s Mot. at 6, D.I. 12; see also State’s Resp. at n.20, D.I. 16.
64
Viquez’s Mot. at 6, D.I.12.
65
Id. at 1.
8
19. In particular, Viquez argues that the search warrant runs afoul of

Terreros v. State which established that probable cause is required for each individual

type of evidence that is searched for on a phone.66 She states that, similar to

Buckham v. State, the warrant fails to specify how the social media on the phone was

actually used as part of a criminal scheme.67 Viquez adds that any alleged nexus

merely would be the hope that something incriminating could be found to be used at

trial.68 Lastly, the warrant does not offer any evidence to suggest that social media

was used during, or to aid, in the commission of crimes.69

20. The State opposes the Motion to Suppress.70 The State concedes a lack

of a nexus to social media in the warrant,71 but asserts that under the totality of the

circumstances, Viquez provided a valid consent for an unlimited search of the digital

contents of her iPhone.72 The State equates this case to State v. Blackwood73 in that

there was not limiting language in either Viquez’s consent or Det. Kane’s assertions

leading to her consent.74

66
Id. at 6.
67
Id.
68
Id.
69
Id.
70
State’s Resp. at 8, D.I. 16.
71
Id. at 7.
72
Id.
73
State v. Blackwood, 2020 WL 975465, (Del. Super. Ct. Feb. 27, 2020), aff'd,
2020 WL 6629581 (Del. 2023).
74
State’s Resp. at 10, D.I. 16.
9
21. On a motion to suppress evidence collected pursuant to a warrant, the

defendant bears the burden of proving that the search violated his rights under the

U.S. Constitution, the Delaware Constitution, or Delaware statutory law.75 The

defendant must prove his rights were violated by a preponderance of the evidence.76

22. The United States and Delaware Constitutions protect the right of

persons to be secure from “unreasonable searches and seizures.” 77 A warrantless

search is deemed per se unreasonable unless that search falls within a recognized

exception.78 One recognized exception is a search conducted with a person's

voluntary consent.79 To be deemed “voluntary,” consent need not be “knowing and

intelligent,”80 but it cannot be the product of coercion by threat or force.81 Whether

or not consent was given voluntarily is determined by examining “the totality of the

circumstances surrounding the consent, including (1) knowledge of the

constitutional right to refuse consent; (2) age, intelligence, education, and language

ability; (3) the degree to which the individual cooperates with police; and (4) the

75
Blackwood 2020 WL 975465, at *2.
76
Id.
77
U.S. Const. amend. IV; Del. Const. art. I, § 6.
78
Cooke v. State, 977 A.2d 803, 854 (Del. 2009) (citing Katz v. United States, 389
U.S. 347, 357 (1967)).
79
Cooke, 977 A.2d at 855 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973)).
80
Id. (citing Schneckloth, 412 U.S. at 241).
81
Higgins v. State, 2014 WL 1323387, at *2 (Del. Supr.) (citing Schneckloth, 412
U.S. at 233).
10
length of detention and the nature of questioning, including the use of physical

punishment or other coercive police behavior.”82 The State bears the burden of

showing that consent was voluntarily given.83

23. The scope of a consented-to search is governed by the language used in

the consent.84 The Court must determine what a typical, reasonable person would

have understood by the exchange between the officer and the suspect.85 The Court

must determine the scope of a Defendant’s consent.86

24. Viquez’s consent is evidenced by the consent form87 and transcript of

the September 3, 2024, interview with Det. Kane.88 There is no language on the

consent form to suggest any limitation on the scope of the search of the digital

contents of her iPhone. The consent form is titled Authorization to Search and Seize

Property.89 The written description on the form of the property to be searched states

an iPhone 11 in black & leopard case belonging to Cynthia Viquez.90 She wrote her

82
Cooke, 977 A.2d at 855.
83
Higgins, 2014 WL 1323387, at *2 (citing Schneckloth, 412 U.S. at 222).
84
State v. Ellis, 1991 WL 247729, at *2 (Del. Supr.) (quoting Ledda v. State, 564
A.2d 1125, 1129 (Del. 1989)).
85
Blackwood, 2020 WL 975465, at *6 (citing United States v. Tarburton, 610 F.
Supp. 2d 268, 275 (D. Del. 2009)).
86
Blackwood, 2020 WL 975465, at *6.
87
Viquez’s Mot. at Ex. A, D.I. 12.
88
State’s Resp. at Ex. A, D.I.16.
89
Viquez’s Mot. at Ex. A, D.I. 12.
90
Id.
11
password to the iPhone in the description section of the form as well.91 She signed

the consent form during the interview with Det. Kane on September 3, 2024.92

26. The State points out the following in relation to Viquez’s consent that

took place during the interview: Det. Kane read Viquez her Miranda rights and

reviewed each section of the warnings with her.93 She answered that she understood

each section and agreed to talk to Det. Kane.94 In their discussion, Viquez began to

implicate Burgos and the contents of her iPhone in the killing of Ortiz.95

27. Det. Kane told Viquez that he would get a search and seizure form for

the search of her iPhone.96 Det. Kane instructed her that he would download the

entire contents of the phone if she gave consent.97 Det. Kane stated that while he is

not interested in “everything” on the phone, he will still obviously need to look at

that “stuff[.]”98 Viquez affirmed with “[y]es.”99

28. Det. Kane returned with the consent form and explained to Viquez that

it is her right to refuse the search, to which she responded that she understood.100 At

91
Id.
92
Id.
93
Id. at 8-9.
94
Id. at 9.
95
Id.
96
Id.
97
Id.
98
Id. (quoting Ex. A, 34:18-22).
99
Id. (quoting Ex. A, 34:24).
100
Id. at 9.
12
one point, she mentioned feeling uncomfortable with the download because Burgos

“is really making me look bad” and “has her scared.”101 She asked if a lawyer could

perform the download instead.102 Det. Kane stopped and discussed the process with

her at that point.103 She accepted the police download after this discussion and

followed the exchange by volunteering “the Safari was me.”104 Safari is a search

engine. Throughout the conversation, she implicated more parts of her iPhone in the

crime.105

29. To prove voluntary consent, the State posits the following: (1) Det.

Kane read the consent form line by line with the Viquez, explaining numerous times

that she had the right to refuse; 2) Viquez is approximately 39 years old, has

experience with the criminal justice system, and is bilingual; 3) Viquez stated

numerous times that she wanted to cooperate, consented to the search, claimed she

wanted to explain her texts to Det. Kane, and asked questions throughout the lengthy

exchange about consent, but never asked to limit the search to certain types of

evidence or certain parts of the phone; and (4) the interview was more than seven

hours long, not because Det. Kane was forcing Viquez to talk, but because Viquez

was more than willing to tell her side of the story in an attempt to dissuade police of

101
Id. (quoting Ex. A, 43:7-35).
102
Id. at 9.
103
Id.
104
Id. (quoting Ex. A, 45:13-14).
105
Id. at 9.
13
her guilt.106 Despite the interview’s length, Viquez consented to the search less than

one hour into it.107

30. The Court finds that the State has met its burden of showing by a

preponderance of the evidence that Viquez voluntarily consented to the search of the

entire contents of her iPhone. In considering the totality of the circumstances, the

factors listed by the State provide ample evidence for this determination. The Court

also finds that the language on the consent form allows for a search of the contents

of the iPhone that is unlimited in scope. The unlimited scope of consent permits the

search of the social media evidence on her iPhone that she seeks to suppress.

THEREFORE, for the reasons set forth above, Defendant Cynthia Viquez’s

Motion to Suppress is DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton
Ferris W. Wharton, J.

106
Id. at 11-12.
107
Id. (Ex. A at 48:1-49:42).
14