Delaware Statute Requires Consent of the Owner or Occupant

Chapter 23 of Title 11 is titled Search and Seizure, and it opens with the consent rule rather than with warrant procedure. Section 2301 dates from 48 Del. Laws, c. 303 and was last amended by 56 Del. Laws, c. 422. It is written as a prohibition on the searcher and it applies to "any person," not only to police. Three things follow. Consent is the default lawful basis. The alternative bases are limited to what a statute or the federal Constitution authorises, which is why Delaware never needed to legislate the automobile exception separately. And the consenter is identified as the owner "(or occupant, if any)", a phrase that appears nowhere in the corresponding rules of most states and that gives a driver who is not the registered owner a statutory footing to consent, or to refuse.

The enacted warrantless exceptions are short and are worth reading against a roadside stop. Section 2302 permits a warrantless search of a person, house, building, conveyance, place or other thing where the search is made for a person hotly pursued, provided the pursuer has probable cause to believe that person committed a felony or a misdemeanor. Section 2303 permits one where the search is incidental to and contemporaneous with a lawful arrest and is made in order to find and seize the fruits of a crime, the means by which the crime was committed, weapons and other things to effect an escape from arrest or custody, and evidentiary matter pertaining to the commission of a crime. A separate and much narrower power sits in 11 Del. C. § 1903: an officer who has stopped or detained a person to question under § 1902 may search for a dangerous weapon, but only where the officer has reasonable ground to believe the officer is in danger if the person possesses one, and the section authorises a weapons search and nothing more. Section 2309(a)(1) allows seizure without a warrant of anything in plain view without the necessity of a search.

Cannabis legalisation did not add a search protection in Delaware, and it is important not to assume otherwise. The Delaware Marijuana Control Act at 4 Del. C. ch. 13 contains a protections section, § 1315, but it protects public officers, employees, contractors and volunteers who administer the chapter from arrest, prosecution and licensing discipline. It says nothing about a consumer's car. The nearest thing to a search clause is 16 Del. C. § 4903A(o), which belongs to the medical programme and provides that mere possession of, or application for, a registry identification card or registration certificate shall not constitute probable cause or reasonable suspicion, nor be used to support the search of the person, property or home of that individual, while adding that the card does not preclude probable cause existing on other grounds. That reaches cardholders only.

For everyone else, Delaware's legalisation statute runs the other way and creates a rule an officer can look for. 16 Del. C. § 4764A(b)(3) removes civil and criminal penalty and asset forfeiture for possessing and transporting a personal use quantity or less of marijuana inside a motor vehicle only "as long as the marijuana accessories or marijuana is in a closed container or is not readily accessible to anyone inside the motor vehicle." Section 4764A(c)(1) keeps consuming marijuana in a moving vehicle unlawful, and 16 Del. C. § 4764(d) punishes that as an unclassified misdemeanor with a fine of not more than $200, imprisonment of not more than 5 days, or both. So an open, reachable container in the cabin is outside the protection the Act grants, and 11 Del. C. § 2323 provides that a vehicle used to transport or facilitate the transport of a controlled substance in violation of subchapter IV of chapter 47 of Title 16 shall forthwith be seized, with forfeiture proceedings under Title 16.

Delaware has also not enacted the pieces some other states added alongside legalisation. There is no statute requiring an officer to log whether consent to search was requested and given, no statutory bar on searching for a seat-belt violation alone, no pretextual-stop reform package, and no mobile or digital driver licence statute, so nothing in the Delaware Code addresses whether handing a phone to an officer to display a licence extends consent to the phone's contents.

Section 2301 states a rule but carries no penalty clause of its own, so the operative consequence of a search made without consent and without statutory or constitutional authority is suppression of what it produced, litigated in the court where the charge is brought. Where a search is authorised, 11 Del. § 2309(b) imposes duties on the seizing officer: a copy of the warrant and a receipt for the property must be given to the person from whom, or from whose premises, the property was taken, or left at the place from which it was taken, and the return must be made forthwith accompanied by a written inventory signed in the presence of that person or of at least one witness, with the judge to deliver a copy on request.

On the driver's side of the encounter, refusing consent is not an offence, but 11 Del. § 1257(b) makes it a class A misdemeanour intentionally to prevent or attempt to prevent a peace officer from effecting an arrest or detention, and 11 Del. § 1245A makes a knowing, material false statement to law enforcement a class A misdemeanour, or a class G felony where the matter investigated is a felony. Where marijuana is found outside the § 4764A(b)(3) closed-container protection, 11 Del. § 2323 authorises immediate seizure of the vehicle itself, with condemnation proceedings brought by the Attorney General under § 2324 and forfeiture to the State under § 2325.