      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE                        )
                                         )
      v.                                 )       ID# 1509018082
                                         )
DIMAERE BRADY,                           )
                                         )
      Defendant.                         )

                                     ORDER

      AND NOW TO WIT, this 25th day of February, 2016, the Court having

heard and duly considered Defendant’s Motion to Suppress and the State’s

response thereto, IT APPEARS THAT:

      1. On September 24, 2015, Wilmington Police Department Detective Neil

Evans (“Detective Evans”) and Senior Probation Officer William Walker (“SPO

Walker”) observed Defendant Dimaere Brady (“Brady”) walking on North Adams

Street at 10:50 p.m. Both officers were aware that Brady was an active Level III

probationer with an 8:00 p.m. to 6:00 a.m. curfew.

      2. Brady was arrested for violating probation and a search incident to arrest

revealed that Brady possessed: (1) a large sum of currency; (2) house keys; and (3)

car keys to a Hyundai. The officers were aware that Brady had a suspended

license, and located the 2006 Hyundai Sonata nearby on the 800 block of North

Adams Street.      A DELJIS registration search revealed that the vehicle was

registered to Tylen Bailey, who the officers knew was Brady’s girlfriend.
       3. Detective Evans and SPO Walker obtained an administrative search

warrant to search the Brady’s residence and Tylen Bailey’s 2006 Hyundai Sonata.

A fully loaded Enforcer 3-caliber rifle was found in a black backpack located on

the front passenger seat of the Hyundai.

       4. Although probationers are not afforded the same liberties as ordinary

citizens, “Delaware case law and administrative law do not permit suspicionless

probationer searches . . . .” 1 “A probation officer must have a reasonable suspicion

or reasonable grounds to justify an administrative search of a residence or car.”2

“Reasonable suspicion exists where the totality of the circumstances’ indicates that

the officer had a particularized and objective basis for suspecting legal

wrongdoing.”3

       5. The State argues that the officers had reasonable suspicion to believe that

Brady possessed contraband and was in violation of a condition of his probation

1
  Murray v. State, 45 A.3d 670, 678 (Del. 2012), as corrected (July 10, 2012); McAllister v.
State, 807 A.2d 1119, 1124 (Del. 2002); Jacklin v. State, 2011 WL 809684, at *2 (Del. 2011).
11 Del. C. § 4321(d) grants probation and parole officers statutory authority to effect searches of
probationers in accordance with Department of Correction (“DOC”) regulations. Pursuant to that
authority, the DOC has adopted regulations governing warrantless searches and arrests of
probationers. Jacklin, 2011 WL 809684, at *2. The Delaware Supreme Court considers probation
officers to have acted reasonably so long as they substantially comply with DOC regulations.
Murray, 45 A.3d at 678. “Generally, the following factors should be considered when deciding
whether to search: [1] The Officer has knowledge or sufficient reason to believe [that] the
offender possesses contraband; [2] The Officer has knowledge or sufficient reason to believe
[that] the offender is in violation of probation or parole; [3] There is information from a reliable
informant indicating [that] the offender possesses contraband or is violating the law; [4] The
information from the informant is corroborated; [5] Approval for the search has been obtained
from a Supervisor.” Sierra v. State, 958 A.2d 825, 829 (Del. 2008).
2
  Murray, 45 A.3d at 678.
3
  Jacklin, 2011 WL 809684, at *2.
                                                 2
based on the following facts: (1) Brady was out past curfew and resisted arrest by

refusing to put his arms behind his back; (2) Brady possessed a large sum of

United States Currency; (3) Brady possessed car keys to Tylen Bailey’s Hyundai,

and the officers knew that Brady had a suspended license; (4) the Hyundai was

located nearby and Brady attempted to distract the officers’ attention away from

the Hyundai; and (5) the incident was similar to another encounter Detective Evans

and SPO Walker had with Brady three weeks earlier. On September 3, 2015,

Detective Evans and SPO Walker initiated a traffic stop with Brady because he

was driving with a suspended or revoked license. At that time, Brady was driving

a Chrysler 300 registered to Tylen Bailey. During the traffic stop, Brady resisted

arrest, possessed $905 in United States Currency, and possessed thirty-nine bags of

suspected heroin. During a post-arrest interview, Brady admitted to possessing

heroin, being a heroin user, and denied selling heroin, but stated that some users

give him money to deliver heroin.

       6. The totality of the circumstances demonstrates that the officers did not

have reasonable suspicion to justify an administrative search of Brady’s residence

or the 2006 Hyundai Sonata.4 The officers did not ask Brady whether he was

employed or introduce any evidence that the denominations found on Brady were


4
  The State did not raise the issue of standing in its briefing and conceded at the suppression
hearing that Defendant has standing to contest the search of Tylen Bailey’s 2006 Hyundai
Sonata.
                                              3
consistent with drug dealing. The only connection between Brady and Tylen

Bailey’s 2006 Hyundai was the fact that Brady had a suspended license, had the

car keys in his pocket, and had previously been found in possession of heroin while

driving another vehicle registered to Tylen Bailey.

         7. While the rights of a probationer to object to a warrantless search of his

residence or vehicle is diminished, “[a]t a minimum, the officer must have a

reasonable basis to suspect wrongdoing, and evidence thereof will be found at the

location to be searched.”5          Under totality of the circumstances, the facts in this

case are insufficient to support a reasonable basis to suspect that Brady possessed

contraband in his residence or the 2006 Hyundai Sonata. The fact that Brady

violated probation with no connection to the residence or vehicle to be searched

cannot support reasonable suspicion.

         NOW THEREFORE, Defendant’s Motion to Suppress is GRANTED.

IT IS SO ORDERED.




                                             Jan R. Jurden, President Judge




5
    State v. Johnson, 2014 WL 6661154, at *3 (Del. Super. 2014).

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