Submitted: May 17 and June 3, 2013.
Upon Consideration of Defendants' Motions to Suppress Evidence.
Sarita R. Wright, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for State
Kevin J. O'Connell, Esquire, Public Defender's Office, Wilmington, Delaware, Attorney for William Burton
Albert J. Roop, Esquire, Collins & Roop, Wilmington, Delaware, Attorney for Bernard J. Guy.
VIVIAN L. RAPPOSELLI, Judge.
Upon consideration of the Defendants' Motions to Suppress Evidence, the State's opposition, and the record of the case, it appears that:
1. Defendant William D. Burton ("Burton") was indicted for Drug Dealing Cocaine, Aggravated Possession of Cocaine, Illegal Possession of Marijuana, and Possession of Drug Paraphernalia. Defendant, Bernard J. Guy ("Guy") was indicted for Illegal Possession of Heroin. An evidentiary hearing was heard on August 16 and 23, 2013.
2. The State presented evidence through witnesses Detective Joseph Leary, Probation Officer Vettori, and Supervisor Craig Watson that on January 31, 2013, as part of Operation Safe Streets, Detective Leary of the Wilmington Safe Streets Unit received a tip from a past proven reliable informant ("PPR Informant") that a black male known as "David" who lived at 1232 N. Thatcher Street in Wilmington was selling crack cocaine from this residence. The PPR Informant stated further that "David" lived on the second floor and that he was on probation and was a sex offender.
3. Detective Leary testified that he had previously worked with the PPR Informant in acquiring information that has led to successful arrests. Probation and Parole Officer Daniel Collins corroborated some of the information by checking probation records, which confirmed that Burton (middle name "David"), a Level 2 sex-offender, resided at that address. Detective Leary then sent a photograph to the PPR Informant who identified the person as the same "David." Officer Collins requested authorization from Supervisor Craig Watson to conduct an administrative search, which was granted by Supervisor Watson following a conference.
4. At approximately 8 p.m. on January 31, 2013, both members of the Wilmington Safe Streets Unit and Probation and Parole responded to the residence. While conducting a brief surveillance from about 1 block away, they observed Burton entering the residence with another black male. Officers Collins and Vettori proceeded to knock on the door, which was answered by Guy. When the officers told Guy that they were there to see Burton, Guy told them to wait outside while he went back inside the residence. After several minutes passed, the officers knocked again and when Guy answered, he told the officers that Burton was not there. However, after instructing Guy to open the door so that they could confirm for themselves, the officers entered the residence, and immediately saw Burton at the top of the stairs. So too, upon entering the residence, Guy's behavior became aggressive and dangerous. In particular, Guy threatened to have his dog, described as a large black dog, attack the officers. Both officers testified that they had great concern for their safety given Guy's size (at least one foot taller than the officers), and his aggressive and hostile behavior. Guy displayed such aggression toward them that the officers decided backup needed to be called. When the officers were unable to deescalate Guy's behavior, they placed handcuffs on him and conducted a pat-down of his person which yielded 17 bags of heroin.
5. During this time, the officers secured Burton with handcuffs and informed him they would conduct an administrative search of his room. Upon entering the room, they observed baggies, a white plate with an off-white substance, a razor blade with white residue, a black digital scale, clear zip-lock bags containing marijuana, a grinder, smoking papers, etc. The white and green substances tested positive for cocaine (preliminary weight of 29 grams) and marijuana (preliminary weight of 1 gram), respectively. Both defendants move this Court for an order to suppress evidence seized following the administrative search of Defendant Burton's residence on January 31, 2013.
6. "As a general rule, the burden of proof is on the defendant who seeks to suppress evidence." However, once the defendant has established a basis for his motion, the burden shifts to the government to show that the search or seizure was reasonable. "The burden of proof on a motion to ...