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Aiken v. State

Supreme Court of Delaware

October 23, 2017

RICHARD AIKEN, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: September 13, 2017

         Court Below: Superior Court of the State of Delaware ID. Nos. 1507013356A 1507021054A

          Before STRINE, Chief Justice; VALIHURA, and VAUGHN, Justices.

          ORDER

          James T. Vaughn, Jr. Justice

         On this 23rd day of October 2017, upon consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         1. Appellant, Richard Aiken, appeals from a Superior Court jury verdict finding him guilty of two counts of Burglary Second Degree, two counts of Felony Theft, two counts of Criminal Mischief, one count of Conspiracy Second Degree, and one count of Tampering With a Witness. He makes two claims on appeal. He contends that: (1) the trial court abused its discretion by failing to suppress all evidence collected by probation officers, which, he alleges, was collected in violation of Probation and Parole Procedures; and (2) the trial court erred by admitting a photo of a small canvas-colored bag and jewelry into evidence because no one authenticated that a Masonic ring pictured next to the bag had actually been in the bag or taken from Aiken.

         2. On July 16, 2015, Dwayne Karr failed to report to his probation officer, Kevin Cooper. That same day, Richard Aiken also failed to report to his probation officer, George Hopkins. Aiken had failed to report to his probation officer for approximately one month before that date. Upon learning that Karr and Aiken had also missed Crest Aftercare[1] appointments, Officers Hopkins and Cooper spoke with a Crest Aftercare counselor. The officers learned that Karr and Aiken had been riding to the appointments together and that Karr may know Aiken's whereabouts. The officers informed David Johnson, Officer Cooper's supervisor, that they were going to Karr's residence to investigate why Karr was not at Aftercare, to ascertain the location of Aiken, and to determine what medications Karr was taking.

         3. The officers went to Karr's residence, a small camping trailer behind his aunt's house, to conduct their home visit. During previous visits, Officer Cooper would knock on Karr's door and identify himself, and Karr would then yell for Officer Cooper to come in, as Karr "is a very large man that really has trouble moving, walking around."[2] This time was no different, and when Officer Cooper knocked, Karr told him to come in.

         4. As the officers entered the camper, they noticed a person to their left entering the bathroom of the camper, and "fumbling with something."[3] Officer Cooper recognized the person as Richard Aiken. He arrested Aiken for absconding from probation by failing to report to his probation officer and placed him in handcuffs. During Officer Cooper's pat down of Aiken, he discovered paper baggies, which he recognized as those commonly used to store heroin. The bags had a "powdery residue on them, " which the officers assumed was heroin.[4] The officers also found a small canvas-colored bag in Aiken's pocket that contained some "loose jewelry and gold items."[5] Officer Hopkins testified that Aiken told the officers that the jewelry was stolen and given to him by Johnny Smith, who at the time was wanted for burglary. Later, however, at a suppression hearing, Aiken denied that he admitted to the officers that the jewelry was stolen. Officer Hopkins placed the canvas-colored bag on one end of the couch in the camper while Aiken was sitting on the opposite end. When the officers looked away, Aiken attempted to stuff the bag into the couch. The officers recovered the bag from under the couch.

          5. The officers sought and received permission from their supervisor to do an administrative search. They also called for backup. Probation officer Jason Glenn arrived to assist Officers Cooper and Hopkins in their search. Officer Glenn located a black backpack in the middle of the camper's common living area. The backpack contained jewelry and a note the State believed was written to Aiken from his girlfriend, Kylee Davis. Among the jewelry was a firefighter's watch and class rings. Officer Glenn decided that the jewelry he found was outside of the scope of the search as approved. He then contacted Detective McCabe of the Delaware State Police property unit and requested that he respond to the residence. After speaking with Officer Glenn about the watch and some of the other jewelry, Detective McCabe realized that the watch and some of the other jewelry matched descriptions of stolen jewelry from several recent burglaries that he was investigating. Detective McCabe then acquired a search warrant for the camper.

         6. Aiken was charged with seven counts of Burglary in the Second Degree, five counts of Theft of $1, 500 or Greater, two counts of Theft of a Firearm, six counts of Criminal Mischief Less Than $1, 000, two counts of Theft Less Than $1, 500, two counts of Possession of Burglar Tools, one count of Conspiracy in the Second Degree, two counts of Possession of Drug Paraphernalia, and one count of Tampering with a Witness. Aiken moved to suppress the evidence seized on the night of his arrest. Following an evidentiary hearing, the Superior Court denied

          Aiken's motion. One count of Burglary Second Degree, two counts of Possession of a Firearm by a Person Prohibited, one count of Possession of Burglar Tools, one count of Theft of a Senior, and one count of Criminal Mischief Less Than $1, 000 were severed. The remaining charges proceeded to trial.

         7. At trial the Superior Court granted a motion for judgment of acquittal on one count of Burglary Second Degree, one count of Theft of $1, 500 or Greater, two counts of Theft of a Firearm, one count of Criminal Mischief Less Than $1, 000, and two counts of Possession of Burglar Tools. The State entered a nolle prosequi on one count of Burglary Second Degree, one count of Theft Less Than $1, 500, one count of Criminal Mischief Less Than $1, 000, and two counts of Possession of Drug Paraphernalia. The jury found Aiken guilty of two counts of Burglary Second Degree, two counts of Criminal Mischief Less Than $1, 000, five counts of Theft of $1, 500 or Greater, one count of Conspiracy Second Degree, and Tampering with a Witness. Aiken filed a post-trial motion for judgment of acquittal or a new trial. The Superior Court granted the motion with respect to three of the theft charges and denied the motion as to the remaining charges, which all stemmed from the burglaries of two residences. This appeal followed.

         8. Aiken first contends that the Superior Court abused its discretion by failing to suppress all evidence collected during the search of the camper. "We review a Superior Court judge's denial of a motion to suppress after an evidentiary hearing for abuse of discretion."[6] "Where it is alleged that the Superior Court erred in formulating and applying the law to undisputed facts, we exercise de novo review."[7]Claims made for the first time on appeal are reviewed for plain error.[8] "When ruling upon a motion to suppress evidence, a court must engage in a two-prong inquiry."[9]The first step of the inquiry is determining whether the movant has standing to contest the search or seizure.[10] If the movant has standing, the court moves on to the second step of the inquiry, assessing "the validity of the police conduct."[11] If the movant does not have standing, "the inquiry ends, and the evidence will not be suppressed."[12] To have standing to contest a search or seizure, the movant must have had a "legitimate expectation of privacy in the invaded place."[13] A movant may have a legitimate subjective expectation of privacy so long as society recognizes that expectation as reasonable.[14] Overnight guests have a legitimate expectation of privacy.[15]

         9. Although Aiken does not expressly attack the search of his person, we note that such search was lawful because it was made incident to his arrest for violating the terms of his probation. Probable cause existed that he had violated his probation by failing to report to his probation officer when required.

         10. Aiken claims that the search of the camper which revealed the black backpack was unlawful because the officers did not follow proper Probation and Parole Procedures. The Superior Court found that Aiken did not have standing to challenge the search of the camper and that even if he did the probation officers substantially complied with the requirements of an administrative search. Here, the trial court did not abuse its discretion when it found that Aiken did not have standing to contest the search, nor did the trial court err when it found that even if Aiken did have standing, the probation officers substantially complied with department guidelines.

         11. During the suppression hearing Aiken argued that he had standing to contest the search of the camper because he was an overnight guest. He presented virtually no evidence, however, to show that he was an overnight guest in Karr's camper. The only mention that Aiken was an overnight guest was during an exchange between the court and Aiken's trial counsel:

The Court: Is the defendant going to claim that he spent time overnight there, that he lived there, that he was a guest there? What's he going to claim?
Ms. Dunkle: He was a guest at the residence.
The Court: And not an overnight guest, just a guest at that time of the day?
Ms. Dunkle: One moment, Your Honor. Mr. Aiken is claiming that he was an overnight guest at the residence.
The Court: The night preceding the search?
Ms. Dunkle: Either that or he was staying there for the subsequent night.
The Court: All right. Let's call your first witness.[16]

         No other evidence was presented that would support Aiken's claim that he was an overnight guest. Accordingly, it was not an abuse of discretion for the trial court to find that Aiken was not an overnight guest, did not have a legitimate expectation of privacy, and therefore did not have standing to contest the legitimacy of the search of Karr's camper.

         12. Aiken also contends for the first time on appeal that Karr's camping trailer was a vehicle, and that Aiken should have standing to challenge the search as a "vehicle search." Because the argument that Karr's camper was a vehicle was not fairly presented to the trial court, it is reviewed for plain error.[17] "Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."[18] "[T]he doctrine of plain error is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice."[19] There is no plain error. There is ample evidence that the camper was not a vehicle. Even if it was, Aiken still lacks standing to object to the search of the camper.

         13. In support of his vehicle search theory, Aiken cites Jarvis v. State, where the defendant was a passenger in a car that was pulled over by police on a suspicion that the occupants possessed illegal drugs.[20] A search of one of the occupants, not Jarvis, revealed that the occupant did possess illegal drugs.[21] All occupants, including Jarvis, were then arrested. Jarvis was subsequently searched and drugs were found on her person.[22] The court reasoned that she had standing to challenge the circumstances of her own seizure and the items seized from her person, but stated that she did not have standing to object to the stop of the car.[23] The court stated that because Jarvis did not own the vehicle and did not exercise control over it, she had no reasonable expectation of privacy in the vehicle.[24] Accordingly, even if Aiken were considered a passenger in a "vehicle, " the Jarvis case he relies on actually supports the proposition that Aiken did not have a reasonable expectation of privacy to object to the search of the camper because there is no evidence in the record that he owned it or exercised control over it.

         14. Aiken also contends that the search of Karr's camper was unreasonable because Officers Cooper and Hopkins did not substantially comply with departmental regulations. Specifically, Aiken contends that the probation officers violated Probation and Parole Procedure as follows: 1) by not completing a paper copy of the Department's Pre-Search Checklist; 2) by not using an Arrest Checklist when deciding to arrest Aiken; 3) by incorrectly filling out an Arrest/Search Checklist; and 4) by filling out an Arrest/Incident Report over two weeks late. Although Aiken does not have standing to contest the ...


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