Opinion
No. 602, 2006.
June 28, 2007.
Court Below: Superior Court of the State of Delaware in and for New Castle County, ID # 0602023552.
Before STEELE, Chief Justice, JACOBS, and RIDGELY, Justices.
ORDER
This 28th day of June 2007, upon consideration of the briefs of the parties and their contentions at oral argument, it appears to the Court that:
(1) Appellant Patrick D. Everett appeals his convictions of Possession of a Deadly Weapon by a Person Prohibited, Possession of Ammunition by a Person Prohibited, and Possession of a Weapon with a Removed, Obliterated, or Altered Serial Number resulting from his Superior Court bench trial. Everett argues that the Superior Court erred when it denied his motion to suppress the evidence supporting his conviction. We find no merit to his argument and affirm.
(2) On February 28, 2006, Officer Hugh Stephey of the Wilmington Police Department responded to a report of assault made by Carla Collozo. Collozo told Stephey that a man had "just struck her in the face." In addition, she pointed out a gray Ford Crown Victoria driving away as the assailant's vehicle. The Police searched the area and found the vehicle near the scene of the crime.
(3) After the Police located the vehicle, they went back to Collozo to obtain more information. Police asked Collozo to identify the name and, if possible, the date of birth of her assailant. She told the police that she was assaulted by "Patrick Everett with a date of birth of 8/14/1978." Stephey then ran a "data check" and discovered that Everett was on probation and had a history of drug and weapons offenses. In response to questioning, Collozo told police that she saw Everett with a gun one week prior to the assault and believed that he had a gun in his vehicle at that time.
(4) Stephey went back to the vehicle and asked Everett if he would consent to a search of his vehicle. Everett refused. Stephey then called Everett's probation officer, William Baker, Jr, and explained what had happened. Baker arrived and questioned Everett about whether he had a gun in his car. Everett did not respond. Baker testified that Everett was "sweating profusely and just looked really scared." After first obtaining his supervisor's approval to conduct an administrative search, Baker discovered a 9mm handgun with an obliterated serial number in the vehicle.
(5) Everett contends that the Superior Court erred when it denied his motion to suppress the weapon because the search violated his rights under the Fourth Amendment of the United States Constitution and Article I, Section 6 of the Delaware Constitution. Specifically, he contends that Probation Officer Baker acted in contravention of Probation and Parole Procedure 7.19 by performing a search "solely on the basis of a request from law enforcement officials." "This Court reviews the trial court's denial of a motion to suppress, after an evidentiary hearing, under an abuse of discretion standard."
Procedure 7.19 provides, in pertinent part, that "[s]earches should never be made solely on the basis of a request from law enforcement officials, but should be the decision of the Officer." See State v. Harris, 734 A.2d 629, 634 (Del.Super. 1998) (citing Procedure No. 7.19).
Bunting v. State, 907 A.2d 145 (Del. 2006) (TABLE).
(6) A probation officer's authority to perform an administrative search is granted by 11 Del. C. § 4321(d). Pursuant to this section, the Department has established guidelines for conducting administrative searches, including approval from a supervisor. Relying on State v. Harris, Everett contends that Baker acted contrary to Procedure 7.19 because he conducted a search based solely on a request of law enforcement officials.
11 Del. C. § 4321(d) provides:
Probation and parole officers shall exercise the same powers as constables under the laws of this State and may conduct searches of individuals under probation and parole supervision in accordance with Department procedures while in the performance of the lawful duties of their employment and shall execute lawful orders, warrants and other process as directed to the officer by any court, judge or Board of Parole of this State; however, a probation and parole officer shall only have such power and duties if the officer participates in and/or meets the minimum requirements of such training and education deemed necessary by the Department and Board of Examiners.
(7) "[P]robationers do not have the same liberties as ordinary citizens." For that reason, "administrative searches of probationer homes require only reasonable grounds, even if the probation officers do not satisfy each technical requirement of the search and seizure regulations of the Department of Correction." Thus, substantial compliance with Department protocol satisfies the protections afforded by both the Delaware and Federal Constitutions.
Donald v. State, 903 A.2d 315, 319 (Del. 2006).
Id.; Bunting v. State, 907 A.2d 145 (Del. 2006) (TABLE).
Donald, 903 A.2d at 319; Bunting, 907 A.2d at 145.
(8) Everett's argument that Baker acted as a law enforcement officer at the request of the police is contradicted by the record. Baker was informed by police that one of his probationers was just accused of committing an assault and possessing a weapon in his vehicle. Both were violations of Everett's probation. Upon arriving at the scene, Baker conducted his own independent investigation. When he asked Everett if he had a weapon in the vehicle, Everett became nervous and began acting out of character. Moreover, Baker requested and received permission from his supervisor to perform the search. Under the totality of the circumstances, Baker's search of Everett's vehicle was in substantial compliance with DOC regulations and reasonable. The Superior Court did not err when it denied Everett's motion to suppress.
Baker testified as follows:
I asked Patrick what was going on, if there was a weapon in the car. And having a good rapport with him, I expected him to answer me. He didn't. He was sweating profusely and just had a very scared look in his eyes. . . . That gave me the impression that, you know, there was probably a weapon in the car because of the rapport I had developed with him in a year and half of supervising him."
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.