Opinion
I.D. 0407014648.
Date submitted: December 17, 2004.
Date decided: March 29, 2005.
Upon Consideration of Defendant's Motion to Suppress Evidence
DENIED.James Apostolico, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Joseph Hurley, Esquire, Wilmington, Delaware, Attorney for the Defendant.
Before this Court is a Motion to Dismiss filed by Robert Barks, Jr., ("Barks") through his counsel, Joe Hurley, to suppress evidence based on an allegedly deficient Affidavit of Probable Cause used for the search of his house. After hearing argument, and reviewing the Motion and Response, this Court is prepared to render its decision.
I. Background
The New Castle County Police Department ("NCCPD") was investigating a shooting that occurred in the area of Neurys Lane in Newark, Delaware. Barks was arrested on July 19, 2004, in relation to that incident. Based on the investigation, a search warrant was prepared by NCCPD for Barks' residence at 1401 Flanders Way, Newark, Delaware. The search recovered, among other things, crack cocaine, 9MM ammunition with thirty-seven live rounds, a holster, and drug paraphernalia.
II. Discussion
Delaware's Constitution provides that a search warrant cannot be issued "unless there [is] probable cause supported by oath or affirmation." Eleven Del. C. §§ 2306 creates a "four corners" test to determine if probable cause exists for a search warrant. "[P]robable cause is a common-sense determination; the affidavit in support of a search warrant must state facts sufficient to warrant a reasonable man in the belief that seizable property would be found in a particular place." Delaware law is clear that a "court reviewing the search warrant owes a degree of deference to the issuing magistrate." The Court notes that in testing the affidavit for compliance with § 2306, "the affidavit must be considered as a whole, and not in an isolated fashion."
Del. Const. art. 1, § 6.
Edwards v. State, 320 A.2d 701, 703 (Del.Supr. 1974). See also Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
Gardner v. State, 567 A.2d 404, 409 (Del.Supr. 1989).
Edwards, 320 A.2d at 703, citing Rossitto v. State, 234 A.2d 348 (Del.Supr. 1967).
Eleven Del. C. § 2306 states:
[t]he application or complaint for a search warrant shall be in writing, signed by the complainant and verified by oath or affirmation. It shall designate the house, place, conveyance or person to be searched and the owner or occupant thereof (if any), and shall describe the things or persons sought as particularly as may be, and shall substantially allege the cause for which the search is made or the offense committed by or in relation to the persons or things searched for, and shall state that the complainant suspects that such persons or things are concealed in the house, place, conveyance or person designated and shall recite the facts upon which such suspicion is founded.
Barks' Motion to Suppress attacks paragraphs 5, 6, and 8 of the Search Warrant Application and Affidavit. Paragraph five indicates that Barks drew a gun on Robert Lloyd at 36 Nuerys Lane and that Lloyd got into his car and drove away. Defendant offers that the NCCPD should have checked Defendant's car, not his home for the weapon. Paragraph six states that the NCCPD had a confidential source that revealed Barks had numerous semi-automatic firearms. It is Barks' position that there is no indicia of reliability for the informant under Illinois v. Gates. Lastly, paragraph eight states that the NCCPD officers know that individuals involved in criminal activity hide evidence. Bark's contends that the paragraph is not legally sufficient to establish probable cause because it did not specifically state "hide in houses."
462 U.S. 213 (1983).
Both Barks and the State argue that Dorsey v. State governs the issues before the Court. In Dorsey, the Wilmington Police Department was investigating a shooting that occurred in Dorsey's apartment complex. Dorsey had called 911 to report the incident. Upon searching the premises, no gun was located. The Police decided to apply for a search warrant for two cars belonging to Dorsey. Dorsey filed a Motion to Suppress the evidence that was seized pursuant to the warrant issued to search his cars. Dorsey argued that under the "four corners test" the affidavit was lacking in probable cause. In denying the Motion to Suppress, the Superior Court found that although the search warrant "does not specifically state that Dorsey was a suspect in the death . . ." it could be inferred that Dorsey might have shot the victim and hid the weapon in his car.
761 A.2d 807 (Del.Supr. 2000).
Id. at 810.
Id. at 810 citing State v. Dorsey, 1997 WL 528273 (Del.Super. 1997).
In reviewing whether probable cause existed to issue the search warrant against Dorsey, the Supreme Court held that "there must be a logical nexus between the items sought and the place to be searched." The Court ultimately held that the affidavit failed to comport with § 2306 because the affidavit did not state that "Dorsey had been arrested or even that he was suspected of committing any crime."
Id. at 811 citing Hooks v. State, 416 A.2d 189, 203 (Del.Supr. 1980).
Id. at 813.
Here, the Justice of the Peace was correct in finding probable cause existed to issue a valid search warrant for Barks' house. For the following reasons, the warrant comports with Delaware's Constitution and 11 Del. C. § 2306. Barks' Motion to Suppress is DENIED.
There is probable cause to believe that Barks was hiding the gun at his house because the officers, through training and experience, suspected that Barks would hide the illegal evidence in his home. In State v. Hooks, the Court held that a suspect's residence is a logical place to search for a weapon used in a crime. Accordingly, Barks' attack on paragraph five is without merit. This Court does not find that the NCCPD failed to prove probable cause in the affidavit by searching Defendant's house instead of his car.
416 A.2d 189 (Del.Supr. 1980).
Id. at 203.
Similarly, this Court does not agree with Defendant that paragraph six is defective because it does not state "hide in houses." To the contrary, Delaware law does not require such specificity. The NCCPD stated that they believed people involved in criminal activity hid their evidence. As stated previously, it is logical to believe that a suspect may hide evidence in a house.
Edwards, 320 A.2d at 703 (holding that an affidavit is not defective for failing to relate each specific item of property sought).
Moreover, in light of Dorsey, it appears to this Court that the search warrant, within its "four corners," has information that would satisfy a reasonable man that seizable property would be found in a particular place. Unlike Dorsey, Barks was suspected of a crime at the time the NCCPD applied for the search warrant. According to the affidavit, Detectives Wiley and Tower were advised that Barks was being investigated for his involvement for two incidents involving aggravated menacing and possession of a deadly weapon during the commission of a felony. Robert Lloyd, the alleged victim, went to 36 Nuerys Lane in Newark where Barks pulled a small silver handgun from his waist. Barks pointed it at Lloyd, but Lloyd escaped before being harmed. After checking CJIS, the Detectives learned that Barks' residence was 1401 Flanders Way. This recitation of the incident as seen in the affidavit "substantially allege[s]" why the Detectives applied for and were granted the search warrant as required under § 2306.
In Barks' case, the four corners contained sufficient information from which a neutral judicial officer could logically infer that there was probable cause to believe that the gun pulled on Robert Lloyd would be found in Barks' house. In addition to Lloyd's account of the gun used by Barks, the police received a tip that Barks had firearms at his house. This Court disagrees that paragraph six was insufficient for probable cause based on an informant's tip. As previously held by the United States Supreme Court, where an informant's tip is corroborated by other credible evidence, probable cause is not lacking in an affidavit. NCCPD's belief that guns were at Barks' house coupled with the informant's information provides a logical nexus between the items sought and the place to be searched.
See Illinois v. Gates, 462 U.S. 213 (1983).
The Motion to Suppress is DENIED.
IT IS SO ORDERED.