Opinion
Case Nos. 0404006562, 0404006567.
Submitted: November 22, 2004.
Decided: December 21, 2004.
Upon Defendant's Motion to Suppress. Denied.
James Kriner, Esquire, Deputy Attorney General, Attorney for the State.
Gregory M. Johnson, Esquire, Attorney for Defendant Nance.
Christopher D. Tease, Esquire, Attorney for Defendant Joe.
MEMORANDUM OPINION
This case involves two defendants — Willie Nance ("Nance") and Lamar S. Joe ("Joe"). Both filed Motions to Suppress claiming that their rights to be free from unreasonable searches and seizures were violated. Both Defendants assert that the evidence seized during the April 8, 2004 search of Nance's residence is not admissible. Defendants claim that their Fourth Amendment rights were violated because there was no probable cause to go to Nance's residence; the police did not obtain Nance's consent for the warrantless search inside Nance's residence; the consent forms signed by Nance and his mother are no longer admissible; and the evidence seized as a result of the search of Nance's residence is not admissible as to Joe because the police did not seek Joe's consent.
The State claims that Defendants' rights were not violated. The officers had a legitimate reason to be where they were and Nance consented to the search.
FACTS AND PROCEDURAL CONTEXT
Defendants' motions to suppress stem from an incident that took place on April 8, 2004. Joe was stopped after Wilmington Police received a dispatch of a disturbance at a convenience store. The clerk told the police that Joe had left the store without paying for soda. The clerk further informed the police that he believed Joe lived in the 700 block of Elbert Place. After arresting Joe in the 700 block of Elbert Place a short time later, Officer Burch read him his Miranda rights. Joe acknowledged his rights and agreed to speak with the officers. Joe admitted that he lived with his aunt at 709 Elbert Place ("Residence") and that the money on his person was given to him by his aunt. Joe was also in possession of a New York driver's license. After being placed in a police cruiser, Joe was transported back to the store where he was identified by the clerk. The police then transported Joe to his aunt's residence in order to "verify his address."
Officer Connor testified that he and Officer Burch traveled to the Residence in separate marked vehicles. Joe was handcuffed and in the rear of Officer Burch's car. Each officer parked his vehicle behind the Residence on a road that had the best access to the Residence. Officer Connor walked around the block to get to the front door of the Residence. Officer Burch remained at the rear of the Residence.
Officer Connor knocked on the front door and was met by Nance. Nance appeared to have just awakened. Officer Connor asked Nance if Joe lived there, and Nance indicated that he did. Officer Connor then asked if he could come inside, and Nance consented. Shortly after entering, Officer Connor asked Nance if he could let his partner in through the back door. Nance consented and Officer Connor walked through the house and let Officer Burch in. On his trip through the house, Officer Connor passed through the kitchen and observed, on top of the refrigerator, a plate with a glass cup cover. Sticking out from under the cup was a plastic baggie, which, the officer believed, contained contraband. The baggie was seized and found to contain crack cocaine.
Officer Connor then read Nance his Miranda rights and asked him if there was anything illegal in the house. Nance stated that there were two guns in the house. Officer Connor asked if he could search Nance's room, and asked Nance to sign a consent to search form. Nance was instructed to contact his mother so that she could come to the Residence and police could obtain her consent to search the entire Residence. Both Nance and his mother executed consent forms permitting a search of the Residence. Joe remained handcuffed in a police cruiser throughout the search. He was not asked for his consent to search the Residence. A search of the Residence uncovered two guns and a quantity of drugs.
At the hearing, Joe objected to the search of the Residence on Fourth Amendment grounds. Joe argued that his Fourth Amendment rights were violated when he was transported to the Residence approximately 20 minutes after being arrested.
Nance claims that there was no search warrant authorizing officers to search Nance's home. Nance asserts that there was no reasonable suspicion of criminal activity at Nance's residence and Nance's right to be free from unreasonable searches and seizures has been violated.
During the hearing, the Court instructed the parties to address several issues, including whether the police could legally transport Joe to 709 Elbert Place for the purpose of confirming his address. Joe suggests that while the police may have been permitted to transport him during their investigation, the search of his residence was based on an invalid, third party consent.
BURDEN OF PROOF
On a motion to suppress, the defendant bears the burden of establishing that the challenged search or seizure was unlawful. The burden of proof is proof by a preponderance of the evidence. In the instant case, both Defendants argue that the evidence seized from Residence should be suppressed because there was a lack of consent. It is each defendant's burden to establish that he is entitled to relief.
State v. Huntley, Del.Super., I.D. No. 9810003443, 2000 Del.Super. LEXIS 110, Babiarz, J. (Feb. 18, 2000) (Mem.Op.).
State v. Bien-Aime Smalls, Del.Super., Cr. A. No. IK92-08-326, 1993 Del.Super. LEXIS 132, Toliver, J. (March 17, 1993) (Mem.Op.).
DISCUSSION
The Defendants have filed separate motions to suppress.
I. NANCE'S MOTION TO SUPPRESS
The three issues raised in Nance's motion to suppress are: (i) whether there was probable cause to go to the Residence; (ii) whether the police obtained Nance's consent for the warrantless search inside the Residence; and (iii) whether the consent form signed by Nance is admissible.
A. Whether there was Probable Cause to go to the Residence
Defendant Joe told Officer Burch that he was staying with his aunt at 709 Elbert Place, and that his aunt had given him the money that was in his possession at the time of the arrest. The officers went to the Residence to confirm whether Joe lived there, as he claimed. The confirmation was necessary because Joe had State of New York driver's license and he was on probation from New York for a weapons charge. Officer Connor testified that he did not believe that New York probation would let Joe leave the state while under supervision on a weapons charge. The stated purpose of going to the Residence was to check Joe's identity, as well as his residence.
Officer Burch testified that since Joe had been arrested with drugs and money on his person, Officer Burch proceeded to the Residence to investigate the source of the money. Officer Burch further testified that the amount of money found on Joe suggested Joe may have been engaged in selling narcotics.
Having considered the testimony of Officers Connor and Burch, the Court finds that the police officers were properly at the Residence to verify a local address. Additionally, the officers needed to verify Joe's identity since he was on probation in New York on weapons charges, and it was unusual for such a person to be in a different state. Given the money and drugs found on Joe's person, the Officers needed to find out the source of that money as it was likely related to drug sales. Thus, there was probable cause supporting the Officers' presence at the Residence.
B. Whether the Police Obtained Nance's Consent for the Warrantless Search Inside the Residence
When Officer Connor went to the Residence, he knocked on the front door. Nance opened the door and Officer Connor smelled burned marijuana. Officer Connor asked Nance whether Joe lived there. Nance replied in the affirmative, and Officer Connor asked whether he could come in and talk to Nance. Nance voluntarily let Officer Conner enter the Residence.
Officer Connor testified that Officer Burch drove to the back of the house because that is where the street is. Officer Burch did not come in with Officer Connor at the front because an officer had to stay with the prisoner. Officer Connor stated that he went to the front door because most people knock on the front door and most people respond to the front door. Officer Connor asked Nance if he minded if Officer Connor let his partner in. Nance gave Officer Connor permission to do so. Officer Connor asked to open the back door in case he needed some help. By doing so, Officer Burch could stand in the doorway and still be able to watch the prisoner.
While in the kitchen, Officer Connor saw a clear dish at eye level on top of the refrigerator. The dish held a clear plastic baggy containing white powder, and a scale. Officer Connor subsequently placed Nance under arrest for possession of an illegal substance.
Nance argues that evidence must be suppressed because, in accordance with State v. Wrightson, there was no reasonable basis to suspect Nance had committed or was about to commit a crime in the first instance. Wrightson, however, is distinguishable.
391 A.2d 227 (Del.Super. 1978).
In Wrightson, the seized evidence was excluded because the detention of the Defendant was unlawful and there was no reasonable basis to suspect that the Defendant had or was about to commit a crime. In this case, the evidence was in plain view on top of the refrigerator. Nance was not in custody when Officer Connor detected the evidence. Officer Connor's training and experience provide the reasonable basis for his suspicion that Nance was involved in the criminal activity of possession of a controlled substance.
Id. at 229.
Officer Connor sought and obtained Nance's consent at every step. Officer Connor asked Nance if he could come in to talk to him; Nance could have refused. Before going to the back door to open it, Officer Connor again asked Nance's permission. Officer Connor requested that Nance sign a consent form. Officer Connor read Nance the language of the form that provides that Nance could have refused his consent.
C. Whether the Consent Form Signed by Nance is Admissible
Nance claims that the State has not produced the consent forms signed by Nance and Nance's Mother. The State's discovery response dated June 28, 2004 states that Nance's form was included in the materials provided. At the final case review in this matter on July 26, 2004, Nance advised the State that Nance still had not received the consent forms. Nance claims that under these facts, the State ought to be precluded from using the consent form, and from arguing that consent was in fact given to search the Residence.
The State asserts that the absence of the consent forms was inadvertent. In any event, the consent forms are not subject to exclusion because the State has satisfied its obligation under Rule 16. There is no affirmative obligation under Rule 16 to physically provide the forms to defense counsel. For the purposes of the Rule, if defense counsel wanted to come to the Deputy Attorney General's office and review the forms, he certainly could have done so.
The consent form signed by Nance and witnessed by Officer Burch was shown to defense counsel during the Hearing, and was marked State's Exhibit A and moved into evidence. The consent form signed by Nance's mother, Darlene Nance, and witnessed by Officer Burch, was shown to defense counsel during the Hearing, and was marked State's Exhibit B and moved into evidence.
The Court considered the differing recollections of counsel as to whether the State received notice that the consent forms had not been provided. It is not disputed that defendants were aware of the existence of the forms. Therefore, the Court finds that there is no prejudice to defendants or discovery violation necessitating exclusion of the forms simply because defendants did not receive the actual form prior to the suppression hearing.
II. JOE'S MOTION TO SUPPRESS
Whether the Evidence Seized as a Result of the Search of the Residence is Admissible as to Joe Because the Police did not Seek his Consent
Joe has cited several cases in support of his motion. The Court determines, however, that none of the cases are on point.
In Hicks v. State, the Court held that initial detention of a person was justified in the interest of officer safety. In this case, Officer Connor was justified in going to the back door of the house to open it, so that Officer Burch could enter and observe Joe while being available in the interest of officer security. At no time did Officer Connor exceed the scope of the permission to enter the kitchen. Hanna v. State does not control this case. Even though Joe had a legitimate expectation of privacy in premises, the evidence was not seized as a result of the search of the Residence. The contraband was in plain view of Officer Connor. Officer Connor was properly in the Residence.
631 A.2d 6 (Del. 1993).
Id. at 9.
See id. at 9-10.
591 A.2d 158, 164 (Del. 1991).
In State v. Leach, the police had obtained consent to search from individual possessing, at best, equal control over premises. In the instant case, the consent was from Nance, who had greater control over the premises than Joe since the premises belonged to his mother. Joe was the nephew of Nance's Mother who was the owner. The evidence seized as a result of the search of Residence is admissible as to Joe.
782 P.2d 1035, 1038 (Wash. 1989); see United States v. Impink, 728 F.2d 1228, 1234 (9th Cir. 1984).
Although the police did not seek Joe's consent to search Residence, Joe's consent was not necessary.
See Scott v. State, 672 A.2d 550, 552 (Del. 1996).
CONCLUSION
Defendants have failed to demonstrate by a preponderance of the evidence that the challenged search and seizure violated their Fourth Amendment rights. The police had probable cause to go to the Residence. Nance's consent to search was voluntary, and Nance had the authority to give consent. Nance's and Joe's rights to be free from unreasonable searches and seizures were not violated when the police obtained the consent of Nance and the property owner for the warrantless search inside the Residence. Both forms are admissible for purposes of determining suppression of seized evidence.THEREFORE, Defendants' Motions to Suppress are hereby denied.