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State v. Dick

Superior Court of Delaware
May 21, 2004
ID No. 0308016485 (Del. Super. Ct. May. 21, 2004)

Opinion

ID No. 0308016485.

Submitted: March 19, 2004.

Decided: May 21, 2004.

James E. Liguori, Esquire, Liguori, Morris Yiengst, Dover, DE.

David Hume, IV, Esquire, Department of Justice, Georgetown, DE.


Memorandum Opinion — Motion to Suppress Evidence


Dear Counsel:

This is the Court's decision on defendant Robert Dick's ("Dick") Motion to Suppress. The motion is denied for the reasons stated herein.

NATURE AND STAGE OF PROCEEDINGS

The Sussex County Grand Jury indicted Dick on October 27, 2003 on one count each of Trafficking in Methamphetamine, Possession with Intent to Deliver Methamphetamine, Trafficking in MDMA (Ecstasy), Possession with Intent to Deliver MDMA (Ecstasy), Possession of Cocaine, Possession of Marijuana, Possession of MDMA, two counts of Maintaining a Dwelling for Keeping Controlled Substances, and nine counts of Possession of Drug Paraphernalia. The charges were filed after a search on August 22, 2003 by Federal Drug Enforcement Agents (the "DEA") of Dick's residence at 50 Wilmington Avenue, Unit 317, Rehoboth Beach, Delaware, and Dick's place of business, the AM Night Club (the "Club"), located in Rehoboth Beach, Delaware.

Dick filed a Motion to Suppress evidence seized in connection with the search of his residence and subsequent arrest. Specifically, Dick raises two legal issues: (1) was there a failure to establish a legally sufficient nexus between Dick's residence and the alleged criminal activity, and (2) does the affiant's failure to appear at the execution of the search warrant invalidate the search. The Court held a hearing to consider Dick's motion on February 20, 2004. Following the hearing, both parties submitted Memoranda of Law addressing the issues raised in the motion.

STATEMENT OF FACTS

On August 22, 2003, at approximately 6:20 a.m., agents of the DEA executed a search warrant at 50 Wilmington Avenue, Unit 317, Rehoboth Beach, Delaware. The search warrant was signed and approved by a Superior Court Judge based upon an affidavit signed by Detective Paul Parsons ("Parsons") of the Rehoboth Beach Police Department (the "RBPD").

An investigation of Dick began on January 12, 2003, when an anonymous letter was sent to the DEA in Dover, Delaware. The letter described how he, the writer, witnessed Dick and a person named Eric, who's last name was unknown, distribute "Crystal," which is a street term for methamphetamine, and Oxycontin, at the Blue Moon Restaurant (the "Blue Moon") in Rehoboth Beach, Delaware. The letter stated that Dick is a co-owner of the Blue Moon and that he obtained prescriptions for oxycontin, vicodin and percocet from doctors visiting the Rehoboth Beach area. The prescriptions were allegedly filled at different pharmacies in Rehoboth Beach. The letter also stated that Bob Dugan ("Dugan") supplied methamphetamines to Dick and that Dick allowed Dugan to sell illegal drugs at the Blue Moon. The author of the letter stated that this was his third letter in the past year reporting illegal drug activity at the Restaurant.

Parsons was told that Dick was a co-owner of the Blue Moon by another co-owner, Joyce Felton. Dick later informed Parsons that he was also a co-owner of the Club. The attorney for the Club informed Parsons that Dick's alternative lifestyle partner is Eric Teves.

Parsons conducted a Department of Motor Vehicles (the "DMV") inquiry for Eric Teves, which revealed a Delaware license, date of birth, social security number, and address of 119 Columbia Avenue, Rehoboth Beach, Delaware. Parsons also conducted a DMV and DELJIS database inquiry for Dick, which revealed Dick's current address as 50 Wilmington Avenue, Unit 317, Rehoboth Beach. Special Agent Fernandez ("SA Fernandez") of the DEA and Parsons conducted a further inquiry at the Giant Supermarket Pharmacy (the "Giant") in Rehoboth Beach regarding any purchases of Oxycontin, Vicodin, or Percocets by Dick. Giant's records indicated that purchases of Oxycondone products and Vicodin were made by Dick from March 18, 2000 thourgh January 22, 2003. Moreover, prescriptions were filled for these products by Dick within days of filling previous prescriptions.

Kenneth Bethard, Executive Director of the Delaware Crime Stoppers, received a complaint on May 16, 2003 that Dugan was engaged in drug distribution activities. The caller identified Dugan as a white male residing in the third floor apartment behind #15 Cookman Street, Rehoboth Beach, Delaware. The caller stated that Dugan was selling Crystal, cocaine and ecstacy and that he does not have a job or a car. The caller further stated that Dugan is very careful to whom he sells drugs and keeps the drugs in a black leather bag. Parsons conducted a DMV inquiry on May 16, 2003 for a driver's license for Dugan and found that he was a white male residing at 15 Cookman Street, Rehoboth Beach.

DEA cooperating witness ("CW#1") is "past proven reliable" and was interviewed on July 3, 2003 regarding Crystal distribution by Dick at the Blue Moon and Patrick Oley ("Oley"), as well as others, in the Rehoboth Beach area. CW#1 stated that Dick is the co-owner of the Blue Moon and the Club and that he/she has personal knowledge that Dick distributes Crystal in the Rehoboth Beach area. CW#1 stated that he/she observed Dick with Crystal in a red ziplock bag in Rehoboth Beach around March or April of 2003.

A DEA Special Agent, acting in an undercover capacity, and CW#1 met with Oley at the Iguana Restaurant and Bar in Rehoboth Beach on July 10, 2003 and July 17, 2003 and purchased methamphetamines from Oley on both occasions. Parsons interviewed a RBPD cooperating witness ("CW#2") on July 31, 2003 regarding Dick's and Oley's distribution of methamphetamine and Oxycontin. CW#2 stated that he/she lived with Oley and observed him distribute Oxycontin and methamphetamine. CW#2 told Parsons that Oley supplied Dick with Oxycontin and that Oley's supplier was named "Diana." CW#2 stated that two females who reside in Camelot Mobile Home Park (the "Camelot") supply Oley with drugs and that he/she went with Oley to purchase Oxycontin from his supplier in Camelot. Oley would drop her off at a location adjacent to the entrance to the Camelot. Oley would then exit Camelot and meet Dick in the parking lot where he supplied Dick with Oxycontin.

CW#1 made a controlled purchase of methamphetamine and MDMA from Diana Hansen ("Hansen") on August 12, 2003. Hansen told CW#1 that Terry Rains ("Rains") is currently supplying Dick with methamphetamine during a recorded conversation. Hansen told CW#1 that although she cuts her distributors off, including Dick, when she observes them using too much methamphetamine, Rains does not. Hansen also told CW#1 during the recorded conversation that Dick had recently returned her drug scale with a dead battery.

DEA then conducted inquiries for Dick into the credit bureau index database on August 18, 2003, which revealed that Dick lists the 50 Wilmington Avenue address as his residence and the Blue Moon as his employer.

Dick argues that the evidence was seized in violation of his rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, Article 1, Section 6 of the Constitution of the State of Delaware, 11 Del. C. § 2306- 2307 and Rickards v. State. More specifically, Dick argues (1) a failure to establish a legally sufficient nexus between Dick's residence and the alleged criminal activity, and (2) the affiant's failure to appear at the execution of the search warrant invalidates the search.

77 A.2d 199 (Del. 1950).

STANDARD OF REVIEW

It is well established that when motions to suppress are presented to this Court, the defendant bears the burden to show that his Fourth Amendment rights were violated as a result of the challenged search or seizure. Moreover, the defendant must prove by a preponderance of the evidence that he is entitled to relief.

State v. Backus, 2002 WL 31814777 (Del.Super.Ct.), citing Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978); State v. Bien-Aime, Del. Super. Ct., Cr. A. No. IK92-08-0326, Toliver, J. (May 17, 1993) (Mem. Op.).

Backus, 2002 WL at *2, citing Bien-Aime at 8 (citing United States v. Casteneda, 951 F.2d 44 (5th Cir. 1992)).

DISCUSSION

A. Knock and Announce

Dick's Motion to Suppress alleges that the State failed to properly "knock and announce" prior to entering Dick's residence. However, Dick concedes that, in light of Backus, it is reasonable to conclude that the State minimally complied with this requirement. Therefore, this claim has been withdrawn.

Id.

B. Nexus

Dick's Motion to Suppress alleges that the Affidavit of Probable Cause fails to establish a legally sufficient nexus between the area to be searched and the alleged criminal acts. The Fourth Amendment to the United States Constitution protects the public against unreasonable searches or seizures by requiring that a search warrant may be issued only upon a showing of probable cause supported by oath or affirmation. The Delaware Constitution affords its citizenry the same fundamental protections. The Delaware Code sets forth statutory requirements for an adequate showing of probable cause. 11 Del. C. § 2306 requires that the affidavit in support of a search warrant:

The Fourteenth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, an no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. XIV.

Article 1, § 6 of the Delaware Constitution provides the following:

Section 6. The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or thing, shall issue without describing them as particularly as may be; nor then, unless there be probable cause supported by oath or affirmation.

[S]hall 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 on 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.
11 Del. C. § 2307 provides that if the judicial officer finds probable cause for a search, he may direct a warrant to any proper officer. The warrant shall designate the place, person or things to be searched as particularly as possible. The two statutory sections create a four corners test for probable cause. In order for a reviewing court to verify that probable cause existed, adequate facts must exist on the face of the affidavit such that a reasonable man would believe that an offense has been committed and that seizable property would be found in a particular place or on a particular person. A prima facie showing is not required. "Only the probability . . . of criminal conduct is necessary to support a finding of probable cause."

State v. Church, 2002 WL 31840887 (Del.Super.Ct.), citing Pierson v. State, 338 A.2d 571, 573 (Del. 1975).

Id.

State v. Jones, 2002 WL 31814516 (Del.Super.Ct.), at *2, citing State v. Santini, 1993 WL 55341 (Del.Super.Ct.), at *4; Jensen v. State, 482 A.2d 105, 110-111 (Del. 1984).

Jones, 2002 WL at *2, citing State v. Walker, 444 A.2d 277 (Del.Super.Ct. 1982) (citing Spinelli v. United States, 393 U.S. 410, 419 (1969) and Beck v. Ohio, 379 U.S. 89, 96 (1964)).

In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme Court found that it is the issuing magistrate's task "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Moreover, "the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for . . . [concluding]' that probable cause existed." The Supreme Court further stated that "[w]e are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli." The Delaware Supreme Court reasoned that "[t]his Court has also eschewed a hypertechnical approach to the evaluation of the search warrant affidavit in favor of a common-sense interpretation, bearing in mind that the court reviewing the search warrant owes a certain degree of deference to the issuing magistrate." Furthermore, the Delaware Supreme Court recognizes the compelling force of the "totality of the circumstances" announced in Gates, and finds it consistent with the Court's holding in Jensen v. State, 482 A.2d 105 (Del. 1984). Therefore, "the affidavit supporting the search warrant must be `considered as a whole and not on the basis of separate allegations.'" However, "there must be a nexus between the items which are sought and the place in which the police wish to search for them." It is not necessary that the nexus be a result of direct observation. Rather, it `can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime]. . . .' Yet, evidence seized in violation of these prerequisites will be inadmissible at trial.

Illinois v. Gates, 462 U.S. 213, 238 (1983), citing Jones v. United States, 362 U.S. 257, 271 (1960).

Aguilar v. Texas, 378 U.S. 108 (1964).

Spinelli v. United States, 393 U.S. 410 (1969). Aguilar and Spinelli required that an affidavit must establish (1) the informant's basis of knowledge or (2) provide sufficient facts to establish either the informant's veracity or the reliability of the informant's report.

Gardner v. State, 567 A.2d 404 (Del. 1989), citing Tatman v. State, 494 A.2d 1249, 1251-52 (Del. 1985); Jensen v. State, 482 A.2d 105, 111 (Del. 1984).

Gardner, 567 A.2d at 409, citing Jensen, 482 A.2d at 111.

Id. at 409, quoting Jensen, 482 A.2d at 111.

Jones, 2000 WL 33114361 (Del.Super.Ct.), citing Dorsey v. State, 761 A.2d 807, 811 (Del. 2000); Hooks v. State, 416 A.2d 189, 203 (Del. 1980); Pierson v. State, 338 A.2d 571 (Del. 1975).

United States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999), quoting United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979).

Mapp v. Ohio, 367 U.S. 643 (1961); Rickards v. State, 77 A.2d 199 (Del. 1950).

In support of his motion, Dick cites State v. Ada, 2001 WL 660227 (Del.Super.Ct.) and State v. Backus, 2002 WL 31814777 (Del.Super.Ct.). However, these two cases are distinguishable from the case at bar. In State v. Ada, the court found that there was not a sufficient nexus contained in the affidavit to establish probable cause to search the residence. In Ada, the police did not observe any illegal or suspicious activity at the identified residence. Moreover, but for the defendant in Ada coming and going from the address, there was no objective evidence to connect him to the address where the search warrant was executed. Contrary to Ada, three sources corroborated Dick's address for the RBPD and linked Dick to the address. This information, coupled with the specific items sought by the RBPD, differentiates the two cases.

State v. Ada, 2001 WL 660227 (Del.Super.Ct.).

Ada, 2001 WL at 5.

Id.

In State v. Backus, the defendant argued that the warrant did not contain probable cause to believe that cocaine would be found in the residence because there `were no controlled buys from the residence nor was there any surveillance indicating the same.' In response to this argument, the court cited State v. Jones, where the court found that probable cause existed "even in the absence of the above two elements and even where there was no informant that told police that defendant kept drugs in the residence." The court in Backus found a sufficient nexus between the items sought and the defendant's residence based on the following facts set forth in the affidavit: (1) a past proven reliable informant stated that the defendant was cooking crack cocaine in the residence and conducted drug deals inside the residence; (2) the police observed defendant's vehicle parked in front of the residence on several occasions; (3) a past proven reliable informant stated that defendant was selling crack cocaine from the residence; and (4) when the defendant left the residence, he sold cocaine to an informant in an arranged drug buy. Although the court found this information to be sufficient, the court's reference to Jones shows that it is not necessary that every affidavit in support of a search warrant contain all of this information.

Backus, 2002 WL 31814777 (Del.Super.Ct.), at *6.

Backus, 2002 WL at *6, citing Jones, 2000 WL 33114361 (Del.Super.Ct.) (emphasis added.).

Id. at *6.

Moreover, the court in State v. Church, 2002 WL 31840887 (Del.Super.Ct.), cited State v. Jones, 1997 WL 528274 (Del.Super.Ct.), and reiterated that `[d]irect evidence that items will be present at the premises to be searched pursuant to the warrant is not always required in a search warrant.' The court went on to state the following:

State v. Jones, 1997 WL 528274 (Del.Super.Ct.), at *4, quoting Hooks, 416 A.2d at 203.

[t]he lack of `direct evidence,' e.g., a controlled drug purchase made from 6 S. Gray Avenue and/or an informant's tip that the Defendant maintained or sold drugs from 6 S. Gray Avenue, within the four corners of the search warrant, to suggest that drugs or contraband could be seized at 6 s. Gray Avenue, does not negate the adequacy of a finding of probable cause. Defendant's conduct leading up to his arrest and possession of large quantities of marijuana upon his arrest provided police with more than mere fodder or suspicion that the Defendant stored contraband or drugs in his residence at 6 S. Gray Avenue.

Church, 2002 WL at *7.

Church, 2002 WL at *7.

The Court in Church considered the recent case of United States v. Hargis, 2002 WL 1336658 (4th Cir. (Md.)), for guidance. The affidavit at issue in Hargis contained information that the defendant brought drugs from one location into his car to the drug dealing location, he was seen going back and forth from his residence to the drug dealing location, and "the police officer stated that, based on his training and experience, street-level dealers frequently store drugs in their homes."

Id. at *8, citing United States v. Hargis, 2002 WL 1336658 (4th Cir. (Md.)), at *1.

Dick claims that the facts set forth in the affidavit do not form a sufficient nexus between the items sought and his residence because there were no controlled buys of drugs from Dick anywhere, including his residence, and there was no evidence that he sold drugs from his residence. Dick alleges that there was no objective evidence to show that any illegal activity was occurring at or near his residence or that the items sought by the RBPD would be found at his residence. However, in light of the aforementioned cases, there were sufficient facts set forth in the affidavit to form a legally sufficient nexus between Dick's residence and the drug activity.

The affidavit in support of the warrant contained the following information: (1) an anonymous letter identifying Dick as a user and distributor of illegal drugs; (2) pharmacy records outlining Dick's prescription drug purchases; (3) pedigree information identifying Dick's residence as the place where the evidence of the crimes would be found; (4) a cooperating witness statement implicating Dick in the use and sale of illegal drugs; and (5) inferences drawn by Parsons based on his training and expertise.

1. The Anonymous Letter

An anonymous letter was sent to the DEA's office in Dover, Delaware on January 12, 2003, outlining Dick's and "Eric's" distribution of methamphetamine and Oxycontin from the Blue Moon. The writer of the letter explained that he/she witnessed Dick and "Eric" distribute methamphetamine and Oxycontin pills at the bar inside the Blue Moon and that Dick is a user of narcotics. The writer informed the DEA that Dick obtained prescriptions for the drugs from doctors visiting the area and filled them at different pharmacies in Rehoboth. The writer also stated that Dick is a co-owner of the Blue Moon and that Dugan supplied Dick with methamphetamines. Dick also allegedly permitted Dugan to sell methamphetamines at the Blue Moon.

The information contained in the letter was corroborated by the RBPD's investigation of Dick, including Giant Supermarket Pharmacy records of purchases of controlled substances, and two cooperating witness statements implicating Dick in the sale of illegal drugs.

2. Information Concerning Dick's Prescription Drug Purchases

The DSP conducted an inquiry at the Giant Supermarket Pharmacy in Rehoboth Beach on January 24, 2003 in order to track all purchases of controlled substances at that pharmacy from March 18, 2000 through January 22, 2003. The pharmacy records indicate that Dick had numerous prescriptions filled for controlled substances during this period. Several of the prescriptions were even filled within days of filling the first prescriptions. Dick's high purchase rate of controlled substances suggests that he buys them for both distribution and personal use. This information corroborates the information in the letter stating that Dick purchases drugs for his own use and for distribution and the statements made by the cooperating witnesses.

3. Pedigree Information

The search warrant application identified the location where the evidence of the alleged crimes would be found as Dick's residence, 50 Wilmington Avenue, Unit 317, Rehoboth Beach, Delaware. The search warrant was executed at this location. This address was corroborated by (1) Giant Supermarket Pharmacy's records of Dick's address; (2) a DELJIS inquiry made by the DSP identifying Dick's residence; and (3) a Credit Bureau Index Database inquiry made by the DEA identifying 50 Wilmington Avenue as Dick's address.

4. Cooperating Witness (CW) Information

Several cooperating witnesses were used in the RBPD's and DEA's investigation of Dick. Information obtained from two cooperating witnesses was included in the application for the search warrant for Dick's residence. CW#1 was a proven reliable cooperating witness for the DEA and RBPD by corroborating his/her statements and through the controlled purchases of methamphetamine and ecstacy from other people arrested in the operation, such as Oley. CW#1 stated that Dick was a co-owner of the Blue Moon and that he/she had personal knowledge that Dick distributes methamphetamine in the Rehoboth Beach area. The CW also stated that he/she saw Dick with a red ziplock bag containing methamphetamine in Rehoboth Beach. CW#1 made a controlled purchase of methamphetamine from Diana Hansen, Dick's former supplier of methamphetamines, on August 12, 2003.

The other cooperating witness, CW#2, was a proven reliable cooperating witness and corroborated information contained in the anonymous letter along with information obtained from CW#1.

It is well established that an informant's tip may establish probable cause where, based on the totality of the circumstances, one would conclude that the information is reliable. A magistrate may rely on an affiant's knowledge of a suspect as corroborating evidence to establish the reliability of an informant's tips. In Jones v. United States, 362 U.S. 257, 271 (1960), the United States Supreme Court stated the following:

State v. Jones, 2002 WL 31814516 (Del.Super.Ct.), citing Gates, 462 U.S. 213 (1983).

Jones, 2002 WL at *2, citing State v. Walker, 444 A.2d at 286 (citing United States v. Harris 403 U.S. 573, 583 (1971) and Jones v. United States, 362 U.S. 257, 271 (1960)).

The informant had previously given accurate information. His story was corroborated by other sources of information. And petitioner was known by the police to be a user of narcotics. Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to skepticism than would be such a charge against one without such a history.

Where probable cause is apparent, a warrant will not be overturned.

Church, 2002 WL at *5, citing Hooks v. State, 416 A.2d 189 (Del. 1980) (citing Brinegar v. United States, 338 U.S. 160, 175 (1949)).

In Hopkins v. State, 501 A.2d 774 (Del. 1985), the Delaware Supreme Court applied the totality of the circumstances test to establish the existence of probable cause for a search warrant. The affiant offered several sources to substantiate his belief that the defendant was engaged in drug trafficking. The multiple sources included the following:

(I) four informants, none of whom were aware of the others' participation and three of whom implicated themselves in defendant's sales; (ii) numerous citizen complaints reporting `inordinate' vehicular traffic to and from defendant's home by people `staying only for a couple of minutes'; and (iii) affiant's own surveillance of the residence and his observation of the same kind of traffic reported by citizen complaint.

Hopkins, 501 A.2d at 775.

Hopkins, 501 A.2d at 775.

The Court found that "the affidavit established more than a `fair probability that contraband or evidence of a crime [would] be found' at defendant's residence."

Id. at 775-76, quoting Gates, 462 U.S. at 238.

In the case at bar, the information provided by the informants was corroborated in several ways, including, but not limited to, the DSP's own investigation, the anonymous letter, and the pharmacy records.

5. Inferences Drawn by Parsons

The warrant application includes a series of inferences drawn from the information Parsons received, coupled with his training, experience, and participation in other drug investigations. Based on Parson's training and experience, Parsons provides in the warrant application that he knows that it is common for drug traffickers to (1) keep large amounts of currency on hand to finance their drug business; (2) maintain books, records, receipts and similar documentation relating to the sale and distribution of controlled substances where they have ready access to them; (3) keep contraband, proceeds from drug sales, and records of transactions in their residences in order to readily access them; (4) conceal in their residences caches of drugs, currency, and other valuable items; (5) keep addresses or phone numbers in books of their associates in the drug dealing business; (6) take photographs usually kept in their residence, of them, their associates, their drugs; (7) have unexplained wealth and courts have recognized that unexplained wealth is probative evidence of crimes motivated by greed, in particular, drug trafficking; (8) store firearms at their residence to protect their property; and, (9) keep drug paraphernalia in their residence.

See Application and Affidavit for a Search Warrant at para. 8.

This Court has repeatedly emphasized that "a police officer's training and experience may be taken into consideration in determining probable cause when combined with other factors." Based on the foregoing, there are sufficient specific facts set forth in the affidavit to form a nexus between the items that were sought and Dick's residence. The facts set forth above, coupled with the affiant's belief, based on his knowledge and expertise, that it is common for drug traffickers to keep contraband, firearms, drug paraphernalia and other evidence of their crimes, are sufficient to establish probable cause to search Dick's residence.

Jones, 2000 WL 33114361 (Del.Super.Ct.), at *2; Church, 2002 WL 31840887 (Del.Super.Ct.).

C. Presence of the Affiant at the Execution of the Search Warrant

Dick alleges that the affiant's failure to be present at the execution of the search warrant invalidates the search. In support of this contention, Dick relies on Rule 41 of the Federal Rules of Criminal Procedure, U.S. v. Comstock, 805 F.2d 1194 (5th Cir. 1986), and Wilson v. Layne, 526 U.S. 603 (1999), citing these sources as controlling law in this situation. However, Dick's reliance is misplaced. This is not an issue of first impression in Delaware. The law is clear in this area. 11 Del. C. § 2307 details what must be contained in a search warrant. There is no such requirement that a police officer be designated by name to execute a warrant. The statute clearly provides that the person issuing the search warrant "may direct a warrant to any proper officer or to any other person by name for service." Therefore, any officer may execute a signed search warrant. Moreover, even if it were necessary to comply with Rule 41 of the Federal Rules of Criminal Procedure, as alleged by Dick, the Rule has been complied with. The Superior Court Judge who signed the warrant is a judge of a state court of record and proper procedure was followed in the application, the issuance, and the execution of the warrant. There is also no requirement in Rule 41 that the affiant be present at the execution of the warrant.

11 Del. C. § 2307.

See Fed.R.Crim.P. 41.

The issue in Comstock was whether the evidence seized pursuant to a search warrant should have been suppressed because the warrant was issued by a Texas justice of the peace and not a judge of "a state court of record," as required by Rule 41, where federal agents are involved. The Fifth Circuit Court found that suppression was not warranted under these circumstances. The Circuit Court applied the following approach of United States v. Stefanson, 648 F.2d 1231 (9th Cir. 1981) and United States v. Loyd, 721 F.2d 331 (11th Cir. 1983):

U.S. v. Comstock, 805 F.2d 1194 (1986).

Comstock, 805 F.2d at 1196.

[A] state court warrant, valid under state law, issued at the behest of and to state officers, on a probable cause showing of state law violation, where federal participation with the state officers in the search and possible federal prosecution were initially anticipated by the state officers and actually eventuated . . . [T]here is no violation nor prejudice in the sense that the search would likely not have occurred or been as abrasive or intrusive had Rule 41 been followed, suppression in these circumstances is not appropriate if the officers concerned acted in the affirmative good faith belief that the warrant was valid and authorized their conduct.

Id. at 1207.

Id. at 1207.

Dick's reliance on Wilson v. Layne is misplaced. In this civil case, homeowners claimed that their constitutional rights were violated when federal and state law enforcement officers brought members of the media into their home to observe and record the execution of an arrest warrant on their son. The Court held that the media ride-along violated the Fourth Amendment, but the officers were entitled to the defense of qualified immunity since the state of the law was not clearly established when the search took place. There is no question that the state of the law is clearly established here. There is no such requirement in the statute that the affiant be present at the execution of the search warrant. Thus, this argument fails.

526 U.S. 603 (1999).

Id.

Id. at 605-6.

CONCLUSION

Dick's Motion to Suppress is denied for the reasons stated herein.

IT IS SO ORDERED.


Summaries of

State v. Dick

Superior Court of Delaware
May 21, 2004
ID No. 0308016485 (Del. Super. Ct. May. 21, 2004)
Case details for

State v. Dick

Case Details

Full title:RE: State of Delaware v. Robert Dick

Court:Superior Court of Delaware

Date published: May 21, 2004

Citations

ID No. 0308016485 (Del. Super. Ct. May. 21, 2004)

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