Opinion
No. 552, 1999 and 583, 1999
Submitted: January 4, 2001
Decided: March 26, 2001
Court Below: Superior Court of the State of Delaware in and for Sussex County Cr.A. Nos. 99-02-0173 et al; 99-02-0156 et al. ID No. 9901009851
AFFIRMED.
Unpublished opinion is below.
KENNETH REEDER, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 552, 1999 and 583, 1999 Supreme Court of the State of Delaware. Submitted: January 4, 2001 Decided: March 26, 2001
Before WALSH, BERGER, and STEELE, Justices.
ORDER
This 26th day of March, 2001, it appears to the Court that:
1. Following trial, a jury convicted Kenneth Reeder of 32 felonies and 18 misdemeanors arising from 14 residential burglaries that occurred in late 1998 and early 1999 in Sussex County. Reeder appeals his convictions arguing that the Superior Court erred when it denied his motion to suppress evidence obtained during a warrantless search of his car and a later search of his residence pursuant to a search warrant. Arguably, the evidence seized proved crucial to his convictions.
2. Reeder also argues that the Superior Court inappropriately corrected his initial sentence for these convictions when it misinterpreted the Habitual Offender Statute during a sentence modification hearing on the State's Motion for Correction of Sentence.
3. Because we believe the Superior Court both properly denied his motion to suppress and correctly modified his sentence to comply with the Habitual Offender Statute, we AFFIRM his convictions and corrected sentence.
4. This Court's determination of whether police have probable cause to search an automobile is a mixed question of fact and law. The Superior Court's interpretation of the Habitual Offender Statute is a question of law and is reviewed de novo.
Downs v. State , Del. Supr., 570 A.2d 1142, 1144 (1990). As appellant characterizes his motion, the search of his residence with a warrant is improper only as "fruit of the poisonous tree" from the car search.
Lewis v. State , Del. Supr., 626 A.2d 1350, 1354 (1993).
5. Detective Timothy Conaway investigated the residential burglaries for which the jury convicted Reeder. A witness to one burglary indicated that the burglar possibly used a dark-colored Mustang 5.0 with temporary tags. Reeder became a suspect in the burglaries after police stopped him during a routine crime prevention check while he was driving a dark-colored Mustang. Reeder's record indicated that he had been arrested several times for similar crimes.
6. Detective Conaway, accompanied by Detective Sutton and a Bethany Beach Officer, Patrolman Mumford, went to Sea Colony in Bethany Beach where they believed that Reeder worked as a construction worker. While looking for Reeder, in order to question him about the burglaries, Detective Conaway saw two silverware cases and a "Lost Boys" cassette in the backseat of a dark-colored Mustang. The Mustang belonged to Reeder. These items matched descriptions of property taken in two of the burglaries. A worker on the site approached the police and indicated that Reeder "took off, dropping everything" after seeing the police. Detective Conaway began to pursue but immediately stopped fearing that Reeder might be armed. The police then searched Reeder's car, recovered the stolen items and found a set of pry tools. The police then obtained a search warrant and searched Reeder's residence. They found more stolen items in Reeder's residence. The police later arrested Reeder for crimes related to the burglaries.
7. Reeder filed a motion to suppress all the evidence seized from his car and residence.
8. Reeder argues that the Superior Court abused its discretion when it denied his motion to suppress the evidence found in his car and residence. Reeder argues that the warrantless automobile search was impermissible because the police lacked probable cause to conduct the search and because there were no exigent circumstances requiring the Detectives to search the vehicle before obtaining a search warrant. Reeder asserts that if the initial automobile search was impermissible, then proper application of the exclusionary rule requires the suppression of the evidence discovered during the later search with a warrant of his residence.
9. Ideally, police will obtain search warrants before any search of an individual's home or property; however, the law recognizes that a search without a warrant can be reasonable in some instances. Therefore, courts have described several exceptions to the warrant requirement. Warrantless searches of an individual's home require that police have probable cause to believe that the fruit or instrumentality of a crime is within the home and that exigent circumstances require the immediate search to prevent the destruction of the evidence.
See Minnesota v. Olson , 495 U.S. 91, 92 (1990) (describing the appropriate standard as "[a]n entry may be justified by hot pursuit of a fleeing felon, the imminent destruction of evidence, the need to prevent a suspect's escape, or the risk of danger to the police or others; but, in the absence of hot pursuit, there must be at least probable cause to believe that one or more of the other factors were present and, in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered.").
10. Delaware cases describe a broader exception when the police conduct a warrantless automobile search. "So long as the police have probable cause to believe that an automobile is carrying contraband or evidence, they may lawfully search the vehicle without a warrant." This is because vehicles are mobile by nature, and this mobility increases the likelihood that crucial evidence could be lost or destroyed if not searched for immediately. Therefore, the Courts determine whether it would be reasonable for a search to be conducted without a warrant if sufficient probable cause existed, given the totality of the circumstances, in order to justify the search.
Tatman v. State , Del. Supr., 494 A.2d 1249, 1251 (1985).
Thompson v. State , Del. Supr., 539 A.2d 1052, 1055 (1988).
11. Reeder argues that the information Detective Conaway possessed when he searched Reeder's car was sufficient to justify a warrantless search only if he had, in fact, received a description of the stolen silverware cases from Mrs. Conaway. Ordinarily, differences in testimony are credibility issues to be determined by the trier of fact; however, Reeder argues that credibility determinations should be subject to review if, on the face of the record, the testimony of a witness is inconsistent and that inconsistency is based on an attempt to tailor testimony to nullify any constitutional questions about the search.
People v. Garafolo , N Y 2d Dept., 44 A.D.2d 86 (1974) (indicating that appellate courts may review determinations of credibility made by the trier of fact, if a witness' testimony includes statements which were obviously made to avoid constitutional questions about searches.
12. Detective Conaway testified three times: once at a preliminary hearing, once at a suppression hearing and once at trial. Detective Conaway testified at the suppression hearing that he called Angie Conaway (no relation to Detective Conaway) to confirm the description of the silverware set that was stolen from her home. During the preliminary hearing, however, Detective Conaway stated that he had confirmed the identity of the silverware cases by driving to Mrs. Conaway's home after the property was seized. At trial, Mrs. Conaway testimony contradicted Detective Conaway's version of events, stating that the Detective called to say that he might have discovered her silverware but that the Detective did not ask for a description of the property. Moreover, Mrs. Conaway testified that she drove to the police station to claim her property instead of Detective Conaway bringing it to her as he had testified.
13. It is well-settled Delaware law that credibility disputes about testimony are resolved by the court below as the trier of fact. The trial court's transcribed ruling about the suppression issues makes the following clear. The car searched matched the description related to the police of the burglar's car. The car, later confirmed to be Reeder's, was physically present at Reeder's known work place. Reeder fled the scene with the keys upon hearing the police had arrived. The cassette, CDs and the silver cases were seen in plain view through the car window.
See Chao v. State , Del. Supr., 453 A.2d 326, 330 (1980).
Although the "pry tools," flashlights and gloves were as consistent with construction work as with burglary tools, the trial court correctly concluded that the totality of the circumstances justified an immediate warrantless search of the car based upon reason to believe it contained the fruits and tools of a burglary. The police reasonably concluded that it would be impractical to leave the scene to search for Reeder and the keys or to seek a warrant for the car.
14. The trial court was aware of defendant's argument that a police officer manufactured his testimony to meet the test of probable cause and chose nonetheless to believe the officer's testimony. Even if there exists some inconsistency between the officer's testimony at his three court appearances and with that of the owner of the stolen property, the totality of the factual circumstances described at the suppression hearing constituted probable cause to search the car without a warrant. The trial court so found, and we agree.
15. Following Reeder's conviction, the court initially imposed a mandatory 32-year sentence at Level V after concluding that Reeder merited habitual offender status on four counts. The State filed a Motion for Correction of Sentence and, after a hearing, declared Reeder a habitual offender on all 14 counts and increased his sentence to 112 years.
16. Reeder argues that the Superior Court erred when it granted the State's Motion for Correction of Sentence and then enhanced its initial sentence. The court initially sentenced Reeder as a habitual offender on only four of the fourteen burglary counts. The State's motion alleged that the Superior Court misapplied 11 Del. C. § 4214, which defines punishment for habitual offenders when it did not sentence Reeder as an habitual offender on each count.
11 Del. C. § 4214 states in pertinent part: (a) Any person who has been 3 times convicted of a felony. . . and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such 4th or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted. Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this section shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the 4th or subsequent felony which forms the basis of the State's petition to have the person declared to be an habitual criminal except that this minimum provision shall apply only when the 4th or subsequent felony is a Title 11 violent felony, as defined in § 4201(c) of this title. . . .
17. Reeder argues that § 4214 permits a court to use its discretion in determining if a defendant is a habitual offender. Reeder notes that the statute's language uses the word "or" in the phrase "fourth or subsequent conviction," and argues that this indicates that the section is discretionary, otherwise the word "and" would be used in order to make the section mandatory. This statutory language Reeder argues, implies that the sentencing court, following a third felony conviction, has discretion to declare a defendant an habitual criminal on one or all convictions. Reeder argues that since declaring habitual offender status is discretionary, the Superior Court erred when it granted the State's motion for correction of sentence and sentenced him as an habitual offender on all 14 counts as if it were mandatory.
18. We disagree that habitual offender status is discretionary under § 4214. Each separate burglary conviction requires a separate sentence. Because of this, the State has the discretion to seek habitual offender status for each count or none. Delaware law clearly indicates that "where the State initiates the habitual offender process, the court is limited to granting only the result sought by the State." We conclude that the phrase "fourth or subsequent conviction" merely recognizes the possibility that defendants may have more than three prior felony convictions and that the use of the word "or" does not imply that the courts have discretion in determining habitual offender status. Simply put, the General Assembly, in enacting § 4214, limited the Superior Court's sentencing discretion once the State properly initiates the habitual offender status process. Therefore, the Superior Court did not err when it corrected Reeder's sentence and resentenced him as an habitual offender on each burglary count.
Kirby v. State , Del. Supr., No. 344, 1998, Walsh, J. (Apr. 13, 1998) (ORDER).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.