Opinion
C.A. No: 0002012304
Submitted: November 17, 2000
Decided: December 5, 2000
On Defendant's Motion to Suppress. Denied.
Joelle M. Wright, Deputy Attorney General, Wilmington, Delaware, Attorney for the State.
Thomas A. Foley, Wilmington, Delaware, Attorney for the Defendant.
MEMORANDUM OPINION
On February 18, 2000, Delaware State Police officers executed a search warrant of Defendant Jeremy Jones' residence. On the same date, police arrested Defendant and charged him with Possession with Intent to Deliver a Non-Narcotic Schedule I Controlled Substance, Use of a Dwelling for Keeping Controlled Substances, Resisting Arrest, and Possession of Drug Paraphernalia.
Defendant filed a Motion to Suppress all evidence seized from Defendant's residence on February 18, 2000, as well as statements Defendant made to the police following his arrest. The Court held a hearing to consider the Motion to Suppress on October 30, 2000. This is the Court's decision on Defendant's motion.
The parties do dispute the facts leading up to Defendant' arrest as set forth in the affidavit in support of the search warrant at issue here. The affidavit states that on February 3, 2000, the Special Investigations Unit of the Delaware State Police (SIU) received information from a confidential informant that a subject named "Germ" was going to meet with the informant to conduct a drug transaction. The informant had received pages from "Germ" in reference to obtaining marijuana. The informant was instructed to place a telephone call to "Germ" in order to arrange a sale of marijuana. During the course of a phone conversation between the informant and "Germ", "Germ" ordered four pounds of marijuana and agreed to pay $3,200. The informant described "Germ" as a white male approximately 21 years old and advised that he or she believed that "Germ" was a nickname for Jeremy.
Members of the SIU conducted a search of the confidential informant and provided the informant with approximately four pounds of marijuana. The informant was then sent to a 7-11 store. Shortly after the informant arrived, a four-door Honda Accord arrived. The operator of the Honda parked next to the informant's vehicle. The informant was then observed entering the Honda with the bag containing the marijuana. Shortly afterwards, the informant exited the Honda without the bag containing the marijuana.
Members of the SIU then pulled an undercover van behind the Honda to attempt to apprehend "Germ". However, upon the van's arrival, the operator of the Honda accelerated and fled from the parking lot. As the Honda left the parking lot, it struck another undercover vehicle involved in the operation.
Detective Boulerice of the State Police conducted a computer inquiry for the Honda's registration number and found that the vehicle was registered to Joann Jones. The address displayed on the registration was "43 Paul Road, Chelsea Ests, Newark, DE 19720." Detective Boulerice conducted further computer inquiries and determined that Jeremy Paul Jones resides at "43 Paul Road, New Castle, DE 19720." Detective Boulerice also determined that Jeremy Jones had been arrested twice before on drug charges. Finally, Detective Boulerice obtained a photo of Jeremy Jones and showed the photo to the confidential informant. The informant advised the detective that the subject of the photo was "Germ".
On February 10, 2000, Sgt. Hulings of the Sill had a conversation with a second confidential informant who advised Sgt. Hulings that he or she knew a white male who goes by "Germ". The informant stated that "Germ" lived in a residence in "Chelsea Ests" and that "Germ" sells marijuana and cocaine. Also on February 10, 2000, Sgt. Hulings went to 43 Paul Road and observed the Honda parked in front of the residence. Sgt. Hulings observed damage to the passenger door of the Honda.
The date set forth in the affidavit is January 10, 2000. Both the State and Defendant agree that the correct date is February 10, 2000.
The date set forth in the affidavit is January 10, 2000. Both the State and Defendant agree that the correct date is February 10, 2000.
On February 11, 2000, members of the State Police uniform patrol were involved in the pursuit of the Honda. After a brief chase, the pursuit was called off. The State Police officers responded to 43 Paul Road. When the Honda arrived at the residence, the police apprehended Jeremy Jones. Jones provided the State Police with his home address of"43 Paul Road, New Castle, DE."
The date set forth in the affidavit is January 11, 2000. Both the State and Defendant agree that the correct date is February 10, 2000.
In addition to setting forth the facts summarized above, the affidavit for the warrant set forth certain statements that the affiant set forth as "based upon your affiant's training, experience and participation in past drug investigations." One of the statements set forth was that it is, "common for drug traffickers to secrete contraband, proceeds of drug sales and records of transactions in secure locations within their residence and/or their business for their ready access and to conceal their existence from law enforcement officers."
Although Defendant concedes that probable cause existed to arrest him following the failed "buy bust" on February 3, 2000, Defendant argues that the four corners of the search warrant issued on February 11, 2000 do not contain probable cause to support a belief that marijuana would be found in the residence at 43 Paul Road. Rather, it was mere speculation that the police thought that Defendant kept contraband or drugs in his residence. In support of his argument, Defendant points out that there were no controlled buys from the residence, no surveillance of the residence, and no informant told police that Defendant kept drugs in his residence. The State responds that, when viewed under the totality of circumstances, the warrant clearly contains information sufficient to form probable cause that drugs were likely to be found at Defendant's residence.
When presenting a motion to suppress evidence, the defendant bears the burden of establishing that the challenged search or seizure violated his Fourth Amendment rights. Rakas v. Illinois, 439 U.S. 128, 130 n. 1(1978); State v. Bien-Aime, Del. Super., Cr. A. No. IK92-08-0326, Toliver, J. (Mar. 17, 1993) (Mem. Op.). The defendant must prove by a preponderance of the evidence that he is entitled to relief. Bien-Aime at 8 (citing United States v. Casteneda, 5th Cir., 951 F.2d 44 (1992)).
The Fourth Amendment provides that a search warrant may be issued only upon a showing of probable cause. Del. Const. art. I, § 6. Therefore, the search warrant must be supported by an affidavit which establishes sufficient cause for the warrant's issuance. Wilson v. State, Del. Supr., 314 A.2d 905, 906 (1973). Probable cause for a search may be established in the affidavit by setting forth facts "sufficient to warrant a reasonable man in the belief that seizable property would be found in a particular place or on a particular person." Id. at 906-907 (citing Carroll v. United States, 267 U.S. 132 (1925)).
These requirements are codified in 11 Del. C. § 2306 and § 2307. Section 2306 provides that the application for a search warrant must "state that the complainant suspects that such persons or things are concealed in the house, place conveyance or person designated [in the application] and shall recite the facts upon which such suspicion is founded." (Emphasis added.) Section 2307 provides that if the judge, justice of the peace, or magistrate finds that probable cause exists for the search after reviewing the record, the warrant may then issue.
11 Del. C. § 2306 provides:
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 if founded.11 Del. C. § 2307 provides:
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, and may be made returnable before any judge, justice of the peace or magistrate before whom it shall also direct to be brought the person or thing searched for if found, and the person in whose custody or possession such person or thing is found, to be dealt with according to law.
Sections 2306 and 2307 establish a "four-corners" test for probable cause. Dorsey v. State, Del. Supr., ___ A.2d ___, No. 546, 1998, Holland, J. (October 18, 2000), Mem. Op. at 9 (citing Pierson v. State, Del. Supr., 338 A.2d 571, 573 (1975)). That is, sufficient facts must appear on the face of the affidavit so that a reviewing court can verify that probable cause existed for issuance of the warrant. Id As a result, the affidavit in support of a search warrant must set forth "facts adequate for a neutral judicial officer to form a reasonable belief that an offense has been committed and that seizable property would be found in a particular place or on a particular person." Id (Citations omitted.)
It is axiomatic that there be a nexus between the items which are sought and the place in which the police wish to search for them. Id at 10 (citing Hooks v. State, Del. Supr., 416 A.2d 189, 203(1980)). A search warrant is not directed at persons, but at the place where evidence is suspected to be located. That is, "[t]he critical element in a reasonable search is not that the owner of the property is suspected of a crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978) (citing Carroll v. United States, 267 U.S. 132 (1925)).
Defendant argues that the sole information provided in the affidavit at issue here to support a search of Defendant's residence is the affiant's statement that it is, "common for drug traffickers to secrete contraband, proceeds of drug sales and records of transactions in secure locations within their residence and/or their business for their ready access and to conceal their existence from law enforcement officers." Defendant is correct that other jurisdictions have held that a police officer's general conclusions are insufficient to form probable cause where there are no specific facts to form a nexus between the items to be seized and the place to be searched. See State v. Them, Wash., 977 P.2d 582, 588 (1999) (citing United States v. Schultz, 6th Cir., 14 F.3d 1093, 1097 (1994), United States v. Lalor, 4th Cir., 996 F.2d 1578, 1582-83 (1993), United States v. Rosario, D.R.I., 918 F. Supp. 524, 531 (1996), United States v. Rios, D. Conn., 881 F. Supp. 772, 776-77 (1995), State v. Ward, Wis. Ct. App., 588 N.W.2d 645 (1998), State v. Johnson, Neb. Ct. App., 578 N.W.2d 75 (1998), aff'd, Neb., 589 W.W.2d 108 (1999), State v. Kahn, Minn Ct. App., 555 N.W.2d 15, 18(1996), State v. Silvestri, N.H., 618 A.2d 821 (1992)).
The Court notes that there are other jurisdictions which have upheld warrants based solely upon a police officer's training and experience to establish probable cause. See, United States v. Emmons, 10th Cir., 24 F.3d 1210, 1215 (1994).
However, those cases are careful to point out that a police officer's training and experience may be taken into consideration in determining probable cause when combined with other facts. Id In addition, Dorsey acknowledges that, although probable cause to arrest does not automatically provide probable cause to search the arrestee's home, "the fact that probable cause to arrest has been established increases the probability that the defendant is storing evidence of that crime in the defendant's residence." Dorsey, No. 546, 1998 at___ (quoting United States v. Jones, 3rd Cir., 994 F.2d 1051, 1055-56 (1993)).
In the instant case, this Court need not decide whether the affiant' s statement, quoted above, that drug traffickers commonly keep contraband in their homes would be sufficient, alone, to provide probable cause to support the search warrant at issue here. The Court finds that there are sufficient specific facts set forth in the affidavit to form a nexus between the items which were sought and Defendant's residence.
As outlined above, the affidavit in support of the search warrant for Defendant's residence set forth that police determined that the address on the Honda's registration was 43 Paul Road, that Defendant resided at 43 Paul Road, and that Defendant and "Germ" were the same person. The affidavit also sets forth that on February 10, 2000, the Honda used in the February 3, 2000 controlled buy was parked in front of 43 Paul Road. Most significantly, the affidavit sets forth that the same Honda was involved in a pursuit with the DSP on February 11, that police went to 43 Paul Road when the pursuit was called off and that the Defendant arrived thereafter driving the Honda. The Court finds that these facts, when combined with a statement, based upon the police officer's knowledge and expertise, that it is common for drug traffickers to conceal contraband within their homes and the fact that probable cause existed to arrest Defendant, is sufficient to establish probable cause for the search of Defendant's residence.
As Defendant points out, it is not clear whether the magistrate who issued the search warrant was aware that the January 10 and January 11, 2000 dates provided in the affidavit were erroneous or whether the magistrate knew the correct dates were February 10 and February 11, 2000. However, even if the Court assumes that the magistrate based his determinations on the incorrect dates, those dates were close enough in proximity to the February 3, 2000 buy bust to provide sufficient probable cause to issue the warrant, based upon the analysis set forth above.
Therefore, for the foregoing reasons, Defendant's Motion to Suppress is
DENIED.
IT IS SO ORDERED.