State v. Phillips

• Decision Date: 28 September 1976
• Citation: 366 A.2d 1203
• Parties: STATE of Delaware, Plaintiff, v. Steven PHILLIPS, Defendant.
• Court: Delaware Superior Court

Page 1203

366 A.2d 1203

STATE of Delaware, Plaintiff, v. Steven PHILLIPS, Defendant.

Superior Court of Delaware, Kent County.

Submitted March 24, 1976.

Decided Sept. 28, 1976.

Upon Defendant's Motion to Suppress. Denied in Part. Granted in part.

Kenneth R. Abraham, Deputy Atty. Gen., Dover, for plaintiff.

I. Barry Guerke of Schmittinger & Rodriguez, Dover, for defendant.

LONGOBARDI, Judge.

The Defendant was indicted by the Kent County Grand Jury on two counts of burglary, two counts of theft and for possession of marijuana. Subsequently, he filed a motion to suppress and an evidentiary hearing on the matter was held on March 24, 1976.

The parties are in agreement that on December 16, 1975 at approximately 5:00 p.m., Mr. Robert Hake, the landlord of Kent Apartments in Dover, along with Mr. Alfred Orsinger, the apartment maintenance man, entered Defendant's apartment for the purpose of exterminating rats and roaches reportedly infesting the entire buildings. The Defendant was not present at the time of the entry. The parties agree that Defendant requested the extermination be performed but Defendant states that he assumed that notice would be given him regarding entry to his premises for those purposes but he never received such notice. Mr. Hake and Mrs. Cox, the resident manager, however, assert that notes informing Phillips of the planned extermination were left on Defendant's door on several occasions and the pass-key entry was made only in a desperate attempt to alleviate a potential health hazard in the form of the vermin which apparently were enjoying free run of the premises.

After entering the unit and preparing to set up their equipment, the men recognized several items of furniture in the living room as being part of a collection of home furnishings Hake was storing in apartment No. 6 as bailee for a bankruptcy proceeding. The two men immediately left the apartment and notified the attorney acting as Trustee in Bankruptcy who advised them to call the police. Hake did so and indicated to the police the four specific items from the bankruptcy bailment he saw within the Defendant's apartment. ¹ A search warrant was issued listing only these fourt items. The next day, police conducted a search of the apartment pursuant to this warrant. The four items listed in the warrant, all located in the living room, were seized, as were numerous other items identified by Hake by reference to the bankruptcy inventory. Some of these additional items, however, were found in the adjoining bedroom, as was a quantity of marijuana within one of the inventory items, a carved wooden box. The officers also seized numerous items of stereo equipment located in the living room and a water pipe, a jar of 'roaches' (marijuana cigarette rements) and a clear plastic bag of marijuana which were found in the bedroom.

The Defendant argues that the probable cause for the issuance of the search warrant was obtained through the unlawful intrusion and search of the apartment by Hake on Orsinger thereby invalidating the warrant in its entirety as 'fruit of the poisonous tree' and calling for the suppression of all evidence seized. In addition, the Defendant argues that the search and seizure should have been confined to the four items listed in the warrant. Since all four items were quickly located in the living room, no further intrustion into the rest of the apartment was justified and all items not listed in the warrant must be suppressed.

Specifically, Defendant asserts that the actions of Hake and Orsinger in entering and searching his apartment without his consent were violative of 11 Del.C. 2301, which provides:

'No person shall search any person, house, building, conveyance, place or other thing without the consent of the owner (or occupant, if any) unless such search is authorized by and made pursuant to statute or the Constitution of the United States.'

Both parties agree that this statute provides a broad protection against unreasonable searches and seizures because it includes the word 'person' which they contend means anybody. The Court is not prepared to accept that view.

An analysis of our constitutional history shows the framers were concerned with the protection of persons and private property from the sovereign's intrusion. Their formulation and adoption of the Fourth Amendment '. . . was not intended to be a limitation upon other than governmental agencies.' Burdeau v. McDowell 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). See also, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Ward v. State, 30 Md.App. 113, 351 A.2d 452 (1976); State v. Bookout, Fla.App., 281 So.2d 215 (1973); Wolf v. State, Miss. Supr., 281 So.2d 445 (1973). Article I, section 6 of the Delaware Constitution, the search and seizure provision, is substantively identical to the Federal provision and unquestionably protects the same interests. State v. Moore, Del.Super., 187 A.2d 807 (1963).

The Legislature of the State of Delaware enacted 11 Del.C., Chapter 23 to implement Article I, Section 6 of the Delaware Constitution. An examination of that chapter indicates the Legislature was concerned with searches made by the State or its agents. Section 2301 is not an exception merely because it starts with the words 'No person . . ..' A common sense interpretation of that statute is that it prohibits searches without consent or unless made pursuant to statute or the Constitution of the United States by persons proscribed from making unreasonable searches and seizures, that is, the State or its agents. The phrase 'no person' means no governmental person. There is no purpose to protect against citizens' intrusion because the civil law covers that most adequately. In short, the statute is to be construed as an inartistic attempt to implement not supplement the Constitution.

The question that remains is whether the exclusionary rule is to be expanded to cover searches and seizures by ordinary citizens such as in this case. (These 'ordinary citizens' are not to be confused with citizens who act on behalf of the government or who may be construed as agents or 'arms' thereof without the formality of being actual employees of the Government.)

Traditionally, the exclusionary rule has been confined to governmental rather than private action, Burdeau v. McDowell (supra); United States v. Harless, (9th Cir.), 464 F.2d 953 (1972), and actions wherein a private citizen acts as an instrument or agent of the State, Coolidge v. New Hampshire (supra).

Even if the actions of Hake and Orsinger are viewed as a search, the exclusionary rule should not be available as a remedial tool when the search is conducted by a private, nongovernmental citizen. State v. Ahlgren, Del.Super., 1375 Cr.A. 1972 (unreported opinion by Judge O'Hara dated January 23, 1973). In short, the search warrant is not rendered invalid by the allegedly unlawful conduct of Hake and Orsinger.

Defendant further argues that the authorized scope of the search warrant should not be extended beyond those items specifically listed in the warrant. The rationale behind the requirement for specificity in search warrants is to prevent general exploratory searches and to leave as little as possible to the discretion of the officer executing the warrant. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). In certain instances, however, the officer executing the warrant is given license to exercise some discretion and seize items not listed in the warrant. The United State Supreme Court has repeatedly ruled that items within the 'plain view' of an officer are subject to seizure and may be introduced into evidence provided he has a right to be there. Coolidge v. New Hampshire (supra); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). In addition, however, there...