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State v. Fax

Superior Court of Delaware

June 2, 2017

STATE OF DELAWARE
v.
CHARLES FAX, Defendant.

          Submitted: May 30, 2017

         Upon Consideration of Defendant's Motion to Suppress, GRANTED.

          Jeffrey M. Rigby, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State.

          Benjamin S. Gifford IV, Esquire, The Law Office of Benjamin S. Gifford IV, Wilmington, Delaware. Attorney for the Defendant.

          Jeffrey M Rigby, Esquire

          Benjamin S. Gifford, IV, Esquire

          OPINION

          Vivian L. Medinilla Judge.

         INTRODUCTION

         Defendant Charles Fax ("Fax") filed this Motion to Suppress after officers with the Governor's Task Force conducted an administrative search of his residence on October 26, 2016. Fax argues that the administrative search lacked reasonable suspicion under the Fourth Amendment of the United States Constitution, Article I, Section 6 of the Delaware Constitution, and Delaware statutory law. The Court agrees and finds that the State failed to establish that the officers had reasonable suspicion to conduct an administrative search of Fax's residence. As such, the Motion to Suppress is GRANTED.

         FACTUAL AND PROCEDURAL BACKGROUND[1]

         Factual Background

         On August 1, 2016, Fax was sentenced to Level III probation after he was convicted of Drug Dealing (Tier 2). His first visit with his probation officer, Officer James Matthew Keen ("Officer Keen"), occurred on August 9, 2016. Fax met with Officer Keen weekly, from August to October. During this period, he was fully compliant with his probation. However, on October 11, 2016, Fax tested positive for marijuana following a routine urine test.[2] Officer Keen met with Fax on two separate occasions following the positive urine test: October 17th and 25th, 2016. On the 17th, Officer Keen instructed Fax to undergo a substance abuse evaluation. Fax complied. On October 25, Officer Keen and Fax met to discuss the results of the evaluation, which determined that Fax did not require substance abuse treatment. Officer Keen did not write a violation of probation report and testified that he did not intend to do so.

         On October 26, 2016, Officer David Tuohey ("Officer Tuohey"), a probation officer assigned to the Governor's Task Force at Troop 2, performed an electronic query on the Delaware Automated Correction System ("DACS"). Officer Tuohey testified that, on this particular night, the rainy weather prevented his team from conducting their "proactive functions" (e.g., surveillance and controlled drug buys). As a result, he and his partner "split the alphabet" and started running electronic searches in DACS for all Level III probationers in the 19702 zip code. When asked why they chose Level III probationers, he stated that these probationers are more often serving probation for felony convictions. Further, when asked why they chose this particular zip code, Officer Tuohey testified that it was simply due to rainy weather conditions, short-staffing, and close proximity to Troop 2. He confirmed that no "tip" or other information regarding Fax prompted the search; rather, the goal of the search was to find probationers for whom his team would conduct administrative searches.

         Officer Tuohey's DACS inquiry revealed that Fax was serving Level III probation at his residence in Newark for Drug Dealing. DACS also noted Fax's October 11 positive urine screen fifteen days earlier. He testified that-based solely on this factor-he contacted his supervisor for a telephonic case conference. Officer Tuohey and his supervisor reviewed the following "pre-search considerations, " as reflected on the Arrest/Search Checklist:[3]

(1) Offender believed to possess contraband.
(2) Offender is in violation of probation[]. . . . [...]
(4) Approval from Supervisor, Manager, or Director.
(5) Proper planning for search completed.
(6) Sufficient staff to search.
(7) Individual responsibilities assigned.
(8) Police called lo provide search security. .. .[4]

         After their case conference, Officer Tuohey's supervisor granted him permission to search Fax's residence. Delaware State Police Officers Gliem and Hogate joined Officer Tuohey at Fax's residence that night at 10:35 p.m. Fax and his co-defendant, Christopher Patterson, were present in the residence at the time of the search.

         The administrative search revealed that Patterson, Fax's nephew, had been living in the residence for a few days and admitted to smoking marijuana after the officers detected an odor of burnt marijuana throughout the residence. The officers discovered a black digital scale next to a safe located on the floor of Patterson's bedroom. Marijuana ashes were located near the safe. A search of the garage revealed wrapped bundles of heroin-later determined to be 9.765 grams of heroin. Additionally, 30.57 grams of cocaine were discovered in a kitchen ...


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