IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
v. § I.D. No. 1610003340
ROBERT POKOISKI, §
Defendant. §
OPINION

Date Submitted: April 3, 2017
Date Decided: June 19, 2017

Upon Defendant ’s Motion to Suppress: GRANTED.

Allison J. Abessinio, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 North French Street, Wilmington, DE. Attorney for the State.

David C. Skoranski, Esquire, 820 North French Street, Wilmington, DE. Attorney
for Defendant.

Jurden, P.J.

I. INTRODUCTION

In response to an informant’s tip that Defendant Robert Pokoiski possessed a
firearm, Probation officers performed a Warrantless administrative search of
Defendant’s residence, located a firearm and ammunition, and seized those items.
As a result of the Warrantless administrative search, Defendant Was charged With
Possession of a Firearrn by a Person Prohibited and Possession of Ammunition by
a Person Prohibited. Defendant filed a Motion to Suppress, the State responded,
and the Court held a suppression hearing.l For the reasons set forth beloW,

Defendant’s Motion to Suppress is GRANTED.

II. FACTS
On October 6, 2016, Wilmington Police Detective Matthew Rosaio relayed
information from an informant to Probation Officer William Walker that a
probationer living at 509 Maryland Avenue was in possession of a firearm. The
informant Was not past proven reliable. Officer Walker performed a search on
Probation’s DACS system to ascertain Whether a probationer lived at 509
Maryland Avenue, The system identified Defendant Robert Pokoiski as a resident
of 509 Maryland Avenue, and Officer Walker confirmed that Defendant Was
serving a Level ll probation sentence. Pursuant to ll Del. C. § 1448, Defendant

Was prohibited from possessing a firearm and/or ammunition. Officer Walker

 

1D.l. 8-12.

provided Detective Rosaio with a photograph of Defendant. Detective Rosaio
showed the photograph to the informant, and the informant stated that the person
pictured was the probationer they observed in possession of a firearm.

Officer Walker did not solicit additional information from the informant
either directly or through Detective Rosaio with regard to whether the informant’s
tip was based on personal knowledge, whether the informant could provide
additional details that might establish the reliability of the tip, or the reasons that
the informant was supplying the information.2 Thus, the tip was wholly
uncorroborated as to Defendant’s alleged possession of a firearm.

Upon the informant’s identification of Defendant and Officer Walker’s
confirmation of Defendant’s status as a probationer, Officer Walker contacted his
supervisor, Robert Willoughby, to receive permission to conduct a warrantless
administrative search of Defendant’s residence. Officer Walker and Officer
Willoughby reviewed Probation’s Arrest/Search Checklist,3 whereupon Officer

Willoughby approved a warrantless administrative search of the residence and

 

2 See Culver v. State, 956 A.2d 5, 10 (Del. 2008) (explaining that Probation and Parole Procedure
7.19 requires: “In evaluating the reliability of information, was the information detailed,
consistent, was the informant reliable in the past, and consider the reason why the informant is
supplying information.”).

3 D.I. 9 State’s Ex. 1. The Arrest/Search Checklist is divided into two sections: Pre-Arrest
Considerations and Pre-Search Considerations. For the Pre-Arrest Considerations, Officer
Walker checked seven out of the nine considerations, including: reason to believe offender is
engaged or about to engage in a substantial risk to the community or their self; offender has a
capias history or likely to abscond; and approval from Supervisor, Manager, or Director. F or the
Pre-Search Considerations, Officer Walker checked seven out of nine considerations, including:
offender believed to possess contraband; information from informant is corroborated; and
approval from Supervisor, Manager or Director.

3

approved Defendant’s arrest. At the time Officer Willoughby approved the search,
he was aware that the informant was not past proven reliable.

Two Probation officers, including Officer Walker, and four members of the
Wilmington Police Department, including Detective Rosaio, responded to 509
Maryland Avenue to conduct the administrative search.4 Upon arrival, the
officers knocked on the front door, Defendant inquired who was at the door, and
the officers identified themselves as Probation officers. Defendant opened the
door, and Officer Walker asked Defendant if there was any contraband in the
residence, Defendant replied that he did not think there was. When asked if he
was sure there was no contraband inside the residence, Defendant replied that
there was a gun in the upstairs bedroom. Officer Walker searched the upstairs
bedroom and found a 9 mm firearm, ammunition, and a hip holster. Af`ter Officer
Walker retrieved the firearm from the upstairs bedroom, the officers did not ask
Defendant any further questions until Detective Rosaio informed Defendant of his
Miranda rights.

At the suppression hearing on the instant Motion, Officer Walker testified
that he would have searched the house regardless of whether Defendant admitted
possessing a firearm and that Defendant was not at liberty to leave at the time that

he was being questioned prior to the search.

 

4 Id.

III. PARTIES’ CONTENTIONS

Defendant asserts that Officer Walker did not have reasonable suspicion to
search Defendant’s residence after completing the Arrest/Search Checklist with his
supervisor. As a consequence of this lack of reasonable suspicion, Defendant
argues, the issuance of the administrative search authorization was “illegal,”
thereby tainting both Defendant’s statement and the items seized.5 Thus, the
firearm is the fruit of an illegal search, As fruit of an illegal search, Defendant
maintains the firearm should be excluded if the illegal search is the “but for” cause
of its discovery.6 According to Defendant, the issuance of the administrative
search authorization is the “but for” cause of the discovery, and therefore, both
Defendant’s statements to Officer Walker and the items seized should be
suppressed7

The State argues that Officer Walker complied with Probation guidelines by
completing the Arrest/Search Checklist and obtaining approval from Officer
Willoughby to conduct an administrative search of Defendant’s residence,8 While
the State concedes that Officer Walker did not have reasonable suspicion to
conduct an administrative search at the time the search was authorized, the State

maintains that Officer Walker lawfully entered Defendant’s residence and engaged

 

5 D.I. 11 313-4.
6 Id. at 1_2.

7 ld.

8 D.I. 10 at 7.

in conversation with Defendant.9 Thus, the State argues, at the time Officer
Walker searched Defendant’s residence, he had reasonable suspicion to search
based on Defendant’s corroboration of the informant’s tip that there was a firearm
in the upstairs bedroom.10

In the alternative, the State argues that even if the issuance of the
administrative search authorization was “illegal” as argued by Defendant,
Defendant’s statement, as well as the items seized at Defendant’s residence, are
“sufficiently distinguishable” from any illegality such that they should not be
suppressed.ll In support of this argument, the State argues that the officers
obtained an admission that there was a gun in the residence after lawfully entering
the residence and speaking to Defendant, and Defendant’s admission would
support a finding of reasonable suspicion to search entirely independent of the

confidential informant’s tip.12

IV. STANDARD OF REVIEW

While “[p]robationers do not have the same liberties as ordinary citizens,”13

and “the unique nature of probationary supervision ‘justifies a departure from the

 

9 D.1.12 at 1, 3.

10 Id. at 3.

“ 1a at 2-3.

12 Id. at 2.

13 Sierra v. State, 958 A.2d 825, 828 (Del. 2008) (citing McAllister v. State, 807 A.2d lll9, 1124
(Del. 2002)).

usual warrant and probable cause requirements for searches,”’14 “Delaware case
law and administrative law do not permit suspicionless probationer searches.”15 A
probation officer must have reasonable suspicion or reasonable grounds to justify
an administrative search of a residence.16
Probation officers are authorized to conduct warrantless administrative
searches of probationers pursuant to 11 Del. C. § 4321(d), which states:
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 and shall execute lawful orders, warrants and
other process as directed to the officer by any court, judge or Board of
Parole of this State . . . .
The Delaware Department of Correction has enacted procedures that govern how
probation officers initiate administrative searches of probationers’ residences.17 In
the absence of exigent circumstances, the probation officer must hold a case
conference with their supervisor using the Search Checklist as a guideline to
determine whether there is reasonable suspicion to conduct an administrative

search,18 “‘Reasonable suspicion’ exists where the ‘totality of the circumstances’

indicates that the officer had ‘a particularized and objective basis’ for suspecting

 

14 Jacklin v. State, 16 A.3d 938, 2011 WL 809684, at *2 (Del. 2011) (TABLE) (quoting Sierra,
958 A.2d at 828).
l: Murray v. State, 45 A.3d 670, 678 (Del. 2012), as corrected (July 10, 2012).
1

Id.
17 Sierra, at 829 (citing Delaware Department of Corrections Bureau of Community Corrections
Fsrobation and Parole Procedure No. 7.19 (amended effective June 5, 2001)).

ld.

legal wrongdoing.”19 In cases like the instant one, where the decision to search is
based on a tip, Probation and Parole Procedure 7.19 requires Probation officers to
“assess any ‘tip’ relayed to them and independently determine if a reasonable
suspicion exists that would, in the ordinary course of their duties, prompt a search

of a probationer’s dwelling.”20

V. DISCUSSION
As an initial matter, the State has conceded that at the time Officer Walker
sought authorization to search Defendant’s residence from Officer Willoughby,
Officer Walker did not have reasonable articulable suspicion to support a
warrantless administrative search, The State’s concession flows from the clarity of
Delaware law with regard to whether an uncorroborated tip from an informant who
is not past proven reliable can, by itself, support a finding of reasonable articulable

suspicion.21 It cannot.

 

ngacklin, 2011 wL 809684, at *2 (quoting sierra 958 A.2d ar 828).

20 culver, 945 A.2d at 7.

21 See, e.g., Culver, 956 A.2d at 7 (finding that Probation officers did not have reasonable
suspicion when “the probation officers accepted, without conducting any independent analysis,
and relied on information police received from an anonymous caller whose ‘tip’ made it clear the
caller had no personal information about Culver consistent with illicit drug activity’); see also
Alabama v. White, 496 U.S. 325, 332 (1990) (holding that police had reasonable suspicion to
stop a vehicle based on an anonymous tip because “the independent corroboration by the police
of significant aspects of the informer’s predictions imparted some degree of reliability to the
other allegations made by the caller” and because “‘the anonymous [tip] contained a range of
details relating not just to easily obtained facts and conditions existing at the time of the tip, but
to future actions of third parties ordinarily not easily predicted.”’ (quoting Illinois v. Gates, 462
U.S. 213, 245 (1983))).

For example, in Sierra v. State, an unidentified Department of Justice
employee relayed a tip to Probation from a confidential informant that Fernando
Sierra possessed drugs in his residence.22 The Department of Justice employee did
not convey to Probation the confidential informant’s identity or whether the
confidential informant was past proven reliable.23 Additionally, the tip provided
“only observable information” that did not demonstrate that the informant had
actual knowledge of illegal activity.24 A Probation officer completed an
Arrest/Search Checklist, and a Probation supervisor approved a warrantless
administrative search of Sierra’s residence.25 Sierra moved to suppress the
evidence seized at his residence and statements made by him as a result of the
search.26 The Delaware Supreme Court found that the tip did not establish
reasonable suspicion to support a search of Sierra’s residence27

In light of Sierra and other similar cases,28 the State could not credibly argue
that at the time Officer Walker sought search authorization, he had reasonable
suspicion to support a search of Defendant’s residence. Thus, to support its
argument that the Motion to Suppress should be denied, the State relies on

Defendant’s admission that there was a gun in his residence.

 

22 Sierra, 958 A.2d at 827.
23
Id.
24 1a 831.
25 Id.
26 Id.
27 1a at 833.
28 See supra note 20.

Delaware law requires that a search of a probationer’s residence by a
Probation officer be supported by reasonable articulable suspicion and that
Probation officers comply with Probation procedures.29 As explained in Fuller v.
State, strict compliance with Probation procedures is not required.30

In Fuller, Probation officers received information from a past proven
reliable informant that a probationer in possession of a firearm was selling crack
cocaine in Wilmington’s Hilltop area.31 The past proven reliable informant
described the probationer’s physical appearance and reported that the probationer
drove an older model red Volvo with tinted windows.32 The investigating
Probation officer discussed and considered the tip with his supervisor and,
thereafter, the supervisor gave the officer authorization r to stop the vehicle.33 The
next day, the Probation officer observed an older model red Volvo in the Hilltop
area and verified that the vehicle was registered to a probationer,34 With the
assistance of police, the Probation officer stopped the vehicle, contacted his
supervisor to confirm authorization to search the vehicle, and then searched the

vehicle,35 Two bags of crack cocaine were seized from the vehicle.36 The Superior

 

29 Fuller v. smre, 844 A.2d 290, 292 (Del. 2004).
3° Id. a1291.

31 Id.

32 Id.

33 Id. ar 291-92.

34 1a at 291.

33 Id.

36 Id.

10

Court held, and the Supreme Court affirmed, that the officers had probable cause to
believe that there was contraband in the vehicle at the time of the stop.37

The defendant in Fuller argued that the evidence seized from his car should
be suppressed because_even though the Probation officer obtained approval to
stop and search the vehicle from his supervisor_the Probation officer did not fill
out Probation’s Arrest/Search Checklist and did not conduct a face-to-face case
conference with his supervisor before stopping and searching the vehicle.38 The
Delaware Supreme Court found the search reasonable under the United States and
Delaware Constitutions, and held “[t]o the extent that the officers departed from
departmental guidelines, the departure did not render the search
unconstitutional.”39 In support of this holding, the Supreme Court explained:

The purpose of the regulations is to ensure that the Department has

sufficient grounds before undertaking a search, The individual

procedures advance that goal but are not independently necessary, as

demonstrated by the fact that the regulations explicitly state

exceptions for when the search checklist need not be used.40
As to the facts of the case in Fuller, the Supreme Court noted:

[The Probation officer] twice received supervisor approval to conduct

the search-first, after discussing the information contained in the tip

before the subject vehicle was located and second, after a vehicle

matching the description had been found and officers had confirmed
that it was registered to a probationer, In obtaining that approval, the

 

37 Id. 31291-92.
33 Id. at 291.

33 ld.

4° 1a at 292.

11

officers and the supervisor considered the information that the
Department had and whether it provided sufficient grounds to
search,41

The Supreme Court concluded that the officers’ failure to follow each technical

requirement of the regulations before searching did not render the search

unreasonable because the officers did satisfy “those that affect the reasonableness

inquiry.”42

The State relies on Fuller to argue that Officer Walker sufficiently complied
with Probation procedures by receiving supervisory approval and, thereafter,
acquiring reasonable suspicion.43 But, the State fails to grapple with a far more
pertinent case: Culver v. State.44

In Culver, an anonymous caller informed police that Jeffrey Culver was
involved in drug activity.45 The caller gave police a description of Culver,
Culver’s address, and stated that Culver drove a silver Mercedes Benz, but the
informant did not have any personal knowledge or contact with Culver to support

the conclusion that Culver was engaged in drug activity.46 A police officer, Lt.

Odgen, went to Culver’s address, where he observed a silver Mercedes Benz in

 

41 Id.

42 Id.

43 D.I. 10 at 7.

44 956 A.2d 5 (Del. 2008).
45 Ia'. at 8.

46 Id.

12

which Culver was a passenger.47 Lt. Ogden stopped and searched the vehicle, and
the search revealed nothing incriminating48 “Undeterred by an evidently flimsy
and unreliable tip followed by an utterly fruitless search,” Lt. Ogden reported the
tip to Probation, and Probation officers decided to conduct a warrantless
administrative search based on Probation’s receipt of information from a “reliable
source,” i.e. Lt. Ogden.49 Probation officers searched Culver’s house and seized a
firearm.50

In Culver, the Delaware Supreme Court addressed, for the first time, “the
proper procedures that parole and probation officers must follow after they receive
a tip from police officers under their statutory authority to search probationers.”5 l
The majority of the Delaware Supreme Court agreed that Probation Procedure 7.19
“requires probation officers to assess any ‘tip’ relayed to them and independently
determine if reasonable suspicion exists that would, in the ordinary course of their

9952

duties, prompt a search of a probationer’s dwelling. This independent

determination requires Probation officers to “rationally assess the facts made

 

42 Id.
43 Id.
49 Id. at 8-9. In Culver, the Probation supervisor testified that the decision to search was based
on: (1) Culver’s failed drug tests; (2) Culver’s missed curfews; and (3) the supervisor’s receipt of
information from Lt. Ogden. Id. at 9. However, neither the supervisor, nor Culver’s Probation
officer “identified any known fact before Lt. Ogden’s call that would have, in the ordinary
;:(ourse of business, triggered an administrative search.” Id.

Id.
34 1a at 7.
32 Id. ar 7 (emphasis added).

13

known to them before reaching the critical conclusion that there is a reasonable
basis to search a probationer’s dwelling.”53 Further, the Delaware Supreme Court
emphasized that Probation officers “must not ‘rely on police officers vouching for
anonymous callers with no proven track record for supplying credible, reliable
information.”’54 Rather, a Probation officer who receives a tip from the police
must obtain enough information from the police, such that the Probation officer
can “independently and objectively assess the reasonableness of the inferences to
be drawn from the caller’s tip.”55 As the Supreme Court explained:

If probation officers do not engage in an independent analysis of the

reliability of facts supporting an “informant’s” tip, they would

contravene Procedure 7. 19 VI(F)(3). The probation officers would

thereby become essentially surrogates for the police, conveniently

used when the police had no lawful authority to act on their own.5
Because the Supreme Court based its decision on the probation officers’ violation
of a clear statutory mandate, the Court did not reach any constitutional questions.57

Similarly, in Sierra, which relied upon Culver, the Delaware Supreme Court
held that the Probation officers had failed to meet the requirements of Probation

and Parole Procedure 7.19 and the evidence seized during the search should be

suppressed because the Probation officers failed to independently investigate and

 

33 Id. at 11.

34 Id. at 13.
33 1a

36 Id.

321¢1. at 7 n.1.

14

assess a tip relayed by an unidentified Department of Justice employee.58 The
Supreme Court explicitly stated that the basis for suppression was an independent
state law basis,59 and the Supreme Court reiterated its admonition in Culver that “to

allow evidence obtained in violation of Procedure 7.19 ‘would render ll Del. C. §

11960

4321 and the regulations promulgated under it meaningless Thus, under

Culver and Sierra, it is incumbent on Probation officers to independently
determine if the facts known to them-at the time the decision to authorize the
search is made_support a finding of reasonable suspicion.

In this case, Officer Walker sought search authorization based on the tip of
an informant who was indisputably not past proven reliable. Officer Walker
“corroborated” the tip only to the extent of ascertaining, through Detective Rosaio,
that the Defendant was the person accused, that he was a probationer, and that he
lived at the identified address. Critically, Officer Walker never corroborated the
tip with regard to the assertion of illegality61 Prior to responding to Defendant’s

residence, armed with an approved search authorization and accompanied by four

 

33 sierra, 958 A.2d at 832.

39 Id. at 832 n.35.

66 Id. at 832-33 (quoting culver, 956 A.2d ar 7).

61 See Florida v. J.L., 529 U.S. 266, 272 (2000) (describing a tip that did not support a finding of
reasonable suspicion to support a Terry stop: “An accurate description of a subject’s readily
observable location and appearance is of course reliable in this limited sense: lt will help the
police correctly identify the person whom the tipster means to accuse. Such a tip, however, does
not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion
here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to
identify a determinate person.”).

15

members of the Wilmington Police Department, Officer Walker never attempted to
ascertain, either by personally speaking to the informant or by eliciting additional
information from Detective Rosaio, whether the tip was based on personal
knowledge, whether the informant could provide additional details that might
establish the reliability of the tip, or the reasons that the informant was supplying
the information.62 While the informant’s motivation is unknown, Detective
Rosaio’s purpose is plain: to have Probation officers search under circumstances
where Wilmington Police had no basis to undertake a search on their own.63

Had Officer Walker and Officer Willoughby “independently analyzed the
information consistent with their own agency’s regulations” as required by
Culver,64 they would have concluded that a warrantless administrative search could
not be performed without further investigation. Contrary to the State’s argument,
the failure to apply independent judgment to whether reasonable suspicion exists is
not equivalent to the failure to follow each technical requirement of the search
regulations. Thus, Fuller is not applicable here. Furthermore, under the State’s
argument, the Court would have to uphold a search in a case where a Probation
officer blindly relied on a patently unreliable and uncorroborated police tip and

completely failed to apply independent judgment to whether reasonable suspicion

 

62 Culver, 956 A.2d at 11 (“Procedure 7.19 specifically requires: In evaluating reliability of
information, was [l] the information detailed, [2] consistent, [3] was the informant reliable in the
past, and [4] consider the reason why the informant is supplying information.”).

63 1a at13.

64 Id. at 7.

16

exists, as long as the right boxes were checked and the Probation officer managed
to stumble upon reasonable suspicion before the search occurred.

The Court finds that, at the time Officers Walker and Willoughby reached
the critical_and incorrect-conclusion that there was a reasonable basis to search
Defendant’s dwelling, they failed to rationally assess the facts known to them.
Officer Walker did not arrive at Defendant’s house, with four Wilmington Police
officers, to investigate whether the uncorroborated tip was reliable, he arrived to
search. Additionally, the Court finds that but for Detective Rosaio’s tip, Probation
officers would not have searched Defendant’s residence, Under Culver and Sierra,
because the Probation officers failed to comply with Probation and Parole
Procedure 7.19, the evidence seized must be suppressed

VI. CONCLUSION
F or the foregoing reasons, Defendant’s Motion to Suppress is GRANTED.

IT IS SO ORDERED.

 

 

l7

