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McKinney v. State

Supreme Court of Delaware

December 18, 2014

BERNARDO MCKINNEY, Defendant Below-Appellant,
v.
STATE OF DELAWARE, Plaintiff Below-Appellee

Submitted September 24, 2014

Case Closed January 5, 2015.

Court Below: Superior Court of the State of Delaware in and for New Castle County. ID No. 1212007654.

Eugene J. Maurer, Jr., Esquire, Wilmington, Delaware, for Appellant.

Andrew J. Vella, Esquire, of the Department of Justice, Wilmington, Delaware for Appellee.

Before STRINE, Chief Justice, HOLLAND, RIDGELY, VALIHURA, Justices, and BOUCHARD,[*] Chancellor, constituting the Court en Banc.

OPINION

Page 1046

RIDGELY, Justice:

Defendant-Below/Appellant Bernardo McKinney (" McKinney" ) appeals from a Superior Court judgment of conviction for possession of a firearm by a person prohibited (" PFBPP" ). McKinney raises one claim on appeal. McKinney contends that the trial court erred when it denied his motion to suppress evidence because the affidavit in support of the search for his residence did not show probable cause. The warrant was issued based upon an affidavit that explained that a confidential informant (" CI" ) told the police that he had purchased marijuana that day from a white female with dark hair and blue eyes, and previously from a black male, at McKinney's apartment. There was no information in the affidavit supporting the CI's reliability or corroborating criminal activity at the apartment. The police did determine that McKinney, who is black, and his girlfriend, who is white with blue eyes, lived at the apartment. In this Opinion, we reaffirm our holding in Legrande v. State that a confidential informant's tip must be reliable in its assertion of illegality, not merely in its tendency to identify a determinate person.[2] Because we find merit to McKinney's claim, we reverse and remand for further proceedings consistent with this Opinion.

I. Facts and Procedural History

In December 2012, Officer John Mitchell (" Mitchell" ) of the Elsmere Police Department in Delaware was contacted by a CI. The CI told Mitchell he had purchased

Page 1047

marijuana that afternoon from 1509 Maple Ave., Apt. 1 in the Fenwick Park Apartments located in Elsmere. The CI told Mitchell that a white female with dark hair and blue eyes wearing sweatpants and a tank top answered the door. The CI told Mitchell that he gave the female $20 in exchange for a gram of marijuana wrapped in foil. The CI also told Mitchell that he had purchased marijuana on prior occasions from a black male at the same address.

Mitchell knew that McKinney, a black male, lived at 1509 Maple Ave., Apt. 1, and used the Delaware Criminal Justice Information System to perform a search on McKinney. The search confirmed that both McKinney and his girlfriend, Ashley King (" King" ), resided at the apartment the CI identified, and that King had blue eyes. Mitchell also presented a " six pack" photo lineup to the CI, who selected King as the person who sold him the marijuana. Thereafter, Mitchell applied for a search warrant for McKinney's apartment. Mitchell submitted an affidavit with the warrant application, which stated the facts set out above. The warrant was issued based solely on the ...


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