Opinion
ID. No. 1004000821.
March 4, 2011.
ORDER
AND NOW, TO WIT, this 4th day of March, 2011, IT IS HEREBY ORDERED as follows:
Statement of Facts
Branden Wallace ("Defendant" or "Wallace") and Johanna Garcia ("Co-Defendant" or "Garcia") were both on Level II probation and listed 79 Chaucer Drive Brookside, Newark, Delaware ("residence") as their address. Probation Officer Phillip Graham ("Officer Graham") and members of the Governor's Task Force ("GTF") were conducting routine compliance checks in Brookside, Newark on April 1, 2010. The residence was selected for a routine check because two Level II probationers reside there, Wallace and Garcia, and recently Wallace had been arrested and charged with Offensive Touching against Garcia. As a result of the charge, a no contact order was put in place against Wallace. Despite the no contact order, Wallace's address with Probation and Parole was still listed as 79 Chaucer Drive. Part of the reason Officer Graham went to the residence was to ascertain Wallace's current address.
On March 18, 2010, Wallace's probation officer, not Officer Graham, was made aware of the offensive touching charge against Garcia and was provided a different address where Wallace would be staying. However, that information was not put into the DELJIS system, so when Officer Graham printed a field sheet, on March 31, 2010, the 79 Chaucer Drive address was still listed as Wallace's current address.
The offensive touching charge put Wallace in violation of his probation, even though his probation officer did not issue a warrant for his arrest.
This Court was not aware of the change in address with Probation and Parole until the hearing. Officer Graham testified on cross examination that the change in address was listed in the notes section of Wallace's file, but the address had not been changed in DELJIS. Upon learning that Wallace was not a resident of 79 Chaucer Drive and believing Wallace was in compliance with the no contact order, which meant he had no standing as an overnight guest, this Court had serious doubts as to whether Wallace had standing to challenge the search and seizure. Additional briefing on the issue of standing was requested. The State and the defense argue Wallace has standing based on the evidence found after the search was conducted. Neither side produced any evidence that Wallace owned the residence or was on a lease, which would give him standing since Wallace claims 79 Chaucer Drive was not his address on April 1, 2010. However, this Court will not address the issue of standing as both sides contend Wallace has standing.
Once at the residence, Officer Graham spoke to Garcia's fourteen-year-old son, Devonte Garcia. Officer Graham identified himself as a probation officer there to perform a compliance check. When asked if either Wallace or Garcia was home, Devonte Garcia told Officer Graham "my mom and Branden aren't home." He did not state Wallace no longer lived there, just that he wasn't home. However, there was a vehicle parked in the driveway. Officer Graham asked Devonte Garcia if he and the other officers could enter the house. Devonte Garcia opened the door and stepped back to let the officers inside. Officer Graham noticed Devonte Garcia had been playing video games with his thirteen-year-old sister, Shavonte, and another minor, Shane Minchew. Shane Minchew had stayed over the previous night and had not returned home yet. Shane Minchew indicated that he was permitted to be there without Garcia being home.
During the hearing Shavonte Garcia, Johanna Garcia's then thirteen-year-old daughter, indicated to the officers that her mother and Wallace had stepped out, which would indicate that he was still residing there in violation of the no contact order. This is consistent with Devonte Garcia's statement to Officer Graham when he opened the door and said "my mom and Branden aren't home."
Once inside the house, Officer Graham asked which bedroom belonged to Wallace and Garcia and Devonte Garcia pointed to the open doorway of the master bedroom. Officer Graham entered the bedroom looking for Wallace and Garcia. While looking to see if anyone was hiding, on the nightstand Officer Graham saw a small zip lock bag containing what appeared to be cocaine, a box of plastic sandwich baggies, and pills inside a prescription bottle that was not prescribed to either Wallace or Garcia.
Officer Graham then left the room, contacted his supervisor and was given authorization to conduct an administrative search of the residence pursuant to Probation and Parole Procedure 7.19. Other officers responded and conducted the search. The search yielded 1.9 grams of crack cocaine, 0.6 grams of powder cocaine, 26 bags of heroin, hypodermic needles and syringes along with other packaging materials, morphine and adderol pills, a handgun, ammunition to a different handgun and $2,251 in cash.
The vehicle parked in the driveway belonged to Wallace and the key was found on the dresser. Officer Graham received separate authorization to search the vehicle. Inside the vehicle was 310.7 grams of powder cocaine and a loaded handgun, matching the type of ammunition found in Wallace and Garcia's bedroom.
Garcia arrived at the residence during the search and was taken into custody. An arrest warrant was issued for Wallace and he was arrested in August of 2010. Wallace was indicted for Trafficking 100 grams of Cocaine, Possession With Intent to Deliver Narcotic Schedule I, Possession with Intent to Deliver Narcotic Schedule II, Maintaining a Dwelling, Conspiracy Second, Possession of Heroin, Possession of Cocaine, and Possession of Drug Paraphernalia.
Discussion
I. As a Probationer, Wallace Had a Lower Expectation of Privacy in the Residence.
As a probationer, Wallace had a lower expectation of privacy in the residence. The Fourth Amendment and Article I, § 6 of the Delaware Constitution protect citizens against unreasonable searches and seizures whenever a person has a reasonable expectation of privacy in the item to be searched or seized. However, probationers do not enjoy the same freedoms as ordinary citizens. "A probationer's expectation of privacy in his/her residence is less than that of an average citizen." Probation is a form of criminal sanction, imposed after a plea or finding of guilt. "The special nature of probationary supervision justifies a departure from the usual warrant and probable cause requirements for searches, although a warrantless search of a probationer's home must still be `reasonable.'" Here, Wallace was on Level II probation on April 1, 2010 so the officers only needed reasonable articulable suspicion to enter the residence.
Minnesota v. Carter, 525 U.S. 83, 88 (1998).
Sierra v. State, 958 A.2d 825, 828 (Del. 2008).
State v. Redden, 2003 WL 22853419, *2 (Del. Super.) ( citing Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)).
Griffin v. Wisconsin, 483 U.S. 868, 874 (1987).
Sierra, 958 A.2d at 828 ( citing Fuller v. State, 844 A.2d 290, 292 (Del. 2004)).
II. The Officers Had Reasonable Articulable Suspicion to Enter the Residence.
The officers had reasonable articulable suspicion to enter the residence based on the totality of the circumstances. A warrantless search of a probationer's home need only be based on reasonable suspicion. A probation officer has reasonable suspicion when the officer has "a particularized and objective basis for suspecting legal wrongdoing" under the totality of the circumstances. When Officer Graham asked Devonte Garcia whether anyone was home and he responded "my mom and Branden aren't home" the officers had reasonable articulable suspicion that Wallace was in violation of the no contact order. Despite the fact that Devonte Garcia stated neither adult was home at that time, in Officer Graham's experience, people will lie about whether a probationer is home. Additionally, there was a car parked in the driveway, which could indicate an adult was home at that time. Based on the totality of the circumstances, this Court finds the officers had reasonable articulable suspicion to enter the residence. III. The Officers Were Able to Conduct a Protective Sweep of the Residence.
Since this Court finds the officers had reasonable articulable suspicion to enter the residence, the issue of whether Devonte Garcia gave valid consent to the officers to enter will not be addressed.
Id.; See also Griffin, 483 U.S. at 873.
Sierra, 958 A.2d at 828.
Former Probation and Parole Officer Cronin testified that in his twenty-five years experience offenders and relatives will misrepresent the truth concerning the whereabouts of the probationer. He went on to state that if the officers conducting the compliance check simply believed what was told to them at face value then any compliance check would be pointless.
The officers discovered the car actually belonged to Wallace, but not until after the officers had entered the house.
Officer Graham was permitted to conduct a safety sweep of the residence to search for others who may have posed a risk of danger to himself and the other officers present. While there is no explicit rule in Delaware governing a probation officer's ability to conduct a safety sweep of a house upon entry, the United States Supreme Court has held that a protective sweep of a residence is reasonable under the Fourth Amendment "if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others." The officers had reasonable suspicion to believe Wallace or Garcia may have been inside the residence creating a risk of danger.
Maryland v. Buie, 494 U.S. 325, 327 (1990) (internal quotations and citations omitted).
Under the totality of the circumstances, the officers had reasonable articulable suspicion to believe Wallace or Garcia may have been home, justifying a safety sweep of the house. Here, the officers observed a car parked in the driveway of the residence. When Devonte Garcia opened the front door and stated "my mom and Branden aren't home" it was reasonable for Officer Graham to enter and conduct a safety sweep because Devonte Garcia may have been lying to protect Wallace and Garcia. That is a reasonable inference based on Officer Cronin's testimony that offenders and their relatives will lie to officers concerning a probationer's whereabouts. Additionally, Devonte Garcia may have been lying to protect Wallace from being arrested for violating the no contact order. Officer Graham also asked Devonte Garcia which room belonged to Wallace and Garcia. That is the only bedroom Officer Graham entered to see if either adult was home. Therefore, this Court finds the safety sweep was based on reasonable articulable suspicion.
At the hearing Devonte Garcia testified that he viewed Wallace as a father figure.