Opinion
ID No. 0902021154.
Submitted: April 14, 2010.
Decided: September 13, 2010, Revised: September 14, 2010.
Upon Motion by the Defendant to Suppress Evidence Seized — GRANTED.
Decision Upon Non-Jury Bench Trial — CASE DISMISSED.
Steven P. Wood, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.
Ferris W. Wharton, Esquire, Wilmington, Delaware, Attorney for Jamal Reese.
MEMORANDUM OPINION
The defendant, Jamal R. Reese, moves to suppress all evidence seized from his residence during a search that occurred on February 25, 2009. He is charged with possession of a deadly weapon by a person prohibited and possession of drug paraphernalia. The suppression-hearing transcript, along with supplements, is also considered the transcript for trial.
This action is assigned to Judge Herhily as a consequence of Judge Babiarz's retirement.
Suppression Hr'g Tr. at 4-5 (September 9, 2009) (hereinafter "Sup. Tr. at ___.").
Factual Background
The facts of this decision are taken from the testimony offered at the suppression hearing.
At 11:00 a.m., a team of probationer officers, including Officer Negley, went to Apartment Two to apprehend Evans. The officers were unable to enter the building because the common exterior door was locked. They spoke to residents living in the basement who offered to contact the landlord. At this point the officers were not aware that two other people lived in Apartment Two — Jamal Reese, a convicted felon, and James Bean.
While waiting for the landlord to arrive, the probation officers contacted their supervisor to request authorization to conduct an administrative search. The request was approved after a conference with the supervisor, as required by DOC procedure.
When the landlord arrived, he verified Evans lived in Apartment Two and agreed to allow officers access to the residence. The landlord made no reference to any other occupants of Apartment Two, nor did the officers ask. At this time, the probation officers commenced the administrative search.
Upon entering Apartment Two, the officers first determined that no one was home, and in doing so, became aware of the general layout of the premises. The apartment contained three bedrooms — the front bedroom, the middle bedroom, and the back bedroom — as well as a kitchen-living room combination and one bathroom. The front bedroom contained a queen-sized bed with a large headboard, an entertainment center, and storage towers for CDs and other personal items. The middle bedroom contained a bed, dresser, two nightstands, and clothing. The back bedroom contained a mattress on the floor as well as a television and videos.
Officer Negley first searched the middle bedroom while other probation officers searched the back bedroom and kitchen-living room. He found Evans' State Identification card on the nightstand in the middle bedroom. This satisfied him that Evans was a resident of Apartment Two, but he testified that he was unsure whether the middle bedroom belonged to Evans. At this point, Officer Negley considered the possibility that others might be living in the apartment. However, he continued to search the entire apartment in an attempt to ascertain who lived there — admittedly searching rooms potentially occupied by non-probationers for whom he was not authorized to search.
Officer Negley next searched the front bedroom where he found on the nightstand, in plain view, a silver pipe with burnt residue, consistent with drug paraphernalia. Officer Negley continued to search the front bedroom without taking any steps to determine whether anyone other than Evans lived there. On the nightstand closest to the door entering the bedroom was paperwork that included correspondence addressed to Reese. Officer Negley walked past the nightstand, upon which was piles of papers, to the farthest point from the door to conduct the search. Officer Negley immediately opened the drawer to the nightstand and discovered a plastic bag. He then searched within the plastic bag to discover a firearm. After discovering the firearm, Officer Negley found identification with Jamal Reese's name on it. The identification consisted of a State of Delaware letter with Reese's name on it, an identification card from Brennan Furniture and another identification card from DuPont Chambers Works. The identification was located on top of the nightstand closest to the entryway of the room. Reese testified, however, that his ID badges were not on the nightstand but hanging on a closet door. He said they were visible when a person first walks into his bedroom.
Sup. Tr. at 41 (Officer Negley testified that his usual practice is to begin a search at the point farthest from the entry of a room that way he does not have to work through a mess).
Officer Negley later conducted a background search of Reese and discovered he was a convicted felon. The officers subsequently found Reese at Brennan Furniture and arrested him for possession of a deadly weapon by a person prohibited and the drug paraphernalia charge.
Discussion
The Fourth Amendment to the United States Constitution, applied to the states by the Fourteenth Amendment, protects people against unreasonable searches and seizures. The Delaware Constitution provides even greater protection for its people from unreasonable searches and seizures. The United States Supreme Court prescribes the requirement of a warrant to be based on probable cause to conduct a search. On a motion to suppress evidence seized during a warrantless search, the State bears the burden of establishing that a challenged search or seizure did not violate the rights guaranteed by the United States Constitution, the Delaware Constitution, and Delaware statutory law.
Del. Const. art. I, § 6; State v. Thomas, 2007 WL 949491, *2 (Del. Super.).
State v. Hunter, 2004 WL 2744513 at *2 (citing Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 3169, 97 L.Ed.2d 709, 718 (1987)).
Hunter v. State, 783 A.2d 558, 560 (Del. 2001).
Probationers only have a conditional liberty due to their probationary status, and as a result, do not have the same expectation of privacy in their homes as the average citizen. Therefore, a warrantless search of a probationer's residence is not in violation of the Constitution so long as the search is reasonable and carried out according to state law. Reasonable suspicion is therefore a sufficient cause for a probation officer to conduct a warrantless search of a probationer's residence where the search is a condition of probation.
Griffin, 483 U.S. at 875.
Id. State v. Redden, 2003 WL 22853419, *2 (Del. Super.); Bunting v. State, 907 A.2d 145, 2006 WL 2587074, *4 (Del.).
State v. Bass, 2003 WL 21140049, *7 (Del. Super.) (discussing the application of United States v. Knights, 534 U.S. 112, 118-19 122 S.Ct. 587, 591, 151 L.Ed.2d 497, 503 (2001)).
Non-probationers residing with a probationer retain their rights under the Fourth Amendment. Therefore, a search of a probationer's residence should be limited to the areas of the dwelling that the officers reasonably believe are controlled by the probationer. The DOC procedures value the rights of non-probationers because an administrative search of a probationer's residence should be limited "to the areas of the residence that are `actually occupied' by the probationer, which would include common areas such as the kitchen, bathroom, living room, . . . and the probationer's property." The probationer need not have exclusive control of the area to be searched. The searchable area extends to those areas which "the officer has reason to believe . . . is owned, possessed or controlled by the probationer-even if it later turns out that the area or item searched was in exclusive possession of the [non-probationer]." Furthermore, "when a probationer shares a residence with another person, the scope of a lawful administrative search `is limited to the areas that the probation officers reasonably believe are possessed or controlled by the probationer.'"
Redden, 2003 WL 22853419, at *3.
Id.
State v. Tucker, 2007 WL 1065134, *3 (Del. Super) ( citing Dept. of Correction Procedure 7.19(B)).
State v. Harris, 734 A.2d 629, 635 (Del.Super. 1998).
Id.
Tucker, 2007 WL 1065134, at *3 (quoting Redden, 2003 WL 22853419, at *3).
In State v. Tucker, a motion to suppress was granted because the Court found that the officers did not reasonably limit the search of a shared residence. The officers knew that another person in addition to the probationer, lived at the residence and still searched two bedrooms simultaneously. However, the officers in Tucker did not attempt to ascertain which bedroom belonged to the probationer prior to the simultaneous search. The presence of a utility bill and a lease with the probationer's name on it was insufficient to demonstrate control over the defendant's bedroom because it was not unreasonable for both occupants to have a copy of either document.
Id.
Id.
Id. at *4 (emphasis added).
Whether Evans had the "requisite authority over or relationship to the premises sought to be searched is a question of fact." The probation officers were aware that it was possible that multiple people resided in Apartment Two. Apartment Two contained three bedrooms, each with a mattress and signs of independent living space. Identification of Evans was discovered in the middle bedroom prior to the search of the front bedroom. This identification established that the middle bedroom most likely belonged to the probationer, Evans. Even if the probation officers were uncertain if the middle bedroom belonged to Evans, they did not take any steps to establish the ownership of the other bedrooms prior to searching them.
DeShields v. State, 534 A.2d 630, 643 (Del. 1987).
Tucker recognized the problem of probation officers who enter an apartment with multiple bedrooms searching for signs of a probationer by searching each bedroom before they establish which bedroom belongs to which resident. The officers violated Reese's rights by failing to determine whether or not they would be violating his rights by searching the room. When officers enter a premises looking for a probationer they must take reasonable steps to ensure that the rights of other residents are not violated. There were no such steps taken here.
Tucker, 2007 WL 1065134, at *3.
If the officers found evidence that Evans exercised sufficient control over the front bedroom then they would not be violating the rights of Reese, the resident of the front bedroom.
Because of this finding, it is unnecessary to resolve the disputed testimony over the location of Reese's ID badges.
The State has failed to meet its burden of showing Evans had sufficient control, if any, over Reese's bedroom. The only evidence that suggested Evans had access to Reese's bedroom is Officer Negley's generalization that sometimes residents share access to bedrooms. This alone is insufficient. No empirical data was presented to find such a conclusion, nor is Officer Negley a qualified expert on the likelihood of co-inhabitants sharing a private living space.
Conclusion
For these reasons the Defendant's motion to suppress all evidence found in his bedroom, the front bedroom, is GRANTED.
As such, Reese's subsequent statement to Detective Joshua Wilkers is "fruit of the poisonous tree" and also suppressed. By the parties' agreement, the suppression-hearing transcript also constituted the trial transcript, the charges against Jamal Reese for possession of a deadly weapon by a person prohibited and possession of drug paraphernalia are DISMISSED.
IT IS SO ORDERED