State v. Wise
| Decision Date | 14 July 1971 |
| Citation | 284 A.2d 292 |
| Parties | The STATE of Delaware v. Eugene WISE. |
| Court | Delaware Superior Court |
James W. Garvin, Jr., Deputy Atty. Gen., Wilmington, for the State.
Henry A. Wise, Jr., Asst. Public Defender, Wilmington, for defendant.
On the 23rd day of December, 1970, members of the Wilmington Police Department armed with a search warrant issued by a Judge of the Municipal Court, and related to the suspected operation of a lottery policy writing business in violation of 11 Dec.C. § 662, entered premises located at 201 North Rodney Street, Wilmington, Delaware. The premises having the appearance of a small grocery store was in the control of, and being operated by, one Michael Jones. Present also on the premises were several other individuals, including the defendant, Eugene Wise. At the time of the entry by the police, Jones was situated behind a counter while the other persons present were in the more open that of the premises, the defendant standing some five feet away from Jones and near the entry to a small bathroom.
The defendant, who did not make any move to flee nor resist nor exhibit anything obvious about his person which would indicate that he was in possession of gambling paraphernalia was, nevertheless, promptly searched by the police officers present. This search revealed certain 'numbers slips' on the person of Wise who was thereupon arrested and charged with a violation of law prohibiting having an interest or concern in lottery policy writing. Subsequently, at the police station the defendant was more minutely searched and further gambling slips discovered.
The defendant has moved to suppress the evidence seized from him on the grounds that the search and seizure violated his Constitutional rights.
The affidavit in support of the search warrant, which describes in detail observations made by the police offiants, over a period of time, describes in some particular the premises involved and the basis upon which they believed that an illegal lottery policy business was being conducted on the premises by the aforementioned Michael Jones. No mention was made by the affiants of the possible involvement of any other individual than Jones and, in particular, no mention was made of the defendant, Eugene Wise.
The application for the search warrant in its formal and printed portion, to which the aforementioned affidavit was added, refers broadly to the probability that certain gambling contraband might be concealed on the 'person or persons of the occupants of the premises'. Additionally, the search warrant itself when issued contained a direction in the formal and printed portions thereof 'to search any occupant or occupants' found on the premises. In this instance the only 'occupant' searched in addition to the specifically named Michael Jones was the defendant, Eugene Wise.
The Fourth Amendment of the Constitution of the United States provides:
'The right of the people to be secure * * * against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, * * * particularly describing the place to be searched, and the persons or things to be seized.'
The Delaware Constitution, Article 1, Section 6, Del.C.Ann., contains a similar provision which in slightly different language prohibits the issuance of such warrants 'to search any place, or to seize any person or thing * * * without describing them as particularly as may be'. It is to be noted therefrom that both Constitutions have thus placed some emphasis upon the necessity of describing in detail the place and/or person to be searched and/or seized.
In United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210, the United States Supreme Court said in effect that it is not the law that armed with a search warrant for a particular building an officer may search all persons found on it. It is the...
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