   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
             IN AND FOR NEW CASTLE COUNTY

      STATE OF DELAWARE,                )
                                        )
                   v.                   )       ID. No. 1404021032
                                        )
      RUSSELL S. MONROE,                )
                                        )
                   Defendant.           )


                                  ORDER

            On this 18th day of February, 2015, IT IS ORDERED as follows:

                  Defendant’s Motion to Suppress is DENIED.



Jenna R. Milecki, Esq., and Joseph Grubb, Esq., Deputy Attorney Generals,
Delaware Department of Justice, Wilmington, Delaware. Attorneys for State of
Delaware.


Andrew G. Ahern, III, Esq., 1701 Market Street, Wilmington, Delaware, 19899.
Attorney for Defendant.




Scott, J.
                                    1
                                 Introduction

      Before the Court is Defendant Russell Monroe’s (“Defendant”) Motion to

Suppress, brought by counsel. Defendant argues that there the probation officers

did not have reasonable grounds to conduct the administrative search. Defendant

also argues that the nighttime search warrant was defective because of its timing

and it was not supported by probable cause.   The Court has reviewed the parties’

submissions and held a suppression hearing.        For the following reasons, the

Defendant’s Motion to Suppress is DENIED.

                                Findings of Fact

      On April 28, 2014, Probation Officers Scaramazza and White went to

Defendant’s residence at 319 Cobble Creek Curve in Newark, Delaware, to

conduct a home visit. The purpose for the home visit on that occasion was to do a

walk-through of the residence to determine where Defendant was sleeping, in

addition to checking his GPS equipment. While Officer Scaramazza was knocking

on the front door of the residence, Officer White observed movement in the front

bedroom located on the second floor of the residence, and subsequently observed a

light go off in that room. There was approximately a five minute delay between

when the probation officers began knocking until Defendant answered the door.

      Once Defendant answered the door and the officers entered the residence,

the officers questioned Defendant about his delay in answering.        Defendant

initially indicated that he had been asleep on the couch in the living room. When
                                    2
the officers confronted Defendant regarding the movement Officer White had

observed on the second floor while they were knocking, Defendant then indicated

he was actually using the upstairs bathroom instead of sleeping on the couch. Upon

inspecting the living room, the officers observed piles of clothes, children’s toys

and what appeared to be garbage on the couch that Defendant said he was sleeping

on. The officers concluded that Defendant was not sleeping on that couch or in

that room, for purposes of the home visit. The officers were suspicious as to

whether Defendant had been in the room upstairs or if there was another person in

the residence. To resolve this conflict, the officers went upstairs to do a protective

sweep for officer safety.

      When the officers went upstairs, they found the door to the room in which

they had previously seen movement and the light on, closed and locked.

Defendant denied having been in the room prior to their arrival and indicated there

were no other persons in the home. Further, Defendant indicated that he did not

have a key to access the room. At this time, Defendant became aggressive and

combative with the officers so the officers placed Defendant in handcuffs an

escorted him downstairs.

      Officer White went back upstairs to complete the protective sweep for

officer safety and determine if any other individuals were in the residence. In

checking the second floor, Officer White pushed open the unsecured door to a

second bedroom, and was “hit in the face” by the odor of burnt marijuana. While
                                       3
clearing that room, Officer White observed a bong located on a dresser next to the

television, partially concealed by a gray bag.

      Furthermore, Defendant would not allow his probation officer to access

Defendant’s phone, which was a violation of his probation conditions that state that

Defendant is subject to a search of his living quarters and person at any time

without a warrant. In refusing to allow access to his phone, Defendant stated

“that’s a violation of probation, take me now.” This statement further raised both

officers’ suspicions because, based on their training and experience, they believed

Defendant wanted them out of the residence. At this time, Officer Scaramazza

contacted the Governor’s Task Force (“GTF”) to provide security and assist in the

home visit, relaying all of the officers’ observations and statements made by

Defendant to Probation Officer David Tuohey.

      While en route to the residence, Officer Tuohey contacted his supervisor,

Robert Willoughby, relaying the information learned from Officer Scaramazza,

including the observations of second floor before the officers entered the residence,

Defendant’s inconsistent statements, the locked bedroom, and the odor of

marijuana and observation of drug paraphernalia within the residence. Based on

that information, Officer Willoughby authorized the probation officers to conduct

an administrative search of Defendant’s residence. That information was also the

basis for Officer Willoughby authorizing entry into the locked bedroom on the

second floor.
                                       4
      Authorization to conduct an administrative search of the residence and to

access the locked second floor bedroom had been acquired upon GTF arrival.

Probation officers, along with Corporal Dudzinski of the Delaware State Police,

went upstairs to the locked bedroom, where Cpl. Dudzinski defeated the lock on

the door and entered the room along with Officer Tuohey to do a protective sweep

for officer safety. Upon entering the locked bedroom, officers observed in plain

view Defendant’s identification and social security cards, photographs of

Defendant, a letter written by Defendant for a modification of sentence, and a letter

addressed to “Mr. Bun,” which is a nickname of Defendant.

      During the administrative search of the locked bedroom small rubber bands

located under a mattress and several hundred dollars of United States currency

were found. A subsequent K-9 “sniff” of the currency alerted for the presence of

drugs. In the common areas of the residence, the following items were found: a

Lexus car key and parking ticket for a Lexus, which matched the white 2002 Lexus

300 located outside the residence. While conducting an exterior inspection of the

vehicle, the probation officers observed an open trap secret compartment in the

Lexus. The K-9 also conducted an exterior “walk-around” and alerted for the

presence of controlled substances in the vehicle.

      In the early hours of April 29, 2014, Cpl. Dudzinski referenced the above

items, discovered as a result of the administrative search by the probation officers,

in his affidavit as probable cause for the nighttime search warrant for residence at
                                      5
319 Cobble Creek Curve, Newark, Delaware and white Lexus 300. The nighttime

warrant was issued by the Justice of the Peace Court 11, and executed at

approximately 12:45AM by members of the GTF.           The Court finds that the

nighttime search warrant was properly granted and GTF officers notified prior to

the search being executed.

      Defendant was arrested and later indicted on charges of Aggravated

Possession, Drug Dealing, Possession of Ammunition by a Person Prohibited, and

Possession of Drug Paraphernalia.

                              Parties Contentions

      The Defendant seeks to have all evidence seized as a result of the

administrative and nighttime searches of his residence and vehicle suppressed on

the grounds that the administrative search and nighttime search warrant were

defective, and violated his Fourth Amendment rights.

      Defendant argues that authorization of the administrative search because

Officer Tuohey initiated a search beyond the scope allowed under and

administrative search and without supervisor approval, as required by Department

of Corrections procedure. Specifically, Defendant argues that the bong found in

the second bedroom by Officer Tuohey should be excluded from consideration

when evaluating whether there were reasonable grounds for the administrative

search because there was nothing to indicate that Defendant exercised control over

that room. In other words, without supervisor approval, Officer Tuohey was not
                                     6
permitted to search that room and the bong cannot properly be considered for

establishing reasonable grounds for the administrative search. Defendant asserts

that without considering the bong, the Court is left with minimal facts that could

reasonably support suspicion of unlawful activity: (1) Defendant was slow to

answer the door but he provided a reasonable explanation, and (2) the door to the

bedroom that was not his was locked and Defendant did not have a key. Approval

for the administrative search was given before the officers gained entry to the

locked bedroom. Therefore, nothing found inside the locked bedroom may be

considered for establishing reasonable grounds for the administrative search.

Finally, Defendant argues that the execution of the administrative search

substantially violated DOC Procedure 7.19 because there was no pre-approved

arrest/search checklist, and the officers completed their paperwork subsequent to

the search later than “one duty day” after the administrative search.

      Defendant also argues that the nighttime search warrant is defective because

it is not supported by probable cause. Specifically, the basis for probable cause

referenced in the nighttime search warrant is the illegally seized items from the

defective administrative search.     Because the items illegally seized from the

administrative search cannot be considered in the determination of probable cause

for the search warrant, the remaining grounds referenced in the affidavit are not

sufficient to show probable cause. Therefore, the nighttime search warrant was



                                      7
defective. Moreover, nighttime search warrants require a showing of exigent

circumstances, which Defendant argues were not shown in this case.

      The State argues that the administrative search of Defendant’s residence is

valid because it there were reasonable grounds for the probation officers to be

granted verbal authorization for a warrantless search.     There were reasonable

grounds for authorization of the administrative search based on: the drug

paraphernalia (i.e. the bong) in the second bedroom, the odor of marijuana coming

from the second bedroom, the officers’ observations on the second floor while

knocking, Defendant’s delay in answering the door and his inconsistent statements,

the locked bedroom, and Defendant’s refusal to allow the officers to look at his

phone.   Moreover, Officers Scaramazza and White’s additional knowledge of

Defendant regarding his prior convictions for drug distribution and weapons

charges, and their training and experience as to the activity of an offender

indicating the offender might possess contraband, the sudden change in

Defendant’s demeanor when brought upstairs, and Defendant’s statement to “just

take [him] now” were additional considerations for evaluating reasonable grounds

for authorizing the administrative search.

      The State also contends that the administrative search was not defective

because it substantially complied with DOC Probation and Parole guidelines. As

stated above, there were reasonable grounds to justify the verbal authorization of a

warrantless administrative search, and therefore an arrest/search checklist was not
                                      8
necessary. Further, the officers substantially complied with DOC guidelines in

completing their reports subsequent to the administrative search. Therefore, the

administrative search was properly executed and supported by reasonable grounds.

          The State contends that the nighttime search warrant is valid because it is

supported by probable cause and the items seized as a result of the administrative

search are properly considered. Moreover, exigent circumstances to justify the

need for a nighttime search were shown by the affidavit’s reference to the officer’s

training and experience in paragraph 18 and specifically, the officers’ observations

of the individual who, upon his arrival at the residence, made several phone calls in

the presence of DSP officers informing other individuals of the police presence at

319 Cobble Creek Curve. Therefore, the affidavit articulated sufficient probable

cause and the exigency of preventing the removal or destruction of potentially

incriminating evidence from that location.

                                            Discussion

      I. Administrative Search

          Probationers do not enjoy the same liberties as ordinary citizens.1 However,

they do not surrender all of their privacy rights, and searches can only be

conducted by probation officers when they have a reasonable basis to do so. 2

Restrictions on warrantless searches are relaxed due to the State’s special interest


1
    Sierra v. State, 958 A.2d 825, 827 (Del. 2008).
2
    Id. at 832.
                                              9
and the supervisory nature of probation. 3            Delaware case law provides that

warrantless searches of a probationer’s residence are valid when the search is

prompted by the probation officer’s reasonable suspicion and is conducted in

accordance with Department of Corrections (“DOC”) procedure. 4

       Probation and Parole Procedure Section 7.19 5 of the DOC regulations

provides the procedure and considerations for an officer to follow for a warrantless

search of a probationer.        Absent exigent circumstances, the officer and his

supervisor must hold a case conference using a search checklist as a guideline.

Section 7.19 provides the factors to be considered when deciding whether to

search:

       (1) Knowledge or sufficient reason to believe the offender possesses
       contraband.
       (2) Knowledge or sufficient reason to believe the offender is in
       violation of probation or parole.
       (3) Information from a reliable informant, indicating offender
       possesses contraband or is violating the law.
       (4) Information from the informant is corroborated.
       (5) Approval for the search had been obtained from a Supervisor.

Knowledge and reason to believe must be personal to the officer. 6


3
  Griffin v. Wisconsin, 483 U.S. 868, 874 (1987).
4
  State v. Reese, 2010 WL 3707793, at *2 (Del. Super.); State v. Watson, 2009 WL 1228569, at
*4 (Del. Super.).
5
  The legislative authority behind the Department’s regulations is 11 Del. C. 4321(d), which
states, in part:
         Probation and parole officers shall exercise the same powers as constables under
         the laws of this State and may conduct searches of individuals under probation
         and parole supervision in accordance with Department procedures while in the
         performance of the lawful duties of their employment . . . .
6
  Id.
                                          10
       The Delaware Supreme Court has held that officers are not required to

follow each of the technical requirements under the Department regulations.7 A

warrantless administrative search of a probationer’s residence is justified if the

search “comported with the state regulation requiring that probationers be searched

only for reasonable grounds.”8 Therefore, the officers must have “reasonable

suspicion” or “reasonable grounds” for the search.9 “Reasonable suspicion exists

where the totality of the circumstances indicates that the officer had a

particularized and objective basis for suspecting legal wrongdoing.”10                        In

Pendleton v. State,11 the Delaware Supreme Court reiterated that Delaware

precedent only requires substantial compliance with the department regulations and

upheld a search when the Officer phoned his supervisor and they orally analyzed

the information gathered, despite the checklist not physically being filled out. In

other words, so long as the probation officers substantially comply with DOC

regulations and have reasonable suspicion to search a probationer’s dwelling, the

search will be valid. 12


7
  Fuller v. State, 844 A.2d 290, 292 (Del. 2004).
8
  Fuller v. State, 844 A.2d 290, 292 (Del. 2004). Similarly, the United States Supreme Court has
held that “a warrantless administrative search of probationer’s residence requires the probation
officer to have “reasonable suspicion” or “reasonable grounds for the search.” Sierra, 958 A.2d
at 827 (citing Griffin v. Wisconsin, 483 U.S. 868, 872-73 (1987). See also, Donald v. State, 903
A.2d 315, 318-19 (Del. 2006).
9
  Sierra, 958 A.2d at 827.
10
   Id.
11
   2010 WL 625826 (Del. Feb. 23, 2010).
12
   Sierra v. State, 958 A.2d 825, 828 (Del. 2008); Pendleton v. State, 990 A.2d 417, 420 (Del.
2010).
                                           11
        The scope of an administrative search should be limited to the areas of the

residence that are actually occupied by the probationer, including common areas,

and the probationer’s property. 13 This scope also extends to areas which the

officer has reason to believe is owned, possessed, or controlled by the probationer,

even if it later turns out that the area or item searched was in exclusive possession

of a non-probationer.14

        In this case, the administrative search was valid because the probation

officers obtained verbal authorization from Supervisor Willoughby prior to

conducting the search, which was properly executed and supported by reasonable

grounds. Defendant’s refusal to allow probation officers to search his phone, plus

the drug paraphernalia and the odor of marijuana observed within the residence are

enough to establish reasonable grounds for authorizing the administrative search of

the residence. One factor demonstrating reasonable grounds is where the officer

has sufficient reason to believe the offender is in violation of his probation.15

Here, a condition of Defendant’s probation was to allow his probation officer

access to Defendant’s phone upon request. Thus, Defendant’s refusal to comply,

particularly considered in conjunction with his statement that such refusal was a

violation and to “just take me now,” provided the officers with reasonable grounds

for an administrative search. Other factors such as, Officers Scaramazza and

13
   State v. Redden, 2003 WL 22853419, *3 (Del. Super. Oct. 22, 2003).
14
   State v. Tucker, 2007 WL 1065134, *3 (Del. Super. Apr. 10, 2007).
15
   11 Del. C. § 4321; see King v. State, 984 A.2d 1205, 1208 (Del. 2009).

                                                    12
White’s knowledge of Defendant’s prior convictions for drug distribution and

weapons charges, as well as their training and experience as to the activity of an

offender indicating the offender might possess contraband and Defendant’s sudden

change in demeanor when brought upstairs are additional considerations

supporting reasonable grounds for the administrative search.

        Moreover, the bong located in the second bedroom, and odor of marijuana

emanating from that room, are properly considered in evaluating the reasonable

grounds for the search. Defendant’s mischaracterization of the events causes his

argument for exclusion of the bong to fail. It was Officer White, not Officer

Tuohey, who located the bong in the second bedroom. More importantly, prior

authorization for entry into the second bedroom was not required, nor was it

outside the scope of the officers’ authority to search because Officer White was

merely conducting a protective sweep of the residence for officer safety when he

located the bong in the second bedroom. The officers had reasonable grounds to

conduct a protective sweep of the residence for officer safety based on the

conflicting information resulting from the officers’ observations on the second

floor while they were knocking, Defendant’s statements that he was the only

person in the residence and Defendant’s assertion that he did not have access to the

locked room. 16 A protective sweep for officer safety extends beyond only those


16
 See State v. Hunter, 2004 WL 2744513, *1 (Del. Super. Sept. 10, 2004) (The purpose for clearing the apartment
was strictly to determine who was present in the dwelling for reasons of officer safety.

                                                  13
areas over which Defendant exercises control.17 It is irrelevant that Defendant did

not exercise control over the second bedroom because the bong was located in

plain view 18 pursuant to a valid protective sweep conduct by Officer White to

determine whether any other persons were in the residence. Therefore, the bong is

properly considered in evaluating the reasonable grounds for the search because it

was found as a result of a valid protective sweep for officer safety.

         Furthermore, the locked bedroom was properly within the scope of the

administrative search because the officers reasonably believed that Defendant

exercised control over the locked bedroom based on the information available to

they had at the time the administrative search was authorized. The scope of the

administrative search extends to areas that probation officers have reason to

believe is controlled by the probationer. 19 The officers had reason to believe

Defendant exercised control over the locked room based on the light and

movement observed in the locked bedroom while the officers were knocking on

the door, the delay in Defendant opening the door to the residence, Defendant’s

inconsistent statements as to what he was doing during that delay and Defendant’s

denial that he had been in the room or that anyone else was in the residence.

         There was no defect in the execution of the administrative search because

the officers substantially complied with the procedures under 11 Del. C. § 4321

17
   See Id.
18
   Though the there was a plastic bag partially covering the bong, it was in plain view such that it was immediately
recognizable and visible to Officer White by mere observation.
19
   State v. Tucker, 2007 WL 1065134, at *3 (Del. Super. Apr. 10, 2007).

                                                    14
and Probation and Parole Procedure No. 7.19. In this case, the probation officers

alone conducted the administrative search of the locked bedroom and common

areas of the residence without the assistance of the GTF officers. The State makes

clear that only the probation officers conducted the administrative search and any

“visual search” by the GTF officers does not constitute a search because they could

have only located items in plain view. Moreover, the search did not require

checklist completed prior to the search because it was unplanned. 20 Where a

checklist is not filled out prior to an administrative search, the form must be filled

out one “duty day” after the search. Supervisor Willoughby testified that a “duty

day” does not necessarily mean the next day, depending on whether the officer is

in the officer or in the field. Here, the Court finds that the report completed by

Officer Scaramazza and the checklist completed by Officer Tuohey approximately

three days after the administrative search substantially complied with DOC

procedures.

       II. Nighttime Search Warrant

           An affidavit of probable cause must contain the facts sufficient to establish

probable cause within the four corners of the affidavit.21 The facts set forth must

be adequate “for a neutral judicial officer to form a reasonable belief that an

offense has been committed and that seizable property would be found in a


20
     See Pendleton, 990 A.2d at 420; King, 984 A.2d at 1208-09.
21
     Dorsey v. State, 761 A.2d 807, 811 (Del. 2000) (citation omitted).
                                                     15
particular place or on a particular person.”22 Probable cause exists in the affidavit

when there is “a logical nexus between the items sought and the place to be

searched.”23 The nexus “can be inferred from the type of crime, the nature of the

items sought, the extent of an opportunity for concealment and normal inferences

as to where a criminal would hide evidence of a crime.” 24 The affidavit must be

viewed under the totality of the circumstances as a whole. 25 “A determination of

probable cause by the issuing magistrate will be paid great deference by a

reviewing court and will not be invalidated by a hypertechnical, rather than a

common sense, interpretation of the warrant affidavit.” 26                   Additionally, the

affidavit of probable cause must be based on current, not stale information. 27

           Under Delaware law, individuals are afforded an even greater protection

against the nighttime search of a home, even where a warrant is obtained.28

Specifically, a search warrant in Delaware does not authorize the search of a

dwelling at night “unless the judge, justice of the peace or magistrate is satisfied

that it is necessary in order to prevent the escape or removal of the person of thing
22
   Id. (citing 11 Del. C. § 2306 which states in relevant part:
         It shall designate the house, place, conveyance or person to be searched and the
         owner or occupant thereof (if any), and shall describe the things or persons sought
         as particularly made or the offense committed by or in relation to the persons or
         things searched for, and shall state that the complainant suspects that such persons
         or things are concealed in the house, place, conveyance or person designated and
         shall recite the facts upon which such suspicion is founded.)
23
   Id.
24
   State v. Ivins, 2004 WL 1172351 (Del. Super.) (citations and internal quotations omitted).
25
   Sisson v. State, 903 A.2d 288, 297 (Del. 2006).
26
   Jensen v. State, 482 A.2d 105, 111 (Del. 1984) (citations omitted).
27
   Sisson, 903 A.2d at 297.
28
     11 Del. C. § 2308.

                                           16
to be searched for, and then the authority shall be expressly given in the warrant.” 29

A nighttime search warrant is appropriate where executing said warrant at night is

“‘necessary’ to prevent the removal or destruction of potentially incriminating

evidence.”30 Thus, a nighttime search warrant requires a “showing of exigent

circumstances which make it necessary to conduct the search at night.”31 There is,

however, “no requirement that a nighttime warrant contain specific language so

long as it expressly provides authority to conduct the search during the

nighttime.” 32

        In this case, the affidavit submitted in support of the nighttime search

warrant articulated sufficient facts within its “four corners” to support probable

cause for a nighttime search of the residence and the exigency of preventing the

removal or destruction of potentially incriminating evidence from that location.

The items seized as a result of the administrative search are properly considered in

the facts supporting probable cause for the nighttime search warrant because, as

discussed above, there was no defect in the administrative search of the residence.

With all factors referenced in the affidavit properly considered, there was sufficient

probable cause to issue the search warrant. Moreover, the GTF officers were

properly notified of the authorization of the search warrant prior to executing the



29
   Id.
30
   Jensen, 482 A.2d at 112-13.
31
   Hanna v. State, 591 A.2d 158, 162 (Del. 1990).
32
   Scott v. State, 2007 WL 539650 (Del. 2007).

                                                    17
search. The Court is satisfied that the time stamp indicating the 12:55am Justice of

the Peace time received is when the signed search warrant was docketed.

      The exigency was articulated in paragraph 18 of the affidavit, that based on

Cpl. Dudzinski’s training and experience, he reasonably believed that if one

member of this drug organization were arrested or detained by law-enforcement

officers, other members of the organization would be immediately notified and

would attempt to destroy, remove or conceal narcotics, contraband, assets and/or

any evidence of drug activity from any of the vehicles, residences or drug stash

locations known to members of the drug organization, not yet identified by

investigators. The officer believed that evidence could be located in the residence

that may lead investigators to other locations or vehicles controlled or influenced

by Defendant, and that timely securing of such evidence was critical in preventing

evidence from being removed or destroyed at other places not yet identified.

Further, the officer articulated in the affidavit that an individual, who arrived at the

residence subsequent to the entry into the locked bedroom, made several phone

calls in the presence of a DSP officer informing other individuals of the police

presence at 319 Cobble Creek Curve.

      These factors, together with the items seized from the residence as a result of

the administrative search, are sufficient to establish probable cause and exigency

for a nighttime search warrant.



                                       18
                            Conclusion

    For the aforementioned reasons, Defendant’s Motion to Suppress is

DENIED.

    IT IS SO ORDERED.

                                         /s/Calvin L. Scott
                                         Judge Calvin L. Scott, Jr.




                              19
