Hare v. State

• Decision Date: 29 June 1973
• Parties: Gerald T. W. HARE, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 631

310 A.2d 631

Gerald T. W. HARE, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

June 29, 1973.

Upon appeal from the Superior Court.

James F. Kipp of Becker & Kipp, Wilmington, for defendant below, appellant.

Daniel F. Wolcott, Jr., Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

CAREY and HERRMANN, JJ., and MARVEL, Vice-Chancellor, sitting.

CAREY, Justice:

In the Court of Common Pleas for New Castle County, the appellant, Gerald T. W. Hare, was found guilty of lottery policy writing in violation of 11 Del.C. § 662 and receiving horse racing bets in violation of 11 Del.C. § 669. A prior motion to suppress the evidence which had been obtained pursuant to a search warrant was denied.

On appeal to the Superior Court, the appellant sought a reversal based in part upon the denial of his motion to suppress. This application was denied and the convictions were affirmed. In the present appeal, the only issue raised by appellant is the denial of his motion to suppress the evidence. This application is based primarily upon the contention that there was not probable cause to justify the issuance of the search warrant.

The warrant was issued upon the affidavits of two police officers. They recite that the affiants had received information on April 9, 1971, from a confidential informant, whose information had proven reliable in the past, and whose previous information had led to the arrest and convictions of persons involved in the gambling racket. He told them that the appellant 'is receiving and recording horse bets' over the telephone at a specified apartment in Newark, and that this information was based on the informant's personal knowledge as a result of his having placed bets with the appellant. Thereafter, the two officers began a surveillance of the appellant and the apartment. The surveillance continued daily for about a week, except the intervening Saturday and Sunday. The officers observed that the appellant customarily arrived at the apartment rather late in the morning and remained there until shortly after 5:00 p.m. The affidavit states that these are the customary work times for people who are receiving bets because the first race commences at 1:15 p.m. and the last at 5:00 p.m. The officers also discovered that the car which the appellant used in coming to and leaving the apartment was titled in someone else's name, an action which the affiants state is customary for people engaged in this occupation. They learned that the telephone in the apartment was listed in his name, although they knew that he did not live there. On each day of their surveillance, they saw the appellant stop at...