Opinion
Cr.A. No. 06-04-0134-0139, Def. ID No. 0603019220.
Submitted: January 8, 2007.
February 27, 2007.
John W. Donahue, IV, Esquire, Department of Justice, Georgetown, DE.
Edward C. Gill, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE 19947.
Letter Opinion
Dear Counsel:
This is my decision on the motion to suppress filed by defendant Alonzo C. Harris ("Harris"). Harris was on supervision level II probation for a disorderly conduct conviction. Probation officer Eric C. Reuther ("Reuther"), after getting tips that Harris was selling cocaine from his home, and two other probation officers conducted an administrative search of his home at 7:15 p.m. on March 22, 2006. They found a small quantity of marijuana, some prescription pills, and a couple of digital scales with suspected cocaine residue on them. The State of Delaware (the "State") then charged Harris with a number of drug-related offenses. Harris filed a motion to suppress, arguing that Reuther did not follow the Department of Correction's ("DOC") procedures for obtaining his supervisor's approval to conduct the administrative search.
The search without a warrant of a probationer's home does not violate the Fourth Amendment to the United States Constitution if it is done by a probation officer pursuant to a valid regulation governing probationers. The DOC adopted "Procedure Number 7.19" pursuant to the authority granted to it by 11Del.C. § 4321. The stated purpose of this procedure is to provide guidelines and procedures to probation officers for using arrest-search checklists and in making arrests and searches. Procedure Number 7.19, Section VI, establishes the procedures for an administrative search. It requires, among other things, a probation officer to use an "Arrest-Search Checklist" form for all arrests and searches unless exigent circumstances force the officer into action. When a search is to be done, the form is referred to as a "Search Checklist." The officer must complete the form, which includes information about the probationer, the reasons for the search, and the search strategy. The officer and his supervisor then hold a case conference to discuss the proposed search. The officer must sign and date the form and the supervisor must approve the search by signing, dating and entering the time of his approval on the form. The operating procedure for conducting the search is void if the search is not done within 24 hours of the supervisor's approval. No later than one day following the search, the officer must complete an Arrest/Incident Report and attach the Arrest-Search checklist to it. The procedure requires the exigent circumstances to be listed if the supervisor's approval was not obtained prior to the search. The State acknowledged that there were no exigent circumstances in this case.
Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).
The failure to comply, at least substantially, with Procedure Number 7.19 would violate the "reasonableness" requirement within the meaning of the Fourth Amendment to the United States Constitution and justify granting the motion to dismiss filed by Harris. The State bears the burden of proving that its search was reasonable.
State v. Harris, 734 A.2d 629, 635 (Del.Super. 1998).
Fuller v. State, 844 A.2d 290, 292 (Del. 2004).
McAllister v. State, 807 A.2d 1119, 1123 (Del. 2002).
I held a suppression hearing on August 11, 2006. Reuther was the only witness. He testified that he had received tips from three cooperating individuals, one of whom was past-proven and reliable, that Harris was selling cocaine from his home at 116 Norwood Street, Rehoboth Beach, Delaware. He also learned that Harris had been convicted of a drug-related offense in 1995. Reuther testified that he then prepared a pre-search checklist and obtained his supervisor's approval over the phone for an administrative search of the home where Harris lived. Reuther and the other two probation officers then searched the home. On cross-examination, when shown the Arrest/Incident Report, which Reuther prepared on a computer on March 25, 2006, Reuther acknowledged that the blocks for "Supervisor Notified" and "Pre-Arrest Checklist completed" were each marked "No." Reuther testified that he forgot to type in "Yes" to these questions and that in the absence of an affirmative action on his part, the computer answered "No." Robert F. Stevens ("Stevens") is Reuther's supervisor. He did not testify at the hearing.
The State did not submit the Arrest/Incident Report ("Arrest Report") and Community Pre-Arrest/Pre-Search Checklist ("Pre-Search Checklist") as evidence at the suppression hearing. I asked the State to give them to me. The State sent unsigned copies of both to me on December 18, 2006. I do not know if the original documents were ever signed. The Pre-Search Checklist states that it was reviewed and approved by Stevens on March 23, 2006, which was one day after the administrative search was conducted. It also carried in the upper right-hand corner the date of July 17, 2006, which was about three weeks before the suppression hearing was held.
The procedure for obtaining the approval to conduct an administrative search is not difficult to follow. Similarly, the documentation that must accompany it is not difficult to prepare. Notwithstanding the simplicity of the procedure and documentation, the State did not comply with Procedure Number 7.19. The Arrest Report and Pre-Search Checklist were both unsigned and the Pre-Search checklist was apparently printed out several weeks before the suppression hearing. This raised a doubt in my mind about the authenticity of the documents. I certainly have no intention of relying on unsigned documents when Procedure Number 7.19 requires them to be signed and the State has offered no explanation for the absence of the required signatures.
The documents also conflict with each other and with Reuther's testimony. Reuther testified that he prepared the Pre-Search Checklist and obtained his supervisor's approval for the search before conducting it. The Arrest Report indicated that no pre-search checklist was prepared and that no pre-search approval was obtained. The Pre-Search Checklist, by virtue of the fact that it exists, suggests that it was prepared at some time. However, it states that the supervisor's approval for the search was obtained after the search was done, which is a violation of Procedure 7.19. Reuther's explanation for the Arrest Report stating that no pre-search checklist was prepared and that no supervisor approval was obtained was that it was a computer problem. Reuther had no explanation for why the Pre-Search Checklist states that it was approved after the search was conducted. I did not find Reuther's explanation to be persuasive at all.
Given the deficiencies in the documents and conflicts between the documents themselves and with Reuther's testimony, I am not satisfied that Reuther prepared the Pre-Search Checklist and obtained Stevens' approval for the administrative search before conducting it. Therefore, the State has not met its burden of proof in establishing that the administrative search was conducted in accordance with Procedure Number 7.19. The motion to suppress filed by Harris is granted.
IT IS SO ORDERED.
Very truly yours,