State v. Ramirez

• Decision Date: 06 February 1976
• Parties: STATE of Delaware v. Beverly RAMIREZ and Maria T. Devers.
• Court: Delaware Superior Court

Page 566

351 A.2d 566

STATE of Delaware v. Beverly RAMIREZ and Maria T. Devers.

Superior Court of Delaware, New Castle County.

Submitted Nov. 7, 1975.

Decided Feb. 6, 1976.

Upon defendants' motion to suppress. Granted.

Richard J. McMahon, Asst. Atty. Gen., Wilmington, for the State.

Stephen B. Potter, and James F. Harker, Wilmington, for the defense.

LONGOBARDI, Judge.

This is a motion by Defendants to suppress evidence seized from their premises on the grounds that the allowance of the use of a pen register (a device for monitoring telephone numbers and search warrant were issued illegally and without probable cause.

On July 2, 1975 a Justice of the Peace signed an order allowing the use of a pen register device on the telephone number listed for Defendants Beverly Ramirez and Maria T. Devers based upon an affidavit and application of Detective Larry W. Slover of the Delaware State Police. A pen register device mechanically records incoming and outgoing telephone numbers without any aural interception of communication. U.S. v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).

As a result of information received from the pen register, as well as other information, another Judge of the Court of Common Pleas issued a search warrant on July 8, 1975. A search of Defendants' premises was conducted on the same day and evidence alleged to be involved with illegal gambling was seized. Defendants were arrested and charged with advancing gambling in the second degree in violation of 11 Del.C. 1401(3).

Initially, there is a dispute as to the validity of an order for a pen register issuing from a Justice of the Peace. Both the State and the Defense agree that a pen register does constitute a search and seizure and, therefore, the government must establish probable cause prior to an order for its issuance. The Defendants contend, however, that only a Superior Court Judge is authorized to receive applications for orders authorizing pen registers. Defendants base this argument on 11 Del.C. 1336 which is the Delaware wiretap law. This section is inapplicable. 11 Del.C. 1336(a)(5) limits the applicability of the general wiretap section to 'aural acquisitions' of communications. Since the pen register is not an aural acquisition, 11 Del.C. 2304 remains as the controlling statute defining who may authorize and issue a search warrant. In accord with Section 2304, a Justice of the Peace is, therefore, authorized to issue an order for the establishment of a pen register.

The major thrust of Defendants' objection to the pen register order goes to the substance of the affidavit and application. The facts and allegations of the affidavit must be measured against the scope of the protection against unreasonable searches and seizures guaranteed by the Fourth Amendment. In particular, the determination of the adequacy of the application for this search warrant is controlled by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Where a search warrant is based in part on a hearsay statement of an informer, the Supreme Court has established certain guidelines to insure that a judge can assess independently the value of the information upon which the police wish to base the issuance of the search warrant. The resultant 'two-pronged' Aguilar (supra) test is designed to determine the reliability of the informant and the validity of the specific information. Although both aspects of the test need to be established by factual allegations in the warrant application, the setting forth of the underlying circumstances supporting the validity of an informant's tip to justify issuing a search warrant is particularly critical. In order for a magistrate to make a neutral and detached conclusion that probable cause exists to believe that a crime is being committed, he must have available some information to corroborate the tip. In other words, the application for the warrant must contain sufficient facts to corroborate and substantiate the hearsay nature of the informant's accusation.

According to the application for the penregister warrant, the affiant on April 21, 1975 was given information that the Defendants were receiving bets at a given telephone number and a given address. (There is no challenge to the first part of the Aguilar (supra) test--the reliability of the informant.) In early May, the police became aware of the fact that Defendants had moved and had a new telephone number. This information was verified. In addition, on June 6, 1975 the informant told the affiant that Defendants were 'back in business.' The police established surveillance over the new address. They observed two vehicles registered to the Defendants parked in the driveway that were not moved between the hours of 11:00 a.m. and 3:00 p.m. on the days involved.

The affidavit contained other information which went merely to the beliefs and conjectures of the police officer. In particular, paragraphs B, D, E, M, N and parts of L are not factual support. The expertise and beliefs of the affiant are not corroborative of an informant's hearsay. Nathanson v. U.S., 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933). Paragraph G is hearsay from an unknown and hence unreliable informant and, therefore, has...