            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                          :
                                            :      ID No. 1602005623
                                            :      In and for Kent County
                                            :
       v.                                   :
                                            :
CRISTO J. AGUILAR                           :
                                            :
                Defendant.                  :
                                            :

                                        ORDER

       On this 15th day of August 2016, having considered Defendant Cristo J.

Aguilar’s (hereinafter “Aguilar’s”) Motions to Suppress, and the State’s response, it

appears that:

       1. Aguilar is charged with one count of Drug Dealing and one count of

Aggravated Possession of Marijuana. He moves to suppress evidence seized after a

search of a silver Honda Civic (hereinafter the “Vehicle”) and a search of his residence

at 75 New Warf Road in Milford, DE (hereinafter the “Residence”). Both searches

followed issuance of search warrants. Pursuant to a four corners analysis of the search

warrant affidavits, Aguilar argues that the affidavits contain insufficient facts to

establish a nexus between his alleged drug sale activity and the Vehicle and the

Residence. The State argues that based on the totality of the circumstances, the

affidavits set forth sufficient facts for a finding of probable cause to search the Vehicle
and the Residence.

      2. The facts at issue are those contained within the four corners of the two

identical affidavits offered in support of the two warrants. Detective Lord from the

Milford Police Department provided the following facts in his probable cause

affidavits. During the third week of January 2016, a past proven reliable confidential

informant (“CI”) reported to Detective Lord that Aguilar was selling marijuana in

Milford. The CI identified the vehicle driven by Aguilar and the street that Aguilar

lived on in Milford. Aguilar’s address and the vehicle information were confirmed

through Deljis. During that week, the CI set up a controlled buy with Aguilar. After

the CI coordinated the buy, Detective Lord observed the Vehicle leave the Residence.

He followed the Vehicle to the location of the controlled buy and observed a meeting

between the CI and Aguilar. The meeting netted marijuana. Detective Lord then

observed the Honda return to the Residence, and saw Aguilar enter the Residence.

      3. During the last week of January 2016, the CI again contacted Aguilar to

coordinate a second purchase. Officers observed the CI contact Aguilar, at the same

time the Vehicle was in the Residence’s driveway. Thereafter, while under police

surveillance, the Vehicle left the Residence and went to the sale location. After

observing a meeting between the CI and Aguilar which resulted in a second controlled

purchase, surveillance units observed the Vehicle return to the Residence a short time

                                          2
later and park in its driveway. Detective Lord, in his affidavit, represented himself to

have expert knowledge regarding the drug trade and he opined that it is commonplace

and expected for drug dealers “to secrete contraband proceeds of drug sales and

records of transactions in secure locations within their residence . . .” He also stated

in the affidavit that “drug organizations often utilize several locations such as

residences . . . to conceal illegal contraband.”

      4.     Aguilar carries the burden to establish that the affidavits contained

insufficient facts to justify warrants.1 A finding of probable cause based on search

warrants requires a four corners analysis of the probable cause affidavits.2

Accordingly, neither extrinsic evidence or the results of the search(es) are relevant.

When reviewing warrants for sufficiency, a reviewing court must provide great

deference to the decision of an issuing magistrate.3

      5. As opposed to an arrest warrant, a search warrant targets a particular place

where police believe evidence is located. Probable cause to believe a suspect

committed a crime supports an arrest warrant, but does not alone justify a search of a

suspect’s home.4 In order to issue a warrant to search a residence, the affidavit must


      1
        State v. Sisson, 883 A.2d 868, 875 (Del. Super. 2005).
      2
        Pierson v. State, 338 A.2d 571, 573 (Del. 1975).
      3
        State v. Holden, 60 A.3d 1110, 1114 (Del. 2013).
      4
         Dorsey v. State, 761 A.2d 807, 821 (Del. 2000).

                                              3
provide sufficient facts to show: first, probable cause that the defendant committed a

crime; and second, probable cause to believe evidence of that crime is located in the

residence.5   Accordingly, the second requirement for a residential search warrant

requires a demonstrated nexus between the crime and the location. However, “[t]he

nexus need not be based on direct observation or facts placing evidence at the location

to be searched [but] may be inferred from the factual circumstances . . ..”6 In other

words, direct evidence is not required. Rather, circumstantial evidence permitting a

reasonable inference is sufficient.

      6. Aguilar does not challenge the sufficiency of probable cause to establish that

he committed a crime for purposes of this analysis. Rather, he challenges the nexus

between the criminal activity and the Residence and the Vehicle. With regard to the

Residence, he argues that the affidavit contains no facts alleging any direct evidence

of contraband or illegal activity in the Residence, In support of his position, he cites

State v. Cannon7, and State v. Ada.8

      7. The State counters that the facts provide a sufficient nexus between criminal

drug activity and the Vehicle and the Residence. The State argues that police


      5
        State v. Cannon, 2007 WL 1849022, at *4 (Del. Super. June 27, 2007).
      6
        Id.
      7
        Id.
      8
        2001 WL 660227 (Del. Super. June 8, 2001).

                                            4
observation of Aguilar leaving the Residence in the Vehicle to attend two separate

controlled purchases, followed by his immediate return to the Residence on both

occasions, provides such a nexus. The State also emphasizes that the CI’s controlled

purchases were independently corroborated by facts observed by the police.

      8. This case is indistinguishable from State v. Lindsey9 which this Court finds

persuasive. As in the case at hand, at issue in Lindsey was a search warrant of a home

and vehicle following two controlled purchases by a CI.10 There, the police observed

the Defendant driving directly to one purchase location, and during another purchase,

the police observed the defendant return directly to his residence.11 In addition, the

officer/affiant in the Lindsey matter included an expert opinion that drug traffickers use

their cars and residences to conceal contraband related to drug sales.12 Based on this

information, the Court held that there was a sufficient nexus to both the residence and

the vehicle based upon (1) a single observation of the defendant leaving the drug sale

location and returning directly to his the residence in the vehicle at issue, (2) a single

observation on a different day of the defendant driving from the residence to a different

sale location, and (3) the aforementioned expert opinion.13

      9
        2011 WL 2651808 (Del. Super. June 29, 2011).
      10
         Id. at *1.
      11
         Id.
      12
         Id. at * 2.
      13
         Id.

                                            5
       9. In Aguilar’s case, there were four such direct travels observed, as opposed

to only two in Lindsey. Furthermore, in addition to Detective Lord’s expert opinion,

Aguilar’s case involves an additional fact. Namely, the description of the second

transaction can only be fairly read to establish that the CI’s second drug order from

Aguilar took place by phone while Aguilar was in the Residence. Immediately after

placement of the order, Aguilar was observed leaving the Residence in the Vehicle,

heading directly to the drug sale location. In any event, apart from this additional

relevant fact, the Lindsey decision’s reliance on direct travels linking the Residence to

the drug sale is consistent with multiple Federal Circuit Court of Appeals decisions that

have reviewed this issue.14 Accordingly, there was probable cause supporting a nexus

between the Residence and the off-site illegal drug sales.

       10. The Defendant also cites Cannon v. State which is distinguishable from the

case at hand. In fact, the Court’s decision in Cannon expressly distinguished facts such

as the ones at issue in Aguilar’s case. Cannon merely held that probable cause to


       14
           See U.S. v. Ribeiro, 397 F.3d 43, 52 (1st. Cir. 2005)(holding that direct travel from home
to a drug sale location, coupled with an expert opinion, and common ordinary experience is sufficient
to establish probable cause for the required nexus); see also United States v. Stearn, 597 F.3d 540,
556 (3d Cir. 2010)(holding that probable cause to search a defendant’s residence since he “left that
property before the controlled buy and received proceeds thereafter....”); see also State v. Hicks, 575
F.3d 130, 136 (1st. Cir. 2009)(holding that a nexus was created based upon an officer following the
defendant back to his residence after a controlled purchase); and see United States v. Burton, 288
F.3d 91, 104(3d Cir. 2002)(holding that a seller’s return to his home after a purchase indicates that
his home “was the destination for the illegal proceeds of his drug transaction”, thus establishing a
sufficient nexus).

                                                  6
search a residence cannot be “formed solely by statements of police expertise

combined with the presence of a defendant’s car at both a drug transaction and his

confirmed residence.”15 Rather than supporting the suppression of evidence in the case

at hand, the Court in Cannon expressly noted that “direct or indirect evidence that a

defendant traveled immediately to his home after engaging in illegal activity might be

sufficient to establish probable cause that evidence or contraband are located in the

residence.”16

       11. Aguilar also cites State v. Ada17 in support of his motion. While somewhat

supportive of Aguilar’s position, Ada is distinguishable as well. Namely, Ada did not

involve a situation where the illegal drug sales immediately followed the defendant

leaving the residence at issue. Rather, the defendant in Ada was observed leaving the

residence at issue with a duffle bag to travel to another residence where there was

evidence of drug contraband.18 The situation in Ada, in other words, linked another

residence (with strong evidence of drug activity) to the residence at issue. In contrast,

in Aguilar’s situation, Aguilar’s travels circumstantially linked two separate drug sales



       15
           State v. Cannon, at *6.
       16
           Id. (Citing United States v. Burton, 288 F.3d 91, 104 (3d. Cir. 2002)( which recognized
that “[t]he inference that drug dealers often keep evidence of their transactions at home] is much
stronger when the home is the first place a drug dealer proceeds following such a transaction.”)).
        17
           2001 WL 660227 (Del. Super. June 8, 2001).
        18
           Id. at *2.

                                                7
to the Residence at issue.    Finally, in the case sub judice, at least one of the two

referenced sales was coordinated with Aguilar while he was confirmed to be in the

Residence.

      12. At oral argument, Aguilar offered a hypothetical using the facts of his case,

but instead substituting a Wawa as the location where he was located immediately

before and after the drug sales. He argues that applying the State’s logic, a search

warrant of the Wawa would then be justified. This argument, however, omits the

relevant expert opinion linking the Residence to the drug activity. It also does not

recognize the ability for a magistrate or issuing judge to rely on common inferences

based on life experience.       Evaluation of probable cause is a common sense

interpretation. Under the circumstances of this case, a publicly accessible convenience

store would not permit the same inferences as would a person’s Residence. While

Aguilar’s Wawa hypothetical illustrates well the dangers of not requiring a sufficient

nexus, it does not apply in the context of evaluating a residence that is temporally tied

to drug sales through direct travel and expert opinion. Here, the magistrate was

justified in finding probable cause to issue the Residence search warrant.

      13. Finally, as to the Vehicle, there were facts sufficient to establish probable

cause forming a nexus between it and the illegal activity. The Vehicle was the only

means of transporting both drugs and currency between two drug sales and the

                                           8
Residence. It therefore was strongly and directly linked to the drug sales, providing

sufficient facts to support a finding of probable cause of the required nexus.

      14. Under the totality of the circumstances, the magistrate had a substantial

basis for concluding that probable cause existed as to both warrants. Accordingly,

Aguilar’s motion to suppress evidence seized from the Vehicle and Residence is

DENIED.

      IT IS SO ORDERED.



                                                     /s/Jeffrey J Clark
                                                          Judge




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