Decided: January 17, 2014
Upon Defendant's Motion to File Out of Time and Motion to Suppress. Denied.
Gregory R. Babowal, Esquire, Department of Justice, Dover, Delaware; attorney for the State of Delaware.
James M. Stiller, Jr., Esquire of Schwartz & Schwartz, Dover, Delaware; attorney for Defendant.
William L. Witham, Jr. Resident Judge.
The issue decided by the Court was whether to grant Defendant's Motion to File Out of Time and accept Defendant's untimely filed Motion to Suppress. The Court has issued a bench ruling denying Defendant's Motion to File Out of Time. This Order provides further clarification as to the grounds for the Court's decision.
FACTUAL AND PROCEDURAL BACKGROUND
On September 6, 2012, Defendant Dashawn Ayers (hereinafter "Defendant") was arrested by approximately four law enforcement officers with the Dover Police Department for drug dealing at his apartment in Dover. The arrest was effected pursuant to a valid arrest warrant in the doorway of his apartment, and police subsequently searched the apartment and found a small amount of marijuana and related drug paraphernalia. These items provided the basis for several other charges. Dover Police did not have a search warrant, but claim that the Defendant consented to the search and that the contraband was lawfully seized pursuant to the plain view doctrine.
The Office of the Public Defender already represented a co-defendant in this case, thus Defendant's original attorney (hereinafter "original counsel") was appointed to represent Defendant by the Office of Conflicts Counsel on October 1, 2012. Initial case review was held on November 27, 2012. The record reflects that the trial date was continued three separate times: January 8, 2013; March 18, 2013; and October 1, 2013.
Original counsel ultimately left his law firm to accept a position with the Delaware Attorney General's office. On October 30, 2013 Defendant's current attorney (hereinafter "current counsel") was assigned to Defendant's case by the Office of Conflicts Counsel. Current counsel was employed by the same law firm that original counsel worked for prior to accepting the position with the Attorney General's office.
On December 18, 2013, current counsel received a letter from Defendant that current counsel claims "revealed suppression issues." Based on this letter, current counsel filed two motions on December 26, 2013: a Motion to File Out of Time and a Motion to Suppress. Defendant's Motion to File Out of Time cites original counsel's departure from the case, current counsel's appointment, and Defendant's December 18 letter as reasons why Defendant should be allowed to file the untimely Motion to Suppress.
As to the Motion to Suppress itself, Defendant argues that when the Dover Police Department arrested Defendant in the doorway of his apartment on September 6, 2012, the four police officers forced Defendant into his apartment and unlawfully coerced Defendant into signing a consent to search form. Defendant claims the police officers obtained Defendant's consent by denying him access to pain medication and the restroom and threatening to "destroy" the apartment unless Defendant consented to the warrantless search. Defendant argues that the police lacked a valid search warrant, and that the plain view doctrine does not ...