Opinion
ID No. 0804021506.
Submitted: April 4, 2011.
Decided: July 29, 2011.
Upon Defendant's Motion for Postconviction Relief — SUMMARILY DISMISSED.
Joseph S. Grubb, Deputy Attorney General.
Joseph M. Bernstein, Esquire.
Andrew J. Witherell, Esquire.
ORDER
1. Defendant, then a probationer, was stopped by the Wilmington Police for a minor, equipment violation. The police learned almost immediately that Defendant's license had been suspended. So, Defendant was ordered out of the car and frisked. Thus, the police directly saw Defendant violate probation in at least two ways. Then, the police discovered that Defendant was carrying $1,430 in cash.
2. Soon after, more police and Defend ant's probation officer arrived. Presumably, they were summoned by the arresting officers. Defendant told them that he had earned the money "under the table," which is another violation of probation and, as discussed below, a further cause for reasonable suspicion under the circumstances.
3. Defendant said he was working as a barber. Defendant's carrying a large wad of cash earned under the table at a barber shop is an attention-getter for a probation officer. People associated with the criminal justice system know that many barber shops are places where people get hair-cuts, but some barber shops are fronts for assorted illegal activity, including drug trafficking. (While this understanding bears mention, it is not the basis for the outcome now, or before.)
4. It also bears mention that even if it were five years earlier, as Defendant reminds the court, Defendant has a prior conviction for drug-related misconduct.
5. Based on violations the police observed and on what the probation officer heard, the probation officer got his supervisor's permission to conduct an administrative search of Defendant's room. The administrative search led to Defendant's arrest and conviction for drug trafficking, weapons offenses, and other serious crimes. With the fruits of the search in evidence, the trial was almost a walkover for the State. Anyway, the convictions were affirmed on direct appeal.
Murray v. State, 991 A.2d 18 (Del. 2010) (TABLE).
6. Defendant's core argument now is that his trial attorney failed by waiting to the last moment before trial to move to suppress the things found in Defendant's place. As to that, the lawyer told the court that he had focused his efforts on trying to get a favorable plea offer from the State. He believed a suppression motion, based on his research, was not a "significant deterrent." And, counsel believed the State would withdraw its favorable plea offer if he filed a suppression motion.
7. In summary, based on what he told the court on the morning of trial, it cannot be said that trial counsel overlooked the possibility of a suppression motion. Based on his research, he decided that its limited likelihood of success was outweighed by the greater likelihood it would interfere with plea negotiations. For the reasons discussed below, trial counsel's assessment of a suppression motion's merits was correct.
8. Defendant rejected the plea offer. He chose to risk the suppression motion and trial. Accordingly, as mentioned, at the last moment trial counsel moved to suppress the evidence seized during the administrative search.
9. As Defendant does here, Defendant's trial counsel argued that the search was bad under Culver v. State. The court considered that argument then and it reconsidered it here. The court did not offer a clear analysis of Culver from the bench, but the court correctly concluded that Culver is not controlling or helpful to Defendant.
956 A.2d 5 (Del. 2008).
A. Trial Counsel's Effectiveness
10. Under the circumstances, it is not a given that counsel's failure to file a formal motion was sub-par. First, he did not miss the issue. He said he researched it and it would not be a deterrent. He made a tactical decision to maneuver in the way that would precipitate or keep alive the best plea offer.
11. Defendant now argues, accurately, his best chance for total victory was if the search had been knocked-out. And, he was entitled to exercise his right to trial. Those truths, however, do not establish that trial counsel's strategy was ineffective. As mentioned above and discussed in the next section, trial counsel's analysis of the case and of Defendant's predicament was well-founded. Trial counsel was right to believe that Defendant's best outcome was likely to result from a good plea agreement, not a weak suppression motion. In that way, it can be said that trial counsel attempted to pursue an effective defense.
B. Prejudice
12. Defendant argues that a formal motion would have worked because Department of Correction regulations caution against basing an administrative search "solely on the basis of a request from [the police]." An administrative search, he claims, cannot be "based on nothing more than a `hunch' by police and Probation that a search of a probationer's residence would turn up illegal drugs." Moreover, Defendant correctly observes that "the police cannot use Probation as a `stalking horse'. . . ." The court takes all that as true, but that is not what happened to Defendant.
13. As presented above, Defendant committed more than just motor vehicle infractions in front of the police. Those infractions were also probation violations. The police called-in Defendant's probation officer, who personally developed a reasonable suspicion that Defendant's probation violations went beyond driving with tinted windows and no license.
14. Defendant implies that before his home could be searched by his probation officer, the probation officer had to have personally developed probable cause to believe that he would find "illegal drugs" there. That is incorrect. First, the probation officer's sphere of concern includes more than just illegal drug activity. More importantly, if the probation officer did not have full-blown probable cause, he was acting on more than a hunch and he was not a mere stalking horse. Looking at a probationer with a drug record, driving a car with tinted windows, and carrying a wad of cash that he said he earned "under the table" at a barber shop, the probation officer had plenty of reason for concern that this probationer was misbehaving. Again, the court emphasizes that Defendant was not an ordinary citizen going about his business, secure in the belief that he was not subject to heightened, governmental scrutiny and interference. Defendant was serving a sentence following a conviction.
15. As to the "hunch" argument, the probation officer knew Defendant was driving a car with tinted windows and Defendant was carrying a wad of cash, and so on. Add to that Defendant's history, although distant, of illegal drug-related activity and the probation officer had more than a hunch. As to the "stalking horse" argument, anytime the police get a probation officer involved and it leads to an administrative search, it invites that argument. Usually the stalking horse argument ignores the fact that supervising probationers is an important, independent law enforcement activity. If the police have their own motives, that does not negate the probation authority's own, legitimate concerns.
16. By definition, probationers are not innocent citizens. They have been convicted and sentenced to prison. Although the court has found that the risk of allowing a probationer out of prison is justified, the court has not agreed that the probationer does not need special supervision while in the community. Probationers are people who are safe to be at-large, but only when they are under law enforcement supervision. And, in allowing these sentenced people to be at-large, the court relies on probation officers to watch them. Thus, the fact a probation officer's interest in one of his/her charges is sharpened by the police, does not by itself mean the probation officer has no independent reason for concern, much less does it turn the probation officer into a stalking horse.
17. Anyway, here no claim has been made that the police had a special interest in Defendant before the traffic stop and they schemed to use the probation officer to do their bidding in violation of a probationer's limited "rights." To the contrary, even now it seems Defendant was pulled over for an equipment violation, which triggered a chain of events ending in an administrative search conducted with police assistance.
18. In light of the above, the court remains satisfied that even if trial counsel had precipitated a full-blown suppression hearing, the outcome for Defendant would not have changed. Thus, Defendant was not prejudiced by trial counsel's decision to focus on a good plea offer at the expense of a weak suppression motion.
19. Defendant's motion was properly referred by the Prothonotary to the presiding trial judge. Upon preliminary review, the trial judge referred the motion to undersigned, who presided over the trial calendar and who reviewed the oral suppression motion.
Super. Ct. Crim. R. 61(d)(1).
20. Upon further preliminary review, it appears the motion is plainly appropriate for summary dismissal.
Super. Ct. Crim. R. 61(d)(4).
For the foregoing reasons, Defendant's motion for postconviction relief under Superior Court Criminal Rule 61 is SUMMARILY DISMISSED. The Prothonotary SHALL notify Defendant.
IT IS SO ORDERED.