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State v. Dunning

Superior Court of Delaware

January 2, 2019


          Submitted: December 21, 2018

          In and For Kent County


          Noel Eason Primos Judge.

         Upon Defendant's Motion to Suppress DENIED

         On this the 2nd day of January, 2019, having considered Defendant Pamela Dunning's (hereinafter "Ms. Dunning") Motion to Suppress and the State's response, as well as the arguments presented at the hearing held on December 21, 2018, the Court finds that there was a substantial basis for the magistrate to determine that the warrant issued in this case was supported by probable cause to search Room 103 of the Best Western Hotel located at 190 Stadium Street in Smyrna, Delaware (hereinafter the "Hotel Room"), and the motion to suppress is DENIED.

         The allegations of the affidavit of probable cause attached to the search warrant (hereinafter the "Affidavit") are, in summary, as follows:

         I. Factual Background

         On June 4, 2018, Detective William Davis of the Smyrna Police Department (hereinafter the "Affiant") was contacted by Sergeant Dill of the Delaware State Police Kent County Drug Unit regarding a tip he had received about a large quantity of heroin within the Town of Smyrna city limits. Sergeant Dill then referred the Affiant to Trooper Hamilton of the Delaware State Police.

         Trooper Hamilton informed the Affiant that he had a subject in custody for traffic charges along with an outstanding capias (hereinafter the "Informant"). Trooper Hamilton had contacted the Informant as he was placing an order for heroin on his cell phone. Trooper Hamilton advised the Affiant that a female subject had been texting the Informant regarding the sale of heroin. The Informant had told Trooper Hamilton that the female was Pamela Dunning and that Ms. Dunning was staying in Room 103 at the Best Western in Smyrna, Delaware (hereinafter the "Hotel Room"). The phone number that was the source of the texting was confirmed, through the Law Enforcement Database, to be that of Ms. Dunning.

         The Informant had disclosed to Trooper Hamilton that he had purchased heroin from Ms. Dunning at 11:00 p.m. the night before in the Hotel Room and that Ms. Dunning had just "re-up'ed her supply." Moreover, the Informant had stated that the heroin was kept in a box under Ms. Dunning's bed in the Hotel Room.

         Town of Smyrna detectives responded to the Best Western hotel and confirmed that Ms. Dunning was, indeed, staying in the Hotel Room through June 5, 2018. They also observed Ms. Dunning outside the Hotel Room, sitting in a vehicle registered to her, smoking a cigarette.

         Based upon the above information, the Affiant applied for a search warrant of the Hotel Room.[1] A search warrant was issued and illegal contraband was obtained from the Hotel Room by law enforcement, including heroin and drug paraphernalia. Ms. Dunning also gave a statement to law enforcement after the contraband was discovered.

         Ms. Dunning now seeks suppression of all items that were seized from the Hotel Room, as well as her statement, arguing that the search warrant fails to show that an independent police investigation had corroborated the Informant's tip. Ms. Dunning argues that the contraband found, as well as her statement to the police, must be suppressed as fruit of the poisonous tree.

         The State responds that the warrant was supported by probable cause to believe that evidence of illegal activity would be found in the Hotel Room. The State argues that the warrant establishes not only the identity and location of Ms. Dunning and the contraband, but also that Ms. Dunning was involved in criminal activity.

         II. Legal Standard

         In a suppression hearing, the Court sits as the finder of fact and evaluates the credibility of the witnesses.[2] The party with whom the burden rests must persuade the Court by a preponderance of the evidence.[3] Because this was a search and seizure pursuant to warrant, the defense bears the burden.[4]

         Search warrants may only be issued upon a showing of probable cause.[5]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."[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] Moreover, 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.'"[8]

         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."[9] 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."[10] 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.[11] Thus, as a preliminary matter, it is worth noting that the knowledge of the other investigating officers, including Trooper Hamilton and Sergeant Dill, is imputed to the Affiant.[12]

         III. Discussion

         Ms. Dunning's main contention surrounds the legal sufficiency of the Informant's tip to support the issuance of a search warrant in this case. Ms. Dunning argues that the Affidavit only sets forth facts that tend to corroborate identity and location and that are lacking in specificity. Moreover, Ms. Dunning argues that the search warrant fails to show that an independent police investigation corroborated the Informant's tip regarding the alleged illegal activity.

         In support of this argument, Ms. Dunning cites to LeGrande v. State, [13]where the Delaware Supreme Court held that a search warrant failed to establish probable cause because the affidavit merely set forth facts that tended to corroborate identity and location. In LeGrande, the Court held that".. .the police only corroborated the accused's identity, the location of his locked apartment, his probationary status, and that his neighbor was wanted. Confirmations of these facts, which could be used to identify LeGrande, '[did] not show that the tipster [had] knowledge of concealed criminal activity.'"[14] The Court went on to state that because there was no independent corroboration by the police about the anonymous tip, the totality of the circumstances did not provide a substantial basis for the warrant.[15]

         The Court deems the LeGrande decision distinguishable from the case at hand. Unlike the tip in LeGrande, the Informant's tip in this case involved detailed evidence of drug activity, and demonstrated that the Informant had particularized knowledge about concealed criminal activity on the part of Ms. Dunning and of the specific location where the alleged illegal activity was taking place.[16] This weighs in favor of his reliability. More importantly, the Court holds that an independent police investigation ~ including contacting the Informant while he was placing an order with Ms. Dunning for heroin, confirming that Ms. Dunning was the source of the communication, and observing Ms. Dunning outside of her hotel room ~ sufficiently corroborated the Informant's tip. Thus, the totality of the circumstances contained ...

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