November 26, 2013
STATE OF DELAWARE
DANIEL DIAZ, Defendant.
Submitted: October 7, 2013.
Upon Defendant's Motion to Suppress – DENIED
Jan A.T. van Amerongen, Jr., Deputy Attorney General, Department of Justice. Attorney for State of Delaware.
Michael W. Modica, Esquire, Attorney for Defendant.
At the time of his April 8, 2013 arrest, Defendant Daniel Diaz was an active probationer. Knowing Defendant had left Delaware in violation of his probation, the Delaware State Police stopped Defendant's vehicle after its reentry into Delaware and arrested Defendant. After obtaining a warrant, police searched Defendant's vehicle and discovered 10, 026 individual bags of heroin stowed in an after-market, hidden compartment. Defendant now moves to suppress all the evidence against him, based mainly on an initial warrant permitting GPS tracking. For the following reasons, Defendant's motion is DENIED.
In February 2013, Delaware State Police Detective Jeffrey Gilem, a member of the Governor's Task Force (the "GTF"), received information from a confidential informant (the "C.I.") regarding Defendant. The C.I. informed Detective Gilem that a 30-35 year-old, Hispanic male named Daniel Diaz was on active probation, selling heroin in Newark and New Castle, Delaware. The C.I. further told Detective Gilem that Diaz drove a silver, early 2000s Ford Taurus with Pennsylvania registration number JDS4088, which he used to complete drug transactions and make weekly trips to Philadelphia for his heroin supply.
Upon receiving this information, Detective Gilem verified through DELJIS that a Hispanic male named Daniel Diaz, born April 7, 1980, was an active Level III probationer. After contacting Diaz's probation officer, Detective Gilem learned that a silver Ford Taurus matching the description given by the C.I. had been observed at Diaz's address. On March 22, 2013, Detective Gilem conducted a "spot check" and saw the same silver Ford Taurus in Defendant's driveway.
On March 26, 2013, Detective Gilem and other GTF officers conducted surveillance on Defendant. GTF officers watched Defendant leave his residence, enter the Ford Taurus, and drive away. The GTF officers followed Defendant to a shopping center where he allegedly conducted a drug transaction. Detective Gilem affirmed that GTF officers observed Defendant park his vehicle alongside another and exchange a small item for cash, consistent with a drug deal.Additionally, Detective Gilem affirmed that while Defendant was under surveillance, Defendant conducted counter-surveillance by "continuously looking left and right as if scanning the area for potential threats of law enforcement."
During that same week, Detective Gilem, GTF officers, and another confidential informant conducted a controlled purchase with Defendant. Again, while under surveillance, Defendant arrived in the Ford Taurus and conducted counter-surveillance, including his unexpected exit from the area, which Detective Gilem believed to be a tactic intended to expose concealed surveillance units.Shortly after Defendant returned to the location, the C.I. met Defendant and the two conducted an exchange. Using a field test kit, the substances the C.I. purchased from Defendant proved positive for heroin.
The above facts formed the basis of Detective Gilem's Affidavit in Support of a Mobile Tracking Device Warrant in order to track Defendant's silver Ford Taurus. In addition to the factual circumstances leading up to the Detective's GPS tracking request, Detective Gilem affirmed that physical surveillance of Defendant proved extremely difficult and that "tactical and safety" concerns necessitated the GPS device. Detective Gilem believed that the GPS monitoring would lead to more evidence regarding Defendant's drug possession and distribution, in addition to locating Defendant's supply source. Importantly, because GTF was unable to pinpoint Defendant's activity locations, Detective Gilem requested that an Order issue authorizing GPS monitoring beyond Delaware's borders.
The warrant issued on March 27, 2013, and officers installed the GPS device two days later. Via the GPS device, GTF officers observed two separate instances that Defendant drove to North Philadelphia, remained for approximately an hour, and then returned to Delaware. On April 8, 2013, the GPS system again tracked Defendant leaving Delaware heading north. On that date, GTF officers were collaborating with probation officers, preparing to stop Defendant upon his return to Delaware.
GTF officers stopped Defendant's vehicle on I-95, near the 141 exchange, and promptly arrested Defendant for leaving the State in violation of his probation. A K-9 unit present at the stop alerted to the Ford Taurus' exterior and Detective Gilem sought a vehicular search warrant from a Justice of the Peace.Detective Gilem submitted an affidavit of probable cause consisting of the same facts presented in the GPS affidavit, with two additional paragraphs detailing the GPS tracking used to ultimately stop Defendant. The search warrant issued and the ensuing search revealed over 10, 000 individual bags of heroin. The police also found $770 on Defendant.
Probation officers then conducted an administrative search of Defendant's home. The officers located a safe and, after obtaining the combination from Defendant, discovered $1, 836. The officers also discovered an accordion file containing documentation of several, large purchases made with cash. Defendant was indicted on felony Drug Dealing and Aggravated Possession.
II. DEFENDANT'S CONTENTIONS
Defendant moves to suppress on several bases. First, Defendant claims the GPS warrant application lacked probable cause because it failed to include "the informant's basis of knowledge" and evidence that Defendant went to Philadelphia for drugs. Second, Defendant contends that the judge authorizing the GPS warrant lacked authority to permit tracking into Pennsylvania and violated 11 Del. C. § 2304, thereby rendering the warrant invalid to the extent it permitted an extra-jurisdictional search. Third, Defendant argues that because the extra-jurisdictional portion of the warrant is invalid, GTF exceeded the warrant's permissible scope by monitoring Defendant's movement while in Pennsylvania. Fourth, Defendant argues that GTF failed to show they "exhausted" all other conventional surveillance techniques prior to requesting GPS tracking. Fifth, Defendant contends that under the totality of the circumstances, the police lacked reasonable suspicion to stop Defendant's vehicle and lacked probable cause to arrest him, mainly based upon the "invalid" GPS tracking. Sixth, Defendant argues that the vehicular search warrant, obtained after police stopped Defendant, lacked probable cause because it also failed to include "the informant's basis of knowledge" and evidence that Defendant went to Philadelphia for drugs. Lastly, Defendant alleges that the police did not have reasonable suspicion to conduct an administrative search of his residence.
Considering only the evidence obtained within Delaware, the Court will review Defendant's arguments, seriatim.
The exclusionary rule is a remedy providing for the preclusion of evidence obtained from an illegal search or seizure. Safeguarding Fourth Amendment rights, the exclusionary rule's primary purpose deters "future unlawful police conduct."
A. The GPS Warrant was Based on Probable Cause
Because GPS tracking is a search under the Fourth Amendment, the police must obtain a warrant based on probable cause. For a warrant to issue, probable cause must be set forth within the four-corners of a supporting affidavit. An affidavit of probable cause must be considered as a whole and provide a "logical nexus between the items being sought and the place to be searched."
Under the totality of the circumstances, a confidential informant's tip can provide probable cause. In determining whether probable cause exists based upon a tip, the Court must "consider the reliability of the informant, the details contained in the informant's tip, and the degree to which the tip is corroborated by independent police surveillance and information." While a confidential informant's "basis of knowledge" is relevant, it is not issue determinative. An anonymous, confidential informant's accurate prediction of a defendant's movement will adequately corroborate a tip. Even without knowing an informant's credibility, a tip concerning non-observable information, once corroborated, can establish probable cause.
In State v. Holden, two "past proven reliable" informants tipped the Wilmington Police Department that Holden was selling drugs. The first informant told police that Holden sold marijuana and oxycodone from his house in Newark, lived with a girlfriend and a male roommate, and drove a white Chrysler registered to the girlfriend's father. The second informant told police that Holden sold marijuana, oxycodone, and cocaine from his Newark residence, drove a Chrysler with Maryland registration, and lived with a "heavy-set white woman." The police verified that Holden lived at the Newark address and independently observed Holden drive a white Chrysler.
While conducting surveillance on Holden, the police observed a different man, Vincent Pfeiffer, leave Holden's residence in a silver vehicle and the police followed. The police watched as Pfeiffer drove to a shopping center, parked his vehicle, walked to the vehicle's passenger side, and placed "what appeared to be small objects in his right hand." As the police approached Pfeiffer, he quickly clasped his hands, and upon forcing Pfeiffer's hands open, the police discovered oxycodone pills. When police asked Pfeiffer where he came from, Pfeiffer was "deceptive." The police then obtained a search warrant for Holden's home based upon their observations and interaction with Pfeiffer.
In reversing this Court's finding that the facts were insufficient to support probable cause against Holden, the Delaware Supreme Court held that the information provided by the two, past proven reliable informants was corroborated by Pfeiffer's oxycodone possession, creating a substantial basis that probable cause existed to search Holden's home.
Considering Holden and the totality of the circumstances here, there are several bases upon which the issuing judge could conclude probable cause existed for GPS tracking. First, similar to Holden, the C.I. knew several non-observable facts, such as Defendant's probationary status, heroin dealing from his car, and that Defendant made weekly trips into Philadelphia to restock. Although the affidavit is silent as to the C.I.'s reliability, Detective Gilem and other GTF officers corroborated everything the C.I. gave them. Through DELJIS, Detective Gilem verified Defendant's age, ethnicity, probationary status, and address. Defendant's probation officer corroborated the C.I.'s vehicle description, and Detective Gilem also conducted a "spot check, " observing the same silver Ford Taurus in Defendant's driveway. Importantly, unlike Holden, GTF observed Defendant conducting a drug transaction from his vehicle and conducting a controlled purchase from his vehicle. Even though GTF officers did not verify that Defendant replenished his drug supply on weekly trips to Philadelphia, they did verify that Defendant sold heroin from his car. And, stemming from those two drug transactions, it was clear to GTF officers that Defendant conducted counter-surveillance and utilized typical counter-surveillance techniques making conventional surveillance difficult, exhibiting the need for GPS tracking.
While the warrant at issue was based upon an unknown informant, GTF officers corroborated the information through independent police work.Moreover, there was a logical nexus that based on the C.I.'s corroborated evidence, tracking Defendant's vehicle would lead to more information and possible evidence regarding Defendant's drug dealing.
B. "Exhaustion" of Conventional Surveillance Tactics
Relying on this Court's prognostication that an "Orwellian state" is feasible, Defendant argues that a GPS affidavit should follow the same stringent requirements for wiretapping as set forth in 11 Del. C. § 2407 and specifically explain why conventional surveillance techniques failed, are inadequate, or too dangerous. The Wiretapping Statute applies to certain "electronic communication, " but the statute specifically excludes "communication from a tracking device" from the definition. Because the Delaware legislature has specifically excluded tracking devices from that statute's applicability, and has not otherwise required such language in a GPS device warrant, the Court will not impose such requirements where it is clear the legislature did not intend them to exist.
C. GTF Officers had Reasonable Suspicion to Stop Defendant
An officer may stop a vehicle where the stop is supported by a reasonable and articulable suspicion that the individual stopped is committing, has committed, or is about to commit a crime. The Court determines whether reasonable articulable suspicion exists based upon the totality of the circumstances. Reasonable and articulable suspicion requires "an officer's ability to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant the intrusion." An officer may stop a vehicle if reasonable, articulable suspicion exists, even if the officer has a different, subjective motivation for the stop.
Defendant argues that GTF officers lacked reasonable suspicion to stop his vehicle because Detective Gilem testified at the preliminary hearing that the GTF "established a pattern" of behavior indicating Defendant had resupplied himself with heroin while in Pennsylvania, and that "pattern" was based upon invalid GPS information.  Further, Defendant points to Detective Gilem's testimony that the stop was "tactical." Defendant also argues that "there was no observable illegal activity which could be reasonably observed by a trained police officer to warrant the intrusion of a stop."
Detective Gilem testified that the GTF's stop of Defendant was motivated by the possible drug offenses, with Defendant's probation violations as secondary. Detective Gilem was aware Defendant was prohibited from leaving the State without permission, which Defendant did not have.
Detective Gilem explained that the GPS tracking device alerted his cell phone whenever Defendant's vehicle "crossed different zones" or left the State.On April 8, after Detective Gilem and other GTF officers confirmed Defendant left Delaware and was repeating his one-hour route into Philadelphia, the GTF officers made the plan to stop Defendant upon his entry into Delaware, using both the GPS tracking and physical units along the interstates. Detective Gilem testified that when Defendant entered Delaware, Defendant proceeded along I-95 and I-495 at a high rate of speed, making it difficult for the GTF vehicles to catch up.
Again, the State has conceded that extra-jurisdictional information obtained from the GPS device was beyond the warrant's scope, and thus the Court is excluding that information from its analysis. Even without the GPS tracking in Pennsylvania, however, GTF officers were capable of monitoring Defendant's movements within Delaware, including when and where Defendant crossed state lines. Detective Gilem testified that GPS tracking only confirmed the C.I.'s information that Defendant was leaving the State to resupply his heroin based upon the two prior occasions where Defendant left Delaware travelling I-95 north with each trip lasting approximately an hour.
Considering the totality of the circumstances, GTF officers had reasonable suspicion, at the least, upon which it could lawfully stop Defendant's vehicle. GTF officers observed Defendant conduct two separate drug transactions from within his Ford Taurus. Those transactions created reasonable suspicion that Defendant's vehicle contained evidence of drug dealing. Through GPS tracking and physical surveillance, GTF officers observed Defendant leave and reenter the State of Delaware without permission, thereby violating his probation. That gave GTF officers probable cause to stop Defendant. And, upon Defendant's return to Delaware, GTF officers observed his vehicle traveling at a high rate of speed along the interstate. That also gave GTF officers probable cause to stop Defendant's vehicle.
In the end, even though Detective Gilem admitted the GTF was motivated to apprehend Defendant on drug charges, GTF officers knew and were aware of Defendant's probationary status and his prohibition from leaving the State. Detective Gilem's admission of wanting to stop Defendant on drug charges does not invalidate the stop here when the officers physically observed Defendant leaving the State without permission and speeding.
D. GTF Officers had Probable Cause to Arrest Defendant
An arrest is a seizure subject to Fourth Amendment protection. By statute, an officer may make a warrantless arrest "when a crime has been committed in their presence or where they have reasonable ground to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed." As with reasonable suspicion, probable cause is determined by the totality of the circumstances. Probable cause is very fact-specific and requires that the "facts and circumstances within the arresting officer's knowledge, of which he has trustworthy information, are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed."
Considering the totality of the circumstances, and Detective Gilem's knowledge and information regarding Defendant, Detective Gilem had probable cause to arrest Defendant for violating his probation and based upon the drug transaction and controlled sale Detective Gilem personally observed Defendant commit.
E. The Vehicular Search Warrant was Based on Probable Cause
For a warrant to issue, probable cause must be set forth within the four-corners of a supporting affidavit. An affidavit of probable cause must be considered as a whole and provide a "logical nexus between the items being sought and the place to be searched."
For the same reasons Defendant argued for suppression of the GPS warrant, Defendant attacks the search warrant issued for his vehicle following his arrest. While the affidavit of probable cause supporting the vehicular search included information the State concedes as invalid, the affidavit as a whole presents probable cause that evidence of drug dealing would be located within Defendant's vehicle.
Detective Gilem's physical observation of Defendant selling heroin from his vehicle during the controlled buy in Delaware provides a substantial basis for probable cause. Moreover, GTF officers observed Defendant selling what appeared to be heroin from his vehicle on March 26, 2013, also forming the basis for probable cause. Additionally, the C.I. informed Detective Gilem that Defendant made weekly trips into Philadelphia to resupply his heroin. While GTF officers cannot be certain Defendant went to Philadelphia, Defendant was observed three times leaving the State via I-95 north and returning an hour later, activity the GTF believed corroborated the C.I.'s information. Under the totality of the circumstances, based upon the knowledge and experience of Detective Gilem, probable cause existed that drugs would be found in Defendant's vehicle.
F. The Administrative Search was Conducted on Reasonable Suspicion
Fourth Amendment protections for probationers are restricted, subjecting them to a lower standard regarding searches and seizures. Absent exigent circumstances, the search of a probationer's home must be based on reasonable suspicion and conducted after completing a Probation and Parole procedure checklist. Reasonable suspicion "exist[s] where the totality of the circumstances indicates that the officer had a particularized and objective basis for suspecting legal wrongdoing." In accordance with the Probation and Parole checklist, a probation officer "must have personal 'knowledge or sufficient reason to believe' or must have received 'information from a reliable informant' that the probationer or parolee possesses contraband, is in violation of probation … or is violating the law."
Reasonable suspicion existed to support the administrative search of Defendant's home. Here, GTF officers observed Defendant leave and reenter the State in violation of his probation conditions. Detective Gilem testified that a probation officer involved with the GTF kept Defendant's probation officer abreast of events occurring in the case. Further, the week prior to Defendant's arrest, Detective Gilem observed Defendant leave his residence and drive to a shopping center where he conducted a drug transaction. By conducting the drug transaction directly after leaving his home, it is reasonable to conclude that Defendant's home contained evidence of contraband.
Additionally, the probation officer completed the required checklist prior to conducting the administrative search. As the "justification for search, " the probation officer included "informant drug buys from Diaz/Diaz out of state without permission/drug dog alerted on vehicle." Therefore, not only did the probation officer have reasonable suspicion to believe that Defendant was in violation of his probation and likely had contraband in his house, the officer also followed DOC's guidelines.
The Court does not find that GTF officers conducted an "illegal search or seizure" of the Defendant that would require suppression of the evidence. Detective Gilem and other GTF officers corroborated most of the C.I's information, which included both observable and non-observable information, therefore creating a substantial basis of probable cause for the GPS warrant and the fruits stemming from it. Additionally, GTF officers observed Defendant conduct two drug transactions which substantially contribute to the basis for probable cause. As to the stop, arrest, vehicular search warrant, and administrative search, in addition to the C.I.'s information and GTF officers' corroboration, GTF officers knew Defendant left the State without permission. For those reasons, the Court finds that Detective Gilem and GTF officers did not violate Defendant's Fourth Amendment rights, and Defendant's Motion to Suppress is, therefore, DENIED.