        IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN A. WALKER,                       §
                                       §     No. 183, 2018
      Defendant Below,                 §
      Appellant,                       §     Court Below: Superior Court of
                                       §     the State of Delaware
      v.                               §
                                       §     I.D. No. 1607007865 (K)
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §


                         Submitted: December 6, 2018
                          Decided: February 21, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

Upon appeal from the Superior Court. REVERSED.

Stephanie Blaisdell, Esquire, Assistant Public Defender, Dover, Delaware, for
Appellant, Kevin A. Walker.

John Williams, Esquire, Deputy Attorney General, Dover, Delaware, for Appellee,
State of Delaware.




VAUGHN, Justice:
                                 I. INTRODUCTION

       Appellant, Kevin A. Walker, appeals from a Superior Court order finding that

he violated the terms of his probation. The issue we address is whether evidence

seized as a result of an unlawful administrative search of Walker’s residence should

have been suppressed from use as evidence at his violation of probation hearing.

                   II. FACTS AND PROCEDURAL HISTORY

       Walker began probation on May 10, 2017, as a result of a felony driving-

under-the-influence conviction.       On June 1, 2017, the State received a tip from a

past-proven reliable informant that Walker had heroin in his home that he planned

to distribute.     On June 5, 2017, Delaware probation officers conducted an

administrative search of Walker’s residence pursuant to an administrative warrant.

Administrative warrants and searches are authorized by 11 Del. C. § 4321(d), which

permits the State to conduct administrative searches of probationers that are “in

accordance with Department [of Correction] procedures.”                The Department of

Correction promulgated Probation and Parole Procedure 7.19 (“Procedure 7.19”),

which sets out the procedural requirements for conducting administrative searches.1

       During the search, probation officers discovered 252 bags of heroin, drug

paraphernalia, and a locked safe.        The officers took the safe to Delaware State



1
  See Culver v. State, 956 A.2d 5, 10-11 (Del. 2008) (en banc) (discussing the requirements of
Procedure 7.19).

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Police Troop 3. After the officers opened the safe there, they found a loaded 9mm

handgun, five doses of Suboxone,2 and five grams of marijuana.               The Delaware

State Police then arrested Walker and took him to the Sussex Correctional Institution

(“SCI”). At SCI, correctional officers found 86 bags of heroin and nine grams of

crack cocaine inside Walker’s rectum.

       In the criminal proceeding based on the new charges, Walker filed a motion

to suppress all the evidence found as a result the administrative search, claiming that

the search was not conducted in accordance with the provisions of 11 Del. C. §

4321(d) and Procedure 7.19.         At the suppression hearing, the Superior Court,

guided by our decision in Culver v. State, 3 analyzed the four factors that the

probation officer and the officer’s supervisor were required to consider under

Procedure 7.19 before making the decision to conduct the administrative search. In

Culver, we explained that Procedure 7.19 requires the following:

              The officer and supervisor will hold a case conference . . . .
              During the case conference the supervisor will review the
              “Yes” or “No” responses of the officer to the following
              search decision factors:

                     (1) Sufficient reason to believe the offender
                     possesses contraband.




2
  Suboxone is a prescription medication used to treat opiate and opioid addiction but is also
frequently itself abused for its narcotic effects.
3
  956 A.2d 5.

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                         (2) Sufficient reason to believe the offender
                         is in violation of probation/parole.

                         (3) Information from a reliable informant,
                         indicating offender possesses contraband or
                         is violating the law.

                         (4) Information from the informant is
                         corroborated.4

Where an informant is involved, Procedure 7.19 also requires the officers to consider

the detail of the information received from the informant, the consistency of the

information, the reliability of the informant in the past, and any reasons why the

informant would supply the information.5

         After considering these factors, the Superior Court concluded that the

administrative warrant failed to satisfy Procedure 7.19. In particular, it found there

was a lack of detail concerning the informant’s tip and that no effort was made at all

to corroborate the tip or consider the reason why the informant was supplying

information. The court concluded that “there was no attempt to comply with these

basic aspects of the probation procedures.” 6           Accordingly, the court held that

suppression of evidence in the criminal case was an appropriate remedy for the

violation of 11 Del. C. § 4321(d). The State did not appeal the suppression order.




4
    Id. at 10 (internal quotation marks omitted).
5
    Id.
6
    App. to Appellant’s Opening Br. at A33.

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Instead, the State dismissed the criminal action against Walker but continued to

pursue a violation of probation (“VOP”).

       The Superior Court then held a contested VOP hearing.                    Applying the

balancing test from Pennsylvania Board of Probation & Parole v. Scott,7 the court

held that “the exclusionary rule does not apply in violation of probation proceedings,

even when the illegal search was a result of an administrative warrant issued and

executed by probation officials.”8 The court accordingly denied Walker’s motion

to suppress the evidence from his VOP proceeding. Walker was then found to have

violated his probation, his probation was revoked, and he was resentenced. This

appeal followed.

                           III. STANDARD OF REVIEW

       We review the Superior Court’s revocation of a defendant’s probation for an

abuse of discretion. 9      We review questions of law and alleged constitutional

violations de novo.10

                                   IV. DISCUSSION

       Walker contends that the evidence seized as a result of the administrative

search should have been suppressed under both the Fourth Amendment to the U.S.


7
   524 U.S. 357 (1998).
8
   State v. Walker, 177 A.3d 1235, 1236 (Del. Super. 2018), available at Appellant’s Opening Br.
Ex. A.
9
   Thompson v. State, 192 A.3d 544, 549 (Del. 2018).
10
    Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010) (en banc).

                                               4
Constitution and Article I, § 6 of the Delaware Constitution.                     Recently, in

Thompson v. State, we recognized that the overwhelming weight of federal authority

holds that the exclusionary rule of the Fourth Amendment does not apply in VOP

proceedings.11 Our ruling in Thompson disposes of Walker’s federal claim.12

       In Culver, this Court was confronted with a statutory violation of 11 Del. C.

§ 4321(d) in a criminal proceeding.13           We concluded that “[w]ithout reasonable

suspicion determined in compliance with [the probation officers’] duties under

Procedure 7.19, the unlawfully seized evidence . . . should have been suppressed.”14

“To hold otherwise,” we reasoned, “would render 11 Del. C. § 4321 and the

regulations promulgated under it meaningless.”15 This decision was not based on

any constitutional basis. As stated in a footnote, “[b]ecause we find that probation

officers violated their clear statutory mandate, we do not reach any constitutional

questions.”16 The suppression of evidence based on violation of a statute enforces

the public policy embodied by the statute and promotes the proper and orderly

administration of justice.17 Culver is consistent with other cases from this Court


11
   192 A.3d at 551-552.
12
   See id. at 552 (“We have no reason not to follow what appears to be the entirety of the federal
weight of authority, and hold that the exclusionary rule does not apply to probation revocation
proceedings under Amendments IV and XIV of the Federal Constitution.”).
13
   956 A.2d at 10-11.
14
   Id. at 15.
15
   Id. at 7.
16
   Id. at 7 n.1.
17
   See Webster v. State, 213 A.2d 298, 301 (Del. 1965) (“[T]he exclusionary rule with which we
deal here [for an alleged statutory violation] is a rule of evidence, adopted by the courts as an

                                                5
where evidence has been suppressed based upon a statutory, rather than a

constitutional, violation.18

       Here, we are confronted with a statutory violation of 11 Del. C. § 4321(d) in

a VOP proceeding. We have frequently recognized that the rights of probationers

are curtailed as compared to the rights of ordinary citizens. 19                 We have also

recognized that probation officers are not required to “satisfy each technical

requirement of the search and seizure regulations of the Department of Correction”

for a search to be reasonable.20 In this case, however, the Superior Court found that

“there was no attempt to comply with . . . basic aspects of the probation

procedures,”21 a finding we accept and which has not been challenged. Because

there was no attempt to comply with basic aspects of the probation procedure, we

think that the proper and orderly administration of justice calls for suppression,

under the statute-based rule enunciated in Culver,22 of the evidence seized in the


instrument to implement the proper administration of criminal justice; and it does not stand upon
constitutional grounds.”).
18
   See Vorhauer v. State, 212 A.2d 886, 892 (Del. 1965) (applying an exclusionary rule based on
a violation of a statute requiring the defendant to be presented to a magistrate within twenty-four
hours of detention and finding that incriminating statements made after the expiration of that
twenty-four-hour period should have been suppressed in a criminal proceeding); see also Wright
v. State, 633 A.2d 329, 334-35 (Del. 1993) (en banc) (applying the exclusionary rule from
Vorhauer but finding no statutory violation); Hanna v. State, 591 A.2d 158, 162-64 (Del. 1991)
(explaining that a failure to comply with 11 Del. C. § 2308, which sets the requirements for a
nighttime search, is alone sufficient for the evidence to be excluded under the statutory-based
exclusionary rule even if there was no constitutional violation).
19
   E.g., Donald v. State, 903 A.2d 315, 318-19 (Del. 2006) (en banc).
20
   Id. at 319.
21
   App. to Appellant’s Opening Br. at A33.
22
   956 A.2d at 7 n.1, 10-15.

                                                6
unlawful administrative search.         We therefore find it unnecessary to consider

Walker’s claim under Article I, § 6 of the Delaware constitution.23

       Accordingly, the judgment of the Superior Court is reversed.




23
   Id. at 7 n.1 (“We address any statutory violation before reaching questions under the United
States and Delaware Constitutions.”).

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