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State v. Smith

Superior Court of Delaware, New Castle

October 16, 2013

STATE OF DELAWARE,
v.
TIMOTHY SMITH.

ORDER

Calvin L. Scott, Jr. Judge

On this 16th day of October and upon Defendant Timothy Smith's ("Defendant") Motion to Suppress, brought by counsel, the Court finds that:

Defendant moved to suppress evidence seized from a warrantless administrative search of his residence and statements made as "fruits" of the unlawful search. The search was conducted after Officer Daniel Collins ("Officer D. Collins") received information from Officer Larry Collins, based on a tip that Officer Larry Collins received, that Defendant would be selling narcotics in a specific vehicle and location during a certain time period. Defendant argues that Probation and Parole lacked reasonable suspicion for the search and that there is no information demonstrating the informant's reliability. Defendant also raises a "stalking horse" argument based on the Delaware Constitution.[1] For the following reasons, Defendant's motion is GRANTED.

Findings of Fact

Officer D. Collins has been employed by Delaware Probation and Parole for about eight years. For the last three years, he has been assigned to "Operation Safe Streets, " a program in which the Wilmington Police Department works alongside Probation and Parole. Although Officer D. Collins works with Probation and Parole, his office is located within the Wilmington Police Department.

On January 24, 2013, Officer Larry Collins ("Officer Larry Collins") informed Officer D. Collins that a confidential informant, who was past-proven reliable, stated that Defendant would be selling illegal narcotics from a dark grey Jeep Cherokee in the parking lot of the Longshoreman's Hall, located in Wilmington, between 6 a.m. and 7 a.m. The informant also stated that, once defendant ran out, he would go back home. Officer D. Collins did not personally speak to the informant.

Officer D. Collins performed a background check on Defendant and discovered that he was a Level III probationer residing at 402 8th Street in Wilmington, owned a grey Jeep Cherokee, and was employed at the Longshoreman's Hall. Surveillance was established at Defendant's home and the back road leading into the Longshoreman's Hall parking lot, which was about ten minutes away from Defendant's home. Officer D. Collins did not obtain any other information relating to the residence.

On the morning of January 26, 2013, Defendant was observed sitting alone in the Jeep for forty-five minutes while it was running. Defendant was not observed engaging in any hand-to-hand transactions. At 7:15 a.m., Defendant left the lot and arrived at home about ten minutes later. Defendant entered the home and, at 7:30 a.m., Defendant exited his home and re-entered the Jeep. After he entered the Jeep, officers approached him and placed him into custody. Officers performed a pat-down, but Defendant was unarmed and did not have any contraband.

Officer D. Collins immediately contacted his supervisor, Craig Watson, via cell phone for a case conference. During the conference, he explained that Defendant was in the same car and location during the same time that the informant described to Officer Larry Collins and that he sat in the lot for about forty-five minutes. An "Arrest/Search Checklist" was completed which indicated that Defendant was "believed to possess contraband" and that the "information from informant is corroborated."[2] Thereafter, an administrative search of the residence and a vehicle in the attached garage revealed incriminating evidence and Defendant made certain incriminating statements during an interview with police.

Discussion

"A State's operation of a probation system […], presents "special needs" beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements."[3] Based on this rationale, the search of a probationer's home will be considered reasonable if it is conducted pursuant to a valid regulation governing probationers.[4] So long as probation officers substantially comply with Department of Corrections ("DOC") regulations and have "reasonable suspicion" to search a probationer's dwelling, the search will be valid.[5] "Reasonable suspicion" exists when " under the totality of the circumstances, the officer [has] a particularized and objective basis for suspecting legal wrongdoing."[6]

Pursuant to DOC Probation and Parole Procedure 7.19, [7] in the absence of exigent circumstances, the probation officer must first hold a case conference with his or her supervisor, using a Search Checklist as a guideline.[8]

During the case conference the supervisor will review the "Yes" or "No" responses of the officer to the following search ...

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