                            SUPERIOR COURT
                                     OF THE

                          STATE OF DELAWARE
Jeffrey J Clark                                               Kent County Courthouse
Judge                                                            38 The Green
                                                               Dover, DE 19901
                                                                 302-735-2111

                                October 4, 2017


Gregory Babowal, DAG                         Suzanne MacPherson-Johnson, Esq.
Department of Justice                        Office of the Public Defender
102 West Water Street                        Sykes Building
Dover, DE 19904                              45 The Green
                                             Dover, DE 19901

         RE: State v. Huey Roundtree
             #1701009784

                          Submitted: September 27, 2017
                            Decided: October 4, 2017

Counsel:
         This is the Court’s decision regarding Defendant Huey Roundtree’s
(hereinafter “Mr. Roundtree’s”) motion to suppress. The State seeks to justify a
warrantless seizure of a firearm and drug related evidence based on the alleged need
for a “security sweep” of the mobile home where it recovered this evidence. For the
reasons discussed below, the authority cited by the State does not justify such a
search. Furthermore, the facts presented at the hearing do not separately justify a
protective sweep, as recognized by the United States Supreme Court in Maryland v.
Buie1.


1
    494 U.S. 325 (1990)
                              Facts and Background

      The facts cited herein are those found by the Court after the suppression
hearing regarding this matter. This matter arises from a January 17, 2017 warrantless
search of Defendant Huey Roundtree’s residence. The Dover Police Department was
searching for Andre Brown for questioning in connection with a homicide and
robbery that occurred on January 10, 2017. The location of the search was Mr.
Roundtree’s residence, a single-wide mobile home located at the Kings Cliffe
Mobile Home Park in Dover, Delaware.
      Mr. Roundtree’s residence was also the address listed as one of Andre
Brown’s potential residences in a database used by the Dover Police Department. As
a result, on January 16, 2017, the Dover Police surveilled Mr. Roundtree’s home for
the entire day. On that day, they did not observe Andre Brown at the residence. The
next day, at approximately 3:00 p.m. the Dover Police arrived again at the home.
Before knocking on the door, they established a perimeter area around the mobile
home so that no one could enter or leave unobserved. After Mr. Roundtree opened
his door, Officer Martinek detected the odor of burnt marijuana. At the suppression
hearing, Officer Martinek also testified that it was dark in the home, but he could
observe another man sitting on a couch. Officer Martinek then asked Mr. Roundtree
if anyone else was home, and Mr. Roundtree responded that there was not. Almost
immediately thereafter, another person appeared from a bedroom. Officer Martinek
testified that the perimeter team reported hearing noises from that room earlier. At
that point, the officer suspected that Mr. Roundtree was lying to him.
      The officers then immediately entered Mr. Roundtree’s residence and began
a protective sweep. During the search, the police observed several items of
contraband: a marijuana crusher, a green bullet-proof vest, and the pistol grip of a
shotgun on a shelf inside a closet. Officer Martinek testified that the closet was
searched because someone could have been hiding in it. After observing these items,
                                         2
the police applied for a search warrant of the residence. After executing the search
warrant, the police discovered that the grip was attached to a Remington 870 tactical
shotgun. The State then charged Mr. Roundtree with Possession of a Firearm by
Person Prohibited, Drug Dealing, Conspiracy in the Second Degree, Possession of
Marijuana, Illegal Possession of a Controlled Substance, and Endangering the
Welfare of a Child.
       Mr. Roundtree filed this motion to suppress, seeking to exclude all evidence
seized from Mr. Roundtree’s residence on January 17, 2017. He alleges that the
police conducted a warrantless search of his residence in violation of the Fourth
Amendment to the United States Constitution and Article 1, Section 6 of the
Delaware Constitution. Mr. Roundtree argues that the officers’ “security sweep”
exceeded its permissible bounds and constituted a warrantless search of the
residence. The State responds that that its initial search was justified pursuant to
Guererri v. State.2 The State cites no other authority.
                                        Standard
       In a motion to suppress evidence seized during a warrantless search, the State
bears the burden of establishing that the challenged seizure comported with the rights
guaranteed by the United States Constitution, the Delaware Constitution, and
relevant statutes.3 In a suppression hearing, the Court serves as the finder of fact. 4
The State’s burden is to establish the search’s legality be a preponderance of the
evidence. 5




2
  922 A.2d 403, 407 (Del. 2007)
3
  State v. Lambert, 2015 WL 3897810 at *3 (Del. Super. Ct. 2015)(aff’d Lambert v. State, 149
A.3d 227 (Del. 2016))
4
  State v. Hopkins, 2016 WL 6958697 at *2 (Del. Super. Ct. 2016)
5
  Hunter v. State, 783 A.2d 558, 560 (Del.2001)
                                             3
                                                Discussion

       A warrantless search and seizure is presumptively unreasonable, subject to
certain exceptions. 6 The United States Supreme Court has noted that “physical entry
of the home is the chief evil against which the wording of the Fourth Amendment is
directed.”7 Nevertheless, it has recognized certain limited exceptions to the
prohibition against warrantless searches of a person’s home. 8 One of these
exceptions is the “emergency doctrine”, which allows an otherwise illegal entry if
there is an immediate need for the assistance of police to protect life or property. 9
Delaware Courts have long recognized the emergency exception to the Fourth
Amendment’s prohibition against warrantless searches and seizures. 10 In Guererri,
the Delaware Supreme Court articulated the three prong test to determine the legality
of a search under the emergency doctrine. There, the State must show, by a
preponderance of the evidence, that:
            (1) The police have reasonable grounds to believe that there is an
            emergency at hand and an immediate need for their assistance for
            the protection of life or property. (2) The search must not be
            primarily motivated by the intent to arrest and seize evidence. (3)
            There must be some reasonable basis, approximating probable
            cause, to associate the emergency with the area or place being
            searched. 11



6
  State v. Hedley, 593 A.2d 576, 582 (Del. Super. Ct. 1990)
7
  Payton v. New York, 445 U.S. 573, 585, 100 S.Ct.1371, 63 L.Ed.2d 639 (1980), quoting United
States v. United States District Court, 407 U.S. 297, 313 (1972)
8
  Mincey v. Arizona, 437 U.S. 385, 392 (1978)
9
  Guererri v. State, 992 A.2d 403, 406 (2007)
10
   See Patrick v. State, 227 A.2d 486 (Del. 1967)(holding that officers’ entry into an apartment
without a warrant based on a tip that someone within the apartment was dying or dead was lawful,
and “[t]he preservation of human life is paramount to the right of privacy protected by search and
seizure laws and constitutional guarantees; it is an overriding justification for what otherwise may
be an illegal entry. It follows that a search warrant is not required to legalize an entry by police for
the purpose of bringing emergency aid to an injured person.”)
11
   922 A.2d 403, 406 (Del. 2007)
                                                   4
       A warrantless entry and subsequent search of a person’s home do not violate
the Fourth Amendment if this three-pronged test is satisfied. 12 If the entry is valid,
the search must have a direct relationship between the area searched and the
emergency.13 The search of the premises permits a limited protective sweep to ensure
that no further danger is present. 14 In the instant matter, the primary issue is whether
the initial warrantless entry into Mr. Roundtree’s residence was proper and legal. If
the entry by the police officers was legal, then if follows that items observed in plain
view while making a protective sweep would serve as a basis for a search warrant.
       The State relies solely on Guererri15 for its argument that the warrantless entry
and protective sweep was valid. The State incorrectly conflates the concept of a
protective sweep, which is in essence an expanded search incident to arrest made in
a premises, with the separate emergency doctrine relied upon in Guererri. In
Guererri, police responded to a 911 call that someone fired gunshots in the area.16
Upon arrival, police observed an SUV hit by shotgun fire, shell casings on the street,
and evidence that pellets had struck a house.17 Neighbors told police they believed
people were inside the residence because the SUV was on the lawn.18 The police
called the home and knocked on the doors and windows, but received no answer. 19
Worried that someone in the house may have been injured by shotgun fire, the police
kicked open the front door.20 Upon entry, they encountered Guererri.21 He informed
the officers that he was awakened by gunshot fire and that his roommate, Raymond



12
   Id.
13
   People v. Mitchell, 39 N.Y. 2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607, 610 (1976)
14
   Mincey v. Arizona, 437 U.S. 385, 392 (1978)
15
   922 A.2d 403 (Del. 2007)
16
   Id. at 405
17
   Id.
18
   Id.
19
   Id.
20
   Id.
21
   Id.
                                              5
White, was in the basement.22 Police called down to the basement but White initially
did not respond. 23 White then came upstairs, and at that point, he became irate and
the police handcuffed him. 24 The police then went downstairs to finish “clearing the
house” and observed marijuana plants in plain view in the basement. 25 Police then
obtained a warrant to search the remainder of the house. 26
        Unlike those of the Guererri case, the facts in this case do not support
application of the emergency doctrine. Namely, the first prong of the test set forth
in Guererri requires that “[t]he police have reasonable grounds to believe that there
is an emergency at hand and an immediate need for their assistance for the protection
of life or property.”27 In Guererri, the police were responding to an emergent
situation. They feared that someone inside the house was either shot or in immediate
danger.
        In the case at hand, the State presented no evidence of an emergency situation
that could justify a warrantless entry and search of Mr. Roundtree’s residence. To
the contrary, the Dover Police were searching for Andre Brown, who was wanted
for questioning in connection with a robbery and homicide. Not only did the robbery
and homicide not occur at the Kings Cliffe Mobile Home Park, it occurred a week
prior to the search on January 10, 2017. Moreover, the Dover Police had surveilled
Mr. Roundtree’s home on January 16, 2017, the day prior to the search, and set up a
perimeter around the home on January 17, 2017 before knocking on Mr. Roundtree’s
door. Under these facts, because of (1) the time between the alleged robbery and
this search, (2) the time an officer spent at the residence the day before the search,



22
   Id.
23
   Id.
24
   Id.
25
   Id.
26
   Id.
27
   Id. at 406
                                           6
and (3) the lack of persuasive evidence that the officers feared for the safety of life
or property before the search, the Court concludes that there was no emergency.
         The State argues that Mr. Roundtree’s lie to the officers that no one else was
in the residence justified the entry to the home. However, in the absence of any other
articulable facts, such evidence does not create an emergency. Furthermore, there is
no evidence that the appearance of another individual from the bedroom created an
emergency situation. There is no evidence that the person, or anyone else in Mr.
Roundtree’s home, was acting in a manner that would alarm the officers. If Mr.
Roundtree’s lie that no one else was home made the officers suspicious, the next step
would be to obtain a search warrant. Indeed, the officers had established a perimeter
around the home already and had conducted a day’s worth of surveillance. There
was little risk Andre Brown could escape if he was in the home. An officer cannot
enter a person’s home based on mere suspicion in a non-emergency situation.
Limiting a warrantless entry into someone’s home is the most foundational and
important purpose of the Fourth Amendment.               In this regard, invoking the
emergency doctrine exception requires specific articulable facts on the record to
support it. Since the facts found at the hearing do not establish that the State satisfied
the first prong of the test set forth in Guererri, the Court need not address the second
and third prongs.
         Mr. Roundtree cites State v. Hedley28 in support of his argument that the
warrantless search was not justified by the emergency doctrine. In Hedley, the court
correctly recognized the separate nature of the protective sweep doctrine of
Maryland v. Buie29 versus the emergency doctrine, which was later articulated by
the Delaware Supreme Court in Guererri. In this regard, the Hedley court correctly
noted that “[w]hile these exceptions may overlap, to some extent, and some


28
     593 A.2d 576 (Del. Super. Ct. 1990)
29
     494 U.S. 325 (1990)
                                            7
authorities have not always distinguished the two, the exceptions are distinct.” 30
Unfortunately some Delaware courts have failed to distinguish between these two
distinct exceptions, which is understandable considering that Guererri also refers to
a “protective sweep”.31
       In contrast to the emergency doctrine, however, the protective sweep doctrine
articulated by Buie concerns warrantless searches of a home that are incident to an
arrest. The doctrine permits a quick and limited search of a premises, incident to an
arrest, to protect the safety of the officers and others. 32 Nowhere in the record was it
established that Mr. Brown was the subject of an arrest warrant. In fact, Officer
Turner testified at the suppression hearing that Andre Brown was merely wanted for
questioning. Moreover, the State also clarified in its argument that he was wanted
only for questioning. Accordingly, there is no basis on the record before the Court
to permit the application of the protective sweep doctrine. The entry of the premises
was unjustified. It follows that the protective sweep of the premises was also
unjustified. 33
       Finally, the evidence of a burnt marijuana odor is not relevant to the Court’s
decision in this case. Here, the State does not assert that the protective sweep was
related to the use of marijuana. Nor does the State advance an argument that the
smell of marijuana justified the warrantless search. In the absence of the State
articulating an argument that such an odor justified the search, the Court will not
separately address the issue of whether the smell of marijuana, detected by Officer
Martinek at the door, somehow justified the search of the home without a warrant.

30
   State v. Hedley, 593 A.2d 576, 580 (Del. Super. Ct. 1990)
31
   922 A.2d 403, 406 (providing that “the search may include not only a search of the premises to
find people in need of aid, but also a protective sweep to ensure that no further danger is
present”)(citations omitted)
32
   State v. Hedley, 593 A.2d 576, 580 (Del. Super. Ct. 1990)
33
   After the matter was submitted, both parties submitted supplemental letter arguments shortly
before the Court issued this Order. The Court has considered the additional arguments of the
parties, which do not change its decision.
                                               8
                                      Conclusion
         Here, the State failed to demonstrate by a preponderance of the evidence that
the emergency doctrine exception to the Fourth Amendment justified the officers’
search. Furthermore, the State did not justify the search pursuant to the protective
sweep doctrine. Accordingly, Mr. Roundtree’s motion to suppress is GRANTED.
         IT IS SO ORDERED.

                                                     /s/Jeffrey J Clark



JJC:jb




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