Hope v. State
| Decision Date | 06 September 1989 |
| Parties | John F. HOPE, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted: |
| Court | United States State Supreme Court of Delaware |
Anthony A. Figliola, Jr., Figliola & Facciolo, Wilmington, for appellant John F. Hope.
Timothy J. Donovan, Jr., Dept. of Justice, Wilmington, for appellee the State of Del.
Before HORSEY, MOORE and HOLLAND, JJ.
John Hope, was convicted of theft, third degree burglary, and five counts of second degree forgery by a jury in Superior Court. On appeal, he contends that the trial judge improperly denied his motion to suppress evidence seized pursuant to a nighttime search warrant that allegedly was defective in form and issued without probable cause. He also contends that the trial judge abused his discretion in failing to grant a mistrial after a police detective testified that another suspect "didn't commit this burglary."
We find the appellant's contentions without merit and affirm his convictions. The nighttime search warrant in this case satisfied Delaware statutory requirements, and was consistent with this Court's prior decisions. 1 As to the detective's allegedly prejudicial statement regarding the other suspect's innocence, there was no abuse of discretion in denying a mistrial. The jury had ample evidence upon which to conclude that the appellant committed the burglary. Moreover, the appellant's defense was not rendered less credible by the elimination of one suspect out of the universe of "actual perpetrators" suggested by defense counsel.
On the evening of September 17, 1987, a neighborhood grocery store in Wilmington was burglarized. Property taken included a money order machine, blank money orders, cigarettes, cash, food stamps, and a set of keys to the store. The owner of the grocery store initially told the police that she suspected an individual named Michael Hargrove, who she claimed had previously threatened to rob the store. After further discussion with the owner, the detective assigned to the case determined that no viable evidence connected Hargrove to the crime.
The store owner contacted the police again on September 21, at approximately 8:00 p.m., to inform them that she now suspected the appellant, John Hope, of the burglary. The owner claimed to have learned from local residents that Hope had committed the burglary and still held some of the stolen items at his home. In addition, the owner stated that Hope intended to take the stolen items out of state later that evening to be sold. At 8:45 p.m. the police interviewed a local resident who confirmed that she had seen the money order machine at Hope's house, and that Hope's girlfriend claimed to have cashed several money orders given to her by Hope. The police were unable, however, to verify that Hope intended to transport the property out of state that evening because the store owner refused to identify her other sources of information.
Later that evening the police sought and obtained a nighttime search warrant from the Municipal Court for the City of Wilmington. On its face the warrant lacked express language reflecting the need for a nighttime search to prevent the removal of evidence. Instead, it simply authorized a nighttime search: "This warrant my [sic] be executed in the nighttime as requested in the application, probable cause being shown for the issuance of a nighttime warrant by the attached affidavit." The attached affidavit specified the need for a nighttime search, relating the store owner's partially verified claim that Hope committed the burglary and intended to transport the stolen items out of state that evening.
During the ensuing search of Hope's house the police discovered the keys to the grocery, blank money orders, and money orders made payable to Hope. They did not recover the money order machine. Before trial Hope moved to suppress the evidence seized from his house on grounds that the nighttime search warrant was defective. Specifically, he claimed that the warrant failed to meet statutory form requirements, failed to list exigent circumstances justifying a nighttime search on the face of the warrant, and lacked a specific finding by a judicial officer that exigent circumstances existed to justify issuance of the nighttime warrant. The motion was denied.
At trial, Hope's defense was that he received the stolen property but did not commit the burglary. The State attempted to refute this claim. On direct examination by the State, the detective who investigated the burglary was questioned about the initial suspect, Hargrove. He responded that Hargrove was never arrested because "he didn't commit this burglary." Defense counsel objected and moved for a mistrial, which was denied by the trial judge.
On appeal Hope argues that the warrant was defective because it failed to contain a specific finding on its face that a nighttime search was required under the circumstances. Such a specific finding, he contends, was required by our decision in Mason v. State, Del.Supr., 534 A.2d 242 (1987). In addition, Hope argues that the attached affidavit failed to allege sufficient facts to constitute probable cause for the issuance of a nighttime search warrant. He contends that the affidavit was nothing more than a naked conclusion without corroboration that he intended to transport stolen property out of state. Finally, he claims that the detective's statement regarding the innocence of the other suspect, Michael Hargrove, was extremely prejudicial. He argues that the statement created grounds for a mistrial which was improperly denied by the trial judge.
The Delaware Criminal Code provides that a nighttime warrant may be issued only when it is "necessary in order to prevent the escape or removal of the person or thing to be searched for." 11 Del.C. § 2308. The statute does not require the warrant itself to contain this particular language, nor does it require the judge or magistrate to list other specific reasons for issuing the nighttime search warrant. The only form requirement that Section 2308 imposes is that "authority [for the nighttime search] shall be expressly given in the warrant." 11 Del.C. § 2308. Moreover, the statute does not prohibit the incorporation by reference to the specific factors enumerated in a supporting affidavit.
Similarly, Section 2310 provides sample forms for search warrants, but clearly they are not exclusive. Section 2310(c) provides a form for a nighttime search warrant of a dwelling house that "shall be sufficient." 11 Del.C. § 2310(c). That sample form contains the following language, consistent with Section 2308, authorizing a nighttime search: "I am satisfied that there is probable cause ... and that search of the premises in the nighttime is necessary in order to prevent the escape or removal of the person or thing to be searched for...." 11 Del.C. § 2310(c).
This Court's prior decisions involving nighttime searches have focused primarily on the substantive standard established in Section 2308...
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