Opinion
Cr. ID No. 9703008409.
Submitted: July 17, 2009.
Decided: September 16, 2009.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Timothy J. Donovan, Jr., Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Joseph A. Hurley, Esquire, Wilmington, Delaware.
Michael Modica, Esquire, Wilmington, Delaware, Attorney for Defendant McAllister.
This 16th day of September 2009, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. On February 4, 2000, a jury found Defendant Curtis McAllister guilty of trafficking in more than 50 grams of heroin, possession with intent to deliver heroin, possession of drug paraphernalia, maintaining a dwelling for keeping controlled substances, and second degree conspiracy. The Superior Court later declared Defendant McAllister a habitual offender and he was sentenced to life in prison. The Delaware Supreme Court affirmed the convictions on appeal. Defendant McAllister's convictions became final on September 19, 2002, when the Delaware Supreme Court's mandate issued.
Superior Court Docket Item 42.
Superior Court Docket Item 48.
McAllister v. State, 807 A.2d 1119 (Del. 2002).
Superior Court Docket Item 65.
2. Thereafter, Defendant filed two motions for postconviction relief. The first, in August 2003, and the second, in March 2007. Both motions were denied.
McAllister v. State, 2004 WL 3186197 (Del. 2004); State v. McAllister, 2007 WL 1065110 (Del.Super. 2007).
3. Defendant filed this third motion for postconviction relief on March 20, 2009. In this motion, Defendant raises two claims of error both pertaining to the search of his person, and room, by probation officers. The legality of the search of Defendant's person, and room, was thoroughly litigated both in the Superior Court and then again on direct appeal. There is no question that Defendant's third motion for postconviction relief, in which he seeks to re-raise the legality of the search of his person, and room, is procedurally barred pursuant to Superior Court Criminal Rule 61(i), unless there is a newly recognized, retroactively applicable right, that would require a reconsideration of the issue. If there is no newly recognized right, Defendant's motion is procedurally barred because it is untimely (filed 6 years after the Delaware Supreme Court's mandate issued); repetitive; and barred as formerly adjudicated.
State v. McAllister, 1999 WL 458992 (Del.Super.)
McAllister v. State, 807 A.2d 1119 (Del. 2002).
Since this final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See, Super.Ct.Crim.R. 61(i)(1) (July 1, 2005) (amending Super.Ct.Crim.R. 61(i)(1) (May 1, 1996)).
Super.Ct.Crim.R. 61(i)(2).
Super.Ct.Crim.R. 61(i)(4).
4. Defendant contends that the Delaware Supreme Court in Culver v. State, Del.Supr., 956 A.2d 5 (2008), somehow created a newly recognized retroactive right which would require a reconsideration of the legality of the search of Defendant McAllister's person, and room, by probation officers. Defendant's reliance on Culver is inappropriate, misplaced and inapplicable. Culver differs from this case in all critical respects. Whether or not any "new rule" was announced in Culver, it has no applicability to this case.
5. In Culver, the police received an anonymous tip from an unknown caller that Culver was engaged in drug activity in his home. The unknown caller provided police with nothing more than his speculative analysis of traffic patterns in front of Culver's home and the caller's conclusion that those patterns established that drug activity was afoot. The caller told police that a silver Mercedes was used in connection with the illegal drug activity. The police went to Culver's home and followed him as he drove away in a silver Mercedes. The police stopped and searched the car and found nothing incriminating. The police found no drugs, no drug paraphernalia nor any other incriminating evidence. Undeterred by an unreliable tip followed by a fruitless search, the police contacted Culver's probation supervisor and passed along the "tip" that Culver was engaged in drug activity at his house and requested that the probation officers search Culver's residence. Treating the "tip" as reliable since it came from the police, probation officers searched Culver's house, finding a loaded handgun, but no drugs.
Culver, 956 A.2d at 8-12.
6. In Culver, the Delaware Supreme Court held that Parole and Probation Procedure 7.19 does not permit probation officers to search a probationer's dwelling based solely on a request by police officers. Instead, probation officers are required to independently assess the reliability of the information to determine if a reasonable suspicion exists that would prompt a search of a probationer's dwelling. The Delaware Supreme Court stated that it was deciding for the first time the proper procedures that parole and probation officers must follow after they receive a tip from police officers before they search a probationer's dwelling, and concluded that the proper procedures that must be followed is an independent assessment to determine if a reasonable suspicion exists to prompt the search. If probation officers do not engage in an independent analysis, probation officers would become merely surrogates for the police, conveniently used when the police had no lawful authority to act on their own.
Culver, 956 A.2d at 11-15.
7. The subject case does not involve a tip relayed from a police officer to a probation officer, nor does it involve a request from the police to the probation officer to conduct a search. Any new guidance that the Culver case may provide as to the procedures that a probation officer must follow when receiving a request from the police to search a probationer's residence is of no significance here.
8. The Culver case requires probation officers to perform their own independent assessment to determine if a reasonable suspicion exists to prompt a search, before a search can be performed. In this case, the Delaware Supreme Court, after thoroughly considering the issue, held that the search conducted by the probation officers was reasonable and supported by probable cause.
McAllister at 1125.
9. In this case, the probation officers (not the police) received a tip from a confidential informant that illegal drugs could be found in a padlocked bedroom at the residence shared by two probationers: Norma Johnson and Defendant Curtis McAllister. The informant had previously provided the probation officer with similar information. The tip, obviously, was not something that could have been merely observed from the street (as was the tip in Culver).
Id. at 1121-1122.
10. After receiving the tip, the probation officer contacted Norma Johnson, whom he was assigned to supervise, and arranged to make a home visit. Once lawfully present in the Johnson residence, the probation officers were able to corroborate the tip. Johnson confirmed that there was a room in the residence that was padlocked, but advised that Defendant McAllister occupied that room and that she did not have a key. It was at this point, after the independent corroboration of a tip from a confidential informant, that McAllister's first contact with the probation officers occurred.
Id. at 1121-25.
11. While the probation officers were at the residence, McAllister's car pulled up outside. The probation officers went out to meet McAllister and question him about the allegations made by the informant. McAllister admitted that he sometimes slept in the padlocked bedroom and that he had a key. When the probation officer informed McAllister that he wished to search the room in order to verify the validity of the allegation, McAllister became agitated and attempted to flee the residence. The probation officers detained McAllister because at that point probable cause existed to believe that McAllister was in violation of his probation. At this point, the probation officers had a verified tip from a confidential informant, coupled with an admission and suspicious behavior from the defendant, a probationer.
Id. at 1121-25.
12. The probation officers then conducted a search of McAllister's person and found a large bundle of cash in his pocket, as well as a set of keys. The probation officers then contacted their supervisor, described the circumstances leading up to that point, and obtained permission to search McAllister's padlocked bedroom. Once the padlocked door was opened, the probation officers immediately observed what appeared to be illegal narcotics lying on the bed in plain view. The probation officers then left the room, informed the Wilmington police of their discovery, and handed the investigation over to the Wilmington police who obtained a valid search warrant before entering the room and confiscating the drugs.
Id. at 1124-25.
13. The Delaware Supreme Court held that the search conducted by the probation officers was reasonable and supported by probable cause. The Court noted that this case was unique because: (1) the probation officers were on the premises with the consent of the property owner who was also subject to visitation as a probationer; (2) the probation officers' contact with McAllister was non-confrontational until McAllister attempted to flee; and (3) the probation officers possessed reliable and verified information about the alleged illegal activities of a probationer before confronting the probationer.
Id. at 1125-26.
14. In Culver, the Delaware Supreme Court held that the probation officers are required to independently assess whether a reasonable suspicion exists to prompt a search of a probationer's dwelling and cannot merely rely on a police officer's request that a search be performed. In this case, the probation officers independently assessed the situation, and independently concluded that a reasonable suspicion existed to prompt a search, before conducting any such search. The probation officers in this case never relied on a police officer's request. The probation officers independently assessed the reliability of the information that they personally received and their search was based on first hand information. In fact, the police were not even involved until after the probation officers independently assessed the situation and determined that probable cause existed to perform the search. The Culver case has no applicability here.
15. In Culver, the Delaware Supreme Court made it clear that it was not holding that probation officers must strictly adhere to the official probation procedures in every situation in every respect. The Court held that it was important for probation officers, pursuant to Procedure 7.19, to perform their own independent assessment that there is a reasonable basis to search a probationer's dwelling, before doing so.
Culver, 956 A2d at 11.
Id.
16. Finally, McAllister, in his motion for postconviction relief, contends that the reliability of the informant's tip should have been more fully fleshed out at the suppression hearing. The facts of this case revealed that the probation officers received a tip from someone that had previously provided them with similar information. Moreover, the tip was not merely something that could be observed from the street. The tip was specific, that there was a padlocked room in the residence, and that the padlocked room contained illegal narcotics. However, the probation officers did not search McAllister's room based only on the informant's tip. The informant's tip was first corroborated by McAllister's housemate that a padlocked bedroom existed and that it was occupied by McAllister. It was only after the independent corroboration of a tip from the confidential informant, that McAllister's first contact with the probation officers occurred. McAllister then further corroborated the tip by confirming that there was a padlocked room and that he had a key. Clearly, the probation officers did not perform the search based only on a tip. After receiving the tip, the probation officers independently verified and corroborated it. The probation officers' decision to search McAllister's person and room was also based on McAllister's admission and his suspicious behavior.
17. In this case, the Delaware Supreme Court already ruled that an informant's tip that is corroborated by independent police work can form the basis for probable cause, regardless of what is known about the informant's personal credibility or reliability. For McAllister to now, at this late date, after the issue has already been fully and thoroughly litigated, focus solely on the informant's tip in a vacuum, without consideration of the subsequent events and investigation that followed, is misguided. The role of the informant's tip, the subsequent independent corroboration that ensued, and the significance of the events that transpired leading up to the search of McAllister's person and room has already been thoroughly and fully adjudicated. Defendant's motion for postconviction relief is procedurally barred.
McAllister, 807 A.2d at 1124.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.