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State v. Johnson

Superior Court of Delaware, New Castle

October 30, 2014

STATE OF DELAWARE, Plaintiff,
v.
PERRY JOHNSON, Defendant.

Submitted: May 30, 2014

Kate Schulhaus Keller, Esquire, Attorney for Plaintiff State of Delaware.

Thomas A. Foley, Esquire, Attorney for Defendant Perry Johnson.

OPINION

William C. Carpenter, Jr. Judge

Before this Court is Defendant Perry Johnson's ("Johnson") Motion to Suppress all evidence gathered from his residence on January 14, 2014. In Johnson's Motion, he argues that, operating through the Safe Streets Unit (a joint task force between police and probation officers), officers infringed on his Fourth Amendment rights by searching his home without a warrant. Johnson argues that all fruit of the warrantless search of his residence should, therefore, be suppressed. The Court finds that, under the circumstances of this case, the administrative search is not justified and the Motion to Suppress will be GRANTED.

BACKGROUND

During the week of January 14, 2014, members of the New Castle County Safe Streets Unit received an email from a New Castle County Police officer relaying a tip that Johnson, a probationer, was involved in criminal activity. Specifically, the tipster informed police that Johnson was known to "ride around the neighborhood at night with his radio blasting" and on occasion go to a park located in the neighborhood in order to sell and use drugs.[1] In the email, the Safe Streets officers were informed that Johnson was on Level III probation.

With this information, Officer DuPont, assigned to the Safe Streets Unit, began to investigate Johnson. Officer DuPont has been employed as a probation officer for almost 15 years; the vast majority of which he has been assigned to a Safe Streets Unit. He worked as a Safe Streets Officer with Wilmington police for ten years, and has worked with the New Castle County Safe Streets Unit for almost 3 years. As a probation officer in the Safe Streets Unit, Officer DuPont does not have any probationers who report to him, nor does he supervise any probationers. Officer DuPont has not had a typical probation caseload since 2002 and, as a Safe Streets officer, his office is at the New Castle County Police headquarters.

After receiving the tipster's information, Officer DuPont accessed the Delaware Automated Correctional System ("DACS") maintained by Probation and Parole and confirmed that Johnson was on probation and found a number of issues in his file: (1) a recent positive urine for marijuana; (2) a missed curfew; (3) a missed office visit; and (4) a failure to complete the court-ordered domestic violence and anger management courses. While these issues were noted in the probation file, Johnson's probation officer had not filed a violation of probation report with the Court. Officer DuPont never contacted, or even attempted to contact, Johnson's probation officer to gather additional information on the supervision of Johnson or to determine why the officer had not filed a violation report. Officer DuPont also confirmed, through a Google search of Johnson's address, that Johnson lived around the corner from a park identified in the tip. With the information provided by the New Castle County officer, knowledge of issues with compliance of his probation terms, and corroboration that Johnson lived near a park, Officer DuPont contacted his supervisor and conducted a case conference in order to obtain approval to conduct an administrative search of Johnson's residence. According to the checklist used to approve the warrants, the approval was granted based on the following considerations: (a) offender believed to possess contraband; (b) offender in violation of probation/parolee[sic]; (c) proper planning for search completed; (d) sufficient staff to search with individual responsibilities assigned; (e) police called to provide security; and (f) search team members properly trained.

On January 14, 2014 at approximately 7:36 p.m., Officer DuPont, accompanied by two New Castle County police officers and another probation officer from the Safe Streets Unit, arrived at Johnson's home to conduct an administrative search. The officers, believing the home was empty, parked and observed the residence until they saw a car pull into the driveway. Believing it was Johnson, the officers approached the driver of the car, who identified himself as Johnson's father. Johnson's father informed the officers that Johnson was in the basement of the residence, and he led them inside and called for his son.

Johnson met Officer DuPont at the top of the stairs and was informed that the officers were conducting a "home visit." When asked to give the officers a tour and show them where he slept, Johnson led the officers to a downstairs room in the basement with a drop ceiling. Officer DuPont informed Johnson that his last urine screen came back positive for marijuana. Although he initially acted surprised, Johnson admitted he had smoked marijuana because he was stressed. Officer DuPont then informed Johnson he would be conducting an administrative search because he received a tip that Johnson was involved in drug activity. Johnson, when asked, stated that there were no guns, drugs, or weapons in the house, and the officers, thereafter, began the search.

Unfortunately for Johnson, the officers uncovered a number of troubling things in the home. Under the mattress in the basement bedroom, the officers found a locked gun safe. When prompted, Johnson told the officers the key to unlock the safe was on the key ring in his jacket pocket, which was hanging next to the bed. The officers used the key to open the safe and found a Ruger P95 nine-millimeter semi-automatic pistol, fully loaded with a 15 round magazine and nine rounds of nine-millimeter ammunition. Also in the safe were ten rounds of nine-millimeter ammunition, a box containing 17 rounds of nine-millimeter ammunition, and a rail mounted laser light. The officers also found an empty box for a forty-caliber handgun, which Johnson informed them was previously seized by Delaware State Police, and spent rounds of 40-caliber ammunition. In the drop-ceiling, the officers found a scale and drug packaging paraphernalia. With these discoveries, the officers read Johnson his Miranda rights and placed him under arrest.

Johnson subsequently brought this Motion to Suppress. The Court conducted an evidentiary hearing ...


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