Opinion
I.D. NO: 9906018819
Submitted: November 17, 1999
Decided: December 28, 1999 Motion Denied: February 8, 2000
Upon Defendant's Motion to Suppress Evidence: DENIED.
MEMORANDUM OPINION
Defendant Anthony H. Butler ("Defendant") moves to suppress evidence seized by the Delaware State Police ("DSP") as a result of a search of his residence on June 24, 1999. Defendant contends that the rights guaranteed him by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 6 and 7 of the Delaware Constitution, were violated in that the search warrant application and affidavit relied upon by police failed to set forth probable cause to enter Defendant's residence. This is the Court's decision following a suppression hearing on November 17, 1999.
I. FACTUAL BACKGROUND
On June 24, 1999, Detective James T. Hulings of DSP applied to a magistrate of the Justice of the Peace Court for a search warrant of Defendant's residence at 4617 Patrician Boulevard, Apartment D, Woodfield Apartments, Wilmington. The search warrant stemmed from an investigation by the Pennsylvania State Police ("PSP") of drug activity involving Defendant in Kennett Square, Pennsylvania. Execution of the warrant on June 24, 1999, resulted in the arrest of Defendant, who was charged with trafficking in cocaine (over 100 grams), possession with intent to deliver cocaine, maintaining a dwelling for keeping controlled substances, possession of marijuana, and possession of drug paraphernalia. On September 30, 1999, Defendant filed the motion under consideration.
The search warrant application in question set forth facts in the affidavit regarding the circumstances of this investigation. Detective Hulings of DSP averred that during the week of June 13, 1999, he was contacted by Trooper Lohman of PSP Vice Unit who advised Detective Hulings that the Pennsylvania State Police were conducting a drug investigation on a Delaware resident and requested the assistance of DSP. On June 21, 1999, Detective Hulings met with a number of troopers from PSP Vice Unit who advised Detective Hulings that the drug investigation was focused on Anthony Butler, aka "Bumble," residing at 4617 Patrician Boulevard, Apartment D, Woodfield Apartments, Wilmington, Delaware. Defendant's date of birth was given as April 11, 1976.
On June 21, 1999, Detective Hulings conducted a DMV computer check that revealed that Anthony Butler possessed a Delaware driver's license and resided at the Woodfield Apartments address. On June 24, 1999, Detective Hulings confirmed through Conectiv that since January, 1996 Defendant had been the subscriber at that address.
On June 24, 1999, Detective Hulings was advised by Trooper Jose Torres of PSP Vice Unit that Trooper Torres had conducted four controlled buys of crack cocaine from Defendant in April and May of 1999 in Pennsylvania. Each buy was for one ounce of crack cocaine purchased from Defendant via an informant. Detective Hulings was further advised by Troopers Torres and Cruz that this informant was past proven reliable, based on this and numerous other drug investigations leading to a number of drug purchases. This same confidential informant supplied information regarding Defendant stating that the informant had been in Defendant's apartment in Delaware on several occasions during the past two years and had observed both cocaine and drug paraphernalia in the residence. The informant indicated that he/she had been present in the apartment in the past two years during drug transactions and had witnessed marijuana and cocaine in the apartment as recently as June, 1999.
On June 23, 1999, Trooper Torres contacted Defendant through the same confidential informant and arrangements for the purchase of two ounces of crack cocaine were made with the specific provision that the confidential informant was to contact Defendant at Defendant's residence the following day.
On June 24, 1999, the informant telephoned Defendant at his residence and confirmed the pending transaction. Defendant stated that he was at his residence, he was going to the movies, and would meet the confidential informant in Kennett Square at approximately 2:00 pm that day with the crack cocaine. After that conversation with the informant, Defendant was observed by surveillance units leaving his residence and operating a green Oldsmobile Cutlass. A DMV computer check confirmed the vehicle driven by Defendant was registered to a Denise Maxwell at Defendant's address. Surveillance units followed Defendant to the area of Chestnut Run, north of Newport, Delaware.
The police applied for the search warrant at issue. The police officers presented their application and affidavit to the magistrate and the magistrate then authorized the search warrant. The search produced evidence which the defendant seeks to suppress.
II. STANDARD OF REVIEW
The issuing judge or magistrate will initially determine whether probable cause exists for a search warrant. This determination "will be paid great deference by a reviewing court." This Court will review the decision of the judge or magistrate issuing the search warrant to insure, looking to the "totality of the circumstances," that a substantial basis for issuance of the warrant existed.
Jensen v. State, Del. Supr., 438 A.2d 105 [ 482 A.2d 105], 111 (1984).
Illinois v. Gates, 462 U.S. 213, 238 (1983).
III. DISCUSSION
The United States Supreme Court has adopted a totality of the circumstances test for probable cause determinations. The issuing magistrate must make a "practical, common sense decision" based on "all the circumstances set forth in the affidavit before him." In Delaware, the rule is the same;
[T]he affidavit in support of a search warrant must set forth facts adequate to warrant a reasonable man in the belief that an offense has been committed and that seizable property would be found in a particular place or on a particular person.
Jensen, 482 A.2d at 110-111.
Probable cause can be established via an informant's tip where the totality of the circumstances would lead one to conclude that the information was reliable. In Tatman v. State, our Supreme Court, citing Gates, farther held that an informant's tip, if sufficiently corroborated by independent information, can provide the basis of probable cause even if the informant's credibility or reliability has not been established. A. Sufficiency of the Affidavit
Gates, 462 U.S. 213.
Del. Supr., 494 A.2d 1249 (1985).
Id. at 1251.
A review of the circumstances in the instant case dictates a finding of legally sufficient probable cause. In this case, the affidavit contained information supplied by PSP that Defendant was involved in drug activity at 4617 Patrician Boulevard, Apartment D, Woodfield Apartments, Wilmington. Not only was the information from a reliable informant, but DSP corroborated the information that was received from PSP.
1. Reliability of the Informant
First, the informant was reliable. Troopers Torres and Cruz of PSP advised Detective Hulings that their informant was past-proven reliable based on this investigation and numerous other drug investigations which had led to numerous drug purchases. The informant had proven his worth in this regard to Trooper Torres over the past three months by participating in four controlled buys from this Defendant.
Defendant argues that the information supplied by Trooper Torres and PSP, was secondhand hearsay and therefore unreliable. This argument is without merit as it is routine practice for law enforcement officers to share information in the course of an investigation, and this information is presumed reliable. Defendant's alternative argument is that while hearsay statements and the tips of police informants may be used to form the basis of a warrant, the information must be independently corroborated.
2. Corroboration
Detective Hulings did not act based on the information from the informant and PSP alone. The affidavit indicates that, in an effort to corroborate the information supplied by PSP, the affiant checked DMV records and Conectiv subscriber records to corroborate that Defendant resided at the address given by the informant and that Defendant had in fact been the subscriber at that address since January, 1996.
Additionally, the affidavit indicates that Detective Hulings relied upon the actions of Defendant on June 23, 1999 and June 24, 1999 when Defendant was contacted by the informant to purchase cocaine. Defendant instructed the informant to contact him the next day, June 24, 1999, at Defendant's residence at which time arrangements would be made for the sale. As instructed, the informant called Defendant at his residence the next day and was advised by Defendant that he was at home, that he was going to the movies and would meet the informant in Kennett Square at 2:00pm. Defendant was then observed leaving his residence and traveling to Chestnut Run, north of Newport.
Here, looking at the totality of the circumstances, including corroboration of the informant's information, the affidavit inexorably leads a reasonable person to believe that "the seizable property would be found in a particular place or on a particular person." B. Defendant's Arguments
Jensen, 482 A.2d at 110-111.
Defendant was arrested on June 24, 1999, at 9:10 p.m. in Delaware, more than seven hours after the drug transaction was scheduled to occur in Kennett Square, Pennsylvania. Defendant argues that because the 2:00 p.m. drug transaction never occurred, no police officer could reasonably conclude that the informant's tip was reliable, or conclude that drugs were likely to be found in Defendant's residence. Additionally, Defendant argues that the Court should consider as a legal and ethical matter, the fact that the police failed to inform the issuing magistrate that the informant's tip lacked corroboration on this particular date.
This Court finds that given the four previous controlled buys between Defendant and the informant, the fact that the drug transaction did not occur on this particular date is of little significance. The Court also does not find that the police acted illegally or unethically by failing to inform the issuing magistrate that the transaction had not occurred on June 24, 1999. Paragraph sixteen of the affidavit makes it clear that the transaction had not occurred by stating that "[s]urveillance units are still conducting surveillance on Butler who is still in Delaware, in the area of Chestnut Run, north of Newport, Delaware."
Finally, Defendant argues that the police acted unreasonably by executing the search warrant of Defendant's home after Defendant was arrested and a search of his person and his vehicle failed to produce drugs in his possession. The Court finds this argument to be inpersuasive.
C. The Good Faith Exception to Probable Cause
Assuming, arguendo, that the search warrant would fail the totality of the circumstances standard set forth in Gates, the good faith exception of United States v. Leon is otherwise applicable. There, the Court stated that "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." However, the exception does not apply, and hence, evidence will be excluded, if the magistrate who issued the warrant was not neutral and detached as dictated by the Fourth Amendment. There is no suggestion that the magistrate in this case was not neutral as required.
468 U.S. 897 (1984).
Id. at 922.
Id. at 923.
For the reasons set forth in this opinion, the defendant's motion to suppress is DENIED.
IT IS SO ORDERED.