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State v. Morris

Superior Court of Delaware

December 19, 2017


          Submitted: November 29, 2017

         In and for Kent County

         Upon Defendant's Motion to Suppress DENIED

          Dennis Kelleher, Esquire, Department of Justice, Dover, Delaware for the State of Delaware.

          Alexander W. Funk, Esquire, Curley, Dodge and Funk, Dover, Delaware for Defendant.


          Noel Eason Primos Judge.

         Before the Court is the motion to suppress filed by Defendant Rodney Morris (hereinafter "Defendant"), challenging the search of his home located at 322 Cecil Street (hereinafter the "Residence") pursuant to warrant. The Court has considered this motion and the State's responses, as well as oral arguments by counsel on November 29, 2017, and for the reasons set forth below, Defendant's motion is DENIED.


         The relevant facts are taken from the affidavit of probable cause attached to the search warrant (hereinafter the "Warrant"). The affiants are Officer Joshua Boesenberg and Detective Jordan Miller of the Dover Police Department.

         In December of 2016, Private First Class James Johnson of the Dover Police Department (hereinafter "Officer Johnson") was contacted by a past proven reliable confidential informant (hereinafter the "CI"). The CI informed Officer Johnson that Defendant, whom the CI knew by the alias "Dreds, " was selling crack cocaine from his bicycle in Dover, Delaware, and was currently living in the area of Cecil Street.

         On June 20, 2017, Officers Johnson and Barrett observed Defendant leave the Residence on a bicycle. The officers followed him and saw him participate in a hand to hand transaction with a man later identified as Mahdi Wilson (hereinafter "Mr. Wilson") on Mary Street in Dover, Delaware. Surveillance of Defendant by law enforcement showed that Defendant returned to the Residence shortly after the hand to hand transaction. Mr. Wilson left the scene of the transaction in a Kia minivan and was tailed by the officers, who pulled him over for a traffic stop. When stopped, Mr. Wilson fled. He was pursued, taken into custody, and found in possession of crack cocaine.

         In his motion to suppress, Defendant argues that the allegations recited in the warrant affidavit are insufficient to constitute probable cause because the affidavit contains "(1) stale, outdated and irrelevant information provided by a 'confidential source, ' that is not probative of evidence of criminal activity being found at [Defendant's] residence; and (2) conclusory hearsay allegations of purported criminal activity that occurred wholly outside of the residence and are not probative of evidence of illegal activity being found in [Defendant's] residence."[1]


         On a motion to suppress challenging the validity of a search warrant, the defendant bears the burden of establishing that the challenged search or seizure was unlawful.[2] A search warrant may not issue unless there is a showing of a factual basis for probable cause within the "four corners" of the affidavit that was submitted to the magistrate in the officer's application for the warrant.[3]

         When considering the affidavit, the magistrate is to make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."[4] For a warrant to evidence probable cause to search a home, "a nexus between the items to be sought and the place to be searched" must be established.[5] Put another way, law enforcement must also have "probable cause to believe that evidence of such crime can be found at the residence.''''[6]

         A magistrate's determination of probable cause "should be paid great deference by reviewing courts" and should not "take the form of a de novo review."[7]Nonetheless, the highest courts of both the United States and Delaware have instructed that the people's privacy interests in their homes are afforded special protection, [8] and this Court may not permit the requirement that the affidavit show an adequate fact-based connection between illegal activity and an arrestee's home to go unenforced.[9] However, in considering "whether the warrant application presented the issuing magistrate with a 'substantial basis' to conclude that probable cause existed, " this Court "eschews 'a hypertechnical approach to the evaluation of the search warrant affidavit in favor of a common-sense interpretation.'"[10]


         Defendant relies upon four primary grounds to attack the validity of the Warrant: (1) the affidavit's reliance upon hearsay information rather than the personal observations of the affiants; (2) the affidavit's reliance upon allegedly stale and irrelevant information from the CI; (3) the affidavit's alleged failure to show the presence of criminal activity based upon an observed hand-to-hand transaction, Mr. Wilson's subsequent flight from law enforcement, and the discovery of crack cocaine on Mr. Wilson's person; and (4) the alleged absence from the affidavit of any nexus between the alleged criminal activity and the Residence. The Court, after considering each of these arguments in turn, has concluded that the affidavit does establish probable cause justifying the issuance of the search warrant.

         A. Affidavit's Reliance Upon Hearsay

         Defendant argues that the affidavit in support of probable cause is deficient because it relies solely upon hearsay observations of the alleged criminal activity and its connections to the residence. In fact, no direct observations reported in the affidavit were made by the affiants. This, however, does not automatically invalidate the Warrant.

         An affidavit relying on hearsay "is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented."[11] In warrant contexts, probable cause may be "founded on hearsay information provided to the affiant by other officers .... [A]n officer-informant relaying the information to the affiant will be considered a reliable source for the information needed to determine probable cause."[12] The United States Supreme Court has similarly held that hearsay observations of a warrant applicant's qualified fellow officers are "plainly a reliable basis" on which a magistrate may rely in determining probable cause.[13]

         The United States Court of Appeals for the Eighth Circuit, in Gallagher v. United States, considered whether an affidavit composed entirely of hearsay is deficient, and reached its conclusion for reasons this Court finds persuasive:

At this point in the development of jurisprudence interpreting the Fourth Amendment, a claim that a search warrant is invalid because it is based entirely on hearsay is frivolous .... Particularly is this true in the now complex field of criminal investigation . . . . . Unless authorities do act quickly upon an evaluation of reports received by them, the fruits of the crime and the trail of the offenders could easily be irretrievably lost.[14]

         The collective knowledge doctrine also suggests that the personal knowledge of the affiant is irrelevant when the source of the hearsay was another officer. Pursuant to this doctrine, the knowledge of other investigating officers is imputed to the affiant.[15] The Supreme Court of Delaware indicated in State v. Cooley that when officers have been in communication with one another, "the collective knowledge of an entire organization may be imputed to an individual officer."[16] Similarly, the United States Court of Appeals for the Third Circuit, along with other jurisdictions, has indicated that probable cause is to be evaluated on the basis of the collective information of the police.[17] While the collective knowledge doctrine only applies when the officers have been in communication, the Court can infer communication in this case between the hearsay declarant officers and the affiants, as the declarant officers' specific observations are contained in the affidavit prepared by the affiants.

         In arguing that the affidavit's reliance upon hearsay renders the Warrant invalid, Defendant cites to three Delaware decisions, none of which were decided in the context of a search warrant, and all of which involved warrantless arrests: Garner v. State, [18] State v. Holmes, [19] and State v. Hopkins.[20]

         In Garner, police were investigating a robbery where the suspect was a masked robber. An officer received "a tip from an unidentified informant that the defendant was the masked robber." The tip provided information about the defendant's whereabouts and allowed officers to apprehend the defendant.[21] "At trial, the arresting officer testified to the above facts and the informant's known reliability, but refused to testify as to what facts were related to him by the informant which would support the allegation that [the defendant] was the robber."[22] The Garner court found that this uncorroborated testimony was insufficient to demonstrate probable cause to arrest the defendant.

         In Holmes, a defendant was arrested during a traffic stop, and the defendant moved to suppress evidence discovered after a search of his vehicle.[23] The officer testifying at the suppression hearing had limited knowledge of what had happened at the traffic stop. When pressed for details as to what the officers conducting the stop had done and said, the testifying officer "was not familiar with any of the arresting officers' reports and... the Court could not ascertain what the arresting officers said, how the occupants responded, or what those officers were thinking."[24] The Holmes court found that the testifying officer lacked material details regarding what had happened, and the Court was left only with "assumptions and conclusions."[25] The court determined that "under the circumstances of this case, [the State's] burden cannot be predicated entirely on hearsay."[26]

         In Hopkins, a defendant moved to suppress evidence discovered during the search of his person.[27] The State's only justification for the search was consent.[28] The testifying officer at the suppression hearing had not been present at the scene when the defendant had allegedly given consent.[29] The testifying officer informed the Court that he had been told only that the defendant had consented and did "not testify regarding how [the defendant] was asked to consent, the degree to which he initially cooperated with the police, or any other factor enabling the Court to determine whether [the defendant's] will was overborne, and that it was not the product of duress or coercion, express or implied."[30] The Hopkins court concluded that probable cause could not be established based on this testimony alone.[31]

         The facts in Garner are distinguishable from the instant case in three ways: first, Garner was analyzing a warrantless arrest; second the hearsay originated from an unidentified informant; and third, the proffered hearsay in Garner constituted mere conclusions rather than observations. Here, probable cause was found by a magistrate considering a warrant application, who requires a somewhat lesser quantum of evidence demonstrating reliability than does an officer making a warrantless search or arrest.[32] Second, the hearsay observations in this case were made by police officers, whose observations are "plainly reliable."[33] Third, and most critically, the affiants here reported the content of the hearsay observations, not merely conclusions based on those observations.

         Similarly, Defendant's reliance on the Holmes and Hopkins decisions is misplaced. In each, the testifying officer lacked key details as to the factual basis for probable cause, offering mere conclusions and assumptions. The holdings in those cases do not control cases like the one before this Court, where a warrant affiant provides substantial detail as to the observations of investigating officers and the factual bases for a finding of probable cause. Another key factor distinguishing these decisions, as noted above, is that they invalidated warrantless arrests rather than search warrants. As the Holmes court observed, one of the primary issues ...

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