Plain Error Requires Clear, Binding Guidance: Unobjected NCIC Testimony and Unraised § 1448 Challenges Will Not Be Reversed

I. Introduction

In Johns v. State, the Delaware Supreme Court reviewed multiple post-trial challenges brought by Lamotte Johns, convicted after a residential search uncovered a firearm, ammunition, drugs, paraphernalia, and cash. Johns’ appeal pressed five issues: (1) and (2) whether an officer’s trial testimony relaying a National Crime Information Center (“NCIC”) “stolen” hit was inadmissible hearsay and violated the Sixth Amendment Confrontation Clause; (3) whether the search warrant lacked probable cause because it was grounded on anonymous tips; and (4) and (5) whether Delaware’s person-prohibited statute, 11 Del. C. § 1448, is unconstitutional on its face and as applied under modern Second Amendment doctrine.

A central procedural feature shaped the Court’s approach: Johns did not object at trial to the NCIC testimony and did not litigate the Second Amendment issues below. Those failures placed most claims under the demanding “plain error” standard, leaving only the suppression ruling for ordinary appellate review.

II. Summary of the Opinion

The Court emphasized that, except for the warrant question, its rulings were constrained by plain error review and should not be read as resolving the NCIC and § 1448 issues “on the merits” for future, properly preserved cases.

III. Analysis

A. Precedents Cited

1. Plain error, preservation, and when an error is “plain”

The Court’s most consequential doctrinal move is its treatment of what makes an issue “plain” under Delaware’s plain error framework.

• Wainwright v. State supplied the baseline: plain error must be a “material defect[]” apparent on the face of the record, “basic, serious, and fundamental,” that clearly deprives a substantial right or shows manifest injustice. This definition anchored the Court’s insistence that the trial judge must have had an obvious reason to intervene sua sponte.
• Morales v. State (quoting Whittle v. State) reinforced the “sua sponte intervention” concept: without an objection, the alleged mistake must be so clear that the trial court should have corrected it on its own.
• Johnson v. State was pivotal. Johnson held that if neither the U.S. Supreme Court nor the Delaware Supreme Court has definitively ruled, and other courts are divided, failure to exclude evidence sua sponte is not plain error. In Johns, the Court expressly declined to read Johnson narrowly and explained that “division” is not confined to federal-court splits: the broader point is that where there is no binding authority and persuasive authority is unclear or split, the answer is not “plain.”
• The Court also cited federal plain-error decisions to illustrate the “reasonable dispute” principle, including United States v. Flores-Juarez (quoting Puckett v. United States), United States v. Thompson (quoting United States v. Alli-Balogun), United States v. Urena (quoting United States v. Aguillard), and United States v. Delgado-Montoya (quoting United States v. Teague). These citations functioned as persuasive support for Delaware’s conclusion that unsettled law cannot yield “plain” error.

This cluster of authorities drove the Court’s refusal to reverse on the NCIC testimony: regardless of whether the testimony might ultimately be found inadmissible in a preserved case, the trial judge’s non-intervention could not be “plainly” wrong in a legal landscape the Court characterized as largely uncharted.

2. Hearsay treatment of NCIC-type database information

• Ruffin v. State and State v. Humble were the Court’s limited Delaware touchpoints mentioning NCIC. Ruffin discussed trustworthiness of public records (in the ATF-report context) and noted NCIC similarity to DELJIS-type databases, but did not decide NCIC admissibility. Humble (sentencing context) found NCIC information sufficiently reliable for sentencing purposes, without resolving trial hearsay admissibility.
• Out-of-state cases were used to show the absence of a clear rule. The Court contrasted:
  • United States v. Enterline (Eighth Circuit) admitting computerized “stolen vehicle” database evidence under the public records exception.
  • Frye v. Commonwealth (Virginia) admitting NCIC printouts under the business records exception, emphasizing practical necessity and routine reliance by police; followed by Cooper v. Commonwealth and echoed in State v. Sneed (which framed the issue through a plain error lens).
  • United States v. Hendricks (Eleventh Circuit) noting an NCIC report is hearsay and “does not fall within” the business records exception or another recognized hearsay exception, albeit in a context where the Federal Rules of Evidence did not apply.
  • United States v. Long (Fifth Circuit) (citing United States v. Johnson) describing NCIC-type hearsay problems but refusing reversal on non-prejudicial grounds there.
  • Castillo-Salgado v. State (Texas) rejecting admission where no predicate for a hearsay exception was established.
  • State v. Torres (New Jersey) excluding NCIC evidence under a business-record approach because the State did not establish source trustworthiness; discussed alongside State v. McGee (criteria New Jersey suggested for laying foundation) and State v. Underwood (error analysis where reporting source was unknown/anonymous).

The Court’s use of these precedents is methodological: rather than choosing a hearsay exception for NCIC records, it catalogued disagreement and foundational uncertainty to show that inadmissibility was not “clear under current law,” which is fatal under plain error review.

3. Confrontation Clause and “testimonial” statements

• Crawford v. Washington furnished the governing proposition: testimonial statements are barred absent unavailability and prior cross-examination.
• State v. Carrion (New Jersey) provided the closest analogue: the raw database data on permits was not testimonial, but an affidavit created for prosecution purposes about a database search was testimonial. The Delaware Supreme Court treated Carrion as suggestive but not decisive—especially because, unlike Carrion, Johns’ case involved live testimony by the officer who ran the check, not an absent affiant.
• Chavis v. State represented Delaware’s own post-Crawford development in forensic contexts: intermediate lab-process statements were not testimonial when they did not “aim to prove” an element and were not “testimony against” the defendant.
• Michigan v. Bryant appeared to illustrate “primary purpose” reasoning: statements elicited to address an ongoing emergency are not testimonial. The Court in Johns referenced Bryant to highlight that purpose matters, but also underscored uncertainty about applying Bryant outside interrogation/emergency settings.

The confrontation analysis did not decide whether NCIC “stolen” information is testimonial; instead, by juxtaposing Carrion and Chavis, the Court showed that plausible inferences cut both ways, confirming the issue is not “apparent on the face of the record” and thus not plain error.

4. Probable cause, anonymous tips, and the four-corners test

• Dorsey v. State and Valentine v. State framed the “four corners test” and the rule that probable cause must be assessed from the affidavit itself.
• Hooks v. State supplied the “logical nexus” formulation between contraband and place to be searched.
• Sisson v. State (quoting Fink v. State) and State v. Holden emphasized commonsense reading, reasonable inferences, and deference to issuing magistrates; Sisson also cited United States v. Zimmerman for the “rubber stamp” caution.
• State v. Holden was the primary analog: anonymous/confidential tips plus surveillance and traffic-stop evidence created probable cause even without “typical” drug-house markers (foot traffic, controlled buys). The Court used Holden to reject Johns’ demands for “template” evidence and granular certainty.
• Illinois v. Gates and United States v. Ventresca were invoked (through Delaware cases) for the anti-hypertechnical, pro-deference approach to warrants.
• The Court also cited Diggs v. State for the proposition relied on by the Superior Court: anonymous tips may be considered without a separate “reliability analysis” when corroborated by later police observations.
• Several Delaware cases illustrated corroboration principles across contexts: Cooper v. State (and the earlier table decision also titled Cooper v. State), Tolson v. State, Tatman v. State, and State v. Taylor. The Court also contrasted scenarios where only identity is corroborated (insufficient) versus criminality (supportive), echoing LeGrande v. State and Valentine v. State.

These precedents enabled the Court to treat the July 2022 tip as usable once corroborated by (i) a traffic stop shortly after a door interaction at 514 that yielded marijuana and a “cutting hair” explanation, and (ii) a second visitor’s suspicious behavior and flight after leaving 514—together creating the necessary nexus.

5. Second Amendment challenges: facial vs as-applied and the modern framework

• The Court’s facial-challenge standard relied on United States v. Rahimi (quoting United States v. Salerno) and Delaware’s own facial-challenge articulation in Sierra v. Dep't of Servs. for Child., Youth & their Fams..
• For Second Amendment methodology, the Court cited New York State Rifle & Pistol Ass'n, Inc. v. Bruen and United States v. Rahimi, while also emphasizing that D.C. v. Heller and McDonald v. City of Chicago, Ill remain authoritative, including Heller’s statement that longstanding felon-dispossession laws are presumptively lawful; concurrences/dissent in Bruen were cited to show continued support for that proposition.
• For as-applied, individualized dangerousness analysis, the Court leaned on the Third Circuit’s Pitsilides v. Barr and its discussion of Range v. Att'y Gen. United States, (“Range II”), which the Court treated as narrow and fact-bound.
• The Court used Schnell v. Dep't of Servs. for Child., Youth & Their Fams. and Del. Bd. of Med. Licensure & Discipline v. Grossinger to distinguish facial and as-applied challenges as a matter of Delaware constitutional doctrine.
• It also referenced Delaware deference-to-legislature principles in Albence v. Higgin (quoting Hoover v. State), and the presumption of constitutionality in Schnell.
• To explain why it would not reach the constitutional merits unnecessarily, it invoked judicial restraint principles in Dir. of Revenue v. Verisign, Inc. (quoting Downs v. Jacobs).
• The Court also cited older Delaware authority upholding versions of § 1448: State v. Robinson and Short v. State (Delaware Constitution context).
• Finally, to show that Range II’s reasoning is not uniformly followed, it cited United States v. Duarte and Browne v. Reynolds.
• On the kind of record required for as-applied disarmament claims, the opinion additionally referenced United States v. Williams for the need to examine an individual’s full criminal record, not just the predicate offense.

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B. Legal Reasoning

1. NCIC “stolen gun” testimony: why no plain error

The Court treated the NCIC issue as a paradigmatic plain error problem: the testimony was outcome-determinative for the “receiving a stolen firearm” conviction (11 Del. C. § 1450), yet the legal status of NCIC “hits” is unsettled.

On hearsay, the Court did not decide whether an NCIC entry could qualify under D.R.E. 803(8) (public records) or another exception. Instead, it emphasized the record was devoid of foundational information about how NCIC data is generated, who inputs it, what duties govern reporting, and what indicia of reliability exist. That vacuum—combined with conflicting outcomes in other jurisdictions—meant the trial judge could not be faulted for not acting on their own.

On confrontation, the Court likewise avoided a merits resolution. It noted the case law does not squarely address whether NCIC database information is “testimonial,” and the available analogies (e.g., Chavis’s “used against” framing and Carrion’s raw-data/affidavit distinction) point in different directions. Under that uncertainty, the “plainness” requirement could not be met.

2. Search warrant: why probable cause existed

Applying the four-corners test with deference to the magistrate, the Court assumed the 2021 tips were stale and focused on the July 2022 tip and corroboration. The affidavit linked alleged drug dealing to 514 and to Johns’ barbershop activity; police then observed: (1) a brief door interaction at 514 followed by a traffic stop yielding marijuana and the driver’s statement that the seller was a “cutting hair” friend; and (2) a later visitor who stayed about an hour at 514, then displayed nervousness, refused to exit, and fled once officers indicated a search was imminent.

Borrowing Holden’s commonsense inference approach, the Court held these facts corroborated criminality (not merely identity) and supported a reasonable inference that drugs were being sold from the location, creating the required nexus.

3. § 1448 challenges: why the facial claim fails and the as-applied claim cannot be decided

On facial unconstitutionality, the Court applied the demanding Salerno/Rahimi principle: if there exists even one constitutional application, a facial challenge fails. Given Heller’s continuing recognition of felon dispossession laws, Bruen/Rahimi’s history-and-tradition approach, and Rahimi’s “credible threat” language, the Court concluded it could easily “envision” constitutional applications of § 1448—making facial invalidity far from “plain.”

On as-applied unconstitutionality, the Court highlighted the individualized inquiry described in Pitsilides v. Barr: courts must examine the person’s predicate offense, broader criminal history, and post-conviction conduct bearing on dangerousness. Because Johns never raised the issue below, the record lacked the necessary facts for such an evaluation; correspondingly, it was not plain error for the Superior Court to omit an as-applied analysis sua sponte.

C. Impact

1. Evidentiary/confrontation litigation involving NCIC (and analogous databases)

The decision’s practical impact is procedural and strategic:

• Preservation becomes decisive. Defendants must object contemporaneously to NCIC “stolen” testimony and develop a record (how the database is maintained, who reports, what duties apply, how accurate it is, what the “hit” actually means).
• Trial courts are not required to police NCIC admissibility sua sponte. Absent a defense objection and developed foundation, appellate review will likely end at “not plain.”
• Future Delaware merits rulings remain open. The Court expressly disclaimed deciding whether NCIC entries fit a hearsay exception or are testimonial; thus, litigants can expect the first true merits decision to arise only with proper objections and an evidentiary foundation.

2. Search warrants based on anonymous tips

Johns reinforces Delaware’s trajectory (exemplified by State v. Holden): anonymous tips can meaningfully contribute to probable cause when police corroborate criminal activity, even if officers do not perform “textbook” controlled buys or observe heavy foot traffic. The corroboration threshold remains practical and inference-friendly, with deference to the issuing magistrate.

3. Post-Bruen/Rahimi § 1448 challenges

The Court’s handling of § 1448 signals that:

• Facial attacks are unlikely to succeed (and even less likely to qualify as plain error) given the “some constitutional applications” standard and continued recognition of felon disarmament as historically grounded.
• As-applied claims are record-heavy and trial-level dependent. Defendants must raise the issue early and build a factual record aligned with the individualized inquiry described in Pitsilides v. Barr and United States v. Williams.

IV. Complex Concepts Simplified

• Plain error: A very high appellate bar used when no objection was made. The mistake must be obvious under current law and so serious it undermines the fairness/integrity of the trial. If courts reasonably disagree (or there’s no clear authority), it usually is not “plain.”
• Hearsay: An out-of-court statement offered for its truth. It is inadmissible unless an exception applies (e.g., “public records” or “business records”). Whether NCIC entries fit an exception often depends on foundation showing reliability/trustworthiness—who made the entry, under what duty, using what procedures.
• Confrontation Clause / “testimonial”: Under Crawford v. Washington, defendants generally have the right to cross-examine the maker of testimonial statements. The key question is whether the statement was created in a way resembling testimony for prosecution. The Court found the testimonial status of NCIC data legally unsettled on this record.
• Four corners test: Probable cause is assessed from what is inside the affidavit supporting the warrant, not later-developed facts.
• Corroboration of criminality vs identity: Confirming a suspect lives at an address is not enough; confirming facts that suggest the alleged crime is happening (e.g., a stop yielding drugs right after leaving the target location) is stronger and supports probable cause.
• Facial vs as-applied constitutional challenges: A facial challenge argues a law is invalid in all applications; an as-applied challenge argues the law is unconstitutional when applied to one particular person’s circumstances. As-applied claims usually require detailed facts.

V. Conclusion

Johns v. State is less a merits decision on NCIC admissibility or felon-dispossession constitutionality than a disciplined statement about appellate posture: when defendants fail to object or litigate constitutional issues below, Delaware’s plain error doctrine will rarely supply relief—especially in unsettled legal terrain.

At the same time, the opinion meaningfully clarifies Delaware’s “plainness” inquiry by reading Johnson v. State broadly: the absence of binding authority and the presence of divided or underdeveloped persuasive authority can defeat plain error, even outside the context of federal-court splits. On warrants, the Court reaffirmed a commonsense, corroboration-based approach to anonymous tips. And on § 1448, it signaled that post-Bruen/Rahimi challenges must be carefully preserved and factually built, with as-applied claims turning on individualized dangerousness evidence rather than abstract categorical arguments.