Opinion
C.A. No. 0605016750.
Heard: April 24, 2007.
Decided: September 14, 2007.
Kevin M. Howard, Esquire, Young Malmberg Howard, P.A., Delaware.
Jason C. Cohee, Esquire, Attorney's General Office, Delaware.
Dear Counsel:
This is the decision of the Court regarding Defendant's motion to suppress evidence that was presented before this Court on April 24, 2007. For the reasons set forth below, this Court finds that the officers from the Office of Probation and Parole conducted a valid administrative search of Lot 14, 1492 North Little Creek Road, Dover, Delaware.
"Probation is a form of criminal sanction". Thus, probationers do not enjoy the same liberty that every law abiding citizen possesses; instead, probationers have a conditional liberty that is subject to supervision and certain restrictions. Such restrictions are necessary to protect the community and to ensure that the probationer is continuing his rehabilitation during this period. Accordingly, searches that would otherwise be unconstitutional on a person or his residence may be constitutional when the search is being conducted pursuant to a valid regulation governing probationers.
State v. Harris, 734 A.2d 629, 634 (Del.Super.1998).
Id.
Id at 634-635; see also Donald v. State, 903 A.2d 315, 318-319 (Del. 2007).
Delaware Law gives probation officers the same powers as constables and the Department of Correction has established regulations that provide a checklist and factors to meet for the determination of whether there are sufficient grounds, based on a totality of the circumstances, to search a probationer without a search warrant.
11 Del.C. § 4321(d).
In this case, the facts show that the Defendant, Kenneth Holland, was on probation, listing his residence as 211 North New Street, Dover, Delaware. While this was the case, he apparently was residing at Apartment E-105, Generals Green, Dover, Delaware, ostensibly a violation of his probation if the Office of Probation and Parole was not aware and did not approve of this location. He also was the owner and rehabilitator of a mobile home situated at 1492 Little Creek Road, Lot 14, Dover, Delaware. The mobile home had not been inspected nor did it have a certificate of occupancy ("CO").
Defendant alleges that there is no information that anyone observed the Defendant engaged in any activity involving contraband prior to the search. The evidence, however, shows that the officers had information from two separate confidential informants ("CI") who provided information that the Defendant was staying in "Grandview Mobile Home Park" and selling cocaine out of a trailer at that residence. Officer DiGirolomo could not corroborate through observation as to whether he was living there, or selling drugs, but he had information about his involvement at the trailer in that this CI (as well as the second) had been proven to be reliable in the past, and had provided information proven to be reliable and resulting in arrests. The second CI described the Defendant as living off and on at the mobile home, as well as saying that the Defendant lives next door to him. In addition, he observed drugs being sold at the location. Detective Dickinson actually observed the Defendant leaving Lot 14 and get into an SUV vehicle.
With this information in hand, Officer Watts of the Department of Probation and Parole called this information in to a Supervisor pursuant to Department of Correction Procedure No. 7.19 to determine if the guidelines of the criteria were met and to determine if he had sufficient and reasonable grounds to conduct a search. It should be noted that the [Pre-] Search Checklist should be used as a guideline unless emergency circumstances dictate otherwise.
In his Motion to Suppress, Defendant cites both 7.18 and 7.19; however, 7.18, the Search Checklist, has been deleted. Only Procedure 7.19, Arrests, Searches and Arrest-Search Checklist, applies.
Department of Correction Procedure No. 7.19; McAllister v. State, 807 A.2d 1119, 1123 (Del. 2002).
6. SEARCH CHECKLIST.
a. The officer and supervisor will hold a case conference using the Search Checklist as a guideline. During the case conference the supervisor will review the "Yes" or "No" responses of the officer to the following search decision factors:
(1) Sufficient reason to believe the offender possesses contraband.
(2) Sufficient reason to believe the offender is in violation of probation/parole.
(3) Information from a reliable informant, indicating offender possesses contraband or is violating the law.
(4) Information from the informant is corroborated.
(5) Approval obtained from Supervisor, Manager or Director.
The decision to grant the search is based on a review with the Supervisor using the factors established in Procedure 7.19 E. for consideration for the search.
We have evidence that officers were informed independently by two confidential informants of proven reliability that a probationer (who was identified as owning the trailer in question and identified by the CIs when his picture was shown) was selling drugs from a mobile home without a CO that is not his listed residence. In reviewing the checklist, the Court finds that 6.a.(1) through (5) have been met and approval was given by the supervisor. Obviously, a probationer who is not living at his reported address, as admitted in the Defendant's motion, is potentially in violation of his probation. Whether or not a mobile home is a dwelling because it does not have a CO is somewhat hyper-technical and misses the point. It has not been refuted that the Defendant is the owner of the mobile home. The Department of Correction Procedure No. 7.19 does permit the administrative search of an offender's living quarters and property (see page 3). A CO simply legally authorizes one to occupy the premises, but that is all. One can still technically live in property such as a mobile home without a CO. The Court further finds that a mobile home, like a motor vehicle, is property of an individual and may be constitutionally searched in a more traditional fashion or pursuant to an administrative search.
There is no evidence presented that the supervisor did not consider the Search Decision Factors outlined in Department of Correction Procedure No. 7.19 E.
U.S. Const. Amend. IV; Del. Const. Art. I. § 6.
Based upon the totality of the circumstances, this Court must conclude that the facts and evidence presented show that reasonable suspicion was present and proper authority was given to conduct a valid administrative search. Accordingly, Defendant's motion to suppress is hereby denied.
IT IS SO ORDERED