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State v. Swiggett

Superior Court of Delaware

January 15, 2019

STATE OF DELAWARE,
v.
DARREN SWIGGETT, Defendant.

          Submitted: January 4, 2019

         Upon Defendant's Motion to Suppress. Denied.

          Gregory R. Babowal, Esquire of the Department of Justice, Dover, Delaware; attorney for the State.

          Adam D. Windett, Esquire of Hopkins & Windett, LLC, Dover, Delaware; attorney for the Defendant.

          ORDER

          HON. WILLIAM L. WITHAM, JR. RESIDENT JUDGE

         INTRODUCTION

         Defendant 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.

         After 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.

         FACTUAL AND PROCEDURAL HISTORY

         In the 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.

         At the 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.

         During 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.

         PO Mitchell then joined the officers in the residence, after she was let in by Collier.[1] 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.[2] 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.

         As 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;[3] and (4) the possibility that both were conspiring to possess and sell narcotics.[4] The administrative warrant was granted subsequent to the consultation and resulted in other drugs and drug paraphernalia being seized from the residence.[5] 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).

         On 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.

         DISCUSSION

         A. The Heroin was seized lawfully by PO Mitchell

         i. PO Mitchell participated in and conducted a Home Visit.

         As a 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[6] to search those areas that Swiggett had a reasonable expectation of privacy. Here, the Court disagrees.

         In 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 supervision conditions.[7]

         In Wallace v. State[8] 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...."[9]

         Swiggett 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.[10] However, despite Swiggett's assertions to the contrary, the Court finds that PO Mitchell did not conduct a search of Swiggett's balcony and ...


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