IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)

)

v. ) Crim. I.D. NO.: 1610017030

)

)

CHARLES FAX, )
)

Defendant. )

OPINION

Submitted: May 30, 2017
Decided: June 2, 2017

Upon Consideratz`on of Defendant’s Motion to Suppress,
GRANTED.

Jeffrey M. Rigby, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorneyfor the State.

Benjamin S. Gifford IV, Esquire, The LaW Offlce Of Benjamin S. Gifford IV,
Wilmington, Delaware. Attorneyfor the Defena’ant.

MEDINILLA, J.

INTRODUCTION

Defendant Charles Fax (“Fax”) filed this Motion to Suppress after officers
With the Governor’s Tasl< Force conducted an administrative search of his
residence on October 26, 2016. FaX argues that the administrative Search lacked
reasonable Suspicion under the Fourth Amendment of the United States
Constitution, Article I, Section 6 of the Delaware Constitution, and DelaWare
statutory laW. The Court agrees and finds that the State failed to establish that the
officers had reasonable suspicion to conduct an administrative search of Fax’s

residence As Such, the Motion to Suppress is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUNDl
Factual Background
On August l, 2016, FaX Was sentenced to Level III probation after he Was
convicted of Drug Dealing (Tier 2). His first visit With his probation officer,
Officer James MattheW Keen (“Officer Keen”), occurred on August 9, 2016. Fax
met With Officer Keen Weekly, from August to October. During this period, he

Was fully compliant With his probation. HoWever, on October ll, 2016, Fax tested

 

1 The Court’s recitation of the facts is based on Fax’s Motion and the State’s Response, as Well
as the evidence presented at the Suppression Hearing on May 30, 2017.

positive for marijuana following a routine urine test.2 Officer Keen met with Fax
on two separate occasions following the positive urine test: October l7th and 25th,
2016. On the l7th, Officer Keen instructed Fax to undergo a substance abuse
evaluation. Fax complied On October 25th, Officer Keen and Fax met to discuss
the results of the evaluation, which determined that Fax did not require substance
abuse treatment. Officer Keen did not write a violation of probation report and
testified that he did not intend to do so.

On October 26, 2016, Officer David Tuohey (“Officer Tuohey”), a probation
officer assigned to the Governor’s Task Force at Troop 2, performed an electronic
query on the Delaware Automated Correction System (“DACS”). Officer Tuohey
testified that, on this particular night, the rainy weather prevented his team from
conducting their “proactive functions” (e.g., surveillance and controlled drug
buys). As a result, he and his partner “split the alphabet” and Started running
electronic searches in DACS for all Level III probationers in the 19702 zip code.
When asked why they chose Level lll probationers, he stated that these
probationers are more often serving probation for felony convictions. Further,
when asked why they chose this particular zip code, Officer Tuohey testified that it

was simply due to rainy weather conditions, short-staffing, and close proximity to

 

2 Officer Keen testified that he did not conduct this test, but that another unknown probation
officer conducted it. He testified that the results of the test were likely reported between two to
four days after the test was administered

Troop 2. He confirmed that no “tip” or other information regarding Fax prompted
the search; rather, the goal of the search was to find probationers for whom his
team would conduct administrative searches.

Officer Tuohey’s DACS inquiry revealed that Fax was serving Level III
probation at his residence in Newark for Drug Dealing. DACS also noted Fax’s
October llth positive urine screen fifteen days earlier. He testified that_based
solely on this factor_he contacted his supervisor for a telephonic case conference.
Officer Tuohey and his supervisor reviewed the following “pre-search
considerations,” as reflected on the Arrest/Search Checklist:3

(l) Offender believed to possess contraband
(2) Offender is in violation of probation[]. . . .
[. . .]

(4 Approval from Supervisor, Manager, or Director.
(5) Proper planning for search completed
(6) Sufficient staff to search.

(7) Individual responsibilities assigned

(8) Police called to provide search security . . .4

After their case conference, Officer Tuohey’s supervisor granted him
permission to search Fax’s residence. Delaware State Police Officers Gliem and

Hogate joined Officer Tuohey at Fax’s residence that night at l():35 p.m. F ax and

 

3 See Fax’s Motion at Ex. B.

4 Id. Items three and nine in this list, “Information from informant is corroborated,” and “Search
team members have been properly trained,” were not checked as having been reviewed with his
supervisor.

his co-defendant, Christopher Patterson, were present in the residence at the time
of the search.

The administrative search revealed that Patterson, Fax’s nephew, had been
living in the residence for a few days and admitted to smoking marijuana after the
officers detected an odor of burnt marijuana throughout the residence The officers
discovered a black digital scale next to a safe located on the floor of Patterson’s
bedroom. Marijuana ashes were located near the safe. A search of the garage
revealed wrapped bundles of heroin_later determined to be 9.765 grams of heroin.
Additionally, 30.57 grams of cocaine were discovered in a kitchen trashcan. After
receiving Mirana'a warnings, Patterson admitted to possessing the cocaine and the
scale. Neither admitted to possessing the heroin.

Procedural Background

Fax and Patterson were indicted for Drug Dealing, two counts of Aggravated
Possession, and Conspiracy Second Degree. Fax filed this Motion on May l,
2017. The State responded on May l9, 2017. A Suppression Hearing was held on

May 30, 2017.

DISCUSSION

A. Reasonable Suspicion to Search
The Fourth Amendment of the United States Constitution and Article I,
Section 6 of the Delaware Constitution protect against “unreasonable searches and

4

seizures.”5 Principal among the protections of the Fourth Amendment is a citizen’s
right to be free from searches into his home absent a warrant or an applicable
exception to the Warrant Clause.6 A recognized exception to the need for a search
warrant is the “special needs” exception to the Warrant Clause.7 This umbrella
term encompasses warrantless searches of a probationer’s home conducted
pursuant to a regulatory scheme that “meets ‘reasonable legislative or
administrative standards.”’8 Therefore, probationers enjoy an abridged Fourth
Amendment right to be free from warrantless searches of their homes, as probation
is one point on a “continuum of possible punishments” and the rehabilitative goals
inherent in probation are best served by permitting the State some “impingement
upon [the probationer’S] privacy.”9

Delaware law, however, “does not permit suspicionless searches of

probationer . . . residences.”lo Instead, the State must have “reasonable grounds”

 

5 U.S. CONST. amend IV; DEL. CONST. art. I, § 6. See, e.g., Payton v. New York, 445 U.S. 573,
585-87 (1980).

6 See Payton, 445 U.S. at 586-87 (quoting Coolia'ge v. New Hampshire, 403 U.S. 443, 474-45,
477-78 (1971)) (discussing warrantless search of home as “presumptively unreasonable”).

7 See generally Ferguson v. City ofCharleston, 532 U.S. 67 (2001).

8 Gri]j'in v. Wisconsin, 483 U.S. 868, 873 (l987) (quoting Camara v. Municipal Court, 387 U.S.
523, 538 (1967)).

9 Id. at 874-45.

10 Sierra v. State, 958 A.Zd 825, 829 (Del. 2008).
5

or “reasonable suspicion” to search the probationer’s residencell “‘Reasonable
suspicion’ exists where the ‘totality of the circumstances’ indicates that the officer
had a ‘particularized and objective basis’ for suspecting legal wrongdoing.”12
Furthermore, probation officers must conduct searches in “accordance with
Department [of Corrections] procedures,” which are incorporated into ll Del. C.
§432l(d).13 Specifically, before conducting an administrative search, probation
officers must comply with the regulations found in the State of Delaware
Department of Correction Bureau of Community Corrections Probation and Parole
Procedure 7.l9 (“Procedure 7.l9”).14

The State argues that the sole basis of a fifteen-day-old failed drug screen
was sufficient to establish reasonable suspicion to search Fax’s residence Further,
the State argues that Officer Tuohey “substantially complied” with Procedure 7.l9
when he conducted the case conference with his supervisor before conducting the

search.15 ln support of these two contentions, the State suggests that the bulk of

Delaware case law interpreting reasonable suspicion in the context of

 

ll Donald v. State, 903 A.2d 315, 319 (Del. 2006).

12 Sierra, 958 A.2d at 825 (quoting United States v. Arvizu, 543 U.S. 266, 273 (2()02)) (citing
Fuller v. State, 844 A.2d 290, 291-93 (Del. 2004)).

13 Culver v. State, 956 A.2d 5, 10 (Del. 2008) (quoting ll Del. C. § 4321(d) (2008)).
14 See, e.g., Sierra, 958 A.2d at 829-30.
15 The State did not argue Fax consented to the administrative search, either in its Response to

the Motion or during the Suppression Hearing. Therefore, the Court does not consider that issue
in this Opinion.

administrative searches of probationers’ residences is inapposite because Officer
Tuohey did not conduct the DACS search based on an external tip. In other words,
the State argues that, because there was no information for Officer Tuohey to
consider from an outside source, the lack of a tip bolster the State’s argument that
one fifteen-day-old failed drug test suffices as reasonable suspicion to conduct the
administrative search of Fax’s residence16

Notwithstanding the State’s argument, case law interpreting administrative
searches in the context of an external tip to a probation officer before the case
conference is highly instructive to the case sub judice For example, a failed drug
test was considered by the probation officer in Culver v. State.17 In Culver, the
probationer had tested positive for drugs on three separate occasions. The first
failed test was shortly after he started probation. By the third test, his levels of
marijuana had come down. His fourth test was negative for drugs. At no point did
his supervising officer file a violation of probation report for the failed drug tests.
Nevertheless, the probation officer who conducted the administrative search in
Culver utilized these past drug tests in his reasonable suspicion analysis.18

The majority in Culver found the past drug tests (and past curfew violations)

insufficient, on their own, to provide reasonable suspicion to search as of the date

 

16 When questioned, the State could not cite to any authority to support this position.
" 956 A.2d 5 (De1. 2008) (3-2).

18 See id. at 9.

of the administrative search.19 A key portion of the majority’s opinion is

instructive to the present case:

When examining whether the failed drug test and the
missed curfew, without more, could support reasonable
suspicion that would justify an administrative search, it is
important to remember that both incidents had already
occurred without probation officers ever considering a
search of Culver's person or home before October l6.
Nor is there any evidence of record that probation
officers in fact intended to search Culver in the
foreseeable future, much less on or before October l6.
That leads us inescapably to the conclusion that the
probation officers did not consider the failed drug test
and the missed curfew to be sufficient reasons under their
protocols to search Culver's home on October 16.20

In the present case, Officer Keen testified that the failed drug screen was a
“technical” violation. However, he stated that even after two follow-up visits with
Fax, where the focus was on his substance abuse treatment, the failed drug test did
not raise any alarms sufficient to seek an administrative warrant at that time It
was not until Fax was arrested after the administrative search did Officer Keen file
a violation of probation report for Fax. On this record, Fax’s isolated, two-week-

old drug test falls well below the indicia of reasonable suspicion present in Culver.

 

'9 seeid. at14-15.

20 ld.

Additionally, the Court finds State v. Perry Johnson21 particularly instructive
to the present case In Perry Johnson, a probation officer received an email tip that
the probationer was known to “ride around the neighborhood at night with his
radio blasting” and sell drugs from a park located near his residence The officer,
knowing the probationer was on Level III probation, searched DACS and
confirmed that the probationer: (l) had recently tested positive for marijuana; (2)
had a curfew violation; (3) had missed an office visit; and (4) failed to complete
two court-ordered behavioral treatment courses. Despite these violations, his
probation officer had not submitted a violation of probation report. The officer
conducted a case conference with his supervisor without contacting the
probationer’s supervising officer. The Johnson Court held the officer lacked
reasonable suspicion to search the probationer’s residence The Court found that,
while any one of the items above “would justify not only a home visit but
potentially a violation of probation by the court[,]” the officer failed to connect the
past uncharged violations with a search of the probationer’s residence

In the present case, the information available to Officer Tuohey falls well
below the information available to the probation officer in Perry Johnson.
Moreover, the latter case reveals the significant lacuna of facts Officer Tuohey had

before conducting a case conference with his supervisor. Unlike the officer in

 

21 2014 wL 6661154 (Del. super. oct. 30, 2014).
' 9

Johnson, whose inquiry began with a tip of potential drug dealing in a local park
near the probationer’s residence, Officer Tuohey knew only two things about Fax:
one, he was serving Level III probation for Drug Dealing (Tier 2); and two, he had
a positive urine screen for marijuana fifteen days earlier. He had no tip of
questionable behavior, no history of curfew violations, no missed office visits, and
no reported noncompliance with court-ordered treatment. Based on similar facts
considered insufficient in Culver and Johnson, the Court finds that Officer Tuohey
did not have reasonable suspicion to conduct an administrative search of Fax’s
residence
B. The Self-Initiated DACS Search

Beyond the legal basis for the search, this Court is troubled by the purported
“practice” of conducing self-initiated DACS searches without adequate
corroboration of a link between the reported violation of probation and a search of
the probationer’s residence The Fourth Amendment was principally drafted to
eliminate the practice of “general warrants.”22 While a probationer clearly loses
the full protection of the Fourth Amendment under Delaware law, its protection

does not dissipate entirely.23 The facts of the present case highlight the need for a

 

22 see Wheel@r v. s¢a¢e, 135 A.3d 282, 296-99 (Del. 2016).

23 sierra v. srar@, 958 A.2d 825, 829 (Del. 2008).
10

threshold analysis of reasonable suspicion before an administrative search warrant
is requested in accordance with Procedure 7.l9.

The State’s position that there was compliance with Procedure 7.l9 despite
any tip or additional police/probation corroboration is concerning Were the Court
to accept this argument, any probation officer at any time could forego surveillance
methods, disregard or give lesser credence to information from reliable sources,
and simply perform random DACS queries of probationers in order to conduct
residential searches. As the majority implied in Culver, reasonable suspicion to
search is a forward-looking analysis, made from an assessment of the facts as they
appear to the probation officer before conducting the case conference:

Procedure 7.l9 makes it plain that probation officers must
rationally assess the facts known to them before reaching the

critical conclusion that there is a reasonable basis to search a
probationer’s dwelling.24

Of particular concern to the Court is the Potemkin effort of this DACS-
initiated search: one that exhibits trademark properties of a fishing expedition
Officer Tuohey testified that his goal was to conduct an administrative search that
night. Contrary to the mandates under Culver, he searched first and then found the
facts to support the search. In the face of inclement weather, the DACS net was
cast serendipitously on Fax_he was closest to Troop 2, after all. Fax was fish

number one in the l9702 barrel.

 

24 Culver, 956 A.2d at 13 (emphasis added).
ll `

Officer Tuohey testified that, as part of the Governor’s Task Force, his unit
conducts proactive law enforcement functions. He admitted that there is no policy
or procedure that authorizes random DACS searches such as the one in this case;
however, it is a “practice” his team employs. When Officer Tuohey Saw Fax’s
positive urine screen in DACS, he acknowledged that the DACS entries also
showed the follow-up meetings between Officer Keen and Fax, and he knew that
these visits did not result in either a violation report or recommendation for
substance abuse treatment. He testified, nevertheless, that this information did not
change his belief that Fax was still using or possessing marijuana or contraband
He further testified that, without any additional information, such as contacting
Officer Keen, he concluded that Fax’s use must be occurring at his residence

As discussed in Perry Johnson, this Court finds that any nexus between
Fax’s failed drug test and his residence is speculative Even in Culver, there was
an anonymous tip about suspected drug activity in the probationer ’s home from an
unknown caller with no past proven reliability. Here, there was no indication that
there was any suspected drug use or activity in Fax’s home Officer Tuohey’s
suspicion that Fax must be using drugs in his home was simply a hunch.

This Court does not challenge the practices of the Governor’s Task Force in
this ruling. As Officer Tuohey testified repeatedly, their function is intended to

add an “additional layer of supervision” in a proactive manner. Nonetheless,

12

Defense counsel was correct to point out that the probation officer’s role is not
identical to the role of law enforcement The Supreme Court highlighted this point

in Pena'leton v. State.25 The Pendleton Court’s admonishment to probation officers

is worth repeating here:

We remind all probation officers to pursue the
rehabilitation of their probationers as fervently as they
pursue compliance, curfew checks, spontaneous searches,
and deterrence Delaware law places the responsibility
upon probation officers of reintegrating probationers into
society by creating treatment plans to “alleviate [the]
conditions which brought about the criminal behavior,”
“secur[ing] employment,” and “us[ing] all suitable
methods to aid and encourage them to bring about
improvement in their conduct and conditions and to meet
their probation or parole obligations.” Any neglect of
these important responsibilities only denigrates society's
trust and confidence in the corrections system.

CONCLUSION
This Court finds that there is insufficient evidence for a finding of
reasonable suspicion to justify the administrative search in this case The State has
not met its burden of proving the search comported with the Fourth Amendment of
the United States Constitution, Article I, Section 6 of the Delaware Constitution,

and Delaware statutory law. As such, the evidence seized from the search of Fax’s

 

25 990 A.2d 417 (Del. 2010).

26 Id. at 421 (footnotes omitted).
13

residence must be suppressed as the fruit of an unlawful search.27 Therefore,

Defendant’s Motion to Suppress is GRANTED.

"\"/ivian L. Medinilla
Judge

IT IS SO ORDERED.

oc: Prothonotary

cc: Defendant
Jeffrey M Rigby, Esquire
Benjamin S. Gifford, IV, Esquire
Investigative Service Office

 

27 See Wong Suu v. United States, 371 U.S. 471 (1963).
` 14

