SUPER|OR COURT
oF THE

STATE OF DELAWARE

VlleN L. MEDINILLA LEoNARD L. WlLLlAMs JusTlcE CENTER
JuDGE 500 NoRTH KlNG STREET, sulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

April 4, 2019

Michael B. Cooksey, Esquire John A. Barber, Esquire
Delaware Department of Justice Law Office of John A. Barber
820 N. French Street, 7th Floor 24B Trolley Square
Wilmington, DE l980l Wilmington, DE 198()6

Re: State of Delaware v. Vincent McCants
Case ID: 1810013206

Dear Counsel:

This is the Court’s ruling on Defendant’s Motion to Suppress in the above-
captioned case. For the following reasons, Defendant’s Motion to Suppress is
GRANTED.

F actual and Procedural Background

Vincent McCants (“McCants”) is charged With Possession of a Firearm by a
Person Prohibited, Possession of Ammunition by a Person Prohibited, and two
counts of Drug Dealing. This is a four-corners revieW. The following facts are
provided in the search Warrant affidavit:

Detective Michael Lilley (“Lilley”) is a Corporal With the Delaware State
Police, assigned to the Troop 2 Drug Task Force (“DTF”).l During August 2018,
Troop 2 DTF members received information from a confidential source that
McCantS Was selling drugs, specifically heroin, in the New Castle Counly area.2
TWo months later, officers ran an inquiry on McCantS, and it Was revealed that he
had an active capias for failure to pay for driving Without a valid driver’s license, his
license Was suspended or revoked, and he listed his address as 2424 Squirrel Drive

 

1 Def.’s Mot., EX. A at 3 11 l [hereinafter Aff. 11_].
2 Aff. 1[ 4 (emphasis added).

in Bear, Delaware (“McCants’ residence”).3 On October 23, 2018, officers
conducted surveillance near building 2420, the building of McCants’ second-floor
apartment4 At ll:lO am, an officer observed McCants exiting “the area of 2424
Squirrel Drive and began walking down the steps from the second floor.”5 He was
observed entering a gold Nissan Altima before leaving the area.6

He then traveled to the Taco Bell parking lot, where members of the DTF saw
a white male enter the passenger side of McCants’ vehicle.7 The officers observed
this male exit the vehicle and “appeared to be concealing an object in his left hand;”
the male returned to a yellow pick~up truck and exited the area.8 Then, McCants
entered the passenger side of a silver vehicle where he stayed for a short period
before exiting and re-entering the driver side of his vehicle.9 Lilley believed this
was consistent with hand-to-hand drug transactions10

Next, the vehicle traveled to a BP Gas Station and McCants parked in the
parking lot near the Lobdell Street exit.11 Two black males approached McCants’
car and left shortly on foot. This was also believed by the officer to be consistent
with a drug transaction.12 After approximately 25 minutes, McCants left that area,
and parked near 322 South Claymont Street.13 He exited the vehicle and walked up
and down South Claymont Street while talking on the phone.14 He then returned to
his vehicle and drove to the Macy’s parking lot at the Christiana Mall.15

At the mall, Detective Macauley approached the driver’s side of McCants’ car
and arrested him for the active failure to pay capias.16 During the search incident to

 

3 Aff. 11 5 .

4 Id. 11 6.

5 Ia'.

6 Id. The gold Nissan Altima is registered to Tabitha Goodman.
7 Id. 11 7.

8 Aff. 11 7.

9 ld.

10 Ia’.

11 ld. 11 8.

12 Id.

13 Aff. 11 8.

14 Ia'. The officers maintained surveillance during this time.
15 1a 11 9.

16 Id.

arrest, officers found in his possession 4 Suboxone films, without a prescription, and
$394 of cash.17 McCants and the vehicle were transported to Troop 2.18

Lilley sought and obtained a search Warrant of his car and residence and stated
in the affidavit that he “believes evidence can be located at McCants [sic] listed
address of 2424 Squirrel Drive, which McCants was observed exiting prior to
completing all of the drug transactions.”19 During the search of the residence,
officers seized a .40 handgun and other items.20 On February 26, 2019, McCants
filed his Motion to Suppress. The State responded on March 22, 2019. A
suppression hearing was heard on March 26, 20l9. The matter is now ripe for

review.
Parties’ Contentions

Relying on State v. Cannon,21 McCants requests the evidence obtained from
the search of his residence be suppressed.22 McCants argues the affidavit is deficient
in establishing an evidentiary nexus that drugs or the other items sought in the
warrant would be located at McCants’ residence23 The State maintains that Lilley’s
surveillance of the building, particularly that he observed McCants exiting the
second floor of the building where his residence was located, allowed a magistrate
to make a reasonable inference that he was exiting apartment 2424.24 lt further
argues that the affidavit provides sufficient information to establish an evidentiary
nexus between his residence and the contraband items police sought.25 The State
did not rely or provide other authority except for references that may distinguish this
case from Cannon and Valentine v. State.26

 

17 Aff. 1[ 9.

18 ld. 1111 9-10.

19 Id. 11 ll.

20 Def.’s Mot. at 2.

21 2007 WL 1849022 (Del. Super. June 27, 2007).

22 Def.’s Mot. at 10.

23 Def.’s Mot. at l-2, 5. Defendant’s residence was searched on October 23, 3018.
24 State’s Resp. at 5.

25 Ia'. at 8.

26 2019 wL 1273689 (Del. Mar. 20, 2019).

Standard of Review

When a Defendant challenges the validity of a search warrant on a motion to
suppress, “the defendant bears the burden of establishing that the challenged search
or seizure was unlawful.”27 On a motion to suppress, the burden of proof “is proof
by a preponderance of the evidence.”28

Discussion

Citizens have the right to be free from unreasonable searches and seizures
under Article I, § 6 of the Delaware Constitution and the Fourth Amendment of the
United States Constitution.29 Under Delaware law, ll Del. C. §§ 2306 and 2307
discuss the application for a search warrant and the magistrate’s role in issuing a
search warrant.30 Section 2306 provides:

The application or complaint for a search warrant shall be
in writing, signed by the complainant and verified by oath
or affirmation. lt 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 as may be, and shall
substantially allege the cause for which the search is 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.31

An “affidavit in support of a search warrant must, within the four-corners of
the affidavit, set forth facts adequate for a judicial officer to form a reasonable belief

 

27 State v. sisson, 883 A.2d 868, 875 (Del. super. 2005),¢1]7’¢1, 903 A.2d 288 (Del. 2006)
(citations omitted) [hereinafter Sisson 1].

28 State v. Iverson, 2011 wL 1205242, at *3 (Del. super. Mar. 31, 2011) (citation omitted).

29 See U.s. Const. amend lv; Del. Const. art. 1, § 6; stare v. Adams, 13 A.3d 1162, 1172 (Del.
Super. Aug. 22, 2008) (citations omitted).

30 11 Del. C. §2306; 11 Del_ C. § 2307.

31 11De1. C. §2306.

that an offense has been committed and the property to be seized will be found in a
particular place.”32 The totality of the circumstances test is used to determine
“whether probable cause to obtain a search warrant exists.”33 An affidavit
“establishes probable cause to search only where it contains a nexus between the
items sought and the place to be searched.”34 This creates a two-part inquiry to
establish probable cause: “(l) probable cause that a crime was committed; and (2)
probable cause to believe that evidence of that crime will be found at the
residence.”35

A magistrate’s probable cause determination should be reviewed with great
deference and should not “take the form of a de novo review.”36 A magistrate’s
probable cause determination should be considered “as a whole in a practical,
commonsense manner, and not on the basis of a hypertechnical analysis of its
separate allegations.”37 The reviewing court’s “duty is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause existed.”38

Both sides rely on Cannon and Valentine to support their positions. Cannon
focuses on the evidentiary nexus between the items sought and the place to be
searched in the warrant application Focusing on that nexus, in Cannon, the Superior
Court suppressed evidence seized in defendant’s residence for reasons that closely
align with the facts of this case.

Valentz`ne instead focuses, in part, on the reliability, basis of knowledge, and
corroboration of an informant’s tip.39 In this more recent decision, the Supreme
Court reversed the trial court’s ruling that had denied defendant’s motion to
suppress. The Supreme Court considered a similar warrant to search for a firearm
and ammunition, and determined the evidence seized from the search of the

32 Sisson v. State, 903 A.2d 288, 296 (Del. 2006) (citations omitted) [hereinafter Sisson 11].

33 Id. (citing Fink v. State, 8l7 A.2d 781, 787 (Del. 2003); Gardner v. State, 567 A.2d 404 (Del.
1989)).

34 Adams, 13 A.3d at 1173 (citing Hooks v. sz@, 416 A.2d 189, 203 (Del. 1980)).

33 Id. (citing Hooks, 416 A.2d at 203).

36 State v. Hola'en, 60 A.3d lllO, lll4 (Del. 2013) (quoting Illinois v. Gates, 462 U.S. 213, 238-
39 (1983)).

37 Sisson II, 903 A.2d at 296 (citing Smith v. State, 887 A.2d 470, 473 (Del. 2005)).

38 ld. (citations omitted).

39 See Valentine, 2019 WL 1273 689, at *4-8 (analyzing credibility and reliability of informant
and the tip).

apartment and vehicle should have been suppressed40 The similarities and
distinctions here weigh in favor of the same result as in Cannon and Valentine.

First, like Cannon, the confidential source here was not past proven reliable.
And although in Valentine the tip was provided by an individual identified by police
as past proven reliable,41 the Supreme Court found that “the affidavit was insufficient
to establish the informant’s credibility on the basis of past performance”42 and the
“warrant affidavit [did] not contain any self-verifying detail that [could] stand in the
place of first-hand knowledge so that the magistrate could reasonably know that the
informant knew what she was talking about.”43 Here, this Court finds that the
affidavit is silent as to the source’s first-hand knowledge related to the drug-related
activity that presumably was taking place in the county, let alone his apartment This
leads to the next point.

Not only are the credibility and reliability of the informant questionable, the
tip is overly broad and makes no mention of McCants’ residence Unlike Valentine
that identified defendant’s residence, and Cannon that suggested drug-activity was
taking place in certain named intersections or street corners in a particular
neighborhood, here the tip does not hint that the criminal activity was occurring in,
near, or even around the area of his apartment. The extent of the tip was that
McCants was selling drugs in the New Castle County area. The Cannon court
considered similar tips that did not allege that “Cannon was using his residence to
deal drugs or to store drugs, drug paraphernalia, or any other evidence of drug
transactions.”44 In doing so, that Court found that “without additional factual
information giving rise to a probability that evidence would be found in Cannon’s
residence, it was unreasonable for the issuing magistrate to accept the affidavit’s
content as supporting the evidentiary nexus necessary for a search of [the
residence].”45 This is also the case here.

40 See Valentine, 2019 WL 1273689, at *9 (reversing Defendant’s judgments of conviction of the
Superior Court and remanding).

41 See id. at *3.

42 Ia'. at *5 (discussing veracity and reliability of informant).

43 Ia’. at *6 (explaining informant’s basis of knowledge).

44 Cannon, 2007 wL 1849022, at *5 (citations Omitted).

43 Id. at *6 (suppressing evidence seized from the search of defendant’s residence because the
affidavit “did not provide a substantial from which the issuing judicial officer could reasonably
conclude that probable cause to execute a residence search existed”).

6

Third is the issue of corroboration and other factors that could have been
considered in establishing probable cause. The Valentine Court considered several
facts from the affidavit to include that a tip identified the defendant’s address, the
defendant was seen leaving his home, and he was seen meeting with another male
where a duffle bag was exchanged.46 Here, McCants is also seen leaving his home
and meeting with unknown individuals The officer stated that he observed what he
believed were hand-to-hand transactions,47 to include that the officers observed a
male exit McCants’ vehicle and “appeared to be concealing an object in his left
hand.” Notably, in Cannon, the search of his apartment was deemed
unconstitutional despite the fact that the officer stopped the driver of another car that
Cannon had recently exited, seized the cocaine in that case, and further confirmed
that Cannon had provided the cocaine.48 Here, the officers did not question the
individuals or seize what could have been the alleged drugs exchanged to
corroborate the accuracy of what was observed. Even if they had, it still does not
connect the criminal activity to his apartment This leads to the surveillance of his
apartment building.

The tip was stale and the surveillance was not conducted to corroborate the
information from the confidential source. The information of drug-related activity
in the New Castle County area was provided to police officers in August 2018 yet
they began their surveillance two months later in October 2018. Moreover, the
decision to conduct surveillance was not made to corroborate the tip since the tip
said nothing about McCants’ residence Instead, surveillance was conducted
because the DELJIS check confirmed McCants had an outstanding capias for failing
to pay for driving without a valid driver’s license or other related driving infractions.
This DELJIS check revealed a last known address and the surveillance confirmed
that he was seen coming from the second floor of the building at the stated address.
The State is correct that the magistrate could reasonably infer that since his
apartment is on the second floor, then he could have been exiting his apartment
Beyond that inference, this additional information provides nothing more. As in
Valentine, where the Supreme Court found that additional information did not weigh

 

46 See Cannon, 2007 WL 1849022, at *3-4 (summarizing “key factual assertions” in the
affidavit).

47 Aff. 1111 7-9.

43 See Camwn, 2007 wL 1849022, at *2.

in favor of the magistrate’s finding of probable cause,49 the Court finds that this
surveillance yielded no more than that he was residing where he last stated.

Under Carmon and Valentine, this Court finds that the facts within this
affidavit fail to establish the requisite nexus between the items sought_drugs,
related paraphernalia, and firearms_and the place to be searched_McCants’
residence In giving deference to the magistrate’s determination, this Court finds
that within the four-corners of the affidavit, viewed in light of the totality of the
circumstances, the magistrate did not have a substantial basis for concluding that
probable cause existed to issue a search warrant for McCants’ residence Thus, the
search of 2424 Squirrel Drive in Bear, Delaware violated the Fourth Amendment of
the United States Constitution and Article I, § 6 of the DelaWare Constitution.
Therefore, Defendant’s Motion to Suppress is GRANTED.

IT IS SO ORDERED.

 

 

Vivian L. Medinilla
Judge

  

oc: Prothonotary
cc: Defendant
Office of Investigative Services

 

49 Valentine, 2019 WL 1273689, at *6-8 (looking at additional factors including the defendant’s
altercation with another resident of the apartments, his arrest on March 19, 2016, his criminal
history, and the officers’ surveillance of the defendant).

8

