Opinion
0106010649
Submitted: November 8, 2002
Decided: November 18, 2002
IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE UPON DEFENDANT'S MOTION TO SUPPRESS AND SUPPLEMENTAL MOTION DENIED
Thomas A. Foley, Esquire, Attorney for Defendant.
Natalie S. Woloshin, Esquire, Deputy Attorney General, New Castle County, State of Delaware, Attorney for the State of Delaware.
ORDER
On August 27, 2001, Floyd Backus ("Defendant") was charged in a six (6) count indictment with Trafficking in Cocaine in violation of Title 16, § 4753A(a)(2)(c) of the Delaware Code; Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance in violation of Title 16, § 4751 of the Delaware Code; Use of a Dwelling for Keeping Controlled Substances in violation of Title 16, § 4755(a)(5) of the Delaware Code; Possession of a Firearm (9 mm handgun) during the Commission of a Felony in violation of Title 11, § 1447A of the Delaware Code; Possession of a Firearm (.380 handgun) during the Commission of a Felony in violation of Title 11, § 1447A of the Delaware Code; and Possession of a Non-Narcotic Schedule I Controlled Substance in violation of Title 16, § 4754 of the Delaware Code.
Defendant filed the instant Motion to Suppress ("Motion") on November 15, 2001 requesting that all evidence seized from his residence by the New Castle Police be suppressed as the search was in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Art. § 6 of the Delaware Constitution, and Superior Court Criminal Rule 41(f). Specifically, Defendant asserts two grounds for suppression of the evidence:
1) that the police never articulated a request for a "no-knock" warrant; and
2) that the "four corners" of the search warrant do not establish probable cause for a search of the premises.
Statement of Facts
On June 14, 2001, at approximately 9:40 p.m., members of the New Castle County Police Department executed a search warrant at 619 Country Path Drive. The warrant was signed by a Magistrate based upon an affidavit signed by Detective Connie Jackson and Detective B. Diclemente setting forth tips received from confidential informants and information garnered from extensive surveillance conducted at the location.A Suppression Hearing was conducted on November 8, 2002. Three police enforcement officers, Sergeant Thomas Jankowicz, Detective Connie Jackson and Detective Jay Freebury, all of whom were present at the execution of the search warrant, testified that Sergeant Jankowicz complied with the knock-and-announce rule pursuant to Delaware law. Specifically, the Sergeant who "announced" testified that he knocked several times, stated, "County police, we have a search warrant," waited 3-5 seconds, and repeated the procedure again. This testimony was corroborated by the testimony of two other police officials who were standing within close proximity of the Sergeant on the porch of the residence. When there was no response from inside the residence, the police employed a battering ram to 3 breach the door. The police searched the residence and seized contraband, weapons, and United States currency.
Dyton v. State, 250 A.2d 383 (Del. 1969) (requiring that prior to the entry of a residence, the police officer is required by the common law, in executing a warrant, `to signify the cause of his coming, and to make a request to open the doors).
Defendant offered testimony of three of the five occupants present in the residence at the time of the entry. Each testified that they were on the second floor of the house at the time the officers were alleged to have knocked and announced themselves, and none of them heard the officers knock and announce their presence. One of the witnesses is the owner of the house who was in a second floor front bedroom at the time of the police entry. He has been indicted along with the Defendant. A female, who was located in a central second floor bedroom with a male companion (who was in the bathroom at the time of entry) testified that she heard nothing. She has been a friend of the Defendant for three years. The third occupant of the house was in the shower with the water running at the time of entry and testified to hearing nothing as well. He admitted on cross-examination that he would not have been able to hear anything while he was showering.
Standard of Review
On motions to suppress evidence presented to this Court, the defendant bears the burden of establishing that the challenged search or seizure violated his Fourth Amendment rights. Further, it is the defendant who must prove by a preponderance of the evidence that he is entitled to relief.
Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978); State v. Bien-Aime, Del. Super., Cr. A. No. IK92-08-0326, Toliver, J. (Mar. 17, 1993) (Mem. Op.).
Bien-Aime at 8(citing United States v. Casteneda, 5th Cir., 951 F.2d 44 (1992)).
Discussion A. No-Knock Entry
Defendant first alleges in his Motion that the police never applied for a "no-knock" search warrant. Defendant submits that police entered the residence in raid-like fashion, without knocking or announcing their presence. Defendant submits that the police slammed through the front door, damaging the door and exterior molding.The United States Supreme Court has held that the Fourth Amendment incorporates the common law expectation that police will announce their presence and request admittance before entering a dwelling. The "knock and announce" rule provides constitutional safeguards to the citizenry and serves multiple purposes. It reduces the likelihood of injury to police, prevents unnecessary damage to property, and embodies respect for an individual's right to privacy. The United States Supreme Court has also recognized that not every entry into a dwelling "be preceded by an announcement." Whether a "no-knock" entry is reasonable should be evaluated on a case-by-case basis. Further, the Court assigned to the lower courts the responsibility of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment. The Court held that "although the search and seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry."
Wilson v. Arkansas, 514 U.S. 927, 933 (1995).
Kornegay v. Cottingham, 3rd Cir., 120 F.3d 392, 396 (1997).
Wilson at 935-936.
Id.
Id. at 936.
Delaware courts have upheld this same principle. In Tatman, pursuant to a warrant to search a female's apartment, the police at 6:00 a.m. knocked on the street door of a multifamily building in which the apartment was located, waited five seconds, then broke down the door with sledgehammers. Officers immediately proceeded to the female's apartment on the second floor and, without further knock or announcement of their presence or purpose, the officers broke down the door leading into the apartment, entered, searched the apartment, and found contraband. Since the police were required to knock and announce at the apartment door as well as the building's outer door, the Court in Tatman held that the knock-and-announce rule had been violated by their failure to knock again on the inside door. The Delaware Supreme Court emphasized that "prior to the entry of a residence, the police officer is required by the common law, in executing a warrant, to signify the cause of his coming, and to make a request to open the doors." Additionally, police are required by constitutional standards "to announce their presence, authority and purpose in seeking entry." The purposes behind these requirements are twofold. The first is to safeguard the privacy of residents by precluding police entry of the home without reasonable warning. The second is to diminish the possibility of danger to officers and public alike, which might be a consequence from a misunderstanding, and misinterpretation of the purpose of the entry.
Tatman v. State, 320 A.2d 750 (Del. 1974).
Id.
Id. (citing Dyton v. State, 250 A.2d 383 (Del. 1969).
Id. (citing Ker v. California, 374 U.S. 23 (1963)).
The Tatman Court also recognized three exceptions where compliance with the knock-and-announce rule was not necessary. Specifically, the rule is inapplicable if there is a "good faith belief" on the part of the police officers that full and complete compliance with the rule would have: 1) increased their peril; 2) frustrated the arrest; 3) or permitted destruction of the evidence.
Tatman at 750.
Based upon the evidence at the Suppression Hearing, the Court concludes that the police did knock and announce their presence prior to executing the search warrant. All of the officers testified that this preliminary practice is a long-standing operating procedure and one officer even remarked that the "rule is the rule." Since the police were fully aware that non-compliance with the rule would jeopardize the admissibility of any evidence found pursuant to the search warrant, the Court is satisfied that the police in this instance knocked and announced in compliance with the rule. Moreover, all three occupants who testified that they heard nothing are all compatriots of the Defendant in one manner or another and likely biased in his favor. Certainly, they have a strong motive to assist him in this case.
Having concluded that the police did knock and announce, the question then becomes whether the amount of time that elapsed between the announcement and the actual breach of the front door, was reasonable under Delaware law to support the validity of the search.
The Tatman Court recognized that failure to comply with the knock and announce rule may be justified by a good faith belief on the part of the police officers that "full and complete compliance with the rule would have increased their peril, frustrated the arrest, or permitted destruction of the evidence. Subsequent Delaware cases have adopted the "exigent circumstances" as judicially recognized exceptions. As established in Tatman, these exceptions are the accepted guidelines by which a knock and announce entry is determined to be valid or not pursuant to the Fourth and Fourteenth Amendments.
Id. (emphasis added).
In Wilson v. State, the Delaware Supreme Court cited to Tatman in endorsing immediate entry by the police because the police knew of a threat to use a weapon. Such knowledge was a basis to support the officers' good faith belief that adhering to the rule would increase their peril. In Dunfee v. State, the Court further clarified the test put forth in Tatman to be one "concerned only with what the officers had reason to believe at the time of entry." In determining whether any of these "exigent circumstances" existed the Court stated, "[w]e may concern ourselves only with what the officers had reason to believe at the time of the entry." The Dunfee Court held that police entry of home without knocking while simultaneously announcing that they were police and had a warrant was justified. In that Page 10 case, the police wore badges, and one officer wore a bullet-proof vest with "police" marked in large letters. The front door of the home was wide open, and because of the movement of people inside, the officers had substantial suspicion that drugs sought might be destroyed.
Wilson v. State, 343 A.2d 613, 619 (Del. 1975).
Dunfee v. State, 346 A.2d 173, 176 (Del. 1975).
Id. (quoting Ker v. California, 374 U.S. 23, 83 (1963)).
Id. at 176.
In Potts v. State, the Court once again examined the issue of whether the time interval between the police announcement and forced entry during execution of a drug-related search warrant was sufficient. The Court took notice that the officers' expressed concern for the destruction of evidence, corroborated by the evasive action taken in response to the officer's arrival, satisfied the good faith requirement imposed upon the police at the time of entry.
Potts v. State, 458 A.2d 1165 (Del. 1983).
Id. at 1168; But see Gregory v. State, 616 A.2d 1198 (Del. 1992) (Police simply rushed the residence and, virtually contemporaneously with their arrival, battered down the door; the wait of 3-5 seconds was per se unreasonable in the absence of exigent circumstances or expressed concern about the destruction of evidence before or after the search).
While it is arguable that Wilson, Dunfee and Potts are factually distinguishable from the case at bar, because the police here were not viewed by or confronted with occupants fleeing upon their approach, the circumstances of Defendant's drug-related search warrant also do not mirror Wisneski, Tatman or Gregory, where the searches were invalidated because the Court in those instances found no judicially recognized exception to the knock-and-announce rule. Delaware case law does not indicate an accepted standardized test measuring the required number of seconds that must elapse when the police make a knock and announce type entry. Courts in other jurisdictions "have upheld the immediate entry by the police when the officers have been presented with exigent circumstances after arriving on the scene."
See William B. Bremer, What Constitutes Compliance with the Knock and Announce Rule in Search of Private Premises-State Cases, 85 A.L.R. 5th 1 (2001).
Despite Defendant's allegations that the police never sought a "no-knock" warrant, this Court has already recognized "that there is no such creature as a "no-knock" warrant in Delaware." While other jurisdictions acknowledge no-knock warrants, Delaware has not adopted such a procedure. In the absence of compliance with the knock and announce rule, the test becomes whether the police either articulated any "exigent circumstances" as set forth in Tatman, or expressed concern about the destruction of evidence before or after the search.
State v. Cox, Del. Super., Cr. A. No. 0011003431, Toliver, J., (Dec. 4, 2001) (ORDER).
See, e.g., State v. Johnson, 775 A.2d 1273 (N.J. 2001) (noting that "to pass muster under the knock-and-announce rule, the time lapse between the police announcement and any forced entry must be reasonable, but not necessarily extensive in length, depending on the circumstances of a given case.") Id. at 1281.
Gregory at 1102.
In the case sub judice, two of the Tatman exceptions are implicated. First, the police officers clearly had reason to expedite their normal knock and announce procedure for fear of destruction of evidence. The primary evidence sought by executing the search warrant was cocaine, which is easily disposed of down a sink or toilet. As the court stated in State v. Rossitto, "[t]his fear is pronounced in that a single flush of the toilet could dispose of the kind of drug evidence which is at issue in this case." With no evidence, the arrest of the Defendant would also have been frustrated.
State v. Rossitto, Del. Super., 1988 WL 97863, Martin, J. (Sept. 9, 1988) (Mem. Op.); But see Gregory v. State, 616 A.2d 1198 (Del. 1992) (upholding Tatman, in that a wait of only 3-5 seconds after police requested admission to carry out search warrant before they battered down door was per se unreasonable violation of constitutional rule of knock and announce absent evidence that police articulated any exigent circumstances or expressed concern about destruction of evidence before or after search, and despite state's argument that any search for narcotics was inherently exigent in light of risk of loss of evidence from any delay).
Second, there was sufficient information to support the police officers' good faith belief that full compliance with the rule would have potentially increased their peril. Within the four corners of the affidavit for search warrant, guns, ammunition and/or weapons were included in the list of items to be searched and seized. It was reasonable for the police to believe that the occupants may have been armed and/or may have provided armed resistance.
Wilson v. State, 343 A.2d 613 (Del. 1975) (holding that the search was reasonable, despite absence of knock-and announce, because police officers had substantial basis to believe defendant might be armed and resist arrest).
Additionally, Tatman is distinguishable from the instant case because there the search was executed at 6:00 a.m. when the occupants were likely asleep. Here, it was executed at 9:40 p.m., at a time when the occupants had just returned home and were known to be awake. There, the evidence a quantity of hypodermic needles and syringes — could not as easily have been destroyed, whereas the evidence in this case-cocaine-could instantly have been extinguished.
In this instance, the police officers testified about their concern that the subject of the search, i.e., cocaine, could be easily and quickly destroyed. Officer Jackson testified that in her years of experience with these types of raids, persons present at a raid often seek to destroy the evidence by flushing it down the toilet or washing it down a sink. She made her concerns in this regard known to the officers who were present during the presearch briefing. Additionally, at the briefing, she discussed the possibility of firearms being present at the residence in order to place the officers on heightened alert for their safety. Surveillance just prior to the raid established that the occupants had only recently returned home and it therefore seemed likely that they would be up and about in the residence. Thus, unlike a midnight or 6:00 a.m. search, the officers had reason to believe that the occupants were not asleep. There were five (5) known occupants in the residence at the time of the raid, but could possibly have been more. Additionally, the police were aware, from two independent confidential informants, of the likelihood that cocaine would be found in the residence.
Considering all of the foregoing factors, the Court is satisfied that the police acted "reasonably" on a "good faith belief" based only on what they "had reason to believe at the time of entry" that exigent circumstances existed in the form of potential increased peril and/or potential destruction of evidence. The timing of the knock and announce by the police was not unreasonable and the subsequent search was valid. As the Court in Potts concluded, "[a]ssuming arguendo, that the knock-and-announce rule was not fully complied with, from a review of the record we conclude that `full and complete compliance with the rule would have increased [the police's] peril, frustrated the arrest, or permitted destruction of the evidence.'" B. The Four Corners
Potts at 1168.
The Fourth Amendment protects the public against unreasonable searches and seizures and requires that a search warrant may be issued only upon a showing of probable cause. Further, the underlying affidavit that supports the search warrant must establish sufficient cause for the warrant's issuance. Federal and State courts concur that probable cause for a search may be established in the affidavit by setting forth facts "sufficient to warrant a reasonable man in the belief that seizable property would be found in a particular place or on a particular person."
Wilson v. State, 314 A.2d 905 (Del. 1973).
Id. at 906-907 (citing Carroll v. United States, 267 U.S. 132 (1925).
These requirements are set forth in Del. C. § 2306 and § 2307. In § 2306, application for a search warrant must "state that the complainant suspects that such persons or things are concealed in the house, place conveyance or person designated [in the application] and shall recite the facts upon which such suspicion is founded." The language of § 2307 provides that if the judge, justice of the peace, or magistrate finds that probable cause exists for the search after reviewing the record, the warrant may then issue.
When applied together, these two sections establish a four-corners test for probable cause. Sufficient facts must appear on the face of the affidavit so that a reviewing court can verify that probable cause existed for issuance of the warrant. It is the duty of a reviewing court to give great deference' to the magistrate's or judge's determination that a warrant is supported by probable cause. Further, "[t]he critical element in a reasonable search is not that the owner of the property is suspected of a crime but that there is reasonable cause to believe that the specific `things' to be searched for and seized are located on the property to which entry is sought." Upon review of the affidavit supporting the warrant, the court may infer probable cause in the warrant by taking into consideration the type of crime that is alleged and the nature of the items sought by police. Most significantly, there must be a nexus between the items that are sought and the place in which the police wish to search for them.
Pierson v. State, 338 A.2d 571, 573 (Del. 1975).
Id.
United States v. Leon, 468 U.S. 897, 914 (1984) (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969).
Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978).
United States v. Conley, 3rd Cir., 4 F.2d 1200, 1207 (1993).
Hooks v. State, 416 A.2d 189, 203 (Del. 1980).
Defendant argues that the four corners of the search warrant do not contain probable cause to support a belief that cocaine would be found in the residence. Instead, it was "finger pointing" that the Defendant kept drugs inside 619 Country Path Drive and that the police never sufficiently corroborated that information. Defendant points out that there "were no controlled buys from the residence nor was there any surveillance indicating the same." But, the Court in Jones found probable cause existed even in the absence of the above two elements and even when there was no informant that told police that defendant kept drugs in the residence.
State v. Jones, Del. Super., No. 0002012304, 2000 WL 33114361, Goldstein, J., (Dec. 5, 2000) (Mem. Op.) (emphasis added).
In the case at bar, there are sufficient specific facts set forth in the affidavit to form a nexus between the items that were sought and Defendant's residence. The totality of the circumstances amount to much more than "finger pointing" in that: 1) police received a telephone call from a past, proven and reliable informant (CS #1) explaining that Defendant and several of his associates were cooking crack cocaine inside the residence and that Defendant had conducted many drug deals inside the residence with his brother (Maurice); 2) on more than several occasions, Defendant's vehicle was observed by police to be parked in front of the residence; 3) police received information from a past, proven and reliable informant (CS #2) explaining that Defendant was selling crack cocaine from the residence; and 4) that Defendant, upon leaving the residence, sold cocaine to CS #2 in an arranged drug buy between the police and CS #2.
Supplemental "Franks" Motion
In a Supplemental Motion, filed July 10, 2002, Defendant asserts that Paragraph 3 of the search warrant affidavit should be quashed (telephone call from CS #1 to police explaining that Defendant and several of his associates were cooking crack cocaine inside the residence and that Defendant had conducted many drug deals inside the residence with his brother (Maurice)) because it "demonstrates disregard for the truth and that this false information was essential to the magistrate's finding of probable cause." Defendant claims in the Motion that he would produce three witnesses to testify that neither Defendant, nor anyone else, ever used that residence to cook crack cocaine or conduct drug deals. Further, Defendant has requested the State to produce CS #1 to the Court for an in camera hearing to ascertain whether or not this informant ever told police the information outlined in Paragraph 3 of the affidavit supporting the search warrant.
At the Suppression Hearing, Defendant further orally amended his Supplemental Motion by requesting that Paragraph 5 of the search warrant affidavit should be quashed in addition to Paragraph 3. Defendant maintains, as he did with respect to Paragraph 3, that he can provide three witnesses who will substantiate that he never cooked crack cocaine or conducted drug buys at the residence. Defendant contends that Paragraphs 3 and 5 should be stricken from the affidavit of probable cause because the information contained therein consists of false statements which the affiants knowingly and intentionally, or with reckless disregard for the truth, included in the search warrant. Further, Defendant argues that, without Paragraphs 3 and 5, the four corners of the affidavit lack probable cause and the search thereby was invalid. The State, on the other hand, opposes this request, citing its obligation to preserve the anonymity of the confidential informant.
In Franks, the United States Supreme Court set forth the guidelines by which a court must determine whether an evidentiary hearing is required. If a defendant makes a substantial preliminary showing that a false statement, knowingly and intentionally, or with reckless disregard for the truth, was included by affiant in the search warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at Defendant's request ("Franks hearing").
Franks v. Delaware, 438 U.S. 154 (1978).
The Franks Court stated that there is always the presumption of truthfulness to the affidavit underlying the search warrant. For an evidentiary hearing to be required, the petitioner's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. Additionally, "[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and these allegations must be accompanied by an offer of proof. These allegations should be directed specifically to the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons." Mere allegations of untruthfulness and/or negligence are not sufficient. The petitioner must provide sworn affidavits or reliable statements of witnesses. Moreover, the deliberate falsity or reckless disregard must be that of affiant, not of any non-governmental informant. If all of these requirements are satisfied, and the allegedly false or reckless information is discounted, there remains sufficient information in the warrant affidavit to support a finding of probable cause, no Franks hearing is required. If, on the other hand, the remaining information fails to support a finding of probable cause within the four corners of the warrant affidavit, the defendant is entitled to a Franks hearing under the Fourth and Fourteenth Amendments.
Id. at 2684.
Id. (emphasis added).
Id. (emphasis added).
Id.
Id. (emphasis added).
Id.
Id. at 2685.
Upon review of the warrant affidavit, it is clear that even if the information contained within Paragraphs 3 and 5 is ignored, there remains sufficient factual information in Paragraphs 6 through 12 detailing a controlled drug buy between Defendant and a past proven and reliable informant (CS#2), to support a finding of probable cause. Defendant's residence had been under surveillance by the police. Defendant was observed exiting his residence and meeting CS#2 at a predetermined destination, whereupon Defendant sold crack cocaine to CS#2. This drug buy, pre-arranged by the police between the Defendant and CS#2, is an essential ingredient that provides the required "nexus between the items which are sought and the place in which police wish to search for them." "[T]he fact that probable cause to arrest has been established increases the probability that the defendant is storing evidence of that crime in the defendant's residence." Even without the information contained in Paragraph 5, that Defendant was selling crack cocaine from his residence, the police had ample probable cause to arrest Defendant as a consequence of the controlled drug buy and, therefore, to assume that Defendant was at least storing, if not making, crack cocaine there as well.
Hooks at 203.
Jones at *4 (quoting Dorsey v. State, Del. Supr., No. 546, Holland, J., (Oct. 18, 2000) (Mem. Op.).
While the Court's ruling upholding the sufficiency of probable cause in the warrant makes it unnecessary to address the issue of whether Defendant is entitled to challenge the veracity of the affidavit pursuant to Franks, some comments on Defendant's proffer are in order.
Defendant submits to the Court that three occupants of 619 Country Path Drive had lived continuously in the home and would testify that they had never seen any evidence of drug cooking, drug use, or drug dealing inside the residence. Defendant therefore contends that the information provided by the confidential informants, CS#1 and CS#2 in Paragraphs 3 and 5, respectively, of the probable cause affidavit, is false.
Even if the Court were to accept that all three of Defendant's proffered witnesses are credible and that the offered testimony, i.e., that they had resided in the residence and never witnessed any drug activity such as "cooking" or selling as reported by the informants, is true, this testimony does not establish a basis for a Franks hearing.
In the first place, the mere fact that none of the three occupants were aware of drugs or drug transactions in the home does not prove that the allegations in the affidavit are false. It is inconceivable, given the other facts in the warrant that these witnesses were always in the Defendant's presence when he was in the home. Even assuming that they did not personally witness drug use or sales, this fact does not automatically discredit the informants' observations. The facts in this case are far different from those in Franks, where the officer who drafted and swore to the affidavit deliberately misrepresented that he had personally interviewed individuals, when he had not, and attributed statements to them in the affidavit that they had never made. In this instance, nothing the defense witnesses have proffered, even if true, provides a direct challenge or contradiction to the confidential informants' statements or, more importantly, to the integrity of the affiants' representations. In essence, Defendant is attempting to use evidence of his innocence to obtain a Franks hearing. This is not the substantial preliminary showing that is contemplated in Franks as a prerequisite to a veracity hearing.
Secondly, the Franks Court emphasized that the alleged erroneous statements must be those of the affiant, not of any nongovernmental informant. The defense's proffered witnesses have made no preliminary showing that the officers who signed the affidavit included any deliberate falsehoods in securing the warrant. Stated another way, even if both confidential informants' statements to the police are inaccurate or untruthful, the alleged erroneous representations were not those of either of the affiants, and thus cannot establish the requisite bad faith on the part of the police officers.
In summary, if probable cause in the affidavit were dependent upon the inclusion of the challenged informants' statements — which it is not — the Defendant has plainly failed to meet its burden under the foregoing standard.
Conclusion
Defendant has failed to demonstrate by a preponderance of the evidence that the challenged search and seizure violated his Fourth Amendment rights. For all of the foregoing reasons, Defendant's Motion to Suppress and related Supplemental Motion are hereby DENIED.
IT IS SO ORDERED.