Opinion
ID. No. 0609003631.
Submitted: January 3, 2007.
Decided: March 29, 2007.
Upon Defendant's Motion to Suppress. GRANTED.
Shawn E. Martyniak, Esquire, Deputy Attorney General, Department of Justice, Wilmington, DE, for the State of Delaware.
Michal C. Hochman, Esquire, Monzack Monaco, Wilmington, for the Defendant.
MEMORANDUM OPINION
Before the Court is defendant Samyra Thomas' Motion to Suppress evidence that was seized as a result of an administrative search of her residence on September 9, 2006. The Defendant argues, inter alia, that the probation officer lacked the requisite "reasonable suspicion" to conduct an administrative search of her residence and, therefore, any evidence seized as a result is "fruit of the poisonous tree." For the reasons that follow, the defendant's Motion to Suppress is GRANTED.
FACTS PROCEDURAL HISTORY
Officer Stoddard is assigned to "Operation Safe Streets," a joint task force of Wilmington city police detectives and Probation and Parole Officers. As part of his duties with Operation Safe Streets, Officer Stoddard patrols high crime areas, including the 400 block of North Monroe Street. At all times relevant hereto, his usual partner from Probation and Parole was Officer Dupont.
Over a period of several weeks preceding the administrative search at issue here, Officer Stoddard, along with Officer Dupont (or sometimes another probation officer), patrolled the 400 block of North Monroe in an unmarked police vehicle. During this period, they repeatedly witnessed a young African-American male (later identified as Shawn Smallwood) either sitting or standing with a group of people outside a residence at 418 North Monroe Street. Each time Officer Stoddard and a probation officer drove by, they witnessed Smallwood quickly enter the dwelling at 418 North Monroe. And each time they drove by, they witnessed Smallwood peering out from behind the partially closed door. Officer Stoddard and Probation and Parole never witnessed the defendant outside 418 North Monroe.
After observing Smallwood's behavior on four to six occasions over a period of several weeks, Officer Stoddard decided to "make contact" with Smallwood. He did this by saying to Smallwood, "you don't have to run inside the house and run away from us every time we're in the block." Smallwood did not verbally respond to this comment. At this point, neither officer knew Smallwood's name, whether he was on probation, or whether he lived at 418 North Monroe Street.
Officer Stoddard testified that Smallwood grinned and laughed when Stoddard attempted to "make contact." Officer Dupont testified, "He may have grinned. I don't recall."
Officer Dupont then decided to investigate whether a probationer lived at 418 North Monroe. His investigation revealed that the defendant lived at 418 North Monroe and was on Level II probation for driving without insurance. Officer Dupont contacted the defendant's probation officer, Officer Staley. Upon reviewing the defendant's record, Officer Dupont learned that the defendant initially reported for probation on August 8, 2006. At that initial probation meeting, the defendant admitted to Officer Staley that she had smoked marijuana the day before. Officer Staley did not conduct an administrative search of the defendant's residence upon learning this information. Based on Smallwood's conduct and defendant's admission that she had smoked marijuana on August 8, 2006 prior to reporting for probation, Officer Dupont requested and received permission to perform an administrative search of the defendant's residence from his Supervisor, Officer Cronin. Officer Dupont obtained this permission despite the fact neither he nor Officer Stoddard nor the defendant's probation officer had ever witnessed the defendant loitering outside 418 North Monroe, ducking into the home when law enforcement drove by, or engaging in any criminal activity whatsoever. In fact, none of them knew if the defendant was at home on any of those occasions they saw Smallwood entering the dwelling.
Officer Dupont's administrative search uncovered approximately 32.5 grams of cocaine, a loaded firearm, various ammunition, small dime-sized bags of marijuana, and empty bags with marijuana residue. The defendant was indicted for Trafficking in Cocaine, Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance, Use of a Dwelling for Keeping Controlled Substances, Possession of a Firearm During the Commission of a Felony, Endangering the Welfare of a Child, Possession of Drug Paraphernalia, and Possession of a Non-Narcotic Schedule I Controlled Substance.
DISCUSSION
The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures by the United States Government. This fundamental right extends to individual state actions through the due process clause of the Fourteenth Amendment. Article I, § 6 of the Delaware State Constitution provides similar protections to Delaware citizens, however, that protection has been held to be greater than that given by its federal counterpart. These rights ensure that every citizen has a sphere of privacy that will not be invaded unreasonably by the State. Thus, law enforcement officers must obtain a judicial warrant or have sufficient probable cause to search someone's dwelling for contraband. The warrant requirement is relaxed, however, when law enforcement seeks to search a probationer's dwelling. In Griffin, the United States Supreme Court upheld a Wisconsin regulation that permitted warrantless searches as long as there were "reasonable grounds" to believe the probationer possessed contraband. In upholding the regulation, the Supreme Court found that probation and subsequent supervision were special needs of the State beyond normal law enforcement. Probation is meant to assure that the probationer serves a "period of genuine rehabilitation and that the community is not harmed by the probationer's being at large." As such, probationers do not enjoy the "absolute liberty" of ordinary citizens, but instead have "conditional liberty properly dependent on observance of special [probation] restrictions." A warrant requirement would reduce the deterrent effect "expeditious searches" would create and put judges in a situation to determine the appropriate level of supervision for each probationer instead of an officer. For those reasons, the Court justified relaxing the warrant requirement and allowing warrantless searches when probation officers follow a State regulation requiring "reasonable grounds."
State v. Kelly, 2003 Del. Super. LEXIS 257 at *9 (citing Mapp v. Ohio, 367 U.S. 643, 655 (1961)).
Id.
Word v. State, 2001 Del. LEXIS 268, at *6, aff'd, 782 A.2d 268 (Del. 2001).
Griffin v. Wisconsin, 483 U.S. 868, 873-75 (1987).
Id.at 875.
Id. at 874 (The Court, however, also stated that the State's ability to search was not unlimited.).
Id. at 876
Delaware has adopted a similar law to that stated in Griffin v. Wisconsin. The pertinent Delaware Code section states as follows:
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 [of Corrections] procedures while in the performance of the lawful duties of their employment. . . .
Pursuant to this statute, the Department of Corrections (the "Department") has promulgated regulations outlining the procedures that probation and parole officers are to follow when arresting or searching a probationer. Section 7.19 of the Department's regulations outlines all of the procedures probation officers are to follow in executing an administrative search. Under § 7.19(VI)(A)(1), the officer must use an "Arrest-Search Checklist" for all arrests and searches, unless exigent circumstances exist. Before a search occurs, the probation officer reviews the checklist with a supervisor to determine if there are sufficient grounds for the search. Important parts of the search checklist include: (a) whether there is a sufficient reason to believe the probationer possesses contraband, and (b) whether there is a sufficient reason to believe the probationer is in violation of probation.
Further, the Department has outlined factors for each officer to consider before searching. Under § 7.19(VI)(E), the officer and supervisor should consider the same factors mentioned above from the checklist. Additionally, they should also consider any tips from informants, the reliability of the informant, and the conviction and violation history of the probationer, if any. These regulations are the same type that the United States Supreme Court upheld in Griffin.
In Delaware, probation officers are not required to fulfill each technical aspect of the Department regulations. In Fuller, a probationer was pulled over in his car by probation officers after an anonymous tip, which claimed that Fuller possessed drugs, was corroborated by law enforcement. After being stopped, Fuller was found to be in possession of drugs. Probation officers, without reviewing a checklist, searched his home pursuant to supervisor approval. The Supreme Court held that there were reasonable grounds to believe Fuller possessed more drugs at his home. The purpose of the regulations "is to ensure that the Department has sufficient grounds before undertaking a search. The individual procedures advance that goal but are not independently necessary, as demonstrated by the fact that the regulations explicitly state when the search checklist need not be used." Because law enforcement had reasonable grounds in Fuller, the search fulfilled the reasonableness requirement under the Fourth Amendment and Griffin.
Fuller v. State, 844 A.2d 290, 291-92 (Del. 2004).
Id.
Id. at 292
Id.
If sufficient grounds exist, probation officers may also search a probationer who was not originally the target of the search. In Harris, two probationers lived together. Probationer #1 was the object of the search. Law enforcement noticed expensive vehicles parked outside of the residence and received a tip that there was excessive activity at the residence. Further, Probationer #2, the defendant, had a history of drug related convictions and violations of probation. These circumstances provided reasonable grounds to search the defendant, although law enforcement originally targeted his roommate.
State v. Harris, 732 A.2d 629 (Del.Super. 1998).
Id. at 631.
Id. at 635.
Id.
Based on the evidence presented, the Court concludes that Officer Dupont did not have sufficient grounds to believe that the Defendant possessed contraband or was violating probation pursuant to § 7.19 of the Department's regulations. The testimony establishes that: (1) the defendant lives in a high crime area, (2) Smallwood and a group of people, not including the defendant, were outside of her residence on four to six occasions, (3) each time officer Stoddard drove by, Smallwood entered the residence and watched through the slightly opened door, and (4) the defendant, a probationer, admitted to using marijuana on August 8th. These facts are simply insufficient grounds to support the search.
Living in a high crime area, without more, is insufficient to support an administrative search. There are thousands of people living in the city of Wilmington. Many live in high crime areas, and many are on probation and not committing crimes. People "hanging out" in front of a probationer's residence does not give Probation and Parole sufficient grounds to search the probationer's residence. Officer Stoddard admitted that it was common in Wilmington for people to be outside their houses and that sometimes those who are not engaged in illegal activity "hang out" in front of their houses. In this instance, both Officers Stoddard and Dupont admitted that they did not witness either Smallwood or the defendant committing a crime. Quickly entering a residence also does not provide sufficient grounds to conduct an administrative search. While the officers witnessed Smallwood entering the apartment and peering from behind the partially opened door, Smallwood's behavior could be attributed to a variety of causes, some of which are wholly unrelated to illegal activities. For example, Officer Dupont acknowledged that there are law abiding citizens who walk away from law enforcement simply because they do not want to have contact with any law enforcement. Viewed together, these facts do not provide grounds to conduct the administrative search. The defendant is not on probation for drug crimes. She has no convictions for drug crimes. Her criminal record consists of traffic offenses and some juvenile offenses. The defendant was never observed outside her residence. There was no evidence that the defendant was in her residence when Smallwood and the group were outside her residence. Officer Dupont was not the defendant's probation officer. The defendant's probation officer had not violated the defendant. At no time prior to this administrative search did anyone from probation and parole observe the defendant engage in any suspicious, much less illegal, activity. While law enforcement may search under a suspicion less certain than probable cause, some degree of certainty is needed before the defendant can be wholly divested of her Fourth Amendment rights. That threshold has not been met in this case.
CONCLUSION
For the foregoing reasons, the Defendant's Motion to Suppress is GRANTED. All evidence seized as a result of the unreasonable administrative search is inadmissible.
IT IS SO ORDERED.