Opinion
I.D. No. 9910021436
Submitted: September 25, 2000.
Decided: October 3, 2000.
On the State's Motion to Admit Evidence — Granted in Part and Denied in Part.
MEMORANDUM OPINION
Peggy Marshall and David Favata, Deputy Attorneys General, Department of Justice, 820 N. French Street, Wilmington, Delaware. Attorneys for the State of Delaware.
Joseph M. Bernstein, 300 Delaware Avenue, Suite 1130, Wilmington, Delaware. Attorney for Defendant, Sean Jamison.
Thomas A. Pedersen, 727-B N. Market Street, Wilmington, Delaware. Attorney for Defendant, Sean Jamison.
CARPENTER, J.
Sean Jamison ("Jamison") has been charged, inter alia, with Murder in the First Degree in connection with a robbery and homicide that occurred on October 14, 1999. On September 21, 2000, the Court issued an Opinion granting the suppression of evidence developed after the conclusion of Jamison's interview with police on October 28, 1999 at 1:30 a.m. The significant evidentiary events that occurred after the interview were: (1) on October 28, 1999, Jamison assisted the police in Kennett Square, Pennsylvania in an attempt to locate the firearm used in the homicide, (2) on October 28, 1999, Jamison identified the jewelry store where a pendant, taken during the incident, was pawned, and (3) on October 29, 1999, the police discovered the firearm and the pendant. As a result of the Court's Opinion, the State has filed a Motion seeking permission to introduce evidence of the recovered gun and pendant on the theory of inevitable discovery.
State v. Jamison, Del. Super., ID. No. 9910021436, Carpenter, J. (Sept. 21, 2000).
Inevitable Discovery
In 1977, the Delaware Supreme Court recognized the inevitable discovery exception to the exclusionary rule in Cook v. State. In explaining the exception, Chief Justice Herrmann stated:
Del. Supr., 374 A.2d 264 (1977).
This exception, which has found increasing judicial favor, provides that evidence, obtained in the course of illegal police conduct, will not be suppressed if the prosecution can prove that the incriminating evidence "would have been discovered through legitimate means in the absence of official misconduct.". . . We approve the "inevitable discovery" exception.
Id. at 267-68 (citations omitted).
The Court further explored the types of situations where the exception was intended, by noting the following from a commentator:
"The majority of the cases employing the inevitable discovery exception involve instances in which the illegal police conduct occurred while an investigation was already in progress and resulted in the discovery of evidence that would have eventually been obtained through routine police investigatory procedure. The illegalities in such cases, therefore, had the effect of simply accelerating the discovery. In general, where the prosecution can show that the standard prevailing investigatory procedure of the law enforcement agency involved would have led to the discovery of the questioned evidence, the exception will be applied to prevent its suppression."
Id. at 268 ( quoting Comment, The Inevitable Discovery Exception to the Constitutional Exclusionary Rules, 74 Col. L. Rev. 88, 91 (1974)).
In addition to the above, the exception must be considered in light of the unique facts of each particular case. The Court now will turn to the assertions made by the State to determine whether it has established a sufficient basis to allow the suppressed material into evidence by a preponderance of the evidence.
The exception has been found in other Delaware cases. See Rew v. State, Del. Supr., No. 300, 1992, Moore, J. (Feb. 25, 1993) (ORDER), DeShields v. State, Del. Supr., 534 A.2d 630 (1987), State v. Parker, Del. Super., Cr. A. Nos. 96-10-0666 to 96-10-0673, 96-10-0606 to 96-10-0613, Graves, J. (Aug. 22, 1997) (Let. Op.).
See DeShields, 534 A.2d at 638.
The Firearm
A detailed factual finding was set forth in the Court's Opinion of September 21, 2000, so it will not be repeated in this Memorandum Opinion. But, in summary, based on information provided by Jamison and his girlfriend, Sonia Nicole Bowman ("Niki"), the police searched Niki's residence in Kennett Square, Pennsylvania for the firearm on October 26, 1999 and October 27, 1999 with no success. In addition, Jamison was taken to that location on October 28, 1999 to assist in the search, but again, it was unsuccessful. The following day, with additional officers from a recruit class, Wilmington Police Department ("WPD") located the firearm in Niki's backyard in close proximity of where Jamison had indicated it had been buried.The Court finds that the factual circumstances of this case represent the kind of situation contemplated by the Delaware Supreme Court when it adopted the inevitable discovery exception. There is no dispute that early in the investigation, police received reliable information that suggested that the gun was disposed of in Niki's backyard. This led to an initial, unsuccessful search of the property. During his interviews on October 27, 1999 and October 28, 1999, Jamison confirmed and clarified where the gun was buried in Kennett Square, which resulted in an another unsuccessful police search during the late evening hours of October 27, 1999.
According to Detective James Diana's notes of October 27, 1999, Jamison drew a map where the gun was buried and further stated that the gun was wrapped in a plastic bag and buried under a flat rock. (State's Exhibit 6 of the Suppression Hearing.)
Jamison asserts that the police were subsequently able to locate the gun solely because of his assistance in Kennett Square on October 28, 1999. At best, the Court finds that this assertion is a gratuitous exaggeration of the assistance he provided that day, and it is difficult for Jamison to now reasonably assert that his assistance was critical when his efforts failed to locate the gun.
With the detailed information as to the location of the firearm provided during the late evening and early morning interviews on October 27, 1999 and October 28, 1999 and recorded in Detective James Diana's handwritten notes, it would be a reasonable, routine investigative practice for the police to continue to search the location for this critical piece of evidence until all reasonable efforts were exhausted. This is exactly what was done in this case and why the weapon was located. The police knew that the gun was located on the property, and it was simply a matter of continuing to dig until they found it. The actions taken by the police in searching for the weapon constituted appropriate law enforcement conduct that would have inevitably led to the discovery of the murder weapon.
The Court finds that the inevitable discovery exception is applicable and that it would be fundamentally unfair to now suppress this evidence under the circumstances of this case. As such, the State may introduce evidence as to the search on October 29, 1999 and the discovery of the weapon. But, it may not introduce evidence as to the assistance provided by Jamison on October 28, 1999 or any statements made by him that day after the conclusion of the 1:30 a.m. interview. In essence, the State will be allowed to jump from the conclusion of the October 28, 1999 1:30 a.m. interview to the search efforts of the police on October 29, 1999. Any reference to the information provided by Jamison is specifically limited to his comments during the October 27th and 28th interviews until 1:30 a.m.
The Pendant
In addition to the discovery of the firearm, the State moves to admit a religious medallion ("pendant") that was taken from the victim, Baltazar Torres, during the robbery and homicide on October 14, 1999. At the hearing for the State's motion, Detective Raymond Wyatt of the WPD stated that as a result of interviewing the victim's family, a gold necklace and a gold religious pendant, normally worn by Mr. Torres, were missing from his personal effects. Two witnesses described the pendant as an image of Jesus Christ with his arms outstretched, holding a robe in one arm. The pendant had been damaged so that one of the hands now resembles a fist instead of an open palm. Subsequent investigation revealed that Jamison had given the gold necklace to another girlfriend, Amanda Chambers, on October 14, 1999, the date of the robbery and homicide. On October 25, 1999, Ms. Chambers surrendered the necklace to police and stated that the gold pendant was not given to her but instead was in Jamison's possession around October 14, 1999.
There was conflicting testimony of whether the hand was broken or bent.
During Jamison's interview following his arrest on October 27, 1999, he was questioned about the location of the pendant. After initially indicating he had sold it on the street in Philadelphia for $50.00, Jamison made the following statements, which were recorded by Detective Diana in his handwritten notes:
Jamison said he sold the pendant to a gold shop on Chestnut Street between 12 to 18th Italian people didn't get a receipt Sold the pendant and bought a watch, but had to put more money to the watch.
(State's Exhibit 6 of the Suppression Hearing.)
During the return back to Philadelphia from the unsuccessful search in Kennett Square on October 28, 1999, Jamison agreed to show the Philadelphia officers the exact location of the jewelry store where he had pawned the pendant, which had been previously mentioned to the Wilmington detectives. Detective Dennis Duzak of the Philadelphia Police Department testified during the suppression hearing as follows concerning this incident:
Q. Were there any conversations with the defendant en route to Philadelphia Police Department?
A. Yes. He pointed out to us a jewelry store which he said he had pawned some jewelry.
Q. How did that conversation occur?
A. I believe he gave that information to Wilmington detectives and they conveyed that to us. And then Mr. Jamison wasn't sure of the
exact location in Philly, so on the way back we had him show us exactly where it was if he could remember and he pointed out a store on Chestnut Street in center city Philadelphia.
Q. Whose idea was it to ride by the pawn shop area?
A. His.
Q. How did that arise, to your knowledge?
A. Just in conversation. He wanted to impress on us he wasn't lying to us, that's why he wanted us to go out there with the gun and wanted to find the exact jewelry store where he pawned the jewelry.
Q. What did you do with the information provided by Mr. Jamison?
A. The store was closed so we gave that information to Detective Lawson.
(Tr. Hr'g on 8/16/00 at 43-44.)
Subsequently on cross-examination, Detective Duzak stated:
Q. Whose decision was it to drive by the location of the pawn shop or the area where the pawn shop might be located?
A. It was Mr. Jamison's — it wasn't a pawn shop it was a jewelry store.
Q. How did that decision on Mr. Jamison's part get conveyed to you?
A. He tried to tell my partner and I where it was and center city is pretty big and he said — and he wanted to show us exactly where it was because he couldn't describe the streets. The streets that he described to us didn't make any sense, they didn't intersect.
Q. How was that conversation initiated?
A. By Mr. Jamison on the way back from Kennett Square.
Q. To your recollection what did Mr. Jamison say in regards to that location of the jewelry store?
A. Best I can remember, he gave us a street that was on — that didn't exist in the city, and we asked him would he mind showing us, he said sure.
Q. And then what happened?
A. And then he gave us a route that we took from Kennett Square, the
1400 block of Chestnut Street.
Q. And when you got to the 1400 block of Chestnut what happened?
A. He pointed out the jewelry store and said that's it right there.
Q. And you subsequently conveyed that information to Wilmington detectives?
(Tr. Hr'g on 8/16/00 at 62-64.)
On October 29, 1999 at 4:10 p.m., based on the information that Jamison provided the day before to Detective Duzak, Detective Wyatt went to the shop where Jamison pawned the pendant. According to the Philadelphia officers, the shop was located at 1408 Chestnut Street in Philadelphia, and it was called "Gold Heart". When Detective Wyatt described the pendant to the owner, he denied seeing it. But when Detective Wyatt then observed what appeared to be a similar pendant in the owner's display case, the owner recounted that several black males from Chester, Pennsylvania came in and traded the pendant for a wrist watch. After recovering the pendant, it was positively identified by Amanda Chambers and the victim's family.
Despite the inadmissible events that occurred after 1:30 a.m. on October 28, 1999, the State argues that the police would have inevitably discovered the pendant based on the information provided by Jamison reflected in the handwritten notes of Detective Diana on October 27, 1999. The State argues that the pendant would have been located by simply canvassing all the jewelry or pawn stores on Chestnut Street between 12th and 18th Streets. While it is possible that this investigative effort could have succeeded in locating the pendant, more is necessary for the State to meet its burden.
As Judge Barron noted in State v. Harris, there is a critical distinction when considering the concept of inevitable discovery between "would" have discovered and "could" have discovered evidence. This subtle but important distinction is fundamental to the reasoning behind the admissibility of otherwise suppressed evidence under the theory of inevitable discovery.
Del. Super., 642 A.2d 1242 (1993).
Id. at 1251.
Inevitable is defined as "impossible to avoid." As such, the concept allows the admission of evidence when the unavoidable conclusion is that the police would have found the evidence by their normal investigative activity. The discovery must be certain and sure to happen. But, when it appears that with good police work there is only a possibility that the evidence could be discovered, the standard for admission has not been met. It is this latter proposition that the Court believes more adequately represents the discovery of the pendant in this case.
The American Heritage Dictionary of the English Language 923 (3d ed. 1992).
The Court has no doubt that if Jamison had not pinpointed the jewelry store, the Wilmington detectives would have done a thorough canvas of the jewelry and pawn shops in the area generally identified by him during his interview. But, even with their best police work, whether they would find the pendant was totally out of their control. They would either have to be lucky and observe the jewelry in the store or rely on third-party pawn merchants' willingness and ability to recall the events relating to Jamison. Police work alone would not necessarily or unavoidably have led to the pendant's discovery. Other auxiliary factors beyond normal police procedure played an integral part in Detective Wyatt's discovery of the pendant.
Finally, it is important to note that the State is attempting to admit evidence that the Court has previously suppressed as a result of police misconduct. As such, it is reasonable to insist that the discovery through legitimate police activity be clear, certain and impossible to avoid. Anything else would undermine the original reasoning for the suppression.
As such, the Court finds the State has not met its burden to establish by a preponderance of the evidence that the pendant, subsequently located in a jewelry store on Chestnut Street in Philadelphia, would have been inevitably discovered. Consequently, the circumstances surrounding the discovery of the pendant remain suppressed.
Conclusion
Consistent with the Opinion set forth above, the Court GRANTS the Motion to allow the admission of evidence concerning the discovery of the firearm at the Kennett Square property but DENIES the Motion to allow evidence concerning the discovery of the pendant at the Philadelphia jewelry store. _______________________________ Judge William C. Carpenter, Jr.