Opinion
ID. No. 1011012791.
March 24, 2011.
ORDER
AND NOW, TO WIT, this 24th day of March, 2011, IT IS HEREBY ORDERED as follows:
Statement of Facts
According to the affidavit of probable cause, Detective Shane Sowden ("Det. Sowden"), a member of the Wilmington Police Department, was assigned to investigate an alleged burglary that occurred on September 2, 2010 between 9 a.m. and 11 a.m. The alleged burglary occurred at 1901 N. Washington Street, Wilmington, Delaware. When officers searched the home they found the basement door open and a twenty dollar bill on the ground outside the door. The homeowner, Jane Taylor, told the police there were several items missing: $130 in cash, her Wilmington Trust checkbook, a 1 carat gold wedding band, a gold ring with the face of a poodle, an opal ring with blue diamonds, three pairs of plain earrings, a pendant with the letter "H", several 14 carat gold bangle style bracelets, an opal pendant, pearl earrings, and a rose shaped brooch. The jewelry was worth approximately $5,000.
Although the affidavit of probable cause ("affidavit") does not indicate a date, the State contends Det. Sowden spoke with Robert Moser, a fraud specialist at Wilmington Trust, on November 16, 2010. The affidavit indicates Mr. Moser told Det. Sowden that Reginald King ("Defendant") attempted to cash one of Ms. Taylor's checks on September 2, 2010 at the bank's 10th and Market Street location. According to Mr. Moser, the Defendant presented identification. The teller at the 10th and Market Street branch did not cash the check. However, the Defendant and Ms. Devon went to two other Wilmington Trust locations, in Middletown and Newport, and allegedly cashed two of Ms. Taylor's checks. They obtained $600 using check numbers 4478 and 4480. These were among the checks stolen from Ms. Taylor. Mr. Moser indicated there is video footage of these incidents and he would be turning it over to Det. Sowden.
The Defendant allegedly tried to cash check number 4481 at this location. Motion to Suppress Ex. B. ¶ 5.
"While attempting to cash the check the black male and black female presented identification to the bank teller identifying themselves as Reginald D. King (02-13-1964) and Deitra Devon (04-15-1969)." Id.
On November 18, 2010, Det. Sowden applied for a search warrant for the Defendant's residence. On November 19, 2010, the warrant was executed. A search of the residence revealed approximately 107.3 grams of marijuana, bags commonly used to package illegal drugs, and a scale. The Defendant was charged with Possession With Intent to Deliver Marijuana, Maintaining a Dwelling for Keeping Controlled Substances, and Possession of Drug Paraphernalia.
In his motion to suppress, the Defendant challenges the validity of the affidavit of probable cause arguing it is based on stale information and Det. Sowden failed to articulate a nexus between the items sought and his residence. Using common sense and taking all reasonable inferences from within the four corners of the affidavit, the State contends the information is not stale because Det. Sowden only learned of the Defendant's identity and possible role in the alleged burglary two days before the search warrant was issued and based on the nature of the items sought, a checkbook and identifiable jewelry, there is a sufficient nexus to believe those items would be found at the Defendant's residence.
Discussion
I. Under the Totality of the Circumstances, Detective Sowden Had Probable Cause to Believe the Defendant Was in Possession of Items Taken During the Alleged Burglary.
Under the totality of the circumstances, Det. Sowden had probable cause to believe the Defendant kept evidence in his residence from the alleged burglary. Probable cause exists when the police have sufficient information that would allow a reasonable man to believe a crime has been committed. In order to establish probable cause, the police only need to present facts demonstrating "a fair probability that the defendant has committed a crime." "The possibility that there may be a hypothetically innocent explanation for each of several facts revealed during the course of an investigation does not preclude a determination that probable cause exists." "[T]he factual showing necessary to establish probable cause to search a residence is two-fold: first, there must be probable cause that a crime was committed, and second, there must be probable cause to believe that evidence of such crime can be found at the residence."
State v. Maxwell, 624 A.2d 926, 930 (Del. 1993) (citations omitted).
Id. (citations omitted and emphasis in original).
Id. at 929 ( citing Jarvis v. State, 600 A.2d 38, 41-42 (Del. 1993)).
State v. Cannon, 2007 WL 1849022 (Del. Super.) ( citing United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983).
Det. Sowden had probable cause to believe the Defendant was in possession of the proceeds from the alleged burglary when he was informed the Defendant allegedly cashed two stolen checks. In the affidavit of probable cause, Det. Sowden stated Ms. Taylor, the homeowner-victim, called the police to report a burglary at her house on September 2, 2010 between 9 a.m. and 11 a.m. Approximately $5,000 worth of jewelry, $130 in cash, and Ms. Taylor's Wilmington Trust checkbook were stolen during the alleged burglary. The Defendant is alleged to have fraudulently cashed two of the stolen checks, which is a crime. Therefore, Det. Sowden had probable cause to believe the Defendant may have been in possession of the checkbook as well as other items taken during the alleged burglary.
Receiving stolen property is a crime, as defined in 11 Del. C. § 851.
II. The Facts in the Four Corners of the Affidavit of Probable Cause, Along With Their Reasonable Inferences, Establish Probable Cause to Believe Proceeds from the Alleged Burglary Were in the Defendant's Residence.
Under the totality of the circumstances, the four corners of the affidavit of probable cause contained facts sufficient to establish probable cause. Probable cause must be based on current, not stale, information. The facts set forth must be 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." Probable cause exists in the affidavit when there is "a logical nexus between the items sought and the place to be searched." The issuing magistrate's determination of probable cause is given great deference and will not be invalidated by a hyper-technical interpretation of the affidavit. A. The information contained in the affidavit of probable cause was not stale.
Sisson v. State, 903 A.2d 288, 297 (Del. 2006).
Dorsey v. State, 761 A.2d 807, 811 (Del. 2000) (citation omitted).
Sisson, 903 A.2d at 297 (citation omitted).
Id. ( citing 11 Del. C. § 2306).
Id.
Jensen v. State, 482 A.2d 105, 111 (Del. 1984) (citations omitted).
The information contained in the affidavit of probable cause was issued on current, not stale, information based on the items taken during the alleged burglary. When determining whether information is stale, statements of dates and times are instructive, but not dispositive. Other factors should be considered, such as the type of property and whether that type of property is likely to remain in one location. So, whether probable cause exists in the four corners of the affidavit "`cannot be quantified by simply counting the number of days between the occurrence of the facts relied upon and the issuing of the affidavit.'"
Sisson, 903 A.2d at 297.
Id.
Id.
Jenson, 903 A.2d at 112 ( quoting United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972).
The information in the affidavit of probable cause was not stale because it is reasonable to infer that when Det. Sowden learned of the Defendant's possible role in the alleged burglary he filed this affidavit of probable cause to obtain a search warrant of the Defendant's residence. Even though the affidavit does not state when Det. Sowden spoke with Mr. Moser, it does indicate a conversation took place. The affidavit also states Mr. Moser would be providing Det. Sowden with video tape footage of the alleged check cashing incidents at some point in the future. It is reasonable to infer the conversation between Det. Sowden and Mr. Moser was recent and that this was an ongoing investigation. The information relied upon in the affidavit and the reasonable inferences derived from it are sufficient to establish probable cause to believe the Defendant may have been in possession of proceeds from the alleged burglary at the time the warrant was issued.
The affidavit states: "Moser advised there is video footage of these incidents and is in the process of getting them for this investigator." Motion to Suppress Ex. B ¶ 5.
B. The facts set forth in the affidavit of probable cause, taken with their reasonable inferences, establish a nexus between the items allegedly stolen and the likelihood they would be found at the Defendant's residence.
A nexus between the allegedly stolen items from Ms. Taylor and the Defendant's residence existed at the time the affidavit was issued. The 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." The Defendant relies on two cases in particular to support his claim that Det. Sowden failed to articulate a nexus between the items sought and his residence in the affidavit. In both cases the affidavit did not contain sufficient facts to establish a nexus between the drugs sought and the residence because the drugs tips were not provided by past proven reliable confidential informants and there was no evidence to suggest the drugs were being stored or sold from the defendants' homes. Here, a nexus was established between the allegedly stolen items and the Defendant's residence because he is alleged to have cashed two of Ms. Taylor's checks from the checkbook she reported stolen.
State v. Ivins, 2004 WL 1172351 (Del. Super.) (citations and internal quotations omitted).
State v. Adams, 2008 WL 8226361 (Del. Super. Ct.); Cannon, 2007 WL 1849022, at *5.
Det. Sowden had probable cause to believe the jewelry would be at the Defendant's residence since he is alleged to have used one of the other stolen items, Ms. Taylor's checkbook. The allegedly stolen jewelry could be at his residence based on its unique and readily identifiable characteristics, such as the poodle face on the gold ring and an opal ring with blue diamonds, which would make it more difficult to dispose of it. Even if it was unreasonable to infer the jewelry was at the Defendant's residence, it was reasonable to believe the stolen checkbook could be there.
Det. Sowden had probable cause to believe the allegedly stolen checkbook was at the Defendant's residence. Mr. Moser, a fraud specialist at Wilmington Trust, told Det. Sowden the Defendant attempted to cash three of Ms. Taylor's checks. While the Defendant was unsuccessful at the Wilmington branch, it is alleged he was successful at the Middletown and Newport branches. The Defendant received $600 when he allegedly cashed the two checks. The Defendant allegedly provided identification at all three branches. Since two checks were cashed, numbers 4478 and 4480, and at least one check was missing, number 4479, it was reasonable for the issuing magistrate to infer that the Defendant was in possession of the checkbook and that it could be at his house. Therefore, there was a nexus between the allegedly stolen checkbook and the Defendant's residence.
Allegedly, the Defendant attempted to cash check number 4481 at the Wilmington branch and was refused.