Schramm v. State

• Decision Date: 24 August 1976
• Citation: 366 A.2d 1185
• Parties: Barton H. SCHRAMM, Defendant below, Appellant, v. STATE of Delaware, Plaintiff below, Appellee.
• Court: Supreme Court of Delaware

Page 1185

366 A.2d 1185

Barton H. SCHRAMM, Defendant below, Appellant, v. STATE of Delaware, Plaintiff below, Appellee.

Supreme Court of Delaware.

Submitted May 12, 1976.

Decided Aug. 24, 1976.

Upon appeal from Superior Court. Affirmed.

Arlen B. Mekler, Mekler & Maurer, Wilmington, for defendant below, appellant.

John J. O'Brien, Deputy Atty. Gen., Wilmington, for plaintiff below, appellee.

Before HERRMANN, C.J., and DUFFY and McNEILLY, JJ.

McNEILLY, Justice:

Defendant appeals from his conviction on three charges of possessing non-narcotic Schedule I controlled substances 16 Del.C. § 4754 (one with intent to deliver) 16 Del.C. § 4752 and one charge of conspiracy in the third degree 11 Del.C. § 511. He contends that (1) there was an insufficient showing of the credibility of an informant and the reliability of his information to establish probable cause to stop and search defendant's car and to arrest him without a warrant; and that (2) it was error for the Justice of the Peace to admit the hearsay statements of the informant in a preliminary hearing absent a showing of the informant's credibility.

I

At approximately 2:00 p.m., a state police officer attached to a special investigative drug unit, received a telephone call from an unnamed individual whom the officer had known personally for several years. The officer also knew that the caller was a drug-trafficker presently awaiting trial on drug charges. The caller informed the officer that Barton Schramm, the defendant, had told him earlier in the day that he was going to Philadelphia to buy a large quantity of drugs, and would be transporting them back to Delaware. The informant stated he believed that Schramm would be returning 'anytime soon' via I--95 because he had been with him previously on a similar mission when they had taken that route. He further informed the officer that defendant, a thin, white male with a mustache, would be riding in a dark brown 1974 Mustang II with a light tan top and Pennsylvania license; that the destination would either be defendant's home in Woodside Apartments, Newark, or the Presidential Towers (apartments) near the Naamans Road exit off of I--95.

The officer, who had heard from other informants that Schramm was involved in drug trafficking, picked up the informant in the area of I--95, and at approximately 2:45 p.m. the Mustang II was sighted. The informant pointed out Schramm riding in the passenger seat.

Pursuit was undertaken via I--95 to the Naamans Road exit, and Presidential Towers, which the officer knew to be the residence of Wallace, another drug dealer, whom he had previously arrested and who the informant stated was involved in the traffic with Schramm. The car was stopped, defendant was arrested, and a search was conducted revealing a large quantity of drugs which were seized and admitted as evidence at trial.

At the preliminary hearing the arresting officer described the events, including the informant's statements, and defendant was held for trial in Superior Court. He was subsequently indicted, and following a suppression hearing, was tried and convicted.

II

Defendant argues that the drugs seized pursuant to the warrantless on-the-scene search of the automobile should have been suppressed from evidence because the informant's tip was not sufficiently reliable to establish probable cause.

There is no more jealously guarded right than that of an individual under the Fourth Amendment to be free from unreasonable governmental intrusions upon his person and property; thus, searches and seizures conducted without a warrant--where there has been no prior determination of probable cause for the intrusion by some neutral and detached person--'are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' Katz v. U.S., 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); but see U.S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). One such exception, and the one applicable here, permits the warrantless search of an automobile where at the time of the 'initial intrusion', i.e., when the car is stopped or 'seized', there exists both probable cause to justify the seizure and exigent circumstances making it impracticable to secure a warrant beforehand. Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Brinegar v. U.S., 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Freeman v. State, Del.Supr., 317 A.2d 540 (1974).

The existence of exigent circumstances excusing the failure to obtain a warrant has not been questioned here, and we find this element has been satisfied by the fact that defendant would be returning by car 'anytime soon.' Thus, the critical issue is that of probable cause which the State seeks to base on the unnamed informant's tip.

It is an established principle that such hearsay information is an acceptable basis for probable cause provided that the tip is shown to be reliable and trustworthy through corroboration by other facts within the officer's knowledge, Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Shantz v. State, Del.Supr., 344 A.2d 245 (1975); Garner v. State, Del.Supr., 314 A.2d 908 (1973). In order for the Court (in the case of search or arrest without a warrant) or for the Justice of the Peace (where a warrant is sought) to determine probable cause, the law requires that there be a showing that (1) the informant acquired his information in a reliable manner, and that (2) there are sufficient reasons for believing the informant himself is credible or his information is trustworthy. U.S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. U.S., supra; Aguilar v. Texas, supra; Shanty v. State, supra; Garner v. State, supra; Wilson v. State, Del.Supr., 314 A.2d 905 (1973).

In the instant case, we find the first requirement has been satisfied through the informant's declaration that he acquired his information directly from a conversation he had with the defendant earlier that day. This conclusion is reinforced by the informant's detailed description of defendant's proposed criminal activity, from which it may reasonably be inferred that the informant is speaking from personal knowledge. Spinelli, supra; Draper v. U.S., supra; Marvel v. State, Del.Supr., 290 A.2d 641 (1972).

The more difficult quesiton, and the one to which the parties direct the bulk of their argument, concerns the second requirement of Aguilar-Spinelli, that there be sufficient reasons for believing that the informant is credible or his information trustworthy. Defendant first contends that the record shows this informant's credibility is suspect because (1) the officer knew he was a drug trafficker with drug-related charges pending against him at the time in question, to which he subsequently was allowed to plead to a lesser offense, and (2) because he had never furnished reliable information in the past.

The trustworthiness of the informant can be shown through various means; and while a law-abiding citizen carries his own indicia of honesty, cf. Wilson v. State, supra, and while past instances of reliability, although insufficient to establish probable cause standing alone, Garner v. State, supra, are oftentimes to be given great weight, cf. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), neither of these facts is the Sine qua non of present credibility, U.S. v. Harris, supra; also see Shantz v. State, supra. Nor are we persuaded that the informant's known criminal involvement and pending charges automatically render him unbelievable; indeed, under some circumstances, those facts might suggest the contrary: through personal involvement in drug activity, there exists the likelihood that he would be familiar with the activities of other drug traffickers. The rules governing inquiries into the credibility of informants must not be so strict as would tend to discourage positive and desirable assistance to law enforcement agencies. We do not attach to the fact of this informant's own criminal involvement the absolute negative weight of enforced suspicion of his credibility which defendant appears to urge upon us and which presumably would place upon the State a most difficult burden of proving their informant to be trustworthy. Nevertheless, the record here does not reveal sufficient indicia of the informant's personal credibility; therefore, the present trustworthiness of his information must be shown, if at all, through other corroborative evidence.

Defendant argues that the only other possibly corroborative evidence is the officer's verification of the details of the tip, but that these details, as in Garner v. State, supra, were insufficient in quantity and related solely to innocuous activity.

In Garner, the victim was robbed by a masked-man whom he was unable to identify; he did, however, identify the co-defendant as being present at the scene. After a search was begun for the co-defendant, the police received a tip from an unnamed informant which ultimately led to defendant's arrest and subsequent lineup identification. We held that the informant's tip was insufficient to establish probable cause, and that therefore, the arrest based thereon was illegal, and the identification directly resulting therefrom was unlawfully taken as 'fruit of the poisonous tree.'

In Garner, the informant's tip identified the defendant as the masked man who had committed the robbery and stated that defendant and co-defendant would be at a certain place at a particular time; the informant further described the route and vehicle the men would be taking. However, the officer did not fully...