Opinion
ID No. 0608023596.
Submitted: January 26, 2007.
Decided: April 11, 2007, Corrected: July 3, 2007.
Alexis W. Slutsky, Esquire, Department of Justice, Dover, Delaware; attorneys for the State.
Jeffrey A. Young, Esquire, Young McNelis, Dover, Delaware; attorneys for the Defendant.
ORDER
Defendant Kenneth Seward filed a Motion to Suppress all evidence seized as a result of an August 28, 2006 search conducted by the Dover Police Department of the Defendant's residence located at 87 Village Drive, Dover, Delaware. The Court held an evidentiary hearing on the Defendant's Motion on January 12th and January 19, 2007. The Parties further submitted supplemental memorandum at the Court's request.
The premises is located in the Hamlet Housing Development.
The Defendant argues that the evidence should be suppressed, because it was seized pursuant to an illegal entry into and search of the residence. Kenneth Seward ("Mr. Seward") argues that State did not meet its burden in showing that exigent circumstances existed which made it impracticable to secure a warrant prior to the illegal warrantless entry.
The State first argues tha t exigent circumstances existed. Therefore, the Police were legally justified in entering the residence without a warrant. Once entry into the residence occurred, the State claims that the Police were justified in securing the residence through a protective sweep. The State contends that the Police properly waited for the execution of a valid search warrant after securing the residence and prior to performing a search of the home. Consequently, the evidence seized pursuant to the valid search is admissible.
Secondly, the State argues that the search conducted subsequent to the warrantless entry of the residence was lawful because it was conducted pursuant to a valid search warrant. Therefore, even if the Court determines that there were no exigent circumstances justifying a warrantless entry, the evidence recovered should still not be suppressed.
Statement of Facts
Police received information from a confidential informant ("CI") that the Defendant was selling drugs out of his home. The CI explained to Detective Ritchie of the Delaware State Police ("DSP") that he had a prearranged deal to purchase 4 to 4.5 ounces of cocaine from the Defendant on August 28, 2006. After receiving more information from the CI (discussed in FN 3), the Detective had the informant place a call to the Defendant so that the details of the drug purchase that was to occur later that day could be arranged.
The informant provided information to the Delaware State Police subsequent to being arrested on kidnaping and drug charges. The informant had been released from incarceration from an eight year prison term only four days prior to the arrest.
The Detective was unfamiliar with the Defendant and the informant. Therefore, the CI explained to the Detective that the Defendant and his brother, Ralph Seward, sold cocaine in the Dover area. The CI gave the Detective their ages, a general description of both men, described the vehicles they drove, and knew that they both served time for cocaine related offenses. The informant later showed Police where Mr. Seward's residence was located. All of the information provided by the CI proved to be accurate.
The CI explained to the Detective that he had purchased cocaine from the Defendant at the Defendant's home and in the parking lot of the Hamlet Shopping Center.
Detective Ritchie recorded the first (initial) phone call that occurred between the CI and Mr. Seward. The call went as follows: The Defendant showed familiarity with the CI during the initial call by referring to the informant by his nickname. The informant asked the Defendant, "Is everything still on?" Mr. Seward replied, "Yeah, always." The informant then said, "We said four, four and a half: two hard, two soft." Following an extended pause, the Defendant responded, "Hey, hey, hey — hold up. This is my phone. Call me back later, after 5:00." The Defendant gave the CI a number at which he could be reached after 5:00 p.m. Detective Ritchie and Detective Pires of the Dover Police Department ("DP") testified that based on their training and experience, the initial call evidenced an impending drug transaction between the Defendant and the informant. Both Detectives testified that "street code" was being used between the individuals and drug dealers use "street code" in an attempt to avoid detection by not discussing drug transactions openly in plain English.
The Delaware State Police contacted the Dover Police Department following the initial call and a plan was set in motion to orchestrate a buy/bust in the parking lot of the Hamlet Shopping Center. The Police were going to attempt to lure Mr. Seward to the Shopping Center for purposes of selling drugs to the informant and the bust would occur before the completion of the transaction. Following the bust, Dover Police would then apply for a warrant to search the Defendant's residence.
Dover Police were aware that Kenneth and his brother, Ralph Seward, worked together selling cocaine. They further knew that Ralph Seward lived at 45 Forrest Creek Drive which is also in the Hamlet Housing Development ("the Hamlet"). Therefore, the DP established surveillance on Ralph Seward's residence. The informant was driven through the Hamlet so that he could point out the Defendant's residence. The CI knew the location of the residence because he had previously purchased cocaine at the premises. The informant pointed out 87 Village Drive as the Defendant's residence and surveillance was established at that address. The Defendant was seen freely entering and exiting 87 Village Drive during the surveillance of the residence.
The informant placed a (second) phone call to Mr. Seward from a pay phone in the parking lot of the Hamlet Shopping Center after 5:00 p.m. Detective Earl of the DSP, working in an undercover capacity, accompanied the informant to the pay phone on all occasions. The CI asked the Defendant to meet him at the shopping center and the Defendant agreed. The Defendant did not come to the shopping center as agreed so the informant placed another (third) call to the Defendant. As the informant placed the third call to the Defendant, Detective Pires observed Ralph Seward leave his house in the Hamlet, which was under surveillance, and drive to the Hamlet Shopping Center. Detective Pires followed Ralph Seward and witnessed Ralph park his vehicle in the parking lot of the Hamlet Shopping Center. While the informant was on the phone with the Defendant, the Detective saw Ralph Seward get out of his vehicle "and walk kind of in a southwest direction." The payphone was located in the southwest side of the parking lot. Ralph then got back into his car and left. The Detectives did not see Ralph enter any stores or meet with anyone in the parking lot. Detective Pires testified that based on his training and experience, Ralph Seward's presence in the parking lot, under the circumstances, was a form of counter-surveillance.
Detective Earl could hear what the informant said to the Defendant during calls originating from the pay phone. Phone calls were not recorded at the pay phone due to logistical issues. Therefore, following the completion of a call, the informant would explain the entirety of the conversation to Detective Earl. Detective Earl had no reason to question the information relayed to him concerning the substance of the calls based on the side of the conversation that the Detective was privy to.
45 Forrest Creek Drive.
The Detective testified that counter-surveillance was often used by drug dealers in order to detect Police presence and/or to prevent being robbed when a drug transaction was conducted.
During the third and final call, Mr. Seward informed the CI that he was not going to meet him at the Shopping Center and the Defendant told the informant he would only meet him at his residence in the Hamlet. The Defendant explained to the informant that he wanted to talk to him. Detective Ritchie testified that the informant advised that it was not normal conversation with the Defendant during the third call. The Detective further testified that he thought "Mr. Kenny Seward knew that he [the informant] was trying to set him up or something like that."
The initial buy/bust plan that was to occur at the Hamlet Shopping Center became irrelevant. Mr. Seward was aware of the informant's location at the pay phone. The pay phone in the Hamlet Shopping Center was located a mere 1,074 feet from the Defendant's residence. It would take a very short time to travel the distance by car. Detective Ritchie testified that he would have preferred to send the informant to the Defendant's residence, with an undercover agent, to meet with Mr. Seward. However, the Detective's supervisors decided that the CI would not be permitted to approach the residence because there was no time to appropriately cover the residence nor was there time to cover and monitor the informant.
Detective Pires testified that a lidar laser unit was used to measure the distance from the pay phone to 87 Village Drive.
Detective Pires testified that it would take about 10 seconds.
The DSP stepped out of the investigation at this point and the DP assumed the primary role in the investigation. Following the third and final phone call, the DP gathered to assess the situation and their options and they developed a second plan. Based on the totality of the circumstances, Detective Pires believed that the Defendant, or someone else in the residence, would imminently remove or destroy the cocaine that was believed to be in the residence. The Police believed that when the informant failed to show up at the Defendant's residence, he would know that he had been set up and destroy the drugs. The DP decided they had to move quickly because the Defendant would expect the informant to arrive shortly due to the CI's close proximity to the Defendant's residence. The Officers determined that it would take at least an hour to get a search warrant, so they decided to make a warrantless entry into the residence in order to secure the premises. After securing the premises, DP would then apply for a search warrant for the residence.
The Detective testified that co cai ne ca n be des troyed very quickly.
The Police entered the residence at 7:15 p.m., shortly after the final phone call ended between the informant and the Defendant. The Defendant exited the house through the back door upon entry by the Police and he was apprehended after a brief foot chase. Corporal DiGirolomo of the DP pursued the Defendant on foot and following the apprehension of Mr. Seward, the Corporal retraced the Defendant's path to look for discarded evidence. Thirty minutes after the initial entry, Corporal DiGirolomo returned to the residence. The Corporal testified that he went upstairs in the residence to perform a safety sweep because he was unaware if a sweep had been performed on the second floor. The Corporal observed cocaine in the upstairs master bedroom in plain view and detected a strong odor of raw cocaine.
Jasmine Seward, the Defendant's 13 year old daughter, testified that Corporal DiGirolomo relayed this information to Detective Pires when he came downstairs.
Detective Pires then applied for and received a search warrant from the Justice of the Peace Court #7. The Court determined that probable cause existed. Detective Pires radioed the Officers at the residence and authorized a search of the premises. Pursuant to the search, the Officers removed the previously observed cocaine which weighed 441.6 grams. The Police also recovered $1,587.00 in a dresser drawer, paperwork and bills addressed to the Defendant in the same drawer as the currency, one "American Weigh" digital scale and one "AWS" digital scale. The scales were located in the dishwasher in the kitchen. Other evidence including paperwork, mail, cellular phones and court paperwork was seized pursuant to the search warrant. The Defendant seeks to have this evidence suppressed.
The Defendant was charged with Trafficking in Cocaine, Possession with Intent to Deliver Cocaine, Maintaining a Dwelling for Keeping Controlled Substances, Conspiracy Second Degree, three counts of Endangering the Welfare of a Child, Possession of Drug Paraphernalia and Resisting Arrest as a result of the incidents that took place on August 28, 2006.
Standard of Review
On a Motion to Suppress, the State bears the burden of establishing that the challenged search or seizure comported with the rights guaranteed by the United States Constitution, the Delaware Constitution and Delaware statutory law. The burden on a motion to suppress is by a preponderance of the evidence.Discussion
The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures and requires the State to first obtain a warrant supported by probable cause before entering into a person's home. Warrantless searches and seizures are presumed to be unreasonable, even where supported by probable cause, unless occupants consent to the search or exigent circumstances exist to justify the intrusion. Under the doctrine of exigent circumstances, a warrantless entry into a residence is permissible where the police are threatened with imminent destruction or removal of evidence. The State bears the burden to establish that exigent circumstances existed to justify a warrantless entry by the Police.The reasonableness of a warrantless entry into a residence by the police in Delaware "is measured by the circumstances then existing." Reasonableness is a flexible concept which must be considered with regard to the totality of the circumstances and with particular regard to the balancing of the needs of effective and reasonable law enforcement with the rights of privacy of the individual. The reasonableness of the Police Officers' belief as to the existence of an emergency is relevant, not the existence of an emergency in fact.
Mason v. State, 534 A.2d at 249.
Id. citing Williams v. State, 331 A.2d 380, 381 (Del. 1975).
Seward, 723 A.2d at 371.
This Court has adopted relevant factors concerning the reasonableness of police belief concerning the existence of exigent circumstances. The factors are as follows: (1) the degree of urgency involved and amount of time necessary to obtain a warrant; (2) the reasonable belief that contraband is about to be removed; (3) the possibility of danger to the police officers guarding the site of contraband while a search warrant is sought; (4) information indicating the possessors of contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.
State v. Ada, 2001 WL 660227, *3 (Del.Super.).
Id.
The Court will consider the circumstances surrounding the warrantless entry into Mr. Seward's residence based on the factors set forth above. The Officers believed that the Defendant was in possession of cocaine based on the first phone call between Mr. Seward and the CI. Detectives Ritchie and Pires testified that based on the Officers' experience and training, the first phone call evidenced an impending drug transaction. The first call evidenced Mr. Seward's familiarity with the CI and corroborated the CI's assertions that he had an arrangement with the Defendant to purchase drugs on August 28, 2006. The Detectives reasonably believed that the Defendant and the CI had a drug transaction pending. Therefore, the Detectives' belief that Mr. Seward was in possession of contraband was also reasonable.
Detective Pires reasonably believed, based on his experience and training, that the Defendant's brother, Ralph Seward, conducted counter surveillance in the Hamlet Shopping Center parking lot while the CI used the pay phone to contact the Defendant. Ralph Seward did not enter any stores nor meet with anyone after entering the parking lot only to leave a short time after his arrival. During the third and final call, the Defendant advised the informant that he wanted the informant to come to his residence and talk first. Detective Ritchie testified that he thought Mr. Seward knew he was being setup by the informant at this point in the investigation. Detective Pires also believed that the Defendant knew he was being set up, and if not, Mr. Seward would soon discover that he was being set up when the CI failed to show up at his residence. Therefore, the Detective believed that the Defendant would imminently remove or destroy the contraband in his possession.
The Officers' belief that contraband would be imminently destroyed or removed was reasonable based on the circumstances. The decision was made to not allow the CI anywhere near the Defendant's residence. The pay phone's location in the Hamlet Shopping Center parking lot was very close in proximity to the Defendant's residence. Therefore, Mr. Seward would expect the CI to show up shortly after the final phone call ended. The Officers believed that Mr. Seward knew of the CI's location because that was where the parties agreed to meet initially and/or through the counter surveillance of the Defendant's brother, Ralph Seward. The Court finds that it was reasonable for the Officers to believe that the Defendant knew or would come to know that he had been setup. Therefore, it was reasonable for the Officers to believe that Mr. Seward was aware that the police were on his trail or that the Defendant would have been aware that the Police were on his trail shortly after the final call as a result of the informant failing to show up at his residence.
The record does not reflect that there would have been any danger to the police officers guarding the site of the contraband while a search warrant was sought. However, the (3) factor is not very relevant in this case, because due to the nature of the contraband (narcotics), the Officers' believed they could not wait for a search warrant.
Detective Pires testified that it would have taken at least one hour to obtain a search warrant for the premises. This Court has found that when the evidence to be destroyed is narcotics, speed is essential because narcotics are readily removable and destructible. The Officers knew the cocaine that they believed to be in Mr. Seward's possession was easily destructible which heightened the degree of urgency involved. Further, the Detectives testified that dealers get rid of contraband when they suspect that they have been setup because they know that the police would be en route. The Officers' belief that there was a high degree of urgency involved in needing to secure the residence was reasonable based on the facts set forth above.
Reader, 328 A.2d at 149.
When considering the totality of the circumstances that existed prior to the warrantless entry into Mr. Seward's residence by the DP, the Court finds that the Officers had a reasonable belief that contraband was going to be imminently destroyed or removed from Mr. King's residence. Therefore, the Court finds that the State has met its burden in establishing that exigent circumstances existed to justify the Police Officers' warrantless entry into the Defendant's residence.
The Court will now examine the search of the Defendant's residence subsequent to the warrantless entry to determine its validity. In order for a search warrant to be issued, probable cause for its issuance must first be established and the application for a search warrant must be supported by a sworn affidavit that on its face shows facts constituting probable cause to search the residence. Delaware Courts follow the totality of the circumstances test in determining whether probable cause to obtain a search warrant exists. A magistrate may find probable cause when there is a fair probability that contraband or evidence of a crime will be found in a particular place. Reviewing Courts should pay great deference to the determination of probable cause made by the issuing magistrate and the resolution of doubtful or marginal cases should be determined largely by according preference to issued warrants.
State v. Walker, 444 A.2d 277, 280 (Del. S uper. 1982) citing Sexton v. State, 397 A.2d 540 (Del.Supr. 1979).
Fink v. State, 817 A.2d 781, 786 (Del. 2003).
Sisson v. State, 903 A.2d 288, 296 (Del. 2006).
Walker, 444 A.2d at 280 citing Spinelli v. United States, 393 U.S. 410, 419 (1969); United States v. Ventresca, 380 U.S. 102, 109 (1965).
Probable cause must be based on facts known and observed prior to the [warrantless] entry. A search cannot be justified by what is observed after entry. In the case sub judice, paragraphs 12 and 13 of the sworn affidavit attempting to establish probable cause for the application of a search warrant contain facts that were discovered after the warrantless entry into Mr. Seward's residence. It was improper to include these two paragraphs in the application for a search warrant. Therefore, the Court will excise these improper paragraphs when reviewing whether the sworn affidavit set forth facts on its face constituting probable cause to search the Defendant's residence.
State v. Reader, 328 A.2d 146, 148 (Del. Super).
Id. citing Johnson v. United States, 333 U.S. 10, 68 (1948).
Paragraph 12 reads as follows: "That upon entry into the residence officers contacted Meshonda Barnes, black female, 04/23/83, along with three juveniles on the first floor. Officers also observed Kenneth Seward exit the rear sliding glass door located in the first floor of the residence and flee on foot. After a brief foot chase officers were able to contact Kenneth Seward and take him into custody."
Paragraph 13 reads as follows: "That while clearing the residence for safety purposes officers observed a letter addressed to Kenneth Seward, 87 Village Drive, Dover, Delaware. Officers also observed photographs of Kenneth Seward hanging on the walls of the residence."
See Franks v. State, 398 A.2d 783 (Del. 1979) (On remand from the United States Supreme Court, the Delaware Supreme Court turned "to the proffered evidence [in the sworn affidavit] to determine that if setting the false paragraphs aside there remains sufficient content to support a finding of probable cause."). The Defendant in Franks based his challenge to the sufficiency of the affidavit on the contention that false statements were knowingly and intentionally, or recklessly included in the warrant application. State v. Walker, 444 A.2d 277, 282 (Del.Super. 1982). Therefore, this Court found Franks inapplicable in State v. Walker because the defendant in Walker was not alleging that the false statements were intentionally, knowingly or recklessly included in the affidavit. Id. at 283. The Defendant in Walker challenged portions of the affidavit as being insufficient under Aguilar v. State of Texas, 307 U.S. 108 (1964), which dealt with tips from informants. This Court decided that the challenged portions of the sworn statement could still be considered (and not excised) together with corroborating evidence, based on Augilar. Id. Augilar and Walker are not applicable to the improper paragraphs in this case because the paragraphs do not deal with an informant's tips. Consequently, the reasoning in Franks is applicable in the case sub judice because the information in paragraphs 12 and 13 was discovered subsequent to entry and should be stricken, even though the facts contained therein were not false.
Based on the totality of circumstances and excluding the improper paragraphs, the sworn affidavit sets forth facts tending to show a fair probability that contraband would be found at the Defendant's residence. The affidavit set forth the following facts establishing probable cause: The DSP received information from a CI that the Defendant was selling drugs from his residence located at 87 Village Drive, Dover, Delaware. The CI provided information that was proven to be accurate and the CI showed the Police where the Defendant's residence was located. Surveillance was setup at 87 Village Drive and the Defendant was seen freely entering and exiting the residence. The CI contacted the Defendant via telephone and a drug transaction was setup. The Defendant advised the CI to come to his residence for purposes of conducting the transaction. The Magistrate could properly find the existence of probable cause based on these facts, as articulated in the sworn affidavit, and this Court will give deference to the Magistrate's determination. The search warrant was therefore valid.
The CI was not a past proven reliable informant. The Police had never worked with the informant prior to August 28, 2006. The search warrant only referred to the informant as being confidential, and it did not refer to the CI as being past proven reliable. Therefore, the issuing magistrate did not base his/her probable cause determination on the informant's reliability being past proven.
See FN 3 for information that the CI provided that was proven to be accurate. However, the search warrant did not further elaborate, on its face, what information provided by the CI was proven to be accurate.
The Defendant has not established that his rights have been violated as a result of an illegal search and seizure. The State established that exigent circumstances existed justifying the warrantless entry into the Defendant's residence. Further, the Court finds that the sworn affidavit set forth sufficient facts establishing the existence of probable cause to search the Defendant's residence. Therefore, the search subsequent to the valid warrantless entry into the Defendant's residence was conducted properly and the Court will not suppress the seized evidence.
Based on the foregoing, the Defendant's Motion to Suppress is denied.
IT IS SO ORDERED.