Summary
granting a motion to suppress when officers conducted an administrative search in a co-habitant's bedroom that probationer told officers not to go into and of which probationer had no control over
Summary of this case from State v. WalkerOpinion
No. 0608016366.
Submitted: February 2, 2007.
Decided: April 10, 2007.
Eugene J. Maurer, Jr., Esq, Wilmington, Delaware.
Shawn Martyniak, Esq., Deputy Attorney General Department of Justice, Wilmington, DE.
Dear Counsel:
The Court has reviewed the defendant's Motion to Suppress Evidence and the State's opposition thereto. For the reasons that follow, the defendant's motion is GRANTED.
FACTS
On October 2, 2006, the defendant, Michael Tucker, was indicted for the following offenses: (1) Possession with Intent to Deliver a Schedule II Narcotic, (2) Possession of a Firearm During the Commission of a Felony, (3) Possession of a Deadly Weapon by a Person Prohibited, (4) Possession of Ammunition by a Person Prohibited, (5) Maintaining a Dwelling for Keeping Controlled Substances, (6) Conspiracy Second Degree, and (7) Possession of Drug Paraphernalia.
The defendant was arrested following an administrative search of the residence that he shared with his co-defendant, Shea D. Quinn. At the time of the search, Quinn was on probation, but the defendant was not. Probation officers obtained an administrative warrant to search the residence after they were notified by Delaware State Police Sgt. Spillen that Quinn had been arrested for attempted theft in violation of his probation. When Sgt. Spillen advised Quinn that probation officers may search his residence, Quinn explicitly advised officers not to search the defendant's room.
Aff. Probable Cause, dated Aug. 18, 2006.
Id.
Quinn's evasive answers to police questions and desire to limit the scope of the search caused Sgt. Spillen to believe that there was contraband in the residence. Sgt. Spillen relayed this information to Wilmington Police Det. Brock, who was working with probation officers as part of Operation Safe Streets. Probation Officer Dupont, who was working with Det. Brock, obtained permission from his supervisor to conduct an administrative search of the residence.
The officers executed the search at 11:00 p.m. on August 17, 2006. No one was home at the time of the search. The officers entered the apartment and found two bedrooms, both with open doors. The officers searched the bedrooms simultaneously. Officer Dupont testified that he searched the bedroom on the west side of the apartment (the "west bedroom"). Initially, Officer Dupont could not ascertain if the bedroom belonged to Quinn or the defendant, noting that the bedroom contained men's clothing. However, Officer Dupont also testified that upon entering the west bedroom, he observed that the closet door was open, and saw a box of ammunition in plain view. Officer Dupont searched the closet further and found multiple documents bearing the defendant's name. In this same closet, Officer Dupont also found more ammunition on the top shelf and a gun hidden between pants on the floor. On a chair near the bed, Officer Dupont found a copy of the apartment lease, which identified both the defendant and Quinn as lessees, and a utility bill addressed to Quinn. Because these documents had Quinn's name on them, Officer Dupont considered the west bedroom to be a common area. Officer Dupont continued to search the west bedroom under the assumption that Quinn and the defendant shared access to the bedroom, similar to a bathroom, kitchen, or living room. Finally, under a pillow on the bed, Officer Dupont found a clear plastic bag containing 20 smaller bags, each containing cocaine.
Mot. Suppress Hr'g Tr. 19:21-23, Feb. 2, 2007.
Id. at 13:9-11.
Id. at 14:3-7.
Id. at 16:1-4.
Id. at 16:20-23, 17:1.
Id. at 16:6-12.
Id. at 18:23, 19:1-4.
Id. at 17:21-23, 18:1-4.
Id. at 18:7-23.
Aff. Probable Cause.
In the bedroom on the east side of the apartment (the "east bedroom"), the other probation officers found mail addressed to Quinn, but nothing that could be attributed to the defendant. No contraband was found in the east bedroom.
Id. See also Mot. Suppress Hr'g Tr. 21:3-7.
Mot. Suppress Hr'g Tr. 20:18-23.
PARTIES' CONTENTIONS
The defendant moves the Court to suppress the evidence discovered in the west bedroom, arguing that the administrative search of his bedroom violated his rights under the Fourth Amendment of the United States Constitution and Article 1 § 6 of the Delaware Constitution. The defendant's motion does not dispute the reasonableness of the search of Quinn's bedroom (the east bedroom) or the kitchen or living roo m. The defendant's argument is limited to the search of his bedroom and the contraband found therein.At the time of the search, the defendant argues that his bedroom could not be searched without a search warrant because he was not on probation. The defendant argues that the administrative search should have been limited to Quinn's living quarters. The defendant also maintains that the probation officers knew which bedroom was Quinn's based on their previous visits to the residence.
The State argues that the search of the residence was reasonable, because the officers were only required to obtain consent from one of the co-occupants of the residence before instituting the search. Quinn consented to reasonable searches of his residence as a condition of his probation. The State further argues that both bedro oms qualify as common areas. Accordingly, the probation officers could search the bedrooms, because both occupants had access to them.
DISCUSSION
On a motion to suppress evidence seized during a warrantless search, the State bears the burden of establishing that the challenged search or seizure comported with the rights guaranteed by the United States Constitution, the Delaware Constitution, and Delaware statutory law.The State relies on Donald v. State for its position that probation officers do not have to obtain the consent of a co-occupant if another occupant consents to a search. In Donald, the Delaware Supreme Court confirmed that a joint possessor of property may give consent to search jointly held property if he has authority to do so. An occupant has the authority to consent to a search if he has sufficient control over the residence to bind the co-occupant. The occupant has sufficient control if he has "joint and equal possession and control of the premises searched." Therefore, a co-occupant, who enjoys joint and equal possession of a residence, may unilaterally consent to a search, and any evidence discovered during that search may be used against any of occupants.
903 A.2d 315 (Del. 2006).
Id. at 319.
Id., 903 A.2d at 319-320 ( citing Jenkins v. State, 230 A.2d 262 (Del. 1967), aff'd on other grounds, 240 A.2d 146 (Del. 1968), aff'd 395 U.S. 213, (1969)).
Id. at 320.
Id. ( citing Jenkins, 230 A.2d at 271).
In Donald, probation officers conducted an administrative search of a residence shared by a probationer and a non-probationer after the probationer was arrested on drug charges. At the time of the search, the non-probationer was home. The officers advised the non-probationer why they were searching the residence but did not ask for the non-probationer's express consent to search the residence. The Delaware Supreme Court acknowledged a recent United States Supreme Court case, which held that, "when a co-occupant is present and objects to a search, police may not search under the consent exception to the warrant requirement, despite having the consent of the other co-occupant." The Delaware Supreme Court noted, however, that the officers do not have an affirmative duty to seek the consent of a co-occupant who is present at the time of the search. Nor are the officers required "'to take affirmative steps to find a potentially objecting co-tenant before acting on the permission they had already received.'"
Id. at 317.
Id. at 318.
Id.
Id. at 320 ( citing Georgia v. Randolph, 126 S.Ct. 1515, 1528 (2006) (emphasis added
Id. at 321.
Id. ( quoting United States v. McGregor, 2006 WL 997088 (D. Cal. April 17, 2006)).
In this case, the probation officers did not have an affirmative obligation to locate the defendant and seek his consent before searching the residence, because Quinn consented to the se arch as a condition of his probation. The probation officers reasonably relied on the consent of one co-occupant of the residence. The issue that this case presents, however, is not whether the probation officers had consent to execute the administrative warrant. The focus of the Court's inquiry is whether the scope of the search exceeded the probation officers' authority.
The constitutions of the United States and the State of Delaware protect individuals against unreasonable searches and seizures. Individuals on probation, however, are not entitled to the same level of protection enjoyed by ordinary citizens, but have conditional rights based on the special needs of probation system. Probation is a form of criminal sanction that carries restrictions which are "meant to assure that the probation serves a period of genuine rehabilitation and that the community is not harmed by the probationer's being at large." A probationer's home is protected by the Fourth Amendment's protection from unreasonable searches, but the special needs of the probation system "justify departures from the usual warrant and probable-cause requirements."
Id. at 318 ( citing U.S. Const. Amend. IV; Del. Const. Art. I, § 6.).
State v. Harris, 734 A.2d 629, 635 (Del.Super. 1998)( citing Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987)).
Griffin, 483 U.S. at 874-75 (citations omitted).
Id. at 873-874.
In Delaware, probation officers have statutory authority to search a probationer's residence in accordance with the procedures established by the Department of Corrections. An administrative search of a probationer's residence must also be based on "reasonable grounds." Accordingly, the Department of Corrections ("DOC") has established procedures for conducting administrative searches.
State v. Redden, 2003 WL 22853419, at *2 (Del. 2003)( citing United States v. Brown, D. Del., C.A. No. 95-69-SLR, Robinson, J. (June 20, 1996) at 1).
Id.
A person who lives with a probationer does not forfeit his Fourth Amendment rights, and the DOC procedures contemplate that probationers may reside with other people. According to DOC procedures, 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, etc. . . . and the probationer's property." A common area is considered that area over which the probationer had some control. The probatio ner's control over the area does not have to be exclusive, and 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 search was in exclusive possession of the [non-probationer]. 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."
Donald, 903 A.2d at 321.
Redden, 2003 WL 22853419, at *3 ( citing Dept. Of Correction Procedure 7.19(B)).
Id. ( citing Harris, 734 A.2d at 636).
Harris, 734 A.2d at 635.
Redden, 2003 WL 22853419, at *3 ( citing Harris, 734 A.2d at 635).
The DOC procedures that restrict the scope of the search directly relate to the probationer's authority to consent to the search. As previously discussed, a co-occupant has the authority to consent to searches of those areas of a shared residence over which he has joint access or control. The issue of whether a co-occupant has the "requisite authority over or relationship to the premises sought to be searched is a question of fact." In this case, the State has failed to satisfy its burden that the probation officers reasonably limited the administrative search of Quinn's shared residence to those areas that Quinn possessed or controlled. The probation officers were aware that Quinn shared his residence with the defendant. There is no evidence, however, that the probation officers attempted to ascertain which bedroom was occupied by Quinn. Officer Dupont testified that the probation officers conducted searches of both bedrooms simultaneously. He also testified that the defendant's bedroom closet contained various documents with only the defendant's name on them. Although there were no indicia upon entering the room as to who occupied the west bedroom, Officer Dupont testified that after he located the defendant's documents in the closet, he continued to search the bedroom under the assumption that the bedroom was a common area. Officer Dupont testified that he believed Quinn had access to the west bedroom because he found in that room a utility bill addressed to Quinn and a copy of the lease bearing both the defendant's and Quinn's names.
DeShields v. State, 534 A.2d 630, 644 (Del. 1987)( citing United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974).
Id. at 643 ( citing People v. Seidel, 449 N.E.2d 1384, 1386 (Ill.App. 1983)).
There is no evidence, however, that the probation officers made a reasonable attempt to determine whether Quinn owned, possessed, or controlled the west bedroom. There is no evidence that the probation officers conducting the simultaneous searches of the bedrooms communicated with each other about their findings, despite the fact that the east bedroom contained nothing attributable to the defendant. Moreover, Officer Dupont's reliance on the presence of the lease and the utility bill is not sufficient to establish that Quinn had control over the west bedroom. It is reasonable to assume that co-lessees of an apartment would each have a copy of the lease. In addition, the presence of a utility bill in Quinn's name cannot overcome the State's burden of proving that Quinn had the requisite authority to consent to a search of the defendant's bedroom. For these reasons, the defendant's motion to suppress the evidence seized in his bedroom, the west bedroom, is GRANTED.
IT IS SO ORDERED.
Jan R. Jurden Judge
cc: Prothonotary