State v. Ranken

• Citation: 25 A.3d 845
• Decision Date: 19 October 2010
• Docket Number: IN–10–02–1889,Criminal Action Nos. IN–10–02–0964 thru IN–10–02–0973,and IN–10–02–1902.,IN–10–02–1890
• Parties: STATE of Delawarev.David RANKEN.
• Court: Superior Court of Delaware

25 A.3d 845

STATE of Delaware
v.
David RANKEN.

Criminal Action Nos. IN–10–02–0964 thru IN–10–02–0973

IN–10–02–1889

IN–10–02–1890

and IN–10–02–1902.

Superior Court of Delaware, New Castle County.

Submitted: July 9, 2010.Decided: Oct. 19, 2010.

[25 A.3d 847]

Upon Motion of Defendant to Suppress— DENIED .Barzilai K. Axelrod, Esquire, Department of Justice, Wilmington, Delaware, for State of Delaware.Thomas A. Foley, Esquire, of Wilmington, Delaware, attorney for the defendant.OPINION HERLIHY, Judge

Defendant David Ranken has moved to suppress evidence seized pursuant to a search warrant for 1307 Colin Drive in suburban Wilmington. All indications are that he resided there. The warrant was executed January 15, 2010, by the New Castle County Police.

As part of the probable cause to obtain the search warrant, the police examined, without a warrant, the contents of a trash can from 1307 Colin Drive which had been left in a public place at curbside for pick up. Ranken's motion relates only to the content of the warrant itself, that is, the affidavit of probable cause, and raises no factual issues outside the warrant. He attacks the warrant on three grounds: (1) lack of probable cause; (2) an improper warrantless search of his trash can which formed a part of the affidavit of probable cause; and (3) lack of nexus between the items recovered in the trash and what might be found and/or what the police were searching for inside 1307 Colin Drive. Basically, by implication he argues if that warrantless search is illegal, there is insufficient information remaining in the affidavit to establish probable cause. Since all of Ranken's claims relate to the content of the search warrant, they are exclusively issues of law.

The United States Supreme Court has decided that persons have no reasonable expectation of privacy in their trash left at curbside for collection. Ranken, however, based on Delaware Supreme Court precedent that Article 1 § 6 of the Delaware Constitution can provide greater protection than the 4th Amendment, contends a warrantless search of trash left at curbside for pick-up violates the Delaware Constitution. This is an issue of first impression under Delaware constitutional jurisprudence.

Since Ranken's motion is premised on the affidavit of probable cause, it is appropriate to quote the affidavit in full:

[25 A.3d 848]

1) Your affiant # 1, Officer First Class Travis McDermott # 2638, is a sworn police officer employed by the New Castle County Police Department and has been so employed since January 07, 2002. Your affiant # 1 is currently assigned to the Special Operations Unit as a member of the Mobile Enforcement Team (M.E.T.). Your affiant # 1 has received training from the New Castle County Police Academy in narcotic and non-narcotic investigations. Your affiant # 1 has authored and executed numerous search warrants in reference to felony drug investigations.

2) Your affiant can truly state that during the month of January 2010 he made contact with a past proven and reliable confidential informant (Hereinafter CI1) in reference to the sale of marijuana and prescription Xanax occurring at 1307 Colin Drive Wilmington, DE 19804 (New Castle County).

3) Your affiant can truly state CI1 advised that a subject he/she knew as Dean Ranken was involved in the sale of marijuana and prescription Xanax. CI1 further stated that this subject resides at 1307 Colin Drive Wilmington, DE 19804 (New Castle County) and utilized this residence to keep and sell the illegal drugs.

4) Your affiant can truly state that he conducted a check of the CJIS computer system for the last name Ranken. This check revealed that a David Dean Ranken WMN DOB 7/16/1982 SBI # 00420593 (hereinafter D1) had a Delaware driver's license (# 1263552) listing address of 1307 Colin Drive Wilmington, DE 19804.

5) Your affiant can truly state that he showed CI1 a rap sheet photograph of D1. CI1 positively identified D1 as the subject he/she knew to be selling marijuana and prescription Xanax out of 1307 Colin Drive.

6) Your affiant can truly state that on 01/14/10 at approx 0545 hours your affiant and S/Cpl Fitzgerald responded to 1307 Colin Drive Wilmington, DE 19804. Upon arrival your affiant observed a dark colored trash can on the public sidewalk in front of the aforementioned address. This trash can was placed in a position that was consistent with it being placed for pick up from a waste management company.

7) Your affiant can truly state that he then collected three white plastic trash bags that were tied shut with a red draw string. These bags were then transported to a separate location and searched. While searching one of the secured trash bags your affiant located several small pieces of a green leaf like substance consistent with marijuana. This substance field tested positive for marijuana using reagent test kit # 8. Also within the same bag your affiant collected 2 blue wax baggies stamped “Jaguar,” a small plastic straw, an the corners of two plastic bags.

8) Your affiant can truly state that he knows through training and experience that blue wax baggies with an identifiable stamp are consistent with baggies used to contain heroin. Your affiant also knows through training and experience that short plastic straws are used to ingest (snort) heroin.

9) Your affiant can truly state that he knows through training and experience

[25 A.3d 849]

that the corners of plastic bags (sandwich bags, zip lock bags, plastic storage bags etc.) are used to package illegal drugs such as marijuana and are commonly referred to as tear off bags.

10) Your affiant can truly state that during the search of the aforementioned trash bags he located a MetLife account statement in the name of David D. Ranken which listed the address of 1307 Colin Drive Wilmington, DE 19804.

11) Your affiant can truly state that all of the evidence collected from the plastic trash bag was logged in at the NCCPD HQ.

12) Your affiant can truly state that he conducted a criminal history check on D1. This check revealed that on 11/07/2003 D1 was arrested for Possession with intent to deliver a Non–Narcotic controlled substance (marijuana), maintaining a dwelling for keeping controlled substance (marijuana), manufacture of a Non–Narcotic controlled substance (marijuana), possession of drug paraphernalia, and possession of a firearm during the commission of a felony. As a result of this arrest D1 entered into a plea agreement and subsequently pled guilty to the felony charge of Unlawful Delivery of Noncontrolled Substance 16:4752:A0A1:F:D.

13) Your affiant can truly state that he conducted a check of D1's out of state criminal history utilizing the NCIC computer system. This check showed that on 04/14/2009 D1 was arrested by the Pennsylvania State Police and charged with possession of marijuana, possession of a controlled substance, and possession of drug paraphernalia. As a result of this arrest D1 entered into a plea agreement and plead guilty to the charge of possession of marijuana (PA State Code CS13A32) on 10/06/2009.

14) Your affiant(s) know that Marijuana is Non–Narcotic Schedule I Controlled Substance.

15) Your affiant(s) know that Xanax is a Non–Narcotic Schedule IV Controlled Substance.

16) Your affiant(s) have learned through training and experience that persons who sell illegal drugs usually maintain business records and/or transaction notation of their illegal drug sales.

17) Your affiant(s) have learned through training and experience that the drug selling business is primarily a cash business and person(s) who sell controlled substances must maintain on-hand large amounts of USC in order to maintain and finance their ongoing business of illegal drug distribution.

18) Your affiant(s) has learned through training and experience that person(s) usually possess guns, and/or weapons to protect their drugs from the police and their competition.

19) Your affiant(s) are aware through training and experience that persons involved in illegal drug sales utilize electronic communication devices such as beepers and cellular phones to facilitate their business.

20) Your affiant(s) have learned through training and experience that person(s) who sell controlled substances often possess drug paraphernalia such as but not limited to packaging materials and scale.

21) Your affiant(s) have learned through training and experience that subjects involved in the drug trade utilize

[25 A.3d 850]

their vehicles for transporting and/or concealing illegal drugs.

22) Your affiant(s) pray that a daytime search warrant be signed for the body of David Dean Ranken WMN DOB 07/16/1982 SBI# 00420593 and the duplex style dwelling known as 1307 Colin Drive Wilmington, DE 19804 (New Castle County) so that evidence may be searched for and seized in reference to this investigation.

* * * * * *

Identify item(s) to be searched for and seized:

Marijuana any other controlled substances, scales, and packaging equipment/materials, any drug paraphernalia, United States Currency (USC, Money), business records and or documents indicative of drug transactions and or USC transactions, any electronic communication devices, any Guns, ammunition and/or weapons, photographs of USC and/or any physical evidence of illegal drug use of and or sales.¹

Parties' Contentions

Ranken argues that the search warrant was unsupported by probable cause, thereby making it invalid. He offers several reasons: first, that the warrant is devoid of any information that drug dealing was observed either by any informants or any neighbors; second, that the warrant does not reflect any surveillance of Ranken carrying the trash bags or the trash can; third, because garbage on the street is easily accessible to the public and passers-by, a one-time discovery of one bag containing marijuana residue does not establish probable cause; ² and, finally, that because the MetLife statement did not contain any date, it was impossible for the magistrate to know how...