Submitted: April 5, 2013
Nicole S. Hartman, Esq., Department of Justice, Dover, Delaware. Attorney for the State.
Eugene J. Mauer, Esq., Wilmington, Delaware. Attorney for the Defendant.
VAUGHN, President Judge
The defendant, Jermaine Dollard, moves to suppress evidence derived from a wiretap of his telephone on the ground that the affidavit supporting the wiretap warrant does not establish any of the necessity elements set forth under 11 Del. C. § 2407(a)(3).
On May 15 and 25, 2012, the Delaware State Police obtained three wiretap warrants for three different cellular telephones used by Galen Brooks, a suspected drug dealer in what the police believed was a large drug organization that allegedly operated in Dover, Delaware. On May 30, 2012, while intercepting Brooks' phone conversations, the police heard Brooks discussing the sale and delivery of several kilograms of cocaine with an unknown male, who was using a phone with the number (302) 723-1412. At 2:09 p.m. on May 31, the unknown male using the same phone number asked Brooks when he would be arriving, and Brooks advised the male that he was fifteen minutes away. The police observed Brooks arrive at a residence located at 112 Dominion Court, Smyrna, Delaware at 2:33 p.m. and park next to a silver Honda Accord located in the driveway.
Detective Jeremiah Lloyd of the Delaware State Police, who was conducting surveillance of Brooks that day, performed a DELJIS inquiry of the Honda Accord's license plate number. That search revealed that the car belonged to Keisha Adkins and was registered to the 112 Dominion Court address. Detective Lloyd also conducted a Delaware driver's license inquiry of Keisha Adkins, which revealed that Keisha Dollard lived at the same address. Lieutenant Wallace of the Delaware State Police later conducted a Kent County property tax inquiry of the address, which revealed that Jermaine Dollard and Keisha Dollard owned the property located at 112 Dominion Court. According to the affidavit used to support the wiretap warrant, Brooks "began supplying area drug dealers with quantities of crack cocaine and cocaine" following his meeting with Dollard.
On June 2, 2012, Dollard advised Brooks over the phone that he just obtained $5, 000 from the bank and that he needed $1, 200 to "finish his mission." Brooks responded that he had that amount in his pocket. Brooks and Dollard met later that day and, according to the police affidavit, Brooks again began supplying area drug dealers with crack cocaine and cocaine. Brooks also advised Dollard over the phone that the new price of cocaine was $1, 250 per ounce.
On June 5, 2012, the police submitted a warrant application for the wiretap of (302) 723-1412, which was believed to be Dollard's phone number. The affidavit accompanying the wiretap warrant application included the operative facts mentioned above, and a list of "normal investigative techniques" that the affiant states have been tried and failed, reasonably appear to be unlikely to succeed if tried, or were too dangerous to employ. That list of techniques is virtually identical to the list contained in the prior affidavits used to apply for the wiretaps of Galen Brooks' three phones. The following is a summary of the normal investigative techniques contained in Dollard's wiretap warrant affidavit:
• Physical Surveillance: The affiant states that although physical surveillance has been attempted and has been useful in identifying a number of suspects, including Dollard, it has not succeeded in gathering sufficient evidence of criminal activity and will not establish conclusively the elements of a criminal violation. Furthermore, the affiant states, physical surveillance will not establish the identity and roles of all of the alleged conspirators in the drug organization, and the police will likely be noticed, which will cause the suspects to become more cautious and would risk jeopardizing the investigation.
• Search Warrants: The affiant states that the use of search warrants will not provide the police with sufficient evidence to determine the full scope of the drug organization, because suspected drug dealers do not keep permanent records of their illegal activities. In addition, the police do not know the location of all of the premises where illegal activities take place, and the other members of the drug organization would be alerted of the investigation when the police begin conducting searches of some or all of the known residences.
• Attorney General Subpoenas: The affiant states that he spoke with the Chief Prosecutor for Kent County, and that it is his belief that the use of Attorney General subpoenas would be unsuccessful because the alleged conspirators would likely invoke their Fifth Amendment privilege against self-incrimination and it would compromise the investigation by alerting the other conspirators, who would become more cautious.
• Confidential Reliable Individuals: The affiant states that confidential informants have been used in the investigation, but that they have provided only limited information with respect to the following: the specific activities of the drug organization; the names and roles of all of the members of the drug organization; the sources of the drugs; the methods of concealing the proceeds of the sales of drugs; and the details of specific drug transactions. The affiant further states that it is ...