State v. Harris

• Decision Date: 27 September 1993
• Citation: 642 A.2d 1242
• Parties: STATE of Delaware v. Wilbert HARRIS, Defendant. . Submitted:
• Court: Delaware Superior Court

Page 1242

642 A.2d 1242

STATE of Delaware v. Wilbert HARRIS, Defendant.

Superior Court of Delaware,

New Castle County.

Submitted: Sept. 27, 1993.

Decided: Oct. 4, 1993.

Upon Defendant's Motion to Suppress. Granted.

Cynthia R. Kelsey, Deputy Atty. Gen., Wilmington, for State.

Joseph A. Hurley, Wilmington, for defendant.

OPINION

BARRON, Judge.

Defendant, Wilbert Harris, was charged by Grand Jury indictment with Trafficking in cocaine and with Possession with intent to deliver cocaine. These offenses allegedly occurred on or about September 25, 1991, in New Castle County. The defendant moved to suppress as evidence the cocaine which was seized by the police from a bedroom located in his mother's house at 1127 East 22nd Street in the City of Wilmington. The bedroom was occasionally occupied by the defendant. A hearing on the motion was held before the Court on August 10 and 11, 1993. The Court thereafter received briefs submitted by the parties which set forth their respective positions on the issues to be decided.

This case involves the consent of a third party for police to search premises and effects within the premises for contraband. The State maintains that the defendant's mother, Deborah Harris, consented to the search which resulted in the discovery of the illegal drugs and that she possessed at least apparent authority to have so consented. The defendant contends that his mother did not give her consent to the search and that, if she did, she was not authorized to have done so.

FACTUAL BACKGROUND

On September 20, 1991, an attempted murder by firearm was allegedly committed by Gregory Jones. The victim told the police that the defendant, a good friend of Jones, was present at the time of the shooting. During the next several days, the police executed four separate search warrants for four separate residences in their attempt to locate Jones. During one such search which took place on September 25, 1991, the police obtained information that the defendant and/or Jones might be found at Deborah Harris' residence. Several officers proceeded to 1127 East 22nd Street. They did not have a search warrant.

Officer Burns, Detective DiSabatino and Detective Merrill went to the front door and knocked on the door. Other uniformed officers went to the rear of the residence. Wilbert Chapman, the defendant's father, answered. He was visiting his son and had arrived from South Carolina the previous weekend. The police asked Chapman if "Cooter," the nickname given to the defendant, or Jones was there. Chapman told the police that neither gentleman was in the residence.

Although there was conflicting testimony as to the subsequent events, the Court believes that the following account derived from the testimony presented at the suppression hearing most accurately reflects the sequence of events. The police asked Chapman if they could come in to satisfy themselves that neither Jones nor the defendant was there. Chapman said, "Go ahead."

Detective Merrill produced a consent to search form, and he asked Chapman to sign it. Chapman momentarily demurred, stating that it was not his house. The police mentioned the possibility of obtaining a search warrant and so convinced Chapman to sign the form. He then did so without reading it. ¹ During this time, and after the police had undertaken a cursory search of the premises, ² Frances Harper, the defendant's teenage cousin who had observed numerous police at the Harris' residence, came by in order to ascertain what was happening. Chapman told her he was glad to see her and to please call "Boo Boo," the nickname of Deborah Harris. When Harper went to do so, she learned that Harris had already left her place of employment. ³

Shortly thereafter, Harris appeared at her home. By this time, the police had ascertained that a bedroom on the second floor was locked. Det. Merrill asked if Harris had a key to that bedroom. She said she did. ⁴ She was asked if she would unlock that door. She said she would. She went up and unlocked the door. The police entered the bedroom. Neither Jones nor the defendant was in the bedroom.

In the course of searching the bedroom for Jones and the defendant, the police noticed two items of interest, an empty plastic gun box on top of a television and a locked red toolbox on the floor. An officer picked up the toolbox, shook it and either he or another officer opined that it sounded like a gun. ⁵ The police asked Harris if she had a key to the toolbox. She said she did not. Harris explained that when she cleaned the bedroom the day before she had not noticed the toolbox. The police asked for her consent for them to open the toolbox. Her answer is important to this case, although not dispositive of the outcome. Therefore, the recollections of all testifying witnesses with relevant knowledge are set forth below:

Det. Merrill testified that Harris stated, "Do what you have to do. I don't want any guns in my house."

Wilbert Chapman was standing on the stairs leading to the bedroom. He testified that a police officer jiggled the toolbox, then stated that there could be a gun in the box and asked Harris if he could open it. Harris looked at Chapman. He shrugged his shoulders at her. She shrugged her shoulders at him. He testified that Harris never said anything in response to the officer's question.

Frances Harper was also standing on the stairs leading up to the bedroom at that time. She testified that after the police asked Ms. Harris if they could open the toolbox, she shrugged her shoulders but did not reply.

Deborah Harris testified that after being asked if the police could open the toolbox, she shrugged her shoulders, palms up, as if to say, "I don't know."

Det. DiSabatino had testified as a State's witness that Harris had given her permission to open the toolbox. He was recalled as a defense witness and testified that he could not remember her exact words. He recalled that she made a gesture. The police then pried open the box with a screwdriver, finding inside cocaine, ammunition and a large amount of money. The contraband was seized and subsequently the defendant was arrested.

DISCUSSION

Issues involving third party consent usually involve two sub-issues: first, did the third party consent to the search, and, second, did the third party have authority to consent?

A. Consent to Search

A warrantless entry into a home for the purpose of conducting a search ordinarily violates the Fourth Amendment. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980). However, an exception exists when the search is conducted pursuant to a valid consent. Such a search is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 221-22, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The prosecution has the burden of proving that the consent was, in fact, freely and voluntarily given. Id. at 222, 93 S.Ct. at 2045, 36 L.Ed.2d at 860; Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). A critical question is what must the prosecution prove to demonstrate that the consent was voluntarily given. In Schneckloth, the Supreme Court concluded that "the question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent." Schneckloth v. Bustamonte, 412 U.S. at 227, 93 S.Ct. at 2047, 2048, 36 L.Ed.2d at 862, 863. The Court went on to explain:

... [T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting "consent" would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed. In the words of the classic admonition in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746: (1886)

"It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."

The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by an infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity. Just as was true with confessions, the requirement of a "voluntary" consent reflects a fair accommodation of the constitutional requirements involved. In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Those searches that are the product of police coercion can thus be filtered out without undermining the continuing validity of consent searches. In sum, there is no reason for us to depart in the area of consent searches, from the traditional definition of "voluntariness."

Id. 412 U.S. at 228, 229; 93...