IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)

)

v. ) I.D. No. 16050()8909

)

)

CECILY JOHNSON, )
)

Defendant. )

ORDER

Submitted: January 5, 2017
Decided: January 13, 2017

Upon Consia'eration of Defena'ant ’S Motion to Suppress,
DENIED.

Marc C. Petrucci, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorneyfor the State.

Eugene J. Maurer, Jr., Esquire, and Cynthia L. Ruggiero, Esquire, Eugene J.
Maurer, Jr. P.A., Wilmington, Delaware. Attorneysfor the Defena'ant.

MEDINILLA, J.

AND NOW TO WIT, this 13th day of January, 2017, upon consideration of
Defendant’s Motion to Suppress, the State’s response thereto and the testimony
offered at the suppression hearing on January 5, 2017, it appears to the Court that:

l. Defendant Cecily Johnson (“Defendant”) is charged with Drug
Dealing, Aggravated Possession, Possession of Drug Paraphernalia, and
Conspiracy Second Degree. Defendant was arrested on May 12, 2016 upon
meeting with a confidential source (“CS”). The CS was arrested earlier that same
day and provided information to police that lead to Defendant’s arrest.

2. On May 12, 2016, after the CS’s arrest, the CS identified “a light skin
black female, who the CS knows only as ‘Candy,’ as a marijuana source of
supply.”1 The CS knew Candy because the two were involved in an earlier
romantic relationship After their relationship ended, the CS and Candy continued
to engage in regular drug transactions The CS also indicated to police several
other aspects of Candy’s alleged drug operation. For instance, Candy and her
associates reportedly obtained between 100-200 pounds of marijuana through
freight shipments Additionally, the CS identified her phone number and the
vehicles that she used to conduct drug transactions These vehicles were a maroon
Lexus and a silver/gray Inflnity. The CS further identified the area where Candy

lived and the location where the CS usually met with Candy to purchase drugs: a

 

1 DEA Report at l (attached as Ex. A to Defendant’s Motion).

parking lot at Becks Pond in Newark, Delaware. With the CS’s information and
cooperation, members of the Wilmington Residence Office DEA, including Task
Force Officer Paul Lawrence and Resident Agent David Hughes, decided to
engage Candy in a controlled drug transaction with the CS.

3. On May 12, 2016 at 3:30 p.m., the CS made the first of two recorded
phone calls to Candy at the behest of Officer Lawrence and Resident Agent
Hughes.2 When Candy answered the call, the CS told her that the CS “had some
bread on [the CS’s] bill.”3 Officer Lawrence, present for both recorded calls,
testified that this terminology meant that the CS had money to pay off an
outstanding debt to Candy.4 The CS then asked if everything was “cool.” Candy
replied affirmatively Both Officer Lawrence and Resident Agent Hughes testified
that, based on their training and experience, this dialogue was code for whether
Candy was prepared to conduct another drug transaction. At that time, however,
Candy could not meet because she did not have access to either of her vehicles and

the call ended with a tacit understanding that they would speak later about

 

2 See Defendant’s Motion at 11 3. See also State’s Ex. 1 (recording of first phone call). Officer
Lawrence and Resident Agent Hughes were called as the State’s witnesses at the suppression
hearing.

3 See Defendant’s Motion at Ex. B (transcript of recorded conversation).

4 Officer Lawrence and Agent Hughes also testified that they had confirmed the fact that the CS
owed Candy money before engaging Candy in the first phone call.

arranging a meeting when Candy had access to a car. During this first phone call,
no explicit drug transaction was arranged.5

4. Officer Lawrence and Resident Agent Hughes had earlier confirmed
that the CS normally purchased three to four pounds of marijuana from Candy.
Accordingly, when the CS made the second recorded call to Candy at 6:20 p.m, the
CS asked Candy to sell the CS a “tres or a four.” The officers testified that this
was slang for “three or four” pounds of marijuana The CS asked where Candy
wanted to meet. Candy stated, “By the pond.” The phone call ended with an
understanding that Candy would call when she could meet with the CS.

5. DEA Wilmington Resident Office officers, including Officer
Lawrence and Resident Agent Hughes, then arranged surveillance at the parking
lot at Becks Pond following the second call. The CS accompanied the officers in
the CS’s vehicle.6 At 7:09 p.m., while the officers were with the CS, Candy called
to inform the CS that she was arriving at the parking lot. Special Agent Joseph
Rosati simultaneously radioed to Officer Lawrence that he observed a silver/gray
Infinity with a person matching the description of Candy entering the lot at that

time.

 

5 See Defendant’s Motion at 11 3. Both Officer Lawrence and Resident Agent Hughes further
testified that the drug terminology used during the two phone calls implied that a transaction was
contemplated See State’s Response at 6.

6 Prior to the controlled transaction, officers with the DEA Wilmington Resident Office searched
and seized any contraband and currency in the CS’s vehicle per departmental policy.

6. At 7:1 lp.m., the CS was instructed by the officers to meet with
Candy. Officer Lawrence, trailing the CS to the meeting place, parked across the
street from the entrance to the parking lot. At 7115 p.m., Officer Lawrence and the
other stationed officers observed the CS arrive in the CS’s vehicle and park next to
the silver/gray Infinity. At no time did the officers lose sight of the CS’s vehicle.
Officer Lawrence then radioed the other officers to arrest Candy, who was later
identified as Defendant.7

7. A search incident to arrest of Defendant’s vehicle revealed in plain
view a cloth bag on the backseat clearly showing the presence of marijuana The
search also uncovered a purse containing several credit card statements to “Cecily
Johnson;” an address of 2419 Porter Road, Bear, Delaware; a set of house keys and
statements to Marvin Knight; and a gray cell phone. This phone matched the
number dialed in the two earlier recorded phone calls

8. Defendant has moved to suppress the evidence from the search of her
person and automobile, filing this Motion on October 27, 2016. The State
responded on December 7, 2016. An evidentiary hearing on the Motion was held

on January 5, 2017.

 

7 Resident Agent Hughes testified that the CS was not given money to conduct the drug
transaction with Candy and, therefore, for safety reasons, the arrest was made prior to making
Candy aware that the CS had no intentions of completing the drug transaction or paying off any
owed debt.

9. Pursuant to Delaware Superior Court Criminal Rule 12(b)(2), a
criminal defendant may file a motion to suppress the evidence seized by the State
prior to trial.8 Where 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.”9 The State has a burden of
proving the constitutionality of the search by a preponderance of the evidence.lo
Since the search in this case occurred without a warrant, the State carries the
burden of proving the constitutionality of the search by a preponderance of the
evidence.

10. Under the Fourth Amendment of the United States Constitution and
11 Del. C. § 1904, there must exist “probable cause” that a defendant has
committed a crime before officers may make a warrantless arrest of the

defendantll Probable cause is a flexible standard and exists where “the facts and

 

8 DEL. sUPER. cT. CRIM. R. iz(b)(z).

9 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)).

10 See id.

ll U.S. CONST. amend IV; 11 Del. C. § 1904 (2016) (using term “reasonable ground” instead of
“probable cause). See Stajj‘ord v. State, 59 A.3d 1223, 1228 & n.24 (Del. 2012); T olson v. State,
900 A.2d 639, 642-43 (Del. 2006) (defining “reasonable ground” under § 1904 as synonymous
with “probable cause.”).

circumstances within the arresting officer’s knowledge, of which he has
trustworthy information, are sufficient in themselves to warrant a person of
reasonable caution to believe that an offense has been committed.”12

ll. “Only a fair probability, not a prima facie showing, of criminal

”13 A reviewing court must apply a

activity is the standard for probable cause.
case-by-case review of the probable cause determination based on the totality of
circumstances presented to the arresting officer.14 Such a review seeks to weigh
“the events leading up to the arrest” from the perspective of an objectively
reasonable police officer.15

12. “A tip from a confidential informant can provide probable cause, if
the totality of the circumstances demonstrates the tip’s reliability.”16 In evaluating
the tip’s reliability, “a court must consider the reliability of the informant, the

details contained in the informant's tip, and the degree to which the tip is

corroborated by independent police surveillance and information.”17 For instance,

 

12 Stajj”ord, 59 A.3d at 1229 (citing Tolson, 900 A.2d at 643).

13 id. (citing State v. Maxwell, 624 A.2d 926, 928 (Dei. 1993)).

14 See Maxwell, 624 A.2d at 928 (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)).
15 Stajj‘Ord, 59 A.3d at 1229 (quoting Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
16 S¢a¢e v. Holden, 60 A.3d 1110, 1115 (De1.2013).

11 Bmwn v. Sm¢e, 897 A.2d 748, 751 (Dei. 2006).

the accurate prediction of future movements adequately corroborates a tip since
“[c]orroboration of an informant’s tip about a suspect’s movements suggests that
the informant possesses knowledge of the suspect’s criminal behavior, because the
informant knows the person well enough to know what they will do.”18 In order to
provide law enforcement officers with probable cause, the information provided in
the tip must be of the sort that could likely only be known by a person who
obtained this information from the suspect directly and that is not easily
predicted.19

13. Here, the CS clearly exhibited substantial knowledge of Candy and
the illegality of her conduct. First, the CS gave an accurate physical description of
“Candy,” later identified as Defendant, and described the exact vehicles she used
in prior drug transactions The CS identified the area Defendant lives and the
approximate location where she meets to transact drug deals This location was
then suggested by Candy as the location where their drug transaction would occur.

Additionally, the CS indicated that Candy used vehicles to conduct drug

 

18 Hozden, 60 A.3d at 1116.

19 See ia'. at 245-46. Defendant argues that LeGrana’e v. State, 947 A.2d 1103 (Del. 2008)
applies to the facts of this case because the State failed to prove the CS’s “tip” was past proven
reliable. LeGrana’e involved the sufficiency of an anonymous tip regarding contraband the
defendant-probationer allegedly stored in his apartment The Court held that police failed to
sufficiently corroborate the tipster’s assertion of illegality. LeGrana'e is distinguishable from the
facts of the present case. Here, the CS was not an anonymous tipster; rather, the CS was known
to officers, exhibited substantial knowledge about Candy and her alleged conduct, and
cooperated with officers through the entirety of their investigation into Candy leading up to her
arrest.

transactions One of the vehicles the CS identified, a gray Infiniti, was the vehicle
Defendant drove to the meeting at the parking lot.

14. Defendant argues that no explicit drug transaction was contemplated
in the two recorded conversations However, while the CS and Defendant did not
explicitly state such a transaction would occur, they used recognized drug slang to
plan their transaction. For instance, Resident Agent Hughes testified that they
corroborated the quantity of drugs the CS previously purchased from Candy. This
same slang terminology was used by the CS, and repeated by the Defendant in the
second recorded conversation

l5. Importantly, the CS and Candy had a prior romantic relationship and a
history of engaging in drug transactions Officer Lawrence testified that their
familiarity with one another meant no explicit arrangement of the transaction on
the phone was necessary. Not only was it not necessary, but it would be
uncommon to see a drug deal spelled out with any specificity, as coded language is
often used in drug exchanges

16. Further, the CS’s information was deemed reliable and corroborated
when Defendant arrived as stated at the parking lot at the approximate time
arranged during Candy’s phone call to the CS, Defendant matched the CS’s
physical description of Candy, and she drove the same gray Infiniti identified by

the CS.

17. This Court finds there was sufficient probable cause to arrest
Defendant based on the evidence presented A reasonably prudent officer,
knowing the information available to the officers, would have sufficient
information to form an understanding that there existed a fair probability that
Defendant had or was about to commit the offense of Drug Dealing.

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

IT ls so oRi)EREi). _ /

  
 

 

.Vivian L. Medinilla
Judge

oc: Prothonotary ` _ __ --
cc: Defendant

Marc C. Petrucci, Esquire

Eugene J. Maurer, Jr., Esquire

Cynthia L. Ruggiero, Esquire

Investigative Service Office

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