United States District Court, D. Delaware
Keenan Gibson is facing drug and gun charges after police
executed a search warrant at his home. The search warrant was
issued based on an affidavit by Detectives Justin Wilkers and
Jose Cintron of the Wilmington Police Department. (D.I.
14-1). Defendant has filed a motion to suppress the evidence
obtained during this search. (D.I. 26). Defendant argues that
the search warrant affidavit lacked probable cause and did
not sufficiently support the search warrant of his residence
at 2211 North Washington Street, Apartment 3. (Id.
at 7). Therefore, Defendant requests that all evidence
obtained as a result of the search be suppressed, as the
evidence was illegally seized. (Id.).
Sufficiency of the Warrant
claims the affidavit of probable cause did not sufficiently
establish the reliability of the confidential informant used
in the controlled buy, that the surveillance of
defendant's apartment was not sufficiently detailed in
the probable cause affidavit, and that the affidavit also
lacked detail regarding the circumstances of the controlled
buy. (Id. at 2-5). Defendant also contends that
because the exact date of the confidential informant's
alleged buy was not specified in the affidavit, it is unclear
whether the information was fresh, or "arguably stale,
five-day-old information." (Id. at 5).
Therefore, Defendant asks that all evidence obtained as a
result of this illegal stop and seizure be suppressed
pursuant to the "fruit of the poisonous tree
doctrine." (Id. at 7, citing Wong Sun v.
United States, 371 U.S. 471 (1963)).
first argues that the affidavit of probable cause did not
sufficiently establish the reliability of the confidential
informant who tipped off law enforcement that drug sales were
being conducted from Defendant's apartment, and that the
only indication of the informant's reliability provided
in the affidavit was the statement that he was a "past
proven reliable confidential informant." (D.I. 26, at
p.2). Defendant argues that an affidavit "must recite
facts, not mere conclusory assertions of the officer, which
demonstrate the credibility of the informant."
(Id., quoting United States v. Bush, 647
F.2d 357, 362 (3d Cir. 1981). Defendant states
that there is no such factual representation here, and
nothing in the affidavit describing why the officers
considered the informant to be reliable, such as how many
times the affiant and the informant have worked together,
over what time period the affiant has worked with the
informant, and how many times the informant has completed a
purchase for the affiant, and whether any of the
informant's assistance has ever led to a conviction of
another person. (D.I. 28 at pp. 2-3).
Defendant argues that the alleged surveillance of
Defendant's apartment was not sufficiently detailed in
the probable cause affidavit. (D.I. 26 at p. 3). Defendant
notes that there was no information provided with respect to
the details of the "surveillance" allegedly
conducted at Defendant's residence after receiving the
informant's tip. (Id.). The affidavit "does
not detail when the surveillance was conducted - over what
period of time the surveillance took place, over how many
days, or even the date and time such surveillance was made in
relation to the date of the tip or the date of the alleged
buy." (Id. at 3-4). Defendant argues further
that "the search warrant affidavit not only lacks
specificity with respect to exactly what activity was
observed, by whom it was observed, and when it was observed,
it provides no information tying the individuals allegedly
seen entering the building to Apartment 3 in order to buy
drugs, as suggested in the probable cause affidavit."
(Id. at 4).
in addition to lacking information regarding the confidential
informant's reliability, Defendant additionally argues
that there is "a lack of any details from the informant
concerning the controlled buy." (Id.). Among
the details lacking, Defendant argues, is that "there is
nothing in the affidavit to indicate how much buy money [the
informant] was given, and how much marijuana he bought with
the buy money." (Id. at 4-5). Defendant also
notes that the affidavit "contains no information that
the confidential informant saw quantities of marijuana or
packing materials, or scales, or anything to corroborate that
drugs were regularly being distributed from the
apartment." (Id. at 5). Defendant argues that
these details were necessary to establish probable cause to
support a valid warrant, and yet they were not provided.
Defendant argues that the affidavit "is not sufficiently
clear as to whether the date of the alleged buy was fresh
information or arguably stale, five-day-old
information." (Id.). The affidavit only
specifies "the third week of March 2016" as the
date of the controlled buy. (D.I. 29 at 15). Along with
lacking specificity regarding the date of the controlled buy,
Defendant also contends that the affidavit "does not
include any representations that the confidential informant
observed any evidence which would indicate drugs were
regularly being sold from the unit." (D.I. 26 at 5).
Since the affidavit did not contain these material facts,
Defendant argues that "the affidavit did not
sufficiently establish that drugs would be found in the
apartment days after the alleged controlled buy took
place." (Id.). Defendant cites United
States v. Hython, AA3 F.3d 480 (6th Cir.
2006), as supportive of the claim of staleness. In
Hython, a warrant was found to be void for staleness
"because neither the affidavit nor the search warrant
specified the date on which the transaction at the
defendant's house took place." (Id. at
response, the Government argues that the issuing judge had a
substantial basis to find that there was probable cause to
search Defendant's residence for drugs and related
evidence. (D.I. 29 at 1). This is based on the officers
corroborating information from a "past-proven and
reliable" informant that Defendant was selling drugs
from his residence by making a controlled purchase of
marijuana from Defendant, who is a felon with prior drug and
firearms convictions, as well as by conducting surveillance
that further corroborated ongoing drug activity
(Id.). In addition, the Government contends that the
Detectives executed the search warrant in good faith, and
that the affidavit was not so lacking in indicia of probable
cause as to render the officers' belief in its existence
unreasonable. (Id.). For these reasons, the
Government argues that Defendant cannot show that the
officers culpably violated his Fourth Amendment rights, and
that Defendant's Motion to Suppress should be denied.
Government first argues that the affidavit contained facts
providing the issuing judge with a "substantial basis to
believe that evidence of drug dealing would be found inside
the Defendant's residence." (D.I. 29 at 4). The
"duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that
probable cause existed." Illinois v. Gates, 462
U.S. 213, 214 (1983). The Government contends that the
information received from a previously-utilized informant
that drug sales were occurring in Defendant's residence
was corroborated when the informant completed the controlled
purchase of marijuana from Defendant's residence and
identified Defendant as the person who sold him the
marijuana. (D.I. 29 at 4). The Government argues further that
other information provided in the affidavit, including the
surveillance information indicating drug activity at
Defendant's residence and Defendant's criminal
history, further corroborate the informant's information.
(Id. at 4-5, citing Exhibit "A, " p.4).
According to the Government, the "totality of the
investigation" established a "substantial
likelihood that Defendant had been selling drugs out of his
apartment for at least a month, " since the confidential
informant first described the alleged activity in early
February. (D.I. 29 at 5).
the Government argues that Defendant's "attempt to
segregate the affidavit into compartmentalized portions is
contrary to the totality of the circumstances mandated by the
Supreme Court." (Id.). In support, the
Government cites United States v. Arvizu, 534 U.S.
266, 274 (2002), holding that "evaluating] and
reject[ing] ... factors in isolation from one another does
not take into account the 'totality of the
circumstances.'" The Government replies to
Defendant's assertion that the background of the
informant was not sufficiently detailed, arguing that
"there is no requirement that the past use of an
informant by law enforcement be discussed in an
affidavit." (D.I. 29 at 5). This is supported by
United States v. McKinney's holding that
"controlled buys add great weight to an informant's
tip." 143 F.3d 325, 329 (7th Cir. 1998). The
Government also contends that there is no requirement that an
affidavit specify the amount of marijuana purchased, "so
long as . . . common formalities are observed to a
substantial degree." United States v. Nelson,
350 F.3d 1201, 1214 (10th Cir. 2006). These
search[ing] the informant for money and contraband prior to
the buy; giv[ing] the informant money with which to purchase
the narcotics, transporting] the informant to the suspect
residence, disappearing] while inside the suspect residence,
and emerg[ing] from the suspect residence; search[ing] the
informant upon exiting the suspect residence, and receiv[ing]
the narcotics from the informant.
the Government contests Defendant's claim that the
warrant was stale. (D.I. 26 at 5). The warrant states that
the controlled purchase occurred during the "third week
of March, " meaning the earliest the controlled purchase
could have occurred was March 13, 2016. (D.I. 29 at 6).
Though "third week of March" is somewhat ambiguous,
the common understanding is that a week begins on either
Sunday or Monday. The Government is thus correct that Sunday,
March 13, 2016 is the earliest date that could be considered
within the third week of March. The 7 Days of the
Week, https://www.timeanddate.com/calendar/days/. The
Government contends a search warrant "executed at most
five days after the last control[led] purchase of drugs is
not stale." (D.I. 29 at 6). In support, the Government
references United States v. Caple, 403 F.App'x
656, 659 (3rd Cir. 2010), which held that
information in an affidavit was not stale when the "last
controlled transaction took place only weeks before the
warrant was issued."
should consider the "totality of the circumstances"
in evaluating whether a warrant authorizing a search and
seizure is constitutionally valid. Gates, 462 U.S.
at 266. Here, the Justice of the Peace relied on information
received by officers from a previously-utilized informant
that drug sales were occurring inside the Defendant's
residence. (D.I. 29, Exhibit "A, " p. 4,
¶¶ 1-2). The information was corroborated a month
later when the informant completed a controlled purchase of
marijuana from Defendant's residence, and identified
Defendant as the individual who sold him the marijuana.
(Id. at ¶ 5). The surveillance observation
indicating drug activity at Defendant's apartment
building further corroborated the information provided by the
informant. (Id. at ¶4). In determining whether
probable cause exists, the issuing judge is asked
"simply to make a practical, common sense decision
whether, given the facts before him, . .. there is a fair
probability that contraband or evidence of a crime will be
found in a particular place." Gates, 462 U.S.
at 214. The duty of the reviewing court is "simply to
ensure that the magistrate had a substantial basis for
concluding that probable cause existed." (Id.).
The tip from the informant, ...