Opinion
I.D. No. 0004015063
Date Submitted: April 3, 2001
Date Decided: July 6, 2001
Upon Motion to Suppress Evidence — GRANTED.
Robert H. Surles, Esquire, Deputy Attorney General, Department of Justice, Wilmington, DE.
Joseph W. Benson, Esquire, Joseph W. Benson, P.A., Wilmington, DE.
ORDER
This 6th day of July 2001, upon consideration of defendant's motion to suppress and the memoranda submitted by counsel, it appears that:
(1) On April 21, 2000, Wilmington Police officers arrested Defendant, Vincent A. Wilson ("Wilson"). A Grand Jury subsequently indicted Wilson on charges of Trafficking in Cocaine, Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance, Conspiracy Second Degree, and two misdemeanor drug-related offenses.
(2) Wilson presents two arguments. First, he asserts that police did not have probable cause to arrest him. Second, he argues that the drugs and drug-related paraphernalia seized from the side of the house in the area immediately surrounding his residence at 104 East 22nd Street in Wilmington, Delaware, must be suppressed.
(3) The pertinent facts surrounding Wilson's arrest, as established by the testimony of Officer Matthew Hall of the Wilmington Police Department, provided during the suppression hearing, are as follows. On the evening of April 21, 2000, Wilmington Police conducted a surveillance operation in the 100 block of East 22nd Street in response to a citizen complaint that a high volume of open-area drug sales occurred in the area. While on surveillance, the officers observed Wilson conducting drug transactions on the front porch of his home at 104 East 22nd Street. Wilson was not the specific target of the surveillance operation.
(4) Officer Hall testified that he observed Wilson and his co-defendant, Rodney Love ("Love"), engage in two separate hand-to-hand transactions over a short period of time with two people who approached them while they were standing on the front porch of Wilson's residence. During each of these transactions, Officer Hall observed the unidentified individuals engage in a brief conversation with Wilson and Love and then appear to hand something to Love. Wilson exited the porch and entered an adjacent side yard through a gated opening in a chain-link fence. Officer Hall could not observe Wilson's movements or actions after Wilson exited the front porch. On each occasion, Officer Hall observed Wilson return to the front porch after approximately 20 to 30 seconds and apparently hand something to the unidentified individuals.
Suppression Hearing Transcript at 11. It should be noted that Officer Hall's testimony during crossexamination varied somewhat from his direct testimony. On cross-examination, Officer Hall stated that Wilson reappeared 15 to 20 seconds after exiting the porch.
(5) After each observed encounter, Officer Hall called for back-up officers to try and locate the unidentified individuals after they left Wilson's front porch. Neither was located or identified. Shortly thereafter, a group of three subjects, one wearing a distinct yellow rain suit, approached Wilson and Love. No transaction occurred, but Wilson exited the porch as before, went briefly to the side of the house, returned, and what appeared to be a drug transaction occurred between the man in the yellow suit, later identified as Anthony Woodward, and Wilson. Woodward was stopped and detained shortly after leaving Wilson s residence. He was searched and found to be in possession of three small green-tinted plastic bags containing cocaine. When questioned, Woodward denied purchasing the drugs from Wilson and Love.
(6) Upon learning that Woodward had drugs on his person, Officer Hall and the other officers on the Drug Express Task Force approached Wilson and Love, handcuffed them, and searched them. The search of Wilson revealed cash totaling $1,358.00 located in various pockets. No drugs or drug paraphernalia were found. Similarly, the search of Love netted $227.00.
(7) While Wilson and Love were detained, Officer Hall and others entered the adjacent side yard through the same gated opening in the chain-link fence through which Wilson had walked during the observed encounters. During the search of the side yard, the officers seized three items which were allegedly located next to or on the house. First, the officers seized a small, clear plastic bag that was located on a windowsill on the side of the house. The bag contained several smaller blue plastic bags that were empty. Second, the officers searched under a small piece of carpet located approximately four feet from the windowsill on which the plastic bags were found. Under the carpet or floor mat, the officers found a white plastic bag which allegedly contained 18 grams of cocaine. Lastly, the officers seized a glass beaker located underneath a barbecue grill that was in the yard at the back corner of the house. The beaker allegedly contained a white residue that was determined to be cocaine. The officers did not request, nor receive, permission to enter the side yard nor did they have a search warrant.
(8) Although there was no direct proof, both the State and the defendant have proceeded on the assumption that Wilson resided in the property at 104 East 22nd Street in Wilmington, Delaware. The residence is a two-story house which has been divided into two apartments, one with an entrance from the front porch area and the other with an entrance located in the side yard. The porch, the side yard, the adjacent driveway, and the backyard are completely enclosed, in part by a six-foot high chain-link fence with gates, and in part by a three-foot high stone wall.
(9) In his Motion to Suppress, Wilson argues that the police search of the area adjacent to his residence violated his Fourth Amendment protection from unreasonable search and seizure because police officers did not seek or receive consent to enter the area and the area searched was within the curtilage of his home. Wilson also argues that his arrest was not supported by probable cause.
(10) I can make short work of the probable cause issue. Probable cause for an arrest has a well-defined standard:
A finding of probable cause does not require the police to uncover information sufficient to prove a suspect's guilt beyond a reasonable doubt or even to prove that guilt is more likely than not. Jarvis v. Stare, 600 A.2d 38, 43 (1991). To establish probable cause, the police are only required to present facts which suggest, when those facts are viewed under the totality of the circumstances, that there is a fair probability that the defendant has committed a crime. Jarvis v. State, 600 A.2d at 42-43 (citing Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983)). Brinegar v. United States, 338 U.S. 160, 175-76 (1949). 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 for an arrest. Jarvis v. State, 600 A.2d at 41-42 (probable cause existed although several actions were subject to innocent explanations).
State v. Maxwell, Del. Supr. 624 A.2d 926 (1993)
State v. Maxwell, Del. Supr. 624 A.2d 926 (1993)
The police had probable cause to suspect drug transactions were occurring based on the nature of the events they personally observed. It was a rainy night. On three separate occasions in a short time period, each event following the other by only a matter of minutes, individual(s) approached the front porch, a brief conversation followed, Wilson went to the side of the house, returned after a short time, and the visitor departed after a transaction. The third visitor, and the first who could be located and detained away from the subject residence, was carrying what appeared to be a controlled substance. Under those circumstances, the police had probable cause for an arrest of Wilson and Love.
(11) The second question relates to the seizure of drugs and paraphernalia from the side of the house. An individual's right to be free from unreasonable governmental searches and seizures is secured by the Fourth Amendment of the United States Constitution, which guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." The Fourth Amendment protects the curtilage of a home. The curtilage is the land immediately surrounding and associated with the home, the area to which extends the intimate activity associated with the "sanctity of a man's home and the privacies of life." The central consideration of the inquiry regarding the extent of curtilage is whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection.
U.S. Const. amend. IV. See also Terry v. Ohio, 392 U.S. 1, 8 (1968); Quarles v. State, Del. Supr., 696 A.2d 1334, 1336 (1994). For citizens of Delaware, the right to be free from such governmental intrusion is further guaranteed by Article I, § 6 of the Delaware Constitution, which states, "The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures Del. Const. art. I, § 6. See also Dorsey v. State, Del. Supr., 761 A.2d 807 (2000); Jones v. State, Del. Supr., 745 A.2d 856, 860 (1999).
U.S. v. Dunn, 480 U.S. 294, 300 (1987).
Oliver v. U.S., 466 U.S. 170, 180 (1984), quoting Boyd v. U.S., 116 U.S. 616, 630 (1886).
State v. McDuell, Del. Super., 1989 WL 16962, Babiarz, J. (Feb. 24, 1989), Mem. Op. at *3 (citing to U.S. v. Dunn, 480 U.S. 294, 301 (1987)).
(12) The Fourth Amendment also protects against warrantless searches. Warrantless searches and seizures are presumed to be unreasonable, even where supported by probable cause, unless the occupants consent to the search or exigent circumstances exist to justify the intrusion. Exigent circumstances have been found to exist, and thus a warrantless intrusion is justified, where there is "a hot pursuit of a fleeing felon, or imminent destruction of physical evidence . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling." Specifically, courts have found the following factors to be relevant in determining exigency: (1) the degree of urgency involved and amount of time necessary; (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 narcotics traffic.
Welsh v. Wisconsin, 466 U.S. 740 (1984).
Minnesota v. Olsen, 495 U.S. 91, 100 (1990) (citations omitted).
State v. Ada, Del. Super., 2001 WL 660227, Goldstein, J. (June 8, 2001), Mem. Op. at *3 (citing to State v. Ellison, Del. Super., I.D. No. 9701020567, Carpenter, J. (Aug. 13, 1998), Mem. Op. at 14 (citations omitted)).
(13) The facts of this case are unique in that Officer Hall has testified that he did not think about whether or not he had an obligation to seek permission to search the side of the house. He did not consider the need for a warrant. He did not attempt to determine who owned the property, or who had control of it. He simply entered onto the property, conducted a search, and siezed contraband. No claim is made that there were exigent circumstances of any kind which would have made a warrantless search appropriate. The issue becomes whether the seizure occurred on the curtilage of the property which can fairly be considered the residence of the defendant, and thus subject to Fourth Amendment protection. The State cites cases where common areas of apartment buildings and parking areas have been determined not to be within the constitutionally protected curtilage. The State's argument begs the question. There is no evidence in this case, though one would think there could have been, to suggest that anyone other than the defendant occupied the property. That being the case, the defendant can be said to have had an expectation of privacy which extended to the whole property, within the fenced area. While access to the rear apartment may have required common access to the side of the property, and indeed that area may have been within the control of another, there was no evidence to support that inference. I cannot speculate; it is the State's burden to prove that the search and seizure were proper.
United States v. Acosta, 3d. Cir., 965 F.2d 1248 (1992) (defendants had no legitimate expectation of privacy in backyard of apartment building where defendants' lease did not grant them the right to use the backyard); United States v. Barrios-Moriera, 2d. Cir., 872 F.2d 12, cert. denied, 493 U.S. 953, 110 S.ct. 364, 107 L.Ed.2d 350 (1989)(officers' entry into common hallway of apartment building behind defendant-tenant who unlocked the door was constitutionally permissible); United States v. Holland, 2d. Cir., 755 F.2d 253, cert. denied, 471 U.S. 1125, 105 S.Ct. 2657, 86 L.Ed.2d 274 (1985) (inner hallway serving both first and second floor apartments not within defendant's zone of privacy); United States v. Dickens, 3d. Cit., 695 F.2d 765 (1982), cert. denied, 460 U.S. 1092, 103 S.Ct. 1792, 76 L.Ed.2d 359 (1983) (seizure of guns in stairwell of apartment building where defendant was temporarily staying was constitutionally permissible); United States v. Walker, N.D. N.Y. , 922 F. Supp. 732 (1996) (tenant does not have reasonable expectation of privacy in driveway area of apartment building in which he resides).
Floudiotis v. State, Del. Supr., 726 A.2d 1196, 1209 (1999); Hardy v. State, Del. Supr., 698 A.2d 409 (1997).
(14) The motion to suppress is GRANTED as to the items seized at the side of the residence pursuant to a warrantless search.
IT IS SO ORDERED.