Opinion
Cr. ID No. 0702026228.
Submitted: August 29, 2007.
Decided: September 4, 2007.
Decision upon the defendant's Motion to Suppress.
OPINION
Terry Hudson resided in the same house as his brother Harvey Hudson, who was on probation. Probation officers conducted a warrantless adminstative search of the residence in February, 2007, while the defendant and his brother were at home. Defendant attacks the legality of the warrantless administrative search of the house because the search led to his arrest on an outstanding capias and to new drug-related charges based on items found in the clothing he donned prior to transport. I find that the administrative search was initiated pursuant to proper procedures, and was based on reasonable suspicion. Contraband discovered in the pocket of defendant's pants was seized pursuant to a legal search incident to defendant's arrest on the capias.
Background
Harvey Hudson, the defendant's brother, was on level III probation under the supervision of the Department of Corrections. His probation officer was Stacy Colavito. Officer Colavito went to Harvey Hudson's residence on February 27, 2007, and observed behavior which she reported to her supervisor, Patrick Cronin (Cronin), as suspicious. That information, along with several curfew check violations and a history of nine felony convictions, caused Cronin to believe that an administrative search was warranted. Cronin directed Officer William DuPont of the Safe Streets Unit to conduct an administrative search of the residence of probationer Harvey Hudson at 507 Sherman Street, Wilmington, Delaware.
The search commenced the same day, at 11:23 p.m. Officer DuPont was accompanied by Officer Rosenblum of the Wilmington Police Department, and Officers Seminaro and Negley of the Department of Corrections, Probation and Parole.
Harvey Hudson's mother, Rosina Hudson, answered the door. The officers entered. Harvey's brother Barry Hudson was in the living room area which pictures show to be immediately to the left of the front door. Immediately in front of the front door are the stairs to the second floor.
Following the process for an administrative search, the officers sought to have everyone in the house report to the living room. Harvey and Terry Hudson came down from the second floor when their mother called them. Also present were Harvey Hudson's girlfriend and a child. All gathered in the living room.
Each person's name was taken, along with their date of birth, so a warrant check could be conducted by Officer Rosenblum. Officer Rosenblum testified that none of the individuals were free to leave until he had completed his warrant check.
While the warrant check was occurring, Officer DuPont conducted a cursory sweep of the building to make sure no persons were hiding under beds, in closets, or behind drapes. While conducting that check, Officer DuPont entered the bedroom known to him to be that of Terry Hudson. He noticed items associated with drug use: boxes of clear plastic sandwich bags, and a plate with a razor blade on the edge of it. He did not seize the items; he continued with the cursory sweep.
Upon returning downstairs, Officer DuPont was advised by Officer Rosenblum that there was an outstanding warrant for Terry Hudson for failure to appear for a court proceeding. At that point Terry Hudson was handcuffed and taken into custody. DuPont then returned upstairs to conduct the administrative search of Harvey Hudson's bedroom. DuPont then returned downstairs. Since it was late February and Terry Hudson was wearing only a pair of shorts, Officer DuPont offered to go to Terry's room to get him some clothes. Terry requested the jeans on his bed, a pair of sneakers and a sweat shirt. When Officer DuPont retrieved the clothing, he returned downstairs. Consistent with standard procedures, before handing the clothing to Terry Hudson, he checked the pockets of the jeans to ensure that there was nothing which would not be permitted in lock-up, such as a weapon or cigarettes or a lighter. He discovered 31 bags of a white chunky substance which later field tested positive for crack cocaine.
On April 16, 2007, Terry Hudson was indicted on charges of Possession with Intent to Deliver Cocaine, Use of a Dwelling for Keeping Controlled Substances, and Possession of Drug Paraphernalia.
Challenge to Administrative Search
The defendant makes three arguments in support of his motion to suppress.
First, he argues that the process necessary for the authorization of an administrative search was not followed. He relies on the decision in State v Harris which enumerates a series of factors which might be considered before initiating an administrative search. Those factors are associated with Procedure 7.19 which was not discussed in the hearings on this case. But, the Arrest-Search Checklist contains a section called SEARCH DECISION FACTORS. On that checklist, there are five items which can be checked Yes or No. Those five items are:
State v. Harris, 734 A.2d 629, 634 (Del.Super. 1998).
Defense Exhibit 2 at the suppression hearing.
• Sufficient reason to believe the offender possesses contraband
• Sufficient reason to believe the offender is in violation of his/her probation or parole.
• Information from a reliable informant indicating offender possesses contraband or is violating the law
• Information from the informant is corroborated
• Approval obtained from a Supervisor, Manager or Director.
The first, second, and fifth items were marked Yes. Cronin explained that he made the decision to have the administrative search conducted because he had a report from the probation officer who had gone to Harvey Hudson's home on the day of the search and felt that the delay in answering the door when people were clearly moving around inside was suspicious. He considered the fact that Harvey has a history of nine prior felony convictions, many of them drug related. And Harvey had a number of curfew violations which, in Cronin's experience, was often consistent with illegal activity. Cronin is the supervisor; he approved the search after conferring with the probation officer.
The process outlined above is consistent with the type of considerations enumerated in State v. Harris. The explanation provided by Cronin as to why certain items on the Search Checklist were checked YES is uncontested and entirely rational.
id.
Second, the defendant argues that Cronin did not have a sufficient factual basis for authorizing and directing that the administrative search be conducted. The legal standard applicable to an administrative search is well established. No more than a reasonable suspicion is required for a probation officer to search a probationer's apartment. The factual basis for the administrative search is as recited above. There are sufficient facts and circumstances to demonstrate a basis for reasonable suspicion.
State v. Hunter, 2004 WL 2744513 at *2 (Del.Super. 2004) citing U.S. v. Knights, 534 U.S. 112, 121 (2001).
Third, the defendant argues that the scope of the search was too broad. The defendant does not deny that the officers had the authority to conduct a security sweep for officer safety to ensure that there were no other persons in the house before conducting the administrative search of Harvey Hudson's bedroom.
Hunter, 2004 WL 2744513 at *1.
Two sources of evidence are at issue here. First is the drug paraphernalia found in plain view in the defendant's closet when the officer conducted a security sweep of the defendant's bedroom. Counsel, when pressed on the subject at argument, said that the irregularity was in seeing something fairly small on a shelf when the purpose of the sweep was to see if there was a person hidden in the closet. As long as the paraphernalia was in plain view, I do not find observing it during the security sweep to constitute a basis for suppressing it.
Second, this search was conducted in February 2007 — a cold winter night. It is undisputed that the defendant was in his room wearing only a pair of shorts when the officers arrived. He was directed to come downstairs, or called downstairs, depending on whose testimony is believed. He was aware of an outstanding capias from a Justice of the Peace Court, but there was also a capias from the Court of Common Pleas as a result of his failure to appear for a court proceeding. Because of the capias for failure to appear, the defendant was handcuffed; he could not be taken outside without clothing. The defendant agrees with Officer DuPont that he indicated the clothing he wanted, including a specific pair of tennis shoes, and Officer DuPont retrieved them. Before giving the defendant the clothing, the officer searched the pockets of the pants to make sure there were no weapons or contraband. Upon doing so, and in the presence of the defendant and his family members — although there is some conflict in the testimony on this point — DuPont found the bags of cocaine. The search of the pockets of the pants was permissible, as a search incident to arrest for officer safety.
Traylor v. State, 458 A.2d 1170, 1173 (Del. 1983) citing Chimel v. California, 395 U.S. 752 (1969).
Defendant's motion to suppress is DENIED.
IT IS SO ORDERED.