IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
) ID No. 1706015581
v. ) In and for Kent County
)
RODNEY MORRIS, )
)
Defendant. )
OPINION

Submitted: November 29, 2017
Decided: December 19, 2017

Upon Defendant’s Motion to Suppress
DENIED

Dennis Kelleher, Esquire, Departrnent of Justice, Dover, Delaware for the State of
Delaware.

Alexander W. Funk, Esquire, Curley, Dodge and Funk, Dover, Delaware for
Defendant.

Primos, J.

State v. Rodney Morris
ID No. 1706015581
Page 2

Before the Court is the motion to suppress filed by Defendant Rodney Morris
(hereinafter “Defendant”), challenging the search of his home located at 322 Cecil
Street (hereinafcer the “Residence”) pursuant to warrant. The Court has considered
this motion and the State’s responses, as well as oral arguments by counsel on
November 29, 2017, and for the reasons set forth below, Defendant’s motion is
DENIED.

I. FACTUAL BACKGROUND

The relevant facts are taken from the affidavit of probable cause attached to the
search warrant (hereinafcer the “Warrant”). The affiants are Officer Joshua
Boesenberg and Detective Jordan Miller of the Dover Police Department.

In December of 2016, Private First Class James Johnson of the Dover Police
Department (hereinafter “Officer Johnson”) was contacted by a past proven reliable
confidential informant (hereinafter the “CI”). The CI informed Officer Johnson that
Defendant, whom the CI knew by the alias “Dreds,” was selling crack cocaine from
his bicycle in Dover, Delaware, and was currently living in the area of Cecil Street.

On June 20, 2017, Officers Johnson and Barrett observed Defendant leave the
Residence on a bicycle. The officers followed him and saw him participate in a hand
to hand transaction with a man later identified as Mahdi Wilson (hereinafcer “Mr.
Wilson”) on Mary Street in Dover, Delaware. Surveillance of Defendant by law
enforcement showed that Defendant returned to the Residence shortly after the hand
to hand transaction Mr. Wilson left the scene of the transaction in a Kia minivan and
was tailed by the officers, who pulled him over for a traffic stop. When stopped, Mr.
Wilson fled. He was pursued, taken into custody, and found in possession of crack

cocaine.

State v. Rodney Morris
ID No. 1706015581
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In his motion to suppress, Defendant argues that the allegations recited in the
warrant affidavit are insufficient to constitute probable cause because the affidavit
contains “(l) stale, outdated and irrelevant information provided by a ‘confidential
source,’ that is not probative of evidence of criminal activity being found at
[Defendant’ s] residence; and (2) conclusory hearsay allegations of purported criminal
activity that occurred wholly outside of the residence and are not probative of
evidence of illegal activity being found in [Defendant’s] residence.”l

II. STANDARD OF REVIEW

On a motion to suppress challenging the validity of a search warrant, the
defendant bears the burden of establishing that the challenged search or seizure Was
unlawful.2 A search warrant may not issue unless there is a showing of a factual basis
for probable cause within the “four comers” of the affidavit that was submitted to the
magistrate in the officer’s application for the warrant.3

When considering the affidavit, the magistrate is to make a “practical,
common-sense decision whether, given all the circumstances set forth in the affidavit
before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying
hearsay information, there is a fair probability that contraband or evidence of a crime
will be found in a particular place.”4 For a warrant to evidence probable cause to

search a home, “a nexus between the items to be sought and the place to be searched”

 

l Amended Motion to Suppress Evidence at 11 31.

2 State v. Sisson, 883 A.2d 868, 875 (Del. Super. 2005), ajj"d, 903 A.2d 288 (Del. 2006).

3 Pierson v. State, 338 A.2d 571, 573 (Del. 1975).

4 Illinois v. Gates, 462 U.S. 213, 238-39 (1983). See also Aguilar v. State of T exas, 378 U.S.
108, 114 (1964).

State v. Rodney Morris
ID No. 1706015581
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must be established5 Put another way, law enforcement must also have “probable
cause to believe that evidence of such crime can be found at the r'esialence.”6
A magistrate's determination of probable cause “should be paid great deference
by reviewing courts” and should not “take the form of a de novo review.”7
Nonetheless, the highest courts of both the United States and Delaware have
instructed that the people’s privacy interests in their homes are afforded special
protection,8 and this Court may not permit the requirement that the affidavit show an
adequate fact-based connection between illegal activity and an arrestee’ s home to go
unenforced.9 However, in considering “whether the warrant application presented the
issuing magistrate with a ‘substantial basis’ to conclude that probable cause existed,”
this Court “eschews ‘a hypertechnical approach to the evaluation of the search
warrant affidavit in favor of a common-sense interpretation.”’10
III. DISCUSSION
Defendant relies upon four primary grounds to attack the validity of the Warrant:
(l) the affidavit’s reliance upon hearsay information rather than the personal
observations of the affiants; (2) the affidavit’s reliance upon allegedly stale and
irrelevant information from the CI; (3) the affidavit’s alleged failure to show the

presence of criminal activity based upon an observed hand-to-hand transaction, Mr.

 

5 Morgan v. State, 962 A.2d 248, 253 (Del. 2008).

6 Cannon, 2007 WL 1849022, at *4 (emphasis added). See also Illinois v. Gates, 462 U.S. 213,
238 (1983) (requiring a showing of “a fair probability that contraband or evidence of a crime Will
be found in a particular place”).

7 Gates, 462 U.S. at 238-39.

8 Payton v. New York, 445 U.S. 573, 585 (1980); Mason v. State, 534 A.2d 242, 246-49 (Del.
1987).

9 Cannon, 2007 WL 1849022, at *4.

10 Id. at *3 (quoting Gardner v. State, 567 A.2d 404, 409 (Del.l989)).

State v. Rodney Morris
ID No. 1706015581
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Wilson’s subsequent flight from law enforcement, and the discovery of crack cocaine
on Mr. Wilson’s person; and (4) the alleged absence from the affidavit of any nexus
between the alleged criminal activity and the Residence. The Court, after considering
each of these arguments in turn, has concluded that the affidavit does establish
probable cause justifying the issuance of the search warrant.
A. Aff`ldavit’s Reliance Upon Hearsay

Defendant argues that the affidavit in support of` probable cause is deficient
because it relies solely upon hearsay observations of the alleged criminal activity and
its connections to the residence. In fact, no direct observations reported in the
affidavit were made by the affiants. This, however, does not automatically invalidate
the Warrant.

An affidavit relying on hearsay “is not to be deemed insufficient on that score,
so long as a substantial basis for crediting the hearsay is presented.”ll In Warrant
contexts, probable cause may be “founded on hearsay information provided to the
affiant by other officers . . . . [A]n officer-informant relaying the information to the
affiant will be considered a reliable source for the information needed to determine
probable cause.”12 The United States Supreme Court has similarly held that hearsay
observations of a warrant applicant’s qualified fellow officers are “plainly a reliable

basis” on which a magistrate may rely in determining probable cause.13

 

ll Jones v. United States, 362 U.S. 257, 269 (1960).
12 HOOkS v. State, 416 A.2d 189, 202-03 (Del. 1980).
13 United States v. Ventresca, 380 U.S. 102, lll (1965).

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ID No. 1706015581
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The United States Court of Appeals for the Eighth Circuit, in Gallagher v.
United States, considered whether an affidavit composed entirely of hearsay is

deficient, and reached its conclusion for reasons this Court finds persuasive:

At this point in the development of jurisprudence interpreting the
Fourth Amendment, a claim that a search warrant is invalid because it
is based entirely on hearsay is frivolous . . . . Particularly is this true in
the now complex field of criminal investigation . . . . Unless authorities
do act quickly upon an evaluation of reports received by them, the fruits
of the crime and the trail of the offenders could easily be irretrievably
lost.14
The collective knowledge doctrine also suggests that the personal knowledge
of the affiant is irrelevant when the source of the hearsay was another officer.
Pursuant to this doctrine, the knowledge of other investigating officers is imputed to
the affiant.15 The Supreme Court of Delaware indicated in State v. Cooley that when
officers have been in communication with one another, “the collective knowledge of
an entire organization may be imputed to an individual officer.”16 Similarly, the
United States Court of Appeals for the Third Circuit, along with other jurisdictions,
has indicated that probable cause is to be evaluated on the basis of the collective

information of the police.17 While the collective knowledge doctrine only applies

when the officers have been in communication, the Court can infer communication

 

14 Gallagher v. United States, 406 F.2d 102, 107 (8th Cir. 1969).

15 State v. Sisson, 883 A.2d 868, 875 (Del. Super. 2005), afd, 903 A.2d 288 (Del. 2006).

16 State v. Cooley, 457 A.2d 352, 355 (Del. 1983) (quoting State v. Schoenbneelt, 171 Conn. 119,
368 A.2d 117, 119 (Conn. Supr. 1976)).

17 United States v. Bianco, 189 F.2d 716, 719 (3d Cir. 1951). See also State v. Smith, 277 A.2d
481, 489 (Me. 1971); State v. Fioravanti, 215 A.2d 16, 23 (N.J. 1965) (“[p]robable cause must
be judged on the basis of [the] composite information” in possession of the police).

State v. Rodney Morris
ID No. 1706015581
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in this case between the hearsay declarant officers and the affiants, as the declarant
officers’ specific observations are contained in the affidavit prepared by the affiants.

In arguing that the affidavit’s reliance upon hearsay renders the Warrant
invalid, Defendant cites to three Delaware decisions, none of which were decided in
the context of a search warrant, and all of which involved warrantless arrests: Garner
v. State,18 State v. Holmes,19 and State v. Hopkins.20

In Garner, police were investigating a robbery where the suspect was a masked
robber. An officer received “a tip from an unidentified informant that the defendant
was the masked robber.” The tip provided information about the defendant’s
whereabouts and allowed officers to apprehend the defendant.21 “At trial, the arresting
officer testified to the above facts and the informant's known reliability, but refused
to testijj) as to what facts were related to him by the informant which would support
the allegation that [ the defendant] was the robber.”22 The Garner court found that
this uncorroborated testimony was insufficient to demonstrate probable cause to arrest
the defendant.

In Holmes, a defendant was arrested during a traffic stop, and the defendant
moved to suppress evidence discovered after a search of his vehicle.23 The officer

testifying at the suppression hearing had limited knowledge of what had happened at

 

18 314 A.2d 908 (Del. 1973).

19 2015 WL 5168374 (Del. Super. Sep. 3, 2015).
20 2016 WL 6958697 (Del. Super. NOV. 23, 2016).
21 Garner, 314 A.2d at 910.

22 Id. (emphasis added).

23 Holmes, 2016 WL 6958697 at *1-3.

State v. Rodney Morris
ID No. 1706015581
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the traffic stop. When pressed for details as to what the officers conducting the stop
had done and said, the testifying officer “was not familiar with any of the arresting
officers’ reports and . . . the Court could not ascertain what the arresting officers said,
how the occupants responded, or what those officers were thinking.”24 The Holmes
court found that the testifying officer lacked material details regarding what had
happened, and the Court was left only with “assumptions and conclusions.”25 The
court determined that “una'er the circumstances of this case, [the State’s] burden
cannot be predicated entirely on hearsay.”26

In Hopkins, a defendant moved to suppress evidence discovered during the
search of his person.27 The State’ s only justification for the search was consent.28 The
testifying officer at the suppression hearing had not been present at the scene when
the defendant had allegedly given consent.29 The testifying officer informed the Court
that he had been told only that the defendant had consented and did “not testify
regarding how [the defendant] was asked to consent, the degree to which he initially
cooperated with the police, or any other factor enabling the Court to determine
whether [the defendant’s] will was overborne, and that it was not the product of
duress or coercion, express or implied.”30 The Hopkins court concluded that probable

cause could not be established based on this testimony alone.31

 

24 Id. at *9.

23 Id.

26 Id. (emphasis added).

27 HOpkinS, 2015 WL 5168374 at *2.
22 Id.

29 Id.

30 Id.

31 Id.

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ID No. 1706015581
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The facts in Garner are distinguishable from the instant case in three ways:
first, Garner was analyzing a warrantless arrest; second the hearsay originated from
an unidentified inforrnant; and third, the proffered hearsay in Garner constituted mere
conclusions rather than observations. Here, probable cause was found by a magistrate
considering a warrant application, who requires a somewhat lesser quantum of
evidence demonstrating reliability than does an officer making a warrantless search
or arrest.32 Second, the hearsay observations in this case were made by police officers,
whose observations are “plainly reliable.”33 Third, and most critically, the affiants
here reported the content of the hearsay observations, not merely conclusions based
on those observations

Similarly, Defendant’s reliance on the Holmes and Hopkins decisions is
misplaced. In each, the testifying officer lacked key details as to the factual basis for
probable cause, offering mere conclusions and assumptions The holdings in those
cases do not control cases like the one before this Court, where a warrant affiant
provides substantial detail as to the observations of investigating officers and the
factual bases for a finding of probable cause. Another key factor distinguishing these
decisions, as noted above, is that they invalidated warrantless arrests rather than
search warrants. As the Holmes court observed, one of the primary issues in that case
was “whether the State ’s burden in a motion to suppress can be met solely by

hearsay.”34 In this case, by contrast, Defendant bears the burden.

 

32 Id. 31914.
33 Ventresca, 380 U.S. at lll.
34 State v. Holmes, 2015 WL 5168374 at *l (Del. Super. Sep. 3, 2015) (emphasis added).

State v. Rodney Morris
ID No. 1706015581
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Defendant appears to recommend a requirement that the affiant possess some
quantum of corroborative first-hand knowledge The Court declines to accept this
recommendation Such a requirement would needlessly invalidate warrants that, upon
a common-sense reading, establish a fair probability that contraband or evidence will
be found in a particular location. Rather, this Court follows the Well-established
“totality of the circumstances” analysis, cognizant of the policy preference for a
“flexible, easily applied standard” expressed by the United States Supreme Court in
Illinois v. Gates.35

Here, the Court does not find that the affidavit’s reliance on hearsay renders it
defective. An affidavit of probable cause may rely solely on hearsay, so long as the
sources of the hearsay are the affiant’s fellow officers and the hearsay allegations are
not conclusory. The Court does not opine on whether hearsay alone would support
probable cause if the hearsay had some other source. That question is not before the
Court,36

B. Tip from Conf`ldential Informant

The Court now turns to the next factor that, according to Defendant,

demonstrates the invalidity of the warrant, the alleged staleness and unreliability of

the tip from the confidential informant

 

35 462 U.S. 213, 238-39 (1983).

36 The affidavit also contains hearsay information from fellow law enforcement officers
regarding Johnmikah Daniels, who allegedly engaged in drug activity in the Dover area, parked
her vehicle in front of the Residence, and lived at the Residence. In the Court’s view, this
information provides no basis for probable cause to search the residence, but by the same token,
does not render the Warrant invalid, as there are other bases in the affidavit for the probable
cause iinding. The same analysis applies to the information in the affidavit that Defendant and
Ms. Daniels were arrested at the Residence over a year before the instant case, and were charged
with drug dealing. Such information, while irrelevant, is not fatal to the affidavit’s validity.

State v. Rodney Morris
ID No. 1706015581
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A tip may be supportive of probable cause when the totality of the
circumstances demonstrate reliability.37 Relevant considerations include whether the
tip has been shown to be reliable or trustworthy through its specificity, corroboration
with other facts within the officer’s knowledge, or accurate predictions of a suspect’s
future behavior.38 When staleness is alleged, “the test of temporal proximity is
determined on an ad hoc basis in the light of circumstances of each case.”39 Probable
cause must be based on current information.40

Here, the affidavit informed the magistrate that Officer Johnson had received
a tip that Defendant lived on Cecil Street and sold crack cocaine from his bicycle in
Dover. The CI did not allege any connection between the Residence and illegal drugs,
except that Defendant was alleged to be a drug dealer, and that he lived at the
Residence.

The State has indicated that the informant was previously proven reliable. The
tip’s content was largely generic, alleging merely the sale of crack cocaine from a
bicycle, with no particulars as to When sales were made, who they were made to, or

Where they were transacted, except in Dover, generally.41

 

37 Id. at 230.

38 Jones v. State, 745 A.2d 856, 870 (Del. 1999) (stating relevant considerations for finding of
reasonable suspicion: “(l) the specificity of the anonymous tip; (2) independent police
corroboration of the facts underlying the tip; and (3) the ability of the tipster to predict future
behavior by the suspect.”).

39 Gardner v. State, 567 A.2d 404, 410 (Del. 1989) (quoting Jensen v. State, 482 A.2d 105, 111
(Del. 1984)).

40 E.g., Sisson v. State, 903 A.2d 288, 297 (Del. 2006); Gardner, 567 A.2d at 410.

41 Compare the tip received here with the more detailed tip received in Illinois v. Gates, 462 U.S.
at 245-46.

State v. Rodney Morris
ID No. 1706015581
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Subsequent investigation did appear to corroborate the tip’s few details. The
CI advised that Defendant used a bicycle when conducting transactions, and the
observations made by the officers were consistent with this. The CI also predicted
with accuracy that crack cocaine Was the drug being trafficked. Moreover, while the
tip was provided six months before the incident in question, the Court finds that this
time gap is not so great as to render the information stale with regard to whether the
officers were observing criminal activity when they viewed the hand-to-hand
transaction.

While it seems a close case as to whether the tip is supportive of probable
cause to search Defendant’s person, it certainly provides no probable cause to search
the Residence. The tip does not mention any connection between the Residence and
illegal activity, but simply states that Defendant “sells Crack Cocaine from his
Bicycle in the Dover Delaware area.”

The tip alone could not provide probable cause for the search of the Residence.
However, it did provide additional information upon Which the magistrate could base
his conclusion that the Defendant participated in criminal activity aHer leaving the
Residence and before returning there.

C. Suspected Criminal Activity

Tuming to Defendant’s third primary argument, Defendant contends that the
following facts_the observed hand-to-hand transaction, Mr. Wilson’s subsequent
flight, and the discovery of crack cocaine on Mr. Wilson_were insufficient to allow
the magistrate to determine that Defendant had been involved in criminal activity,
The Court concludes otherwise. The affidavit indicates that Defendant left the

Residence, got on a bike, and traveled to the area of Mary Street, where he engaged

State v. Rodney Morris
ID No. 1706015581
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in a hand to hand transaction with Mr. Wilson. To be sure, this was not a controlled
buy, and law enforcement did not determine with certainty that Mr. Wilson obtained
the crack cocaine in his possession from Defendant.

Nonetheless, While a controlled buy may be the typical method for determining
probable cause in a case such as this, “a template of ‘typical’ facts is not the sine qua
non for a finding of probable cause.”42 Probable cause was found by this Court on
similar facts in State v. Watson.43 In Watson, officers observed a defendant participate
in what appeared to be a hand-to hand drug transaction with a driver of a Buick.44
ARer the transaction, law enforcement pulled over the driver of the Buick and found
marijuana and cash in the vehicle, providing probable cause to believe contraband or
evidence of criminal activity would be found in Defendant’s vehicle.45 Here, the
hand-to-hand transaction combined with Mr. Wilson’s subsequent flight, and the
discovery of contraband on his person, provides a substantial basis to believe that an
illegality, namely, a drug transaction, had occurred between himself and Defendant.46
As indicated previously, this conclusion is also supported by the CI’s tip which,
although independently unsupportive of probable cause, renders it more likely that

Defendant sold crack cocaine to Mr. Wilson during their hand-to-hand transaction.

 

42 State v. Holden, 60 A.3d 1110, 1116 (Del. 2013).

43 2015 WL 2210343 (Del. Super. May 8, 2015).

44 Id. at *l.

45 Id. at *4.

46 Id. (holding that magistrate had substantial basis for finding probable cause where police
found “oxycodone without a prescription on a person who made a brief visit to the house and
then dissembled about the location he had just lefc”).

State v. Rodney Morris
ID No. 1706015581
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Defendant has also argued both in writing and in open court, that the fact that
the affidavit did not specifically allege that the transaction was an “illegal” or “drug”
transaction somehow renders the allegation meaningless as a matter of probable
cause. The Court declines to take such a “hypertechnical” approach. Rather, it was
appropriate for the magistrate to take all the circumstances in the affidavit into
account, notwithstanding the absence of a single word or phrase.

D. Nexus Between Criminal Activity and Residence

Defendant’s final argument is that there is no nexus between the alleged
criminal activity and the Residence. The Court finds the opposite. Defendant’ s direct
travel between the Residence and the site of the transaction constitutes a sufficient
connection. This is evidenced by this Court’s decision in State v. Cannon, where the
Court stated that “[d]irect or indirect evidence that a defendant traveled immediately
to his home after engaging in illegal activity might be sufficient to establish probable
cause that evidence or contraband are located in the residence.”47 In this case, law
enforcement Watched Defendant travel fi'om his house to the site of the transaction
and also noted that he returned to the Residence shortly after the transaction. In light
of this evidence, law enforcement had probable cause to believe that contraband was
located in the Residence. This conclusion is additionally supported by the affiants’
assertion that, based on their knowledge, training, and experience, persons involved

in drug trafficking will hide certain contraband in their houses.48

47 State v. Cannon, 2007 WL 1849022 at *6 (Del. Super. June 27, 2007). See also State v.
Church, 2002 WL 31840887 at *6 (Del. Super. Dec. 18, 2002) (probable cause found where
defendant left residence in question and participated in probable drug transaction).

48 Cannon, 2007 WL 1849022 at *4 (“The nexus need not be based on direct observation or facts
placing evidence at the location to be searched and may be inferred from the factual
circumstances, including ‘the type of crime, the nature of the items sought, the extent of an

State v. Rodney Morris
ID No. 1706015581
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CONCLUSION
Given this Court’s deferential review of a magistrate’s decision to issue a
search warrant, and the consideration of that decision in light of common sense, the
Court concludes that it cannot overturn the magistrate’s decision in this case. The
affiants’ reliance upon hearsay information provided by fellow officers was
appropriate, particularly since the information was both detailed and consistent with
information regarding prior criminal activity provided by a past proven reliable
inforrnant. Prohibiting search warrant affiants from relying upon credible and specific
information provided by fellow law enforcement officers would be “impractical and
border on the absurd”49 and would inhibit efficient law enforcement Furthermore,
while the CI’s tip did not itself provide probable cause to search the Residence, it
indicated that criminal activity was afoot. Finally, the magistrate made a common
sense conclusion that the transaction and subsequent law enforcement interaction
with Mr. Wilson supported a conclusion that criminal activity had occurred, and that
there was a nexus between that activity and the Residence due to Defendant’ s contact
with the Residence both before and after the transaction
WHEREFORE, for the foregoing reasons, Defendant’s motion to
suppress is DENIED.

 

opportunity for concealment and normal inferences’ regarding where a criminal might hide
evidence.”) (quoting State v. Ivins, 2004 WL 1172351, at *4 (Del. Super. May 21, 2004)).
49 State v. Smith, 277 A.2d 481, 489 (Me. 1971).

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ID No. 1706015581
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IT IS SO ORI)ERED.

/s/ Noel Eason Primos
Judge

NEP/dsc

