Opinion
Case No. 1611002979
05-19-2017
STATE OF DELAWARE v. BRANDON WAYS, Defendant
ORDER Upon Defendant's Request for Flowers Hearings, DENIED.
I. INTRODUCTION & PROCEDURAL BACKGROUND
Before the Court is Defendant Ways' Request for a Flowers hearing for each of three confidential informants who provided information to police which led to the arrest of the Defendant Ways and others. Defendants Corea, Mann, Metelus, Rideout, and Heath have each adopted and joined in this Request.
A total of four confidential informants are referenced in the Affidavit of Probable Cause. Only three are challenged in this Motion.
On November 5, 2016 members of the Delaware State Police executed search warrants on two vehicles and several residences. A large amount of heroin and other contraband was seized as a result of the searches. Defendant Ways was arrested and charged with Tier 5 Possession of Heroin, Tier 4 Drug Dealing (Heroin), four counts of Possession of a Firearm by a Person Prohibited, and Conspiracy in the Second Degree. The other co-defendants were arrested and charged with various crimes as a result of the drug dealing investigation.
On February 16, 2017 the instant Request for Flowers hearings was filed by Defendant Ways. An office conference was held on March 22, 2017, during which the defense reiterated that it believed Flowers hearings were necessary, as the defense believed that three confidential informants possessed information material to the defense's case(s). The Court then took the matter under advisement. This is the Court's ruling.
II. Facts
The facts are taken from the testimony given at the hearing on the Motion to Suppress, which occurred on December 8, 2016.
On September 23, 2016 the Superior Court authorized two search warrants for the installation of GPS monitors on two vehicles suspected to be utilized by the Defendants in their drug operation. The affidavits of probable cause in support of the search warrant applications contained information provided by confidential informants.
The Court will outline the information provided by each confidential informant which was contained within the affidavits.
The Court engaged in a summary of the information which was provided by each informant that appears in the Affidavits in support of a finding of probable cause. See Omnibus Motion to Suppress and To Request a Flowers Hearing, State v. Brandon Ways, Id. No. 1611002979, at Ex.'s A & B, Affidavit in Support of a Mobile Tracking Device Warrant (Feb. 16, 2017).
CI-1246
In October 2015, a past proven reliable cooperating individual, "CI-1246" was in contact with Detective Cowden of the Delaware State Police. CI-1246 indicated that Defendant Ways went by the nickname "LB," and was one of the largest heroin and cocaine dealers in Sussex County. CI-1246 advised that Defendant Ways was supplied by an individual named Haniel Matos ("Matos"), and was receiving hundreds of "logs" of heroin and large amounts of cocaine on a weekly basis. CI-1246 also advised that Defendant Ways worked closely with Defendant Mann. CI-1246 positively identified Defendants Ways and Mann, as well as Matos upon viewing DELJIS photographs of the individuals.
Haniel Matos was not charged in connection with this investigation into the alleged drug dealing operation which Defendant Ways and others have been charged.
In the first two weeks of March 2016, CI-1246 advised that he could make a controlled purchase of heroin from Defendant Ways. CI-1246 contacted Defendant Ways on the telephone and arranged to meet Defendant Ways inside of a local business. Before the controlled purchase was conducted, CI-1246 and the vehicle utilized for the controlled purchase were searched for illegal contraband with negative results. CI-1246 met with Defendant Ways inside of the business, and purchased heroin from him. Defendant Ways was observed leaving the business with an unknown male in an unidentified vehicle. Upon his return to the vehicle utilized for the controlled purchase, Detective Cowden took possession of the substance, which yielded a positive field test for heroin. The heroin was logged and stored at Troop 4. Attached to the Affidavit is an Addendum which states that proper protocol was followed in executing and surveilling the controlled drug purchase.
CI-1223
During the first two weeks of June 2016 Detective Cowden was in touch with a past proven cooperating individual, CI-1223. CI-1223 advised that Matos was delivering large amounts of cocaine and heroin to Sussex County, and that Defendant Ways was acquiring hundreds of "logs" of heroin every week from Matos. CI-1223 advised that Defendant Ways supplied large drug dealers in the Chandler Heights Apartments in Seaford, DE and the surrounding area. CI-1223 positively identified Defendant Ways and Matos upon viewing DELJIS photographs of the individuals.
CI-U001
During the law two weeks of August 2016 Detective Callaway of the Delaware State Police was in contact with a past proven confidential source, CI-U001. CI-U001 advised that he/she was familiar with both Defendant Ways and Matos. CI-U001 advised that Defendant Ways obtains approximately $100,000 of heroin and cocaine from Matos and other unknown sources in New Jersey every two weeks. CI-U001 also advised that Defendant Ways utilized "traps" or after-market compartments in his vehicles to help conceal his illegal drugs and illicit profits during transport and deliveries. CI-U001 advised that Defendant Ways would be receiving a large shipment of heroin. CI-U001 advised that the shipment would be contained within a dark colored Nissan Maxima and that the vehicle would be parked at the Walmart in Seaford Delaware, and that the keys would be in the vehicle so that Defendant Ways could drive the vehicle away. Police conducted surveillance of the Walmart, and observed the Nissan Maxima parked in the Walmart parking lot. Police observed a key on the driver's side rear tire. Police observed Defendant Ways arrive at the Walmart parking lot in another vehicle, take the key, and drive off in the Nissan Maxima.
During the first two weeks of September 2016 CI-U001 advised that Defendant Ways and Mann were utilizing the Nissan Altima to conduct small drug deliveries to dealers in the Seaford and Bridgeville area. CI-U001 advised that Defendant Ways was going to be obtaining a Jeep Cherokee with a larger "trap" compartment so that larger amounts of drugs could safely be stored and transported. Police were conducting surveillance in the Woodland Mills Apartments area, an area police believed to be connected to Defendant Ways, and observed Defendant Ways and Matos enter a parked Jeep Cherokee and depart the apartment complex.
III. PARTIES' CONTENTIONS
Defendant's Contentions
The defense contends that Flowers hearings are necessary because the informants are likely to have information which would point to Matos as the ring leader of the drug activity in this case. Alternatively, the defense believes that CI-U001 may in fact be Matos, in which case the defense contends that Matos could have manipulated evidence within the residences and vehicles which were searched. The defense contends that a Flowers hearing for CI-1246 must take place because a controlled drug purchase was arranged inside of a local business, and it provided an opportunity for the confidential informant to manipulate facts and evidence.
State's Contentions
The State contends that disclosure of the confidential informants should not be required. The State contends that the information derived from the cooperating individuals was used merely to establish probable cause for the various searches. The State contends that the informers were not witnesses, participants, or parties to the transaction which resulted in the ultimate arrest and charging of the Defendants. The State contends that police were able to observe Defendant Ways operating the Jeep Cherokee on November 4, 2016 prior to Defendant Metelus traveling to New Jersey in the Cherokee, which was later found to contain approximately 79,700 bags of heroin. The State contends that the defense failed to show that the cooperating individuals would present testimony that would materially aid the defense.
IV. DISCUSSION
A. Flowers Hearings Generally
Under Rule 509(a) of the Delaware Uniform Rules of Evidence, the State has the privilege to refuse to disclose an informant's identity. But there is an exception to that privilege "[i]f it appears ... that an informer may be able to give testimony which would materially aid the defense." A defendant attempting to invoke the exception must "show, beyond mere speculation, that the confidential informant may be able to give testimony that 'would materially aid the defense.'"
Davis v. State, 1998 WL 666713 at *2 (Del. Supr.)
In State v. Flowers, the Superior Court described four contexts in which the issue of disclosing an informer's identity typically arises:
(1) The informer is used merely to establish probable cause for a search. (2) The informer witnesses the criminal act. (3) The informer participates but is not a party to the illegal transaction. (4) The informer is an actual party to the illegal transaction.
State v. Flowers, 316 A.2d 564, 567 (Del. Super. 1973).
In Butcher v. State, the Delaware Supreme Court clarified, generally, that the privilege against disclosure of the identity of a confidential informant afforded under Rule 509 is protected in the first Flowers scenario. Disclosure is mandated when the criteria in the fourth scenario exist. The trial judge is afforded discretion when the second and third situations arise, and, "disclosure of the informer's identity is required only if the trial judge determines that the informer's testimony is material to the defense."
Butcher v. State, 906 A 2d 798, 802-03 (Del. 2006).
Id.
Id. at 803.
B. Application of Flowers
In the circumstances of this case, the confidential informants were not parties or witnesses to the charged criminal acts. Rather, the confidential informants were used to establish probable cause to execute search warrants for residences and vehicles. The confidential informants in this case all within the first criteria cited in Flowers, and therefore disclosure of the informers' identities is not necessary.
The defense seems to contend they know who the informant is and want the Court to order confirmation of that. Their argument, that the confidential informants' information tends to show that Matos was the leader of a drug organization, is immaterial to the Court's decision at hand. The named Defendants were alleged to have engaged in the illegal conduct for which they are charged. The fact that another, unindicted individual may, too, have engaged in illegal conduct is not relevant to show that the informants would be able to provide evidence which would materially aid the defense. Indeed more frequently than not, informants are aware of the defendants' illegal conduct because they, too, are engaged in similar behavior.
Defense counsel additionally argues that a Flowers hearing is necessary for CI-1246, who conducted a controlled drug purchase from Defendant Ways. The facts recited are as follows: before the controlled purchase was conducted, CI-1246 and the vehicle utilized for the controlled purchase were searched for illegal contraband with negative results. CI-1246 met with Defendant Ways inside of the business, and purchased heroin from him. Defendant Ways was observed leaving the business with an unknown male in an unidentified vehicle. Upon his return to the vehicle utilized for the controlled purchase, Detective Cowden took possession of the substance, which yielded a positive field test for heroin. The police were able to observe the transaction. Defendant Ways was not charged with any crime in connection with the controlled purchase. The fact of the alleged buy was used for purposes of establishing probable cause. The Court finds there is no basis for a Flowers hearing relating to the transaction.
The Court finds that the confidential informants were used solely to provide information for warrants, to establish probable cause, and that disclosure of the informants' identities is unnecessary. In addition, the Court finds that the defense has failed to show that testimony provided by the confidential informants "would materially aid the defense" in ways contemplated by the protections in Flowers.
Davis v. State, 1998 WL 666713 at *2 (Del. Supr.)
Anytime a defendant can learn the name of an informant, it may assist the defendant. The defendant may use the information to discourage cooperation, or, if the informant is aware of the disclosure, the informant may become reluctant to continue to cooperate. Indeed, if the Courts liberally, and without appropriate safeguards, revealed the identity of confidential informants, it could put a chill on the willingness of confidential informants to come forward at all. These results are precisely why principles of law protect those who inform the police depending on how the information is used and if safeguards are in place to assure reliability. --------
V. CONCLUSION
For the reasons stated above, Defendant Ways' Request for a Flowers Hearing is DENIED
IT IS SO ORDERED.
/s/_________
M. Jane Brady
Superior Court Judge