State v. Walker

• Decision Date: 05 February 1982
• Citation: 444 A.2d 277
• Parties: STATE of Delaware, Plaintiff, v. John E. WALKER and Tina Mae Thoroughgood, Defendants.
• Court: Delaware Superior Court

Page 277

444 A.2d 277

STATE of Delaware, Plaintiff, v. John E. WALKER and Tina Mae Thoroughgood, Defendants.

Superior Court of Delaware Sussex County.

Submitted Dec. 16, 1981.

Decided Feb. 5, 1982.

John M. Sandy, of Dept. of Justice, Georgetown, for plaintiff.

Larry W. Fifer, of Schmittinger & Rodriguez, Rehoboth Beach, for defendants.

OPINION

TEASE, Judge.

Defendants have moved to suppress evidence seized by police on February 16, 1981, pursuant to a search warrant issued by Magistrate A. F. Truitt at Justice of the Peace Court No. 3 in Georgetown, Delaware.

On February 16, 1981, Patrolman First Class Michael Corbin and Patrolman Harry Miller of the Rehoboth Beach Police Department applied for a search warrant from Magistrate Truitt at Justice of the Peace Court No. 3 in Georgetown. A probable cause determination was made and the warrant was issued. It provided for the search of a garage apartment located at 31 Pine Reach, Henlopen Acres, Delaware, a 1975 Chevrolet van, Delaware registration no. C10126, and a 1968 Chevrolet four door sedan, Delaware registration no. 151681.

The police officers proceeded to Henlopen Acres where they encountered defendants riding in their car. They stopped them, showed them the warrant and followed them to the apartment at 31 Pine Reach. At some point either before or during the search of the premises Trooper Robert Truitt of the Delaware State Police arrived on the scene to assist. The search resulted in the seizure of numerous items, including a substance believed to be marijuana, drug paraphernalia, and a .22 caliber handgun. The defendants were arrested and field tests were performed on the suspect substances. The tests yielded positive and defendants were taken to a holding cell at the Rehoboth Beach Police Department and, subsequently, to Justice of the Peace Court No. 3 in Georgetown.

A Sussex County Grand Jury returned an indictment against defendant Walker charging him with conspiracy in the second degree, possession of marijuana with intent to deliver, maintaining a dwelling house for the purpose of keeping and/or delivering controlled substances, and possession of a deadly weapon during the commission of a felony. Codefendant Thoroughgood was charged by the same indictment with conspiracy in the second degree and possession of marijuana with intent to deliver. Both defendants were bound over for trial.

I. TERRITORIAL JURISDICTION

Initially, defendants contend that the affiants (Officers Corbin and Miller) misrepresented to the Magistrate that the residence and vehicles to be searched were located within the jurisdiction of Rehoboth Beach, while in fact they were located in the separate municipality of Henlopen Acres.

The evidence fails to bear out this contention. Affiants made no affirmative misrepresentations regarding the location of the premises and vehicles to be searched. It is also clear that affiants properly sought the search warrant from J. P. Court No. 3 in Georgetown, since the closer J. P. Court outside of Rehoboth Beach was closed in observance of Washington's Birthday.

Defendants also argue that although Rehoboth Beach police officers may exercise their authority up to one mile outside the town limits, in accordance with 54 Del.Laws Ch. 197 § 21(b), that authority may not extend into the separate municipality of Henlopen Acres. No support has been provided for this interpretation by defendants. Since the town of Henlopen Acres has chosen not to establish its own police force it seems appropriate that Rehoboth Beach police officers be permitted to exercise their authority within Henlopen Acres as long as it is exercised in accordance with the one-mile limitation provided in the Rehoboth Beach Charter. An additional ground for permitting the search in Henlopen Acres is that Officer Corbin, as a member of the Governor's Strike Force, has been authorized by the Attorney General, pursuant to 29 Del.C. § 2516, to have statewide police, arrest and enforcement power. Therefore, Patrolman First Class Corbin was authorized to seek a search warrant in Georgetown and conduct the subsequent search at 31 Pine Reach, Henlopen Acres.

II. PROBABLE CAUSE

The Fourth Amendment to the United States Constitution and Article I, Section 6, of the Delaware Constitution require that in order for a search warrant to be issued probable cause for its issuance must first be established. It is axiomatic that an application for a search warrant must be supported by a sworn affidavit that on its face shows facts constituting probable cause to search. Sexton v. State, Del.Supr., 397 A.2d 540 (1979).

Probable cause exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient to warrant a person of reasonable caution to believe that seizable property would be found in a particular place or on a particular person. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1924); Wilson v. State, Del.Supr., 314 A.2d 905, 906 (1973).

The United States Supreme Court has developed several presumptions with which the reviewing courts are directed to approach probable cause examinations. United States v. McNally, 3d Cir., 473 F.2d 934, 937 (1973); United States v. West, D.Del., 508 F.Supp. 1028, 1031-32 (1981). Only the probability, and not a prima facie showing, of criminal conduct is necessary to support a finding of probable cause. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). Although the allegations of an affidavit must rise above mere suspicion, they need not constitute clear evidence which would justify conviction. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960); Brineger v. United States, 338 U.S. 160, 172-73, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879 (1949). Affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial. Spinelli v. United States, 393 U.S. at 419, 89 S.Ct. at 590. Magistrates and courts must test and interpret affidavits in a common sense and realistic way rather than in a hypertechnical fashion. United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 745-46, 13 L.Ed.2d 684 (1965). Reviewing courts should pay great deference to the determination of probable cause made by the issuing magistrate. Spinelli v. United States, 393 U.S. at 419, 89 S.Ct. at 590; Jones v. United States, 362 U.S. at 270-71, 80 S.Ct. at 735-36. Finally, the resolution of doubtful or marginal cases should be determined largely by according preference to issued warrants. United States v. Ventresca, 380 U.S. at 109, 85 S.Ct. at 746.

The problem of determining whether probable cause to issue a warrant exists is increased when, as here, the affiant has obtained much of his information through an informant or informants. In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court established the basic standards by which affidavits based on hearsay information provided by informants are to be evaluated. The Court held:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant ... the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed was "credible" or his information "reliable." Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," ... or, as in this case, by an unidentified informant.

Id. at 114-15, 84 S.Ct. at 1513-14 (citations omitted).

Thus, an affidavit must set forth facts which enable the magistrate to judge for himself both the basis of knowledge of the informant (requiring an examination into the manner in which the informant obtained his information) and the veracity of the informant (requiring a determination that the informant is credible or that his information is reliable). ¹

Under the "basis of knowledge" prong facts must be revealed in the affidavit which allow the magistrate to independently determine whether the informant had a proper basis for his allegation that a certain person had been, was or would be involved in criminal activity or that evidence of crime could be found at a certain place. See W. R. LaFave, 1 Search and Seizure, A Treatise on the Fourth Amendment § 3.3(d) (1978). The information furnished must be sufficient to assure the magistrate "that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, 393 U.S. at 416, 89 S.Ct. at 589. The preferable method of satisfying the "basis of knowledge" prong is through personal observation by the informant and/or his participation in the reported criminal activity. See Id. at 425, 89 S.Ct. at 593 (White, J., concurring); State v. Poli, 390 A.2d at 419 (1978).

The second or "veracity" prong of the Aguilar test may be satisfied by any of several judicially-recognized methods. The most direct method is for the affiant to assert that the informant has provided information that has been verified in the past. Sexton v. State, 390 A.2d at 546. When there has been no assertion by the affiant that the informant has previously provided verified information, his credibility or the reliability of his information may still be shown if the affidavit contains other information within the affiant's knowledge to...