Opinion
ID. No. 1004009723.
September 22, 2010.
ORDER
AND NOW, TO WIT, this 22nd day of September, 2010, IT IS HEREBY ORDERED as follows:
Statement of Facts
Officer William Dupont, an employee of the Department of Corrections, was working in conjunction with the New Castle County Police Department's Safe Streets Unit, and in particular, Detective Brian Shahan, on April 13, 2010, during the search of Joseph Jacklin's residence.
Detective Shahan assisted Officer Dupont in the surveillance of Jacklin after receiving a second tip from an informant that Jacklin was selling marijuana and crack cocaine. The officers verified Jacklin's address with the information provided in the tip. At this time, Officer Dupont conducted a probation status check and learned that Jacklin was on Level 1 probation for a Driving Under the Influence conviction. During his investigation Officer Dupont also learned that Jacklin had a number of drug related convictions, as well as an arrest on January 2, 2010 for Driving During Suspension. Failing to report the January, 2010 arrest put Jacklin in technical violation of his probation. Officer Dupont then had a meeting with his supervisor, Officer Lewis, in regards to the undisclosed traffic violation and the two anonymous tips received. The two discussed the previously approved, but unsuccessfully executed, administrative search. Officer Lewis gave the second approval for an administrative search of Jacklin's residence.
The first anonymous tip was received on March 8, 2010 from a confidential informant. The two tips were communicated by two separate informants.
Jacklin resides at 403 Rosemont Drive, Wilmington, Delaware. This was the only piece of information provided by the informant that was corroborated.
These include: Possession of Cocaine on April 9, 2009, Trafficking cocaine on November 15, 2001, and an arrest for Possession with Intent to Deliver Marijuana and Cocaine on July 4, 2000.
An administrative search was approved by Officer Dupont's then supervisor, Officer Cronin, on March 8, 2010, based on the first anonymous tip received. When Officer Dupont attempted to execute the search on March 9, 2010, Jacklin was not home. Officer Dupont did not attempt to conduct another search until the second tip was received on April 12, 2010, from a second independent informant.
On April 13, 2010, at approximately 3:45 p.m., Officer Dupont drove by Jacklin's residence and saw a white work van in the driveway, the same van described in the second tip. Officer Dupont set up surveillance on Jacklin's residence. He did not observe any activity related to the selling of drugs, such as people entering or leaving the house. He watched Jacklin and another male, later identified as Michael Parisi ("Parisi") get into the van around 4:03 p.m.; Parisi was driving and Jacklin was in the passenger seat. Officer Dupont and Detective Shahan followed the van as it turned onto Lancaster Avenue without using a turn signal. The van continued driving and turned onto Greenhill Avenue without using a turn signal. Officer Dupont, and not Detective Shahan, observed the van twice fail to use a turn signal. The van then pulled into a 7-11 to turn around at which time Detective Shahan noticed that the van did not have any headlights on even though it was raining.
Jacklin resides at 403 Rosemont Drive, Wilmington, Delaware.
Detective Shahan conducted a traffic stop on North Dupont Road and Cleveland Avenue for twice failing to use a turn signal in violation of 21 Del. C. § 4155 and for failing to use headlights in the rainy conditions, in violation of 21 Del. C. § 4331. Detective Shahan approached the driver's side window while Officer Dupont approached the passenger's side window, where Jacklin was seated. The van's windows were down and Officer Dupont detected the smell of marijuana from the van, as well as observing blunt shavings on the center console, in plain view. Both Parisi and Jacklin were removed from the van and detained. Officer Dupont detained Jacklin. Once detained, but before the search of his person, Parisi told Detective Shahan that he had marijuana in his boot. Besides marijuana, the search of Parisi revealed $1,218 in cash. The search of Jacklin revealed nothing.
The statute states in relevant part: "(a) No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided."
The statute states in relevant part: "(a) Every vehicle upon a highway within this State at any time . . . during . . . rain . . . shall display lighted lamps and illuminating devices. . . . The statute also states in relevant part: "(b) . . . the failure to display lighted lamps and illuminating devices when windshield wipers are in use because of weather conditions shall constitute a secondary offense in that no person shall be stopped by a police officer for that failure alone."
After the car was secured and occupants detained, the officers went to Jacklin's residence to conduct an administrative search. Before arriving at the residence, Officer Dupont asked Jacklin if anyone else was home. Jacklin replied that no one was home, but that there were three pit bulls inside. Officer Dupont contacted the ASPCA in order to secure the dogs. While riding in the back of Detective Shahan's car, Jacklin asked what was happening. Detective Shahan responded by saying the two were arrested because the officers detected an odor of marijuana emanating from the van and that a search of his home was going to be conducted. At this time Jacklin admitted that the marijuana found on Parisi belonged to both himself and Parisi, but that it was only for their personal use.
The American Society for the Prevention of Cruelty to Animals.
Detective Shahan admitted that Jacklin did not receive Miranda warnings before he made his statement while sitting in the back of the police vehicle. The facts indicate that Jacklin's admission was not the result of direct police questioning or its functional equivalent. See Culver v. State, 956 A.2d 5, 22 (Del. 2008) ( citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).
When the officers and Jacklin arrived at the house, they needed Jacklin to open the door because the home had a security system. Once inside, the officers conducted a sweep of the house to see if anyone else was home, while Jacklin sat on the couch in the living room. Then Detective Shahan returned to the front door to secure the house. Another New Castle County Detective, Detective Twig, stood at the entry way of each room as Officer Dupont searched each room.
At some point Jacklin told Officer Dupont that he had marijuana in a kitchen drawer. In the kitchen, Officer Dupont found 2 bags of marijuana, tin foil containing a piece of loose crack, and a scale with a white powdery substance on it. When Officer Dupont found the scale he made a comment to Officer Twig regarding possible uses of the scale, at which point Jacklin stated that he did not sell weed, he sells crack. He further clarified that statement by saying he doesn't sell weed, he just smokes it.
This statement was not a result of police questioning or even a comment directed at him. The statement was unsolicited.
While searching the bedrooms, Officer Dupont came across a bedroom that contained both men's and women's clothing, as well as a woman's yellow purse. Inside the yellow purse was a zip lock bag containing approximately 113.7 grams of marijuana.
The facts do not indicate whether the room was Jacklin's, someone else's or if it would be considered a common area.
The final outcome of the search of Jacklin's residence was $2,499 in cash, approximately 6.8 grams of crack cocaine, 2.8 grams of powder cocaine, 8.4 grams of marijuana in a sandwich bag, and 113.7 grams of marijuana in a yellow purse.
Discussion
The Administrative Search was Reasonable.
As a probationer, Jacklin argues that the administrative search of his residence was unconstitutional because Officer Dupont lacked reasonable suspicion before the search was conducted. The State contends that reasonable suspicion existed because two approvals, based on the information received from the tips and Jacklin's technical violation status, were given to Officer Dupont to conduct the administrative search. Jacklin further argues that the approval was not based on reasonable suspicion because the reliability of the two informants was unknown. However, Officer Dupont had reasonable suspicion to conduct an administrative search because Jacklin had a history of drug convictions, the tips contained information related to drug activity, and Jacklin was in violation of his probation. This Court finds reasonable suspicion existed before the administrative search of Jacklin's home was conducted.The protections of the Fourth Amendment and Article I, Section 6 of the Delaware State Constitution are relaxed when involving probationers. Probationers do not enjoy the same liberties as ordinary citizens, and, instead, probationers have a "conditional liberty properly dependent on observance of special [probation] restrictions." The typical warrant and probable cause requirements for a reasonable search are relaxed because of the special nature of probationary supervision. However, the warrantless search of a probationer's home must still be reasonable, requiring the probation officer to have "reasonable suspicion" or "reasonable grounds" for the search. This means that, under the totality of the circumstances, the officer must have a particularized and objective basis for suspecting legal wrongdoing."
Sierra v. State, 958 A.2d 825, 827 (Del. 2008).
State v. Thomas, 2007 WL 949491, at *2 (Del. Super. Mar. 29, 2007) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873-75 (1987).
Sierra v. State, 958 A.2d 825, 828 (Del. 2008).
Id.
Id.
Pursuant to 11 Del. C. § 4321(d) probation and parole officers are permitted to conduct searches of the probationers they supervise. Section 7.19 of the Department's regulations provides the specific guidelines that are to be followed when approving an administrative search of the probationer. The following factors are considered:
11 Del. C. § 4321(d) states, in part:
Probation and parole officers shall exercise the same powers as constables under the laws of this State and may conduct searches of individuals under probation and parole supervision in accordance with Department procedures while in the performance of the lawful duties of their employment. . . .
(1) The Officer has knowledge or sufficient reason to believe [that] the offender possesses contraband; (2) The Officer has knowledge or sufficient reason to believe [that] the offender is in violation of probation or parole; (3) There is information from a reliable informant indicating [that] the offender possesses contraband or is violating the law; (4) the information from the informant is corroborated; (5) Approval for the search has been obtained from a Supervisor, [Manager, or Director, unless extreme exigent circumstances exist].
Sierra v. State, 958 A.2d 825, 829 (Del. 2008); See also Delaware Dept. of Corrections Bureau of Community Corrections Probation and Parole Procedure No. 719 §§ VI.A.6., VI.E. (2001).
Probation officers are not required to satisfy "each technical requirement of the search and seizure regulations of the Department of Correction" in order to search a probationer's home; only substantial compliance is required. The officers are only required to have reasonable suspicion or grounds in order to conduct a search. Under the totality of the circumstances, reasonable suspicion exists when an officer has a particularized and objective basis for believing that illegal activity is happening.
Donald v. State, 903 A.2d 315, 319 (Del. 2006); See also Fuller v. State, 844 A.2d 290 (Del. 2004).
Pendelton v. State, 990 A.2d 417, 419 (Del. 2010); Fuller, 844 A.2d at 292.
Fuller, 844 A.2d at 292.
Sierra, 958 A.2d at 828.
Officer Dupont had reasonable grounds to conduct an administrative search of Jacklin's home. Since both informants were not known to be past proven reliable informants Officer Dupont began investigating the information provided in the tip and learned that Jacklin was on probation. Furthermore, Officer Dupont learned that Jacklin failed to report an arrest in January, 2010, putting him in violation of his probation. Had Officer Dupont not investigated the tips further, the information provided in the tip would have been just easily observable information, insufficient to establish reasonable suspicion. The important point here is that Officer Dupont did investigate further and learned that Jacklin violated his probation, along with the information provided in the tips and his criminal history add up to reasonable suspicion to conduct an administrative search of his home.
In fact, Officer Dupont's reasonable suspicion increased to probable cause to conduct the search. Jacklin was observed getting into a van, matching the description provided in the tip, the van failed to use a turn signal twice and failed to use headlights during the rain, in violation of 21 Del. C. §§ 4155 and 4331. That gave the officers probable cause to conduct a traffic stop. While standing next to the van, Officer Dupont smelled marijuana coming from the van and observed blunt shavings in plain view located in the center console. That was sufficient to order both Jacklin and the driver, Parisi, out of the vehicle and place them under arrest. Prior to the search incident to arrest of Parisi, he admitted to having marijuana in his boot. Additionally, after both Jacklin and Parisi were arrested, Jacklin admitted that the marijuana found on Parisi belonged to both of them, providing more probable cause to conduct a search of his residence. Under the totality of the circumstances, Officer Dupont not only had reasonable suspicion to conduct the search, he had probable cause.
Jacklin's motion to suppress the evidence found inside his home because the administrative search of his home lacked reasonable suspicion is DENIED.
Search of the Yellow Purse Was Within the Scope of the Warrantless Search.
Jacklin incorrectly argues that Officer Dupont lacked reason to believe the yellow purse containing 113.7 grams of marijuana located in a bedroom containing both men's and women's clothing was in his possession or control. The State contends that since the bedroom contained both men's and women's clothing it was a common area of the house over which Jacklin would have control. Based on the fact that the bedroom contained both men's and women's clothing, it is reasonable to believe that Jacklin had control over the bedroom and the items located within it, including the yellow purse.
The scope of the administrative search should be limited to the areas of the residence that are actually occupied by the probationer, including common areas, and the probationer's property. A common area is considered an area over which the probationer has control. This also extends to areas which the officer has reason to believe is owned, possessed, or controlled by the probationer, even if it later turns out that the area or item searched was in exclusive possession of a non-probationer. Evidence collected from a search that is not reasonably limited to areas where the probationer possesses or controls will be suppressed.
State v. Redden, 2003 WL 22853419, at *3 (Del. Super, Oct. 22, 2003).
State v. Tucker, 2007 WL 1065134, at *3 (Del. Super. Apr. 10, 2007).
Id.
Id.
This Court finds that Jacklin had control over the yellow purse located in a bedroom containing both men's and women's clothing. Since the bedroom contained both men's and women's clothing, it was reasonable for Officer Dupont to believe that the yellow purse was within Jacklin's control. Therefore, Jacklin's motion to suppress the 113.7 grams of marijuana found inside the yellow purse because it was unreasonable for Officer Dupont to believe it was owned, possessed, or controlled by him is DENIED.
Conclusion
Based on the forgoing, Defendant's Motion to Suppress is DENIED. IT IS SO ORDERED.