Submitted: May 30, 2017
Consideration of Defendant's Motion to Suppress, GRANTED.
Jeffrey M. Rigby, Esquire, Deputy Attorney General,
Department of Justice, Wilmington, Delaware. Attorney for the
Benjamin S. Gifford IV, Esquire, The Law Office of Benjamin
S. Gifford IV, Wilmington, Delaware. Attorney for the
Jeffrey M Rigby, Esquire
Benjamin S. Gifford, IV, Esquire
L. Medinilla Judge.
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.
AND PROCEDURAL BACKGROUND
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. 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.
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.
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:
(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. ..
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.
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 ...