Submitted: January 4, 2019
Defendant's Motion to Suppress. Denied.
Gregory R. Babowal, Esquire of the Department of Justice,
Dover, Delaware; attorney for the State.
D. Windett, Esquire of Hopkins & Windett, LLC, Dover,
Delaware; attorney for the Defendant.
WILLIAM L. WITHAM, JR. RESIDENT JUDGE
Darren Swiggett ("Swiggett") moves this Court to
suppress evidence seized as the result of a home visit
conducted by members of the Delaware Department of Parole and
Probation ("Probation"). Swiggett claims the
evidence is subject to suppression because an unlawful,
warrantless search was conducted in areas which he had a
reasonable expectation of privacy and was performed without
articulable probable cause. Swiggett further claims the only
basis for the subsequent administrative search warrant was
the evidence discovered through the unlawful, warrantless
search, and as a result, all additional evidence seized is
tainted as "fruit of the poisonous tree."
Swiggett's final contention is that his bedroom should
not have been subjected to the administrative search because
he himself, was not subject to any criminal allegations at
the time of the administrative search.
considering the record, including testimony from the
State's key witness, the Court finds that evidence in
question was not seized as a result of an unlawful,
warrantless search, and consequently, any evidence collected
after the fact was not tainted as "fruit of the
poisonous tree." Thus, for the forthcoming reasons,
Swiggett's motion to suppress is DENIED.
AND PROCEDURAL HISTORY
early afternoon of June 6, 2018, Probation Officers
("PO") Stagg, Esbenshade, and Mitchell, arrived at
255 Webbs Lane, Apartment F-24 ("Residence") in
Dover, Delaware after conducting home visits with other
probationers. The purpose of the officers' presence at
the residence was to perform a home visit with Swiggett, a
Level 3 Delaware probationer.
beginning of the home visit, Officers Stagg and Esbenshade
were met at the door by Michael Collier
("Collier"), another Level 3 Probationer, who did
not reside at the residence. After being let into the
residence by Collier, Officers Stagg and Esbenshade then
began the home visit walk-through.
the initial moments of the home visit, PO Mitchell remained
outside the residence. As she waited for her colleagues, she
observed an individual (later identified as Collier) on a
second story balcony where she saw the individual discard an
unknown object into a trash can on the balcony. PO Mitchell,
thinking the activity was suspicious, inquired with and
confirmed with her fellow officers that the balcony was
connected to Swiggett's apartment.
Mitchell then joined the officers in the residence, after she
was let in by Collier. She first made her way through the living
room common area, and then to the next common area, the
balcony. Upon entering the balcony common area, she looked
down into an uncovered trash can, and observed a bundle on
top of the trash, wrapped in red newspaper with white plastic
baggies and blue wax paper sticking out of the
newspaper. Based on her training and experience, PO
Mitchell believed the bundle to be heroin. Swiggett and
Collier were secured while PO Mitchell, pursuant to
Department of Correction Procedure ("Procedure")
No. 7.19, requested permission from a supervisor to conduct
an administrative search of the residence.
grounds for the administrative search, PO Mitchell cited (1)
the discovery of heroin discarded by Collier; (2)
Swiggett's previous history of selling illegal drugs; (3)
her belief that both men were residing at 255 Webbs Lane Apt.
F-24; and (4) the possibility that both were
conspiring to possess and sell narcotics. The
administrative warrant was granted subsequent to the
consultation and resulted in other drugs and drug
paraphernalia being seized from the residence. Consequently,
Swiggett was charged with Drug Dealing in violation of 16
Del. C. § 4752(1); Aggravated Possession in violation of
16 Del. C. § 4753(3); Drug Dealing in violation of 16
Del. C. § 4754(1); Conspiracy Second Degree in violation
of 11 Del. C$512; Possession of Marijuana in violation of 16
Del. C. § 4764(b); and Possession of Drug Paraphernalia
in violation of 16 Del. C. § 4771(a).
November 29, 2018, Swiggett filed the instant motion to
suppress, seeking to suppress all drug evidence seized by law
enforcement during the administrative search and the State
filed its response in opposition on December 5, 2018. The
Court then heard oral arguments from both parties on January
4, 2019 and reserved its decision.
The Heroin was seized lawfully by PO Mitchell
PO Mitchell participated in and conducted a Home Visit.
preliminary matter, the Court must first determine if PO
Mitchell's actions constituted an unlawful, warrantless
search of the Defendant's balcony and trash can or if it
was part of an authorized home visit. Swiggett argues that PO
Mitchell's actions amounted to an unlawful, warrantless
search of the balcony and trash can, because there was no
search warrant, administrative warrant, or articulable
probable cause to search those areas that Swiggett had a
reasonable expectation of privacy. Here, the Court disagrees.
Delaware, probationer home visits are compliance checks of
the individual probationer, authorized by the Delaware
Department of Correction, Bureau of Community Corrections,
Probation and Parole Procedure ("Procedure") 7.3.
Procedure 7.3 derives its statutory authority from 11
Del. C. § 4321 and provides nine purposes for
home visits, two of which are to "observe the home
environment" and "monitor compliance" with
Wallace v. State the Delaware Supreme Court confirmed
the boundaries that probation officers must stay within when
conducting probationer home visits:
"[t]he home visit is a [w]alk-[t]hrough of the residence
and does not permit searching the residence; such
as, opening bureau drawers, kitchen cabinets, searching the
closets, et cetera without having some reasonable grounds as
listed in procedure 7.19...."
correctly states that as a probationer, he does not surrender
all privacy rights simply because he is a probationer and
that probation officers may only search him when they have a
reasonable grounds to do so. However, despite
Swiggett's assertions to the contrary, the Court finds
that PO Mitchell did not conduct a search of Swiggett's
balcony and ...