IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)

)

v. ) I.D. No.: 1710018609

)

)

TRENTON HOLMES, )
)

Defendant. )

ORDER

Submitted: October 4, 2018
Decided: October 16, 2018

Upon Consideration of Defendam ’s Motion to Suppress,
DENIED.

Gregory R. Babowal, Esquire, Department of Justice. Attorneyfor the State.

Anthony J. Capone, Esquire. Attorneyfor Defendam.

MEDINILLA, J.

AND NOW TO WIT, this 16th day of October, 2018, upon consideration of
the Defendant’s Motion to Suppress and the record in this case,l it appears to the
Court that:

l. Defendant Trenton Holmes (“Defendant”) is charged With Possession
With Intent to Deliver Heroin in a Tier 4 Quantity, Possession of Heroin in a Tier 4
Quantity, and Possession of Drug Paraphemalia. Defendant Was arrested on October
30, 2017 after an administrative search of Defendant’s residence.

2. On October 30, 2017, Defendant, a homeless probationer, reported for
his daily office visit at the Dover Probation and Parole Offlce (the “Offlce”) as
required. Defendant had reported consecutively for the prior ten days that he Was
residing at 409 Charing Cross Drive in Dover, Delaware (the “Residence”), Which
Was his girlfriend Tiekeyal Singletary’s (“Singletary”) residence.

3. During the month of October 2017, Probation Offlcers and Dover
Police had received a tip from a past proven reliable confidential informant (“CI”)
that Defendant Was selling heroin out of the Residence. Detective Joshua
Boesenberg (“Boesenberg”) reported that the CI told him that an individual known

as “Redy,” “Reds,” or “T” Was selling heroin from the Residence. Probation Officer

 

l The Court’s recitation is based on the facts presented in the motions, exhibits, and on the
testimony of the State’s and Defendant’s Witnesses and/or exhibits presented at the suppression
hearing held on July 23, 2018 and the evidence entered on October 4, 2018 after this Court granted
Defendant’s Motion to Re-Open Evidence on September ll, 2018.

')

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Daniel Stagg (“Stagg”) Was familiar With Defendant Whose aliases included these
names.2 Boesenberg showed the Informant a photograph of Holmes and the Cl
identified Defendant as the person selling heroin from the Residence.3

4. On October 30, 2017, Probation Officer Ricky Porter (“Porter”)
conducted surveillance of the Residence With Dover Police. During this
surveillance, Porter observed a black female arrive at the Residence in a 2010
Nissan. This vehicle Was later determined to be Defendant’s girlfriend Singletary’s
vehicle and Was the same vehicle that Defendant Was operating during prior drug
related activity on August 23, 2017.4

5. The driver of the vehicle picked up Defendant at the Residence and they
drove to an Aldi Grocery Store in Camden, Delaware Where they then picked up
Singletary and Went to the Office in order for Defendant to report for his daily
appointment.5

6. When Defendant arrived at the Office, Porter arrested him. He then
obtained supervisory approval from Supervisor Robert Hume to conduct an

administrative search of the Residence. Porter cited that the administrative search

 

2 Def.’s Mot. to Suppress, Ex. B at 3.
3 Id.
4 Def.’s Mot. to Suppress, Ex. A at 2.

51d.

was based on a past proven reliable informant’s tip that Defendant was living at the
Residence and selling heroin from that address, Defendant’s claim that he was
homeless to his probation officer but was reporting staying at the Residence the past
ten days, Defendant’s positive urinalysis test for marijuana on September 18, 2017
(42 days prior), and Defendant’s then pending drug charges.6

7. After he was arrested and handcuffed, Defendant told Porter that he was
living at the Residence with Singletary. Porter walked outside to the parking lot and
communicated directly with Singletary who was sitting in the parking lot of the
Office. She then confirmed Defendant was residing with her and consented to a
search of her vehicle. Porter testified also that verbal consent to search her home
was obtained prior to heading to the Residence to conduct the search. Further, Porter
and other Dover police officers responded to the Residence and Singletary signed a
consent search form to search the Residence that was issued by Probation Officer
Stagg.7 Singletary voluntarily followed the officers to her home to allow them to
conduct a search. No evidence to the contrary was presented.

8. During the search of the Residence, the record reflects that Stagg

discovered 702 bags/4.914 grams of heroin and $263 in cash in the master bedroom.

 

6 Def.’s Mot. to Suppress, Ex. A at 2. Defendant was arrested for these then pending charges on
August 23, 2017. The charges were resolved via plea agreement on January 3, 2018, which
included a plea to Possession of a Controlled Substance with an Aggravating Factor.

7 Def.’s Mot. to Suppress, Ex. D.

Officers also found mail addressed to Defendant and male clothing throughout the
master bedroom. Defendant waived his rights under Mz'randa and confessed that he
lived at the Residence, possessed the bags of heroin, and that he was selling heroin.
Porter also searched Defendant’s cell phone incident to arrest that showed text
messages from Defendant texting about selling heroin.

9. Defendant filed this motion to suppress the evidence from the search of
his Residence on June 19, 2018. The State responded on June 29, 2018. A
suppression hearing was held on July 23, 2018. Defendant subsequently filed a
Motion to Reopen Evidence, which this Court granted. A second supplemental
hearing was held on October 4, 2018.

10. At the second supplemental hearing, the State recalled Porter to clarify
his prior testimony related to the Administrative Warrant (“Administrative
Warrant”) he signed on October 30, 2017, and to reconcile the testimony as it relates
to the other two reports in this investigations First, the State identified the
Administrative Warrant as an emergency capias, which provides the conditions of
probation that had been allegedly violated as a result of these criminal drug-related

charges.9 This is different from the report that formed the basis for the search

 

8 Def.’s Ex. l.

91d.

ll. In support of the search, the State presented evidence through Porter
who clarified that the second document, the “Arrest/Incident Report” dated October
31, 2017 fully sets out the reasons, including those to which he testified, regarding
the bases for the administrative search.‘° The last document the Court was asked to
consider was the Violation Report (“Violation Report”) completed by Probation
Officer Anthony Slaughter and submitted on November 1, 2017 that simply confirms
the allegation that these new criminal charges of October 30, 2017 formed the basis
of the request to violate his probation.ll

Standard of Review

12. Under Delaware Superior Court Criminal Rule 12(b)(2), a criminal
defendant is permitted to file a motion to suppress evidence prior to trial.l2 When a
Defendant moves to suppress evidence collected in a warrantless search, the burden
is on the State to prove the search “comported with the rights guaranteed [to the
defendant] by the United States Constitution, the Delaware Constitution and

Delaware statutory law.”13 Here, the burden is on the State to prove the

 

'0 See generally Def.’s Mot. to Suppress, Ex. A.
" Def.’s EX. 2.
'2 DEL. SUPER. CT. CRIM. R. 12(b)(2).

13 State v. Preston, 2016 WL 5903002, at *2 (Del. Super. Sept. 27, 2016) (quoting State v. Kang,
2001 WL 1729126, at *3 (Del. Super. Nov. 30, 2001)).

constitutionality of the search by a preponderance of the evidence.14
Discussion

13. The Fourth Amendment of the United States Constitution and Article I,
Section 6 of the Delaware Constitution protect individuals against unreasonable
searches and seizures.15 Citizens have a right to be free from searches into their
home absent a warrant or an applicable exception to the Warrant Clause.16 An
applicable exception to the warrant requirement is when a search is conducted
“pursuant to a valid consent.”17

14. Additionally, the “special needs” exception is a recognized exception
to the Warrant Clause.18 A warrantless search of a probationer’s home may be
included under the “special needs” exception if the search is conducted pursuant to

a valid regulatory scheme that meets “reasonable legislative or administrative

standards.”19 Probationers “enjoy an abridged Fourth Amendment right to be free

 

14 See Preston, 2016 WL 5903002, at *2.
15 U.S. CoNsT. amend. IV; DEL. CoNsT. art I, § 6.

16 See Payton v. New York, 445 U.S. 573, 586-87 (1980) (quoting Cooll`dge v. New Hampshz`re,
703 U.S. 443, 474-75, 477-78 (1971)).

17 Scott v. State, 672 A.2d 550, 552 (Del. 1996) (citing Schneekloth v. Bustamonte, 412 U.S. 218,
221-22 (1974)).

18 See generally Ferguson v. Cily of Charleston, 532 U.S. 67 (2001).

19 Grijj’l`n v. Wisconsin, 483 U.S. 868, 873 (1987) (quoting Camara v. Municipal Court, 387 U.S.
523, 538 (1967)).

from warrantless searches of their home, as probation is one point on a ‘continuum
of possible punishments.”’20 The rehabilitative goals of probation are best served
by permitting the State some “degree of impingement upon [the probationer’s]
privacy.”21

15. Thus, probationers do not have the same constitutional liberties as
ordinary citizens.22 A lower standard is used for a search of an individual on
probation. An administrative search of a probationer’s home requires reasonable
grounds rather than probable cause.23 Probation Officers “may conduct searches of
individuals under probation and parole supervision” and execute lawful warrants in
accordance with the Department of Correction (DOC) procedures.24

16'. First, the State asserts, and this Court agrees, that Singletary consented
to the search of her Residence. When analyzing “whether consent to a search was

in fact ‘voluntary’ or was the product of duress or coercion, express or implied, [it]

is a question of fact to be determined from the totality of the circumstances.”25 The

 

20 State v. Fax, 2017 WL 2418275, at *2 (Del. Super. June 2, 2017) (quoting Grl`jj?n, 483 U.S. at
874).

21 Griffin, 483 U.S. at 875.

22 See Donala’ v. State, 903 A.2d 315, 318-19 (Del. 2006).
23 Id. at 319.

24 11 Del. C. §432l(d).

25 Schneckloth, 412 U.S. at 227; see also State v. Harris, 642 A.2d 1242, 1245-46 (Del. Super.
1993).

burden is on the prosecution to prove that the consent was “freely and voluntarily
given.”26 The Delaware Supreme Court has stated that “consent by a co-occupant
may be sufficient as to other co-occupants.”27 Evidence obtained through a search
consented to by a co-occupant “may be used against the other occupant if the
consenting party has sufficient control over premises to bind the joint possessor to
[her] consent.”28

l7. The State has met its burden that Singletary’s consent to search her
residence was freely and voluntarily given. While in the parking lot, she provided
verbal consent to search her Residence and drove back voluntarily to her Residence
so the officers could conduct a search. When Singletary arrived at her home, she
signed a consent form to search her Residence, was cooperative with the probation
and police officers and permitted the search to be conducted. Therefore, this Court
finds that Singletary, as a co-occupant of the Residence, provided valid voluntary
consent for the probation officers and Dover police officers to search her Residence.
Even if it was determined that the consent was lacking, this Court finds that there

existed reasonable grounds for the probation officers to conduct an administrative

search of Defendant’s Residence.

 

26 Schrzecklolh, 412 U.S. at 222 (quoting Bumper v. Noth Carolina, 391 U.S. 543, 548 (1968)).

27 Donalcl, 903 A.2d at 320 (citing Jenkins v. State, 230 A.2d 262, 262 (Del. 1967), ajj”a' on other
grounds, 240 A.2d 146 (Del. 1968), aj’d, 395 U.s. 213 (1969)).

28 Ia'. at 319-20 (citation omitted).

18. Delaware “law does not permit suspicionless searches of probationer or
parolee residences.”29 A probation officer must have “reasonable suspicion” or
“reasonable grounds” to conduct an administrative search of a probationer’s
residence.30 “‘Reasonable suspicion’ exists where the ‘totality of the circumstances’
indicates that the officer had a ‘particularized and objective basis’ for suspecting
legal wrongdoing.”31

19. Furthermore, probation officers must perform searches that comply
with the procedures of the Department of Correction, which is permitted under 11
Del. C. § 4321 and Probation and Parole Procedure 7.19.32 Procedure 7.19 includes
a “Search Checklist” to review the following factors: “(l) [s]ufficient reason to
believe the offender possesses contraband[,] (2) [s]ufficient reason to believe the
offender is in violation of probation/parole[,] (3) [i]nformation from a reliable
informant, indicating offender possesses contraband or is violating the law[,] (4)

[i]nformation from the informant is corroborated[,]” and [5] approval from a

supervisor.33 A probation officer need only “substantially comply” with the

 

29 Sierra v. State, 958 A.2d 825, 829 (Del. 2008).
30 Donala', 903 A.2d at 319.

31 Sierra, 958 A.2d at 828 (quoting United States v. Arvizu, 534 U.S. 266, 273 (2002); citing Fuller
v. State, 844 A.2d 290, 291-93 (Del. 2004)).

32 See id. at 828-30; 11 Del. C. §4321(d).

33 Culver v. State, 956 A.2d 5, 10 (Del. 2008).
10

departmental procedures to satisfy that the search is constitutionally reasonable34
20. When the decision to search is based on an informant’s tip, a probation
officer is required “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.”35 Probation officers are required to
assess the reliability of an informant under Procedure 7.19.36 Procedure 7.19
requires a probation officer to consider “[i]n evaluating reliability of information,
was [1] the information detailed, [2] consistent, [3] was the informant reliable in the
past, and [4] consider the reasons why the informant is supplying the information.”37
When determining if an informant’s tip “is sufficient to create a ‘reasonable
suspicion’ of wrongdoing, the ‘totality of the circumstances’ must be considered.”38

The information that the informant provides must show that he or she has an actual

knowledge of an illegal activity, not just provide observable information.39

 

34 See Perza'lelon v. State, 990 A.2d 417, 420 (Del. 2010) (finding that Delaware law only requires
substantial compliance with departmental regulations).

35 Culver, 956 A.2d at 7.

36 See ia’. at 10.

37 Sierra, 958 A.2d at 831 (citing Culver, 956 A.2d at 10-11).

33 Id. at 829 (citing minors v. Ga¢es, 462 U.s. 213, 230-31 (1983)).

39 See id. at 831 (citing LeGmnde v. sm¢e, 947 A.2d 1103, 1111 (Del. 2008); Culver, 956 A.2d ar
11).

ll

21. Here, on October 30, 2017, the probation officers and Dover police
officers conducted surveillance on the Residence after they received a tip from a past
proven reliable informant that Defendant was selling heroin from the Residence.40
The officers confirmed the identity of the Defendant by showing the CI photographs
of the Defendant. The CI confirmed that he knew him by various names and
nicknames that were also known to law enforcement to be connected to Defendant.

22. The officers further corroborated the informant’s tip that Defendant had
a connection with the Residence when they observed Defendant leaving the
Residence and get into Singletary’s vehicle; the same vehicle Defendant was
operating during a drug arrest on August 23, 2017.41 Under the totality of the
circumstances, this Court finds that the CI, deemed past proven reliable, provided a
tip that was corroborated as reliable, which created a reasonable suspicion of
wrongdoing

23. Further, Porter had information unrelated to the past proven reliable
informant’s tip. This included that Defendant was claiming homelessness to his
probation officer yet was reported staying at the Residence for the last ten days

before October 30, 2017. Added to this calculus was Defendant’s positive urinalysis

 

40 Def.’s Mot. to Suppress, Ex. A at 2.

41 Id

12

test for marijuana on September 18, 2017, and Defendant’s separate pending drug
charges. This information, coupled with the past proven reliable informant’s tip that
Defendant was selling heroin out of the Residence, provided Porter with reasonable
suspicion to conduct the administrative search of the Residence.

24. Defendant relies on State v. Srm`th,42 State v. Caulk,43 and State v.
Walker44 to support its argument that the search was unlawful. This Court finds the
authority distinguishable In Smith, the CI stated the defendant was selling drugs
from his vehicle but the probation officers performed an administrative search of his
home after observing him sitting in his vehicle “without engaging in hand-to-hand
transactions.”45 Here, the Residence was the exact location where the CI indicated
the drug-related activity was taking place, and the State conducted their surveillance
at this location, accordingly.

25. In Caulk, the Court denied suppression and found that, although the
information provided to the officers was not sufficiently reliable, the “administrative
search of the vehicle [was] valid because the officers independently corroborated the

informant’s tip” and the probation officer had information unrelated to the tip “that

 

43 2013 WL 6057814(De1. super. ocr. 16, 2013).
43 2015 WL 5320165 (Del. super. sept 14, 2015).
44 177 A.3d 1235 (Del. Super. 2018).

45 Smith, 2013 WL 6057814, at *3.

13

was sufficient to give him reasonable grounds to believe that Defendant had violated
his probation and possessed contraband in the vehicle.”46 Here, no evidence was
presented to suggest that the CI was not past proven reliable. Also, Porter and the
officers corroborated the reliability of the tip by conducting the requisite surveillance
on the Residence, and had yet additional information from which to suspect that
Defendant had violated his probation. Lastly, Walker is inapplicable to this case, as
the holding addresses whether the exclusionary rule applies to violation of probation
hearings.47 There, the underlying suppression issue suggested the CI motives should
have been explored. Here, no evidence regarding the motives of the past proven
reliable CI was presented, and the officer corroborated the tip.

26. This Court finds that the probation officers had reasonable Suspicion to
conduct the administrative search of the Residence. The probation officers
substantially complied with Procedure 7. 19 when they obtained information from a
past proven reliable informant, they corroborated the information from the informant
by conducting surveillance of Defendant at the Residence, and Porter obtained the
appropriate approval from his Supervisor prior to conducting the administrative
search. The State has met its burden that the search complied with the Fourth

Amendment of the United States Constitution, Article I, Section 6 of the Delaware

 

46 Caulk, 2015 wL 5320165,31*4.

47 Walker, 177 A.3d at 1244.
14

Constitution, and Delaware statutory law.

27. Any clarification provided at the supplemental hearing on October 4,
2018 does not change the result of this ruling. There, the State clarified the
difference between the Administrative Warrant, the Arrest/Incident Report, and the
Violation Report. The Arrest/Incident Report outlines the reasons for the
administrative search of Defendant’s Residence, which differs from the reasons
provided in the Administrative Warrant and Violation Report for the alleged
violation of the conditions of supervision. The Administrative Warrant and
Violation Report both discuss the new criminal charges from October 30, 2017 that
allegedly violated a condition of Defendant’s supervision.48 These documents
properly state an alleged violation of supervision based on the lawful administrative
search of Defendant’s residence.

For these reasons, the evidence seized from Defendant will not be suppressed
as fruits of an unlawful search and seizure. Defendant’s Motion to Suppress is
DENIED.

IT IS SO ORDERED.

vivian L. Mediniua
Judge

 

48 See Def.’s Ex. 1; Def.’s Ex. 2.

15

