Opinion
I.D. No. 0803025184.
September 8, 2008.
Joseph Grubb, Deputy Attorney General, Wilmington, DE.
Brian J. Chapman, Esquire, Wilmington, DE.
Counsel:
The Defendant, Harold Hall ("Defendant"), has moved to suppress a handgun, rifle, and marijuana found as a result of a warrant issued to search his apartment. In support of this motion, the Defendant argues that the facts contained in the warrant application were insufficient to demonstrate that a nexus existed between the Defendant's apartment and the evidence sought. The Court, after considering all the facts contained in the warrant application as a whole, finds that it is apparent from the face of the affidavit that there were sufficient facts to determine that there was probable cause to link the Defendant's apartment and the evidence sought. Accordingly, the motion is DENIED.
Factual Background
On March 19, 2008 Corey Pendergrass ("Pendergrass") was identified as a having shot three individuals through a backdoor of 600 West 5th Street in Wilmington. Shortly thereafter, Pendergrass was arrested by the Wilmington Police. No handgun was found on his person. As a result, the police applied for, and were granted, a warrant to search Pendergrass's automobile, which, also, yielded no handgun.
During a police interview, Pendergrass informed the Wilmington Police that he had gone to the Defendant's apartment immediately after the shooting and before his arrest and identified the Defendant as his brother. The police determined by a Computer Aided Dispatch and, additionally, by an unidentified witness, that the Defendant did, indeed, reside at the address provided by Pendergrass. The police then showed that witness a photographic line-up that contained a picture of the Defendant, and the witness identified the Defendant as a person he believed to live at the address. The witness also informed the police that the Defendant was Pendergrass's brother, and that they resided together at 502 North Monroe Street.
Aff. ¶ 5: "Pendergrass stated he . . . drove to his brother's house in the 500 block of North Monroe Street after the shots were fired. [Pendergrass] named [Defendant] as his brother . . . [and] described his brother's residence . . . Pendergrass stated he was taken into custody after he knocked on his brother's residence and re-entered his motor vehicle."
Relying on the aforementioned information provided by Pendergrass, the Computer Aided Dispatch report, and the witness, Detective Christian Flaherty ("Flaherty") applied for, and was issued, a warrant to search the Defendant's apartment for any weapons or evidence that connected Pendergrass to a handgun. Upon conducting the search, Flaherty, along with several other Wilmington Police officers, discovered a handgun, a rifle and marijuana. As a result, the Defendant was charged with Possession of Marijuana, two counts of Possession of a Firearm by a Person Prohibited, and Endangering the Welfare of a Child.
The Defendant is now moving to suppress the seized evidence, which he claims resulted from an invalid search warrant.
Analysis
The Delaware Constitution dictates that search warrants may only be issued upon a showing of probable cause to a judicial officer that the items intended to be seized are located at the premises to be searched. The affiant must demonstrate, in an affidavit that he suspects that evidence of a crime is located in the place to be searched, and must explain the facts upon which this belief is founded. If a neutral judicial officer determines from those facts that there is sufficient probable cause to merit a search, a warrant may issue.
Del. Const. Art 1, § 6: "The people shall be secure in their persons, houses, papers and possessions from unreasonable search 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 there be probable cause supported by oath or affirmation."
Pierson v. State, 338 A.2d 571, 573 (Del. 1975)
11 Del. C. § 2306. "The 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"
11 Del. C. § 2307. If the judge, justice of the peace or other magistrate finds that the facts recited in the complaint constitute probable cause for the search, that person may direct a warrant to any proper officer or to any other person by name for service. The warrant shall designate the house, place, conveyance or person to be searched, and shall describe the things or persons sought as particularly as possible; State v. Dick 2004 WL 1172883 at *4 (Del. May 24, 2004).
The burden is upon the Defendant to demonstrate that the challenged search and seizure was unlawful. In this instance, it must be shown that the application for the search warrant in question did not provide the issuing judicial officer with enough facts to determine that probable cause existed to search the specified premises in question. To make this determination, the reviewing court must use the "four-corners" test to determine if a search warrant was valid. Simply stated, in order to satisfy the "four-corners" test, there must be a sufficient showing of facts on the face of the affidavit to allow this Court to believe that: 1) an offense has been committed, and 2) that evidence of the aforementioned offense will be found at the location to be searched. Such a determination "is much less rigorous than that governing the admission of evidence at trial and requires only that a probability, not a prima facie showing, of criminal activity can be established."
State v. Sisson 883 A.2d 868, 875 (Del. 2005).
Sisson, 883 A.2d at 876.
Id. at 875.
Id. at 876.
When considering the sufficiency of the application for a search warrant, it is the whole application that is considered rather than its separate allegations. That is, all of the aspects of the affidavit must be examined as a whole to determine if there is a nexus between the evidence that is sought and the location in which the search is to take place. The aforementioned nexus 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 as well as from any direct observations. Ultimately, there is much deference to an issuing judge's finding of probable cause.
Id.
Dick at *4.
Id.
Id. See also State v. Backus 2002 WL 31814777 at *6 (Del. Nov. 18, 2002).
Information provided by an unidentified informant may still form the basis for probable cause as long as the information provided can be corroborated. That is to say, "if an informant's tip is sufficiently corroborated by independent police work, the tip may form the basis for probable cause even though nothing is known about the informant's credibility." As long as there are other indicia of reliability in the affidavit, the fact that an informant is unidentified is not fatal to the application for a search warrant.
Tatman v. State, 494 A.2d 1249, 1251 (Del. 1985). ( citing; Illinois v. Gates, 462 U.S. 212, 242-43 (1983)).
Id; LeGrande v. State, 947 A.2d 1103, 1109 (Del.Supr. 2008). See also; State v. Hubbard, 2001 WL 1089664 at *4, ("An informant's tip that is corroborated by independent police work can form the basis for probable cause, regardless of what is known about the informant's personal credibility or reliability").
State v. Miller, 449 A.2d 1065, 1069 (Del.Supr. 1983) ("Informant information need not be discarded if it is corroborated by other material ion the affidavit").
Furthermore, even if information contained in an affidavit is partially incorrect, a search warrant may be issued. In such situations, the incorrect information is purged from the affidavit and the remaining evidence is then examined. If the remaining, correct information is sufficient to demonstrate to a judge that probable cause exists the warrant will not be found invalid. Ultimately, if there is incorrect information in an affidavit, a reviewing judge will not void a search warrant provided that enough evidence remains in the affidavit to conclude a nexus exists between the crime and the place to be searched.
Franks v. Delaware 438 U.S. 154 (1978); State v. Walker, 444 A.2d 277, 282-83 (Del.Supr. 1982).
Id.
Walker 444 A.2d at 282.
Turning to the case at hand, the Defendant's contention is that the only link between himself and Pendergrass's crime is a statement obtained from an unidentified witness who correctly identified the two as brothers, but incorrectly informed the police that they resided together at the 502 North Monroe Street apartment. That assertion is incorrect. The primary information that links the Defendant's apartment with the crime for which Pendergrass was being investigated was Pendergrass. The information provided by the unidentified witness was merely corroborative of the information provided by Pendergrass. The Defendant correctly notes that there is no information in the affidavit that the aforementioned witness was previously proven to be reliable and that the criteria for reliance on a confidential source of information has not been met. The Defendant argues, therefore, that there was insufficient probable cause to justify the issuing of a search warrant for the Defendant's apartment and any evidence seized as a result of the search warrant should be excluded.
Aff. ¶ 7. "A photographic lineup containing a photograph of [Defendant] was shown to [a] witness . . . and positively identified [Defendant] as brother of Corey Pendergrass and [that] both Defendant and Pendergrass reside together at 502 north Monroe Street." While Pendergrass may spend signifigant time at his brother's address, although no such fact is alleged the state concedes that Pendergrass resides at 1314 W. 4th Street and not at 502 North Monroe Street as was indicated by the witness.
Even if the incorrect information contained in the affidavit regarding the witness's statement was ignored, there is sufficient probable cause to permit the search. The primary basis for the warrant application was that Pendergrass was related to the Defendant and that Pendergrass admitted to going to the Defendant's apartment immediately following the shooting.
Aff. ¶ 5. ""Pendergrass stated he drove to his brother's house in the 500 block of North Monroe Street after the shorts were fired. Corey Pendergrass named [Defendant] as his brother. Corey Pendergrass described his brother's residence as one of the first houses on the east side of the street in the 500 block of North Monroe Street. Corey Pendergrass stated he was taken into custody after he knocked on the door to his brother's residence".
It is those facts that establish the nexus between Pendergrass and the Defendant; and the witness merely supplemented, and, in part, confirmed that information. Even though the witness incorrectly stated that Pendergrass lived in the Defendant's apartment, the witness correctly indicated that that Pendergrass was familiar with the Defendant, and that the two men were brothers, thereby confirming the information provided to the police by Pendergrass. Since Pendergrass was arrested shortly after he went to the Defendant's apartment, and since, on his own admission, he went there following the shooting in question, he had the opportunity to hide the handgun there. This becomes even more probable because no handgun was found during his arrest or the search of his car and the Defendant's residence is the only place identified by Pendergrass that he went to in during the short time between the shooting and his arrest.
Aff. ¶ 7.
Aff. ¶ 5.
Apart from the information provided by Pendergrass and the witness, Flaherty's experience as a police officer was also taken into consideration in issuing the search warrant. In the affidavit, Flaherty posits that, in his experience, criminals are apt to not immediately dispose of their weapons, but rather, hide such weapons in an environment that the criminal feels is safe. Clearly, Pendergrass would feel his brother's, the Defendant's residence would be safe.
See, e.g., State v. Jones 2000 WL 33114361 at *2 (stating that it is well established that this Court takes into consideration "a police officer's training and experience . . . in determining probable cause when combined with other factors.").
Aff. ¶ 8.
There need only to be a fair probability that the evidence sought would be located at the residence to be searched. This Court is satisfied that affidavit, on its face, contained sufficient evidence for a judicial officer to have concluded that probable cause existed that evidence of the shooting might be found at the Defendant's residence. Therefore, the evidence obtained as a result of this search warrant will not be suppressed.
Parsons 2004 WL 1172883 at *7.
Conclusion For the foregoing reasons, Defendant's motion to suppress the handgun, the rifle and the marijuana is DENIED.
IT IS SO ORDERED