      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,                     )
                                       )
                                       )
           v.                          )
                                       )         ID No. 1407023965
                                       )
DALE K. MCNEILL,                       )
a.k.a. CHARLES DESHIELDS,              )
                                       )
            Defendant.                 )


                         Date Submitted: March 27, 2015
                          Date Decided: April 23, 2015

                                   OPINION

                Upon Defendant’s Motion to Suppress: DENIED.

Barzilai K. Axelrod, Deputy Attorney General, Wilmington, DE, Attorney for the
State.

Joseph M. Leager, Jr., Esquire, Wilmington, DE, Attorney for the Defendant.




Jurden, P.J.
                             I. INTRODUCTION

      Before the Court is the defendant’s Motion to Suppress. For the reasons that

follow, the defendant’s motion is DENIED.

                                   II. FACTS

      Dale K. McNeill a.k.a. Charles Deshields (“Defendant”) was arrested

following an administrative search of his motel room. At the time of the search,

the defendant was serving Level II probation under the supervision of the

Delaware Department of Correction as a result of a 2013 conviction. As part of the

defendant’s “zero tolerance” probation conditions, he was required to report any

change of residence within 72 hours to his supervising probation officer. The

address of record that the defendant provided to Probation was The Harriet

Tubman Safe House in Wilmington, Delaware.

      On July 28, 2014, Senior Probation Officer William DuPont (“DuPont”),

who is assigned to Operation Safe Streets (“Safe Streets”), a joint task force of

New Castle County Police and Probation and Parole Officers, learned that the

defendant was staying at The Dutch Inn Motel (“Dutch Inn”) in New Castle

County, Delaware. The guest registration for the Dutch Inn recorded that the

defendant was staying there for seven days. The defendant was registered to check

into Room 51 on July 22, 2014, and check-out on July 25, 2015. The defendant

was also registered to check into Room 51 on July 25, 2014, and check-out on July



                                        2
26, 2014. Finally, the defendant was registered to check into Room 11 on July 26,

2014, and check-out on July 29, 2014.

       On July 29, 2014, a Safe Streets team went to the Dutch Inn with the

purpose of ascertaining if the defendant was residing there. The Safe Streets team

consisted of DuPont, Senior Probation Officer Richard Negley, Detective Thomas

Bruhn of the New Castle County Police Department (“NCCPD”), and Officer Peter

Stewart of the NCCPD. 1

       DuPont testified that, through his training and experience, he is aware that

probationers often secure a motel room or maintain a separate residence than the

residence provided to Probation in an effort to conceal illegal activities from

Probation. DuPont also testified that probationers will often change motel rooms

several times to further conceal any illegal activities.

       DuPont and Detective Bruhn testified that the Dutch Inn is located in a well-

known, high crime area. The Safe Streets team knew that the defendant had an

extensive criminal record, including drug related crimes and violent arrests. When

the officers arrived at the Dutch Inn on July 29, the officers noticed a rental vehicle

parked in front of the defendant’s room. DuPont testified that probationers often

use rental vehicles in an effort to conceal their activities from Probation.

1
 DuPont and Detective Bruhn testified at the suppression hearing. Detective Bruhn testified that
Safe Streets is designed to deal with some of the worst violent and repeat offenders, and one of
his primary responsibilities as a member of Safe Streets and sworn officer of the NCCPD is to
provide security and assist the Probation and Parole Officers.


                                               3
      At approximately 9:19 a.m., DuPont knocked on the door to Room 11. The

defendant asked, “who is it?” DuPont identified himself as a Probation and Parole

Safe Streets Officer and the defendant responded, “what do you want?” DuPont

testified that he could see into Room 11 through a small four to six inch gap

between the window and the curtain. DuPont told the defendant he wanted to talk,

and the defendant said “okay.” At this point, DuPont could still see the defendant

standing inside the room and it appeared as if the defendant was unsure whether to

open the door. The defendant then closed the curtains and the officers were no

longer able to see the defendant. Upon further knocking, the defendant indicated

that he was in the shower and said, “hold on, I have to get dressed.”

      Approximately one or two minutes later, after additional knocking, the

defendant opened the door. DuPont did not use a key or otherwise force entry.

Although the defendant indicated he could not answer the door immediately

because he needed to get dressed, the defendant was fully naked when he let the

officers into the room. Detective Bruhn did a protective sweep of the motel room

to check if anyone else was in the room and did not find anyone. DuPont testified

that immediately upon making contact with the defendant he observed that the

defendant’s clothes were readily accessible, he was not wet from a shower, and the

bathroom did not appear to be wet. The defendant put on a pair of boxer shorts

that he was holding in his hands.



                                          4
      DuPont asked the defendant why he was renting the room. The defendant

told DuPont he was using the motel room for “relations with a companion.”

DuPont testified that he did not notice any female items in the room. DuPont then

asked if the defendant had contacted Probation to report his change of address.

According to DuPont, the defendant began to stutter and said, “I don’t stay here

like that.” During this exchange, the defendant attempted to move closer to the

bed and started to rifle through clothes on the bed. DuPont directed the defendant

not to touch anything or make any movements.

      DuPont testified that because of the defendant’s behavior he was concerned

for officer safety and did not want the defendant to stand. According to DuPont,

the only place in the small motel room available to sit was on the bed or a chair.

DuPont testified that based on his training and experience the chair provided less

places to hide a weapon in comparison to the bed. Prior to asking the defendant to

sit in the chair, Detective Bruhn checked the seat for the presence of weapons. He

found no weapons under the seat cushion, but upon leaning the chair forward to

look underneath, Detective Bruhn saw that the black mesh on the bottom of the

chair had a large hole ripped in it. Detective Bruhn saw a log of heroin in that

hole. The officers handcuffed the defendant and DuPont confirmed that Detective

Bruhn had observed heroin.




                                        5
      DuPont obtained permission from Probation Supervisor Carlo Pini to

conduct an administrative search of Room 11 and the rental vehicle that was

parked outside. The search revealed additional drugs in Room 11 and in the rental

vehicle.

                        III. PARTIES’ CONTENTIONS

      The defendant moves to suppress all evidence seized following the search of

his motel room and rental vehicle. The defendant argues that the probation officers

lacked reasonable suspicion to conduct an administrative search for illegal

contraband because the officers knew only that the defendant was on probation and

had rented a room at the Dutch Inn. The defendant maintains that there were no

exigent circumstances and the probation officers did not complete the required pre-

search preparation checklist before going to the Dutch Inn.

      In opposition, the State argues that the probation officers were permitted to

knock on the defendant’s motel room door and ask the defendant about his use of

the Dutch Inn as a residence. Once lawfully in the defendant’s motel room, the

State argues that based on the defendant’s behavior, the officers were permitted to

do a protective search of the chair for weapons. The State maintains that the

administrative search began after the drugs were observed in plain view and the

defendant was handcuffed.




                                         6
       The State further argues that even if the administrative search was invalid,

the contraband found in the defendant’s motel room and rental vehicle “inevitably

would have been discovered by lawful means” because the defendant was going to

be arrested for violation of probation.

                            IV. STANDARD OF REVIEW

       On a motion to suppress evidence in a warrantless search or seizure, the

State bears the burden of proof to establish that the challenged police conduct

comported with the rights guaranteed by the United States Constitution, the

Delaware Constitution, and Delaware statutory law. 2 The burden of proof on a

motion to suppress is proof by a preponderance of the evidence. 3

                                    V. DISCUSSION

       The Constitutions of the United States and the State of Delaware protect

individuals against unreasonable searches and seizures. 4 Individuals on probation,

however, “do not enjoy the absolute liberty to which every citizen is entitled.”5 A

probationer’s home is protected from unreasonable searches, but the “unique

nature of probationary supervision justifies a departure from the usual warrant and




2
  Hunter v. State, 783 A.2d 558, 560 (Del. 2001).
3
  State v. Abel, 2011 WL 5221276, at *2 (Del. Super. 2011), aff’d, 68 A.3d 1228 (Del. 2012), as
amended (Jan. 22, 2013).
4
  U.S. CONST. amend IV, XIV; DEL. CONST. art. I, § 6.
5
  McAllister v. State, 807 A.2d 1119, 1124 (Del. 2002) (quoting Griffin v. Wisconsin, 483 U.S.
868, 874 (1987)).


                                              7
probable cause requirements for searches.” 6 The Delaware Supreme Court has

explained that:

       [A] warrantless administrative search of a probationer’s home requires
       the probation officer have a reasonable suspicion for the search.
       Reasonable suspicion exists where the totality of the circumstances’
       indicates that the officer had a particularized and objective basis for
       suspecting legal wrongdoing. 7

       11 Del. C. § 4321(d) 8 authorizes Probation and Parole officers to effect

searches of probationers in accordance with Department of Correction (“DOC”)

regulations. 9    Pursuant to that authority, the DOC has adopted regulations

governing warrantless searches and arrests of probationers. 10 Under Probation and

Parole Procedure 7.19 (“Procedure 7.19”):

       [P]robation officers may detain any positively identified probationer
       to determine the nature of his activity and whether he is complying
       with the conditions of probation. A detention means temporarily
       depriving a person of his freedom to depart the area based on
       reasonable suspicion.11

       Probation officers are not required to fulfill each technical aspect of the

DOC regulations. 12 “A probation officer must have a reasonable suspicion or


6
  Jacklin v. State, 2011 WL 809684, at *2 (Del. 2011) (TABLE).
7
  Id. (internal quotations omitted).
8
   11 Del. C. § 4321(d) (“Probation and parole officers shall exercise the same powers as
constables under the laws of this State and may conduct searches of individuals under probation
and parole supervision in accordance with Department procedures while in the performance of
the lawful duties of their employment . . . .”).
9
  McAllister, 807 A.2d at 1123.
10
   Jacklin, 2011 WL 809684, at *2.
11
   Murray v. State, 45 A.3d 670, 678 (Del. 2012), as corrected (July 10, 2012).
12
   Fuller v. State, 844 A.2d 290, 292 (Del. 2004).


                                              8
reasonable grounds to justify an administrative search of a residence or car.” 13 The

Delaware Supreme Court considers probation officers to have acted reasonably so

long as they substantially comply with the DOC regulations.14 According to the

Delaware Supreme Court:

       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.15

       In the present case, on July 29, 2014, the probation officers had a reasonable

belief that the defendant was in violation of probation because the defendant was

registered as a guest at the Dutch Inn for seven days and did not update his address

to Probation. The probation officers also knew: (1) the defendant had a criminal

history; (2) the Dutch Inn is located in a high drug and high crime area; (3) it is

common for probationers to conceal a secondary residence from Probation to carry

out illegal activities; (4) the defendant was staying at the Dutch Inn for seven days;

(5) it is common for probationers to switch motel rooms multiple times to conceal

illegal activities from Probation; (6) the defendant switched motel rooms three

13
   Murray, 45 A.3d at 678.
14
   Id.
15
   Sierra v. State, 958 A.2d 825, 829 (Del. 2008) (quoting Delaware Department of Correction
Bureau of Community Corrections Probation and Parole Procedure No. 7 .19).


                                             9
times during the seven day time period; (7) it is common for probationers to use a

rental vehicle to conceal illegal activities from Probation; and (8) the defendant

had a rental vehicle.

      Once the probation officers were lawfully permitted to enter the defendant’s

motel room, the defendant told the probation officers that he was renting the room

for “relations with a companion,” but there was no one else in the room or any

indication that another person had been there.      During this conversation, the

probation officers determined that the defendant lied about the reason for his delay

in opening the door because the defendant’s clothes were readily accessible but he

was still naked, he was not wet from a shower, and the bathroom did not appear to

be wet from a shower.       Additionally, the defendant was nervous and rifling

through his clothes on the bed. As noted above, the probation officers were

concerned for officer safety and wanted the defendant to sit in the chair and not

stand next to the bed. At this point, the probation officers conducted a limited

protective search of the area within arm’s reach of the chair and found drugs in

plain view.

      Under these circumstances, the Court finds that a protective search of the

chair for weapons was justified for officer safety.      Once the defendant was

handcuffed, the probation officers obtained approval from a supervisor to conduct

an administrative search of Room 11 and the rental vehicle.



                                        10
       The following pre-search considerations were present: (1) the officer had

knowledge or sufficient reason to believe that the offender possessed contraband;

(2) the officer had knowledge or sufficient reason to believe that the offender was

in violation of probation or parole; and (3) approval for the search was obtained

from a supervisor. 16 The Court finds that the probation officers had “reasonable

suspicion” for the administrative search and substantially complied with the DOC

regulations.

       Moreover, pursuant to 11 Del. C. § 4334(b), 17 probation officers have

statutory authority to arrest probationers for a violation of any condition of

probation. Thus, on July 28, 2014, when the probation officers learned that the

defendant was registered as a guest at the Dutch Inn from July 22 to July 29, 2014,

and verified that the defendant had not updated his address, 11 Del. C. § 4334(b)

authorized the probation officers to arrest the defendant without a warrant because

the defendant violated the conditions of his probation.




16
   The remaining two pre-search considerations are irrelevant in the instant case because they
concern whether a probation officer received corroborated information from an informant.
17
   11 Del. C. § 4334(b) (“The Commissioner, or any probation officer, when in the
Commissioner’s or probation officer’s judgment there has been a violation of any condition of
probation or suspension of sentence, may arrest such probationer without a warrant . . . .”);
Jacklin, 2011 WL 809684, at *3.


                                             11
                              VI. CONCLUSION

    For the foregoing reasons, Defendant’s Motion to Suppress is DENIED.

IT IS SO ORDERED.



                                           ____________________________
                                           Jan R. Jurden, President Judge




                                    12
