Opinion
ID No. 0209016906.
Submitted: March 2, 2004.
Decided: May 21, 2004.
James E. Liguori, Esquire, Liguori, Morris Yiengst, Dover, DE.
Peggy J. Marshall, Esquire, Department of Justice, Georgetown, DE.
Memorandum Opinion — Motion to Suppress Evidence
Dear Counsel:
This is my decision on defendant Jeffrey A. Ivins' ("Ivins") Motion to Suppress. The motion is granted for the reasons stated herein.
NATURE AND STAGE OF PROCEEDINGS
The Sussex County Grand Jury indicted Ivins on October 27, 2003 on a number of drug and weapons charges. The charges were filed after the Delaware State Police (the "DSP") executed a search warrant at Ivins' residence on September 21, 2002. Ivins filed a Motion to Suppress all evidence seized in connection with the search of his residence. I held a hearing to consider Ivins' motion on February 3, 2004. Following the hearing, both parties submitted Memoranda of Law addressing the issues raised in the motion.
STATEMENT OF FACTS
The DSP began an investigation of Ivins in December 2001 after receiving information from a confidential informant that Ivins was selling drugs in the Rehoboth Beach area. The DSP were told that Ivins was unemployed and had no known source of income other than through the sale of drugs. The confidential informant described Ivins' residence and vehicles. The DSP later spoke with another confidential informant who explained that a person using the name "Piggy" sells drugs in the Rehoboth Beach area. This confidential informant also described Ivins' residence and vehicles. A third confidential informant described "Piggy" as a white male with tattoos who resides on Washington Street and described Ivins' residence.
The DSP conducted a "driver's license check" for Ivins and found that he had a Maryland license. The computer inquiry indicated that when Ivins' was arrested for traffic violations in Delaware he listed his residence as 23 Washington Street, Rehoboth Beach, Delaware. The DSP also conducted a "driver's license check" for Ivins' wife and found that her address was listed as 25 Washington Street. A registration inquiry revealed that the cars described by the confidential informants, as well as a mobile home, were registered to either Ivins or his wife.
The DSP later concluded that the actual address was 23 Washington Street. The address of 25 Washington Street was apparently a clerical error.
The DSP learned, after conducting a computer inquiry, that Ivins had been arrested in Maryland for two counts of distributing phencyclidine in June 1977, three counts of distributing cocaine, possession with intent to distribute marijuana, and possession of drug paraphernalia in August 1977, and possession with intent to distribute cocaine, possession of cocaine, possession with intent to distribute marijuana, and possession of marijuana in March 1982.
The Delaware Crimestoppers also received information on January 11, 2002, explaining that Ivins travels to Washington, D.C. once a week to bring back drugs and that he had made several deliveries to bars in the area.
Ivins was arrested for the offense of driving while under the influence of alcohol and/or drugs by the Emerald Isle Police Department (the "EIPD") in North Carolina on September 20, 2002. Incident to that arrest, the EIPD found a vial of cocaine on Ivins. The EIPD searched Ivins' vehicle and found two grams of marijuana. Five grams of cocaine and a "cocaine grinder" were found during a subsequent search of Ivins' residence at 7901 Ocean Drive, Emerald Isle, North Carolina. The EIPD also discovered that Ivins had properties listed in his name located in Delaware, Maryland, North Carolina, and Florida. The EIPD contacted the Rehoboth Beach Police Department, who in turn contacted the DSP. The DSP then went to Ivins' residence on September 20, 2002, where they observed several vehicles registered to Ivins and his wife parked in front of the residence. The DSP returned to Ivins' residence on September 20, 2002 to inspect discarded trash located in front of the residence, which revealed that Ivins and his wife were still receiving mail at the residence. The DSP also found "drug paraphernalia" among the trash.
The DSP obtained a search warrant (the "Warrant") for Ivins' residence. During the search of Ivins' residence, the DSP found firearms and ammunition, as well as other evidence indicative of drug use and/or distribution.
Ivins argues that the evidence was seized in violation of his rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, Article 1, Section 6 of the Constitution of the State of Delaware, 11 Del. C. § 2306- 2307, and Rickards v. State. More specifically, Ivins alleges that (1) the search of his trash was unconstitutional, (2) the information contained in the affidavit in support of the Warrant was stale, and (3) the Warrant is not supported by probable cause.
77 A.2d 199 (Del. 1950).
DISCUSSION
I. The Search of Ivins' Trash.
Ivins claims that the search of his trash was not of abandoned property, but rather done without a search warrant within the curtilage of his residence. However, Ivins failed to set forth any facts relating to this claim during the suppression hearing and has failed to address it in his memorandum of law. It is well established that, "[o]n 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." It is also necessary that Ivins prove by a preponderance of the evidence that he is entitled to such relief. Since Ivins has failed to set forth any evidence that the search of his trash was unconstitutional, this claim is denied.
State v. Church, 2002 WL 31840887 (Del.Super.Ct.), at * 4, citing Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978); State v. Bien-Aime, Del. Super. Ct., Cr. A. No. IK92- 08-0326, Toliver, J. (Mar. 17, 1993) (Mem. Op.).
Church, 2002 WL at *4, citing Bien-Aime at 3 (citing United States v. Casteneda, 951 F.2d 44, 48 (5th Cir. 1992)).
II. The Staleness Claim.
Ivins claims that the information contained in the Warrant application was stale because it was obtained approximately nine months before the search of his residence. As such, according to Ivins, there cannot be any connection to drug activity at his residence. The Delaware Supreme Court has repeatedly held that "where staleness is alleged, 'the test of temporal proximity is determined on an ad hoc basis in light of the circumstances of each case.'" Moreover, determining when information becomes stale "depends upon all the facts as viewed in a flexible and practical manner." However, "[w]here the evidence sought to be seized is subject to deterioration or change because of the passage of time or where contact between the evidence sought to be seized and the defendant is remote, historical information in the search warrant may be viewed as not establishing a current probability." Since probable cause must be based on current information, time is a critical element.
Gardner v. State, 567 A.2d 404, 410, quoting Jensen v. State, 482 A.2d 105, 111 (Del. 1984).
Jensen v. State, 482 A.2d 105, 112 (Del. 1984).
Gardner, 567 A.2d at 410.
Id. at 410, citing Pierson v. State, 338 A.2d 571, 573 (Del. 1975).
In Gardner v. State, 567 A.2d 404 (Del. 1989), the defendant alleged that the information provided in support of the search warrant was stale because it contained a two-year history of drug activity that was approximately 10 months old. The Delaware Supreme Court, however, found this argument to be without merit. The Court reasoned that the location of the alleged drug activity never changed during the two-year period of suspicion, the police established through records that the defendant continued to reside at the premises, and that regular drug shipments were made to the defendant. These facts, coupled with the defendant's presence at the residence on the date of an arranged transaction, established that it was probable that the drug activity persisted through the date of the warrant application.
Id.
Id. at 410-11.
Id.
In Hopkins v. State, 501 A.2d 774 (Del. 1985), the defendant claimed that the search warrant was based on stale information, even though the affidavits in support of the search warrant contained information relating to alleged criminal activity that occurred two days prior to the warrant request. However, the Delaware Supreme Court considered the ongoing nature of the criminal activity of drug trafficking and found that the police were reasonable to enlarge the time frame for receiving reports of repetitive suspicious conduct in order to present a stronger case for a search warrant. Moreover, the Delaware Supreme Court agrees with the general rule set forth in United States v. Johnson, 461 F.2d 285 (10th Cir. 1982):
Id.
Together with the element of time, we must consider the nature of the unlawful activity. Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.
State v. Pulgini, 374 A.2d 822 (Del. 1977).
Given the continuous nature of the alleged unlawful activity at issue here, the possession and sale of controlled substances, the passage of time is not significant.
III. The Issue of Probable Cause.
Ivins claims that the Warrant is not supported by probable cause because there is no nexus between the objects to be seized and the premises to be searched. Thus, according to Ivins, the decision to search his residence because of what occurred in North Carolina was based on nothing more than a hunch. The affidavit in support of the Warrant included the following: (1) statements from multiple confidential informants; (2) information on past arrests for drugs; (3) statements identifying Ivins' house and vehicles; (4) a drug investigation of Andrew Miller that took place in close proximity to Ivins' residence; (5) information given to Crime Stoppers indicating that Ivins travels to Washington, D.C. once a week to bring back drugs and that he made several deliveries to bars in the Rehoboth Beach area; (6) information from the EIPD that Ivins was arrested for driving under the influence of drugs and/or alcohol and that the EIPD discovered drugs during a subsequent search of Ivins and his residence in North Carolina; and (7) the DSP's search of Ivins' trash where they discovered mail addressed to Ivins and "drug paraphernalia." Based on the information contained in the affidavit, the DSP believe that a connection existed between Ivins' activities in North Carolina and Delaware.
The Fourth Amendment of the Constitution of the United States protects the public against unreasonable searches or seizures by requiring that a search warrant may be issued only upon a showing of probable cause supported by oath or affirmation. The Delaware Constitution affords its citizenry the same fundamental protections. Article 1, § 6 of the Delaware Constitution provides the following:
The Fourteenth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, an no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. XIV.
Section 6. The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or thing, shall issue without describing them as particularly as may be; nor then, unless there be probable cause supported by oath or affirmation.
The Delaware Code sets forth statutory requirements for an adequate showing of probable cause. 11 Del. C. § 2306 requires that the affidavit in support of a search warrant:
[S]hall designate the house, place, conveyance or person to be searched and the owner or occupant thereof (if any), and shall describe the things or persons sought as particularly as may be, and shall substantially allege the cause for which the search is made or the offense committed by or in relation to the persons on things searched for, and shall state that the complainant suspects that such persons or things are concealed in the house, place, conveyance or person designated and shall recite the facts upon which such suspicion is founded.11 Del. C. § 2307 provides that if the judicial officer finds probable cause for a search, he may direct a warrant to any proper officer for service. The warrant shall designate the place, person or things to be searched as particularly as possible. The two statutory sections create a four corners test for probable cause. In order for a reviewing court to verify that probable cause existed, adequate facts must exist on the face of the affidavit such that a reasonable man would believe that an offense has been committed and that seizable property would be found in a particular place or on a particular person. A prima facie showing is not required. "Only the probability . . . of criminal conduct is necessary to support a finding of probable cause."
State v. Church, 2002 WL 31840887 (Del.Super.Ct.), citing Pierson v. State, 338 A.2d 571, 573 (Del. 1975).
Id.
State v. Jones, 2002 WL 31814516 (Del.Super.Ct.), at *2, citing State v. Santini, 1993 WL 55341 (Del.Super.Ct.), at *4; Jensen v. State, 482 A.2d 105, 110-111 (Del. 1984).
Jones, 2002 WL at *2, citing State v. Walker, 444 A.2d 277 (Del.Super.Ct. 1982) (citing Spinelli v. United States, 393 U.S. 410, 419 (1969) and Beck v. Ohio, 379 U.S. 89, 96 (1964)).
In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme Court stated that it is the issuing magistrate's task "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Moreover, "the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . [concluding]' that probable cause existed." The Supreme Court further stated that "[w]e are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli." The Delaware Supreme Court reasoned that "[t]his Court has also eschewed a hypertechnical approach to the evaluation of the search warrant affidavit in favor of a common-sense interpretation, bearing in mind that the court reviewing the search warrant owes a certain degree of deference to the issuing magistrate." Furthermore, the Delaware Supreme Court recognizes the compelling force of the "totality of the circumstances" announced in Gates, and finds it consistent with the Court's holding in Jensen v. State, 482 A.2d 105 (Del. 1984). Therefore, "the affidavit supporting the search warrant must be 'considered as a whole and not on the basis of separate allegations.'" However, "there must be a nexus between the items which are sought and the place in which the police wish to search for them." It is not necessary that the nexus be a result of direct observation. Rather, it 'can be inferred from the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime]. . . .' However, evidence seized in violation of these prerequisites will be inadmissible at trial.
Illinois v. Gates, 462 U.S. 213, 238 (1983), citing Jones v. United States, 362 U.S. 257, 271 (1960).
Aguilar v. Texas, 378 U.S. 108 (1964).
Spinelli v. United States, 393 U.S. 410 (1969). Aguilar and Spinelli required that an affidavit must establish (1) the informant's basis of knowledge or (2) provide sufficient facts to establish either the informant's veracity or the reliability of the informant's report.
Gardner v. State, 567 A.2d 404 (Del. 1989), citing Tatman v. State, 494 A.2d 1249, 1251-52 (Del. 1985); Jensen v. State, 482 A.2d 105, 111 (Del. 1984).
Gardner, 567 A.2d at 409, citing Jensen, 482 A.2d at 111.
Id. at 409, quoting Jensen, 482 A.2d at 111.
Jones, 2000 WL 33114361 (Del.Super.Ct.), citing Dorsey v. State, 761 A.2d 807, 811 (Del. 2000); Hooks v. State, 416 A.2d 189, 203 (Del. 1980); Pierson v. State, 338 A.2d 571 (Del. 1975).
United States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999), quoting United States v. Charest, 602 F.2d 1015, 1017 (1st Cir. 1979).
Mapp v. Ohio, 367 U.S. 643 (1961); Rickards v. State, 77 A.2d 199 (Del. 1950).
A. The Confidential Informants
Three confidential informants provided the DSP with information regarding Ivins' drug activities. Confidential informant #1 ("CI#1") stated that Ivins sells cocaine in Rehoboth Beach, does not have a job, and bought a new Chrysler 300M. Confidential informant #2 ("CI#2") stated that a man named "Piggy" sells cocaine in Rehoboth Beach and that Ivins does not have a job. Confidential informant #3 ("CI#3") told the DSP that "Piggy" is a cocaine distributor and that he has seen "Piggy" sell cocaine to another individual. However, none of these informants were shown to be "past proven reliable."
It is well established that an informant's tip may establish probable cause where, based on the totality of the circumstances, one would conclude that the information is reliable. A magistrate may rely on an affiant's knowledge of a suspect as corroborating evidence to establish the reliability of an informant's tips. In Jones v. United States, 362 U.S. 257, 271 (1960), the United States Supreme Court stated the following:
State v. Jones, 2002 WL 31814516 (Del.Super.Ct.), citing Gates, 462 U.S. 213 (1983).
Jones, 2002 WL at *2, citing State v. Walker, 444 A.2d at 286 (citing United States v. Harris 403 U.S. 573, 583 (1971) and Jones v. United States, 362 U.S. 257, 271 (1960)).
The informant had previously given accurate information. His story was corroborated by other sources of information. And petitioner was known by the police to be a user of narcotics. Corroboration through other sources of information reduced the chances of a reckless or prevaricating tale; that petitioner was a known user of narcotics made the charge against him much less subject to skepticism than would be such a charge against one without such a history.
Where probable cause is apparent, a warrant will not be overturned.
Church, 2002 WL at *5, citing Hooks v. State, 416 A.2d 189 (Del. 1980) (citing Brinegar v. United States, 338 U.S. 160, 175 (1949)).
In Hopkins v. State, 501 A.2d 774 (Del. 1985), the Delaware Supreme Court applied the totality of the circumstances test to establish the existence of probable cause for a search warrant. The affiant offered several sources to substantiate his belief that the defendant was engaged in drug trafficking. The multiple sources included the following:
(i) four informants, none of whom were aware of the others' participation and three of whom implicated themselves in defendant's sales; (ii) numerous citizen complaints reporting 'inordinate' vehicular traffic to and from defendant's home by people 'staying only for a couple of minutes'; and (iii) affiant's own surveillance of the residence and his observation of the same kind of traffic reported by citizen complaint.
Hopkins, 501 A.2d at 775.
The Court found that "the affidavit established more than a 'fair probability that contraband or evidence of a crime [would] be found' at defendant's residence."
Id. at 775-76, quoting Gates, 462 U.S. at 238.
That is not the case here. The information provided by the informants is not probative of any unlawful activity. CI#1 and CI#2 never stated that they actually saw Ivins sell drugs. CI#3 stated that he witnessed "Piggy," who may well be Ivins, sell drugs, but he did not describe that transaction in any manner that would suggest that the information is reliable. Moreover, the information provided by the confidential informants about Ivins' house, vehicles and apparent lack of work is the type of information that any person living on Ivins' street could have provided. It does not, as such, corroborate the information provided by the confidential informants.
In Jones v. State, 725 A.2d 856 (Del. 1999), the Delaware Supreme Court found that an anonymous 911 call stating that a "suspicious black male wearing a blue coat" in a particular area was not sufficient to give police officers reasonable and articulable suspicion to stop Jones, even though he was near the address identified in the 911 call and matched the description of the suspicious male. The Delaware Supreme Court found that the "facts contained in the 911 complaint were readily observable to anybody who saw the defendant . . . [and] [w]hen Patrolman Echevarria arrived, his own observations added nothing to the 911 caller's statement and did not corroborate or particularize the conclusory term 'suspicious.'" In Jones, the State failed to present any reliable evidence to support the anonymous tip. The Court found that "[r]easonable and articulable suspicion cannot be based on a defendant's presence in a particular neighborhood at a particular time of day with no independent evidence that the defendant has committed, is committing or is about to commit a crime."
Jones v. State, 745 A.2d 856, 870 (Del. 1999).
Jones, 745 A.2d at 870.
Id. at 871.
The standard required to make an investigatory stop in Jones is that of reasonable and articulable suspicion, a lesser standard than probable cause to issue a search warrant. Even though it is a lesser standard, the information was still insufficient to give the officers reasonable and articulable suspicion to make the stop because it was not corroborated and anybody could have observed the facts contained in the call. The standard for probable cause is much greater. If similar information observable by anybody was insufficient for a stop, it is clearly insufficient for a search warrant. Therefore, the information provided by the confidential informants is of no value.
B. Past Arrests
The DSP learned that Ivins was arrested in Maryland in 1977 and 1982. Ivins was arrested for two counts of distributing phencyclidine in June 1977 and three counts of distributing cocaine, possession with intent to distribute marijuana, and possession of drug paraphernalia in August 1977. In March 1982, Ivins was also arrested for possession with intent to distribute cocaine, possession of cocaine, possession with intent to distribute marijuana, and possession of marijuana. The affidavit is devoid of any information regarding the resolution of these charges. I assume that Ivins was not convicted of any of these charges. Otherwise, the DSP would have indictated that he was convicted of these offenses. Moreover, the arrests occurred over 20 years ago and, without further evidence, are of no value.
C. House and Vehicle Confirmations
The identification of Ivins' residence and vehicles was independently corroborated by the DSP. However, this type of information can be discovered by anyone. It is not probative of any unlawful activity and lends no further support for a finding of probable cause.
D. The Andrew Miller Drug Investigation
The DSP conducted an investigation of Andrew Miller ("Miller") on July 7, 1998. A confidential informant advised the DSP that Miller, also known as "Spider," was heading to the Rehoboth Beach area in a blue Dodge truck to pick up cocaine. Members of the DSP Special Investigation Unit saw Miller going to a residence on the north side of the street at the end of Washington Street. After Miller left the residence, the DSP conducted a traffic stop of Miller and found him to be in possession of approximately 130 grams of cocaine. The DSP believe that Miller obtained the cocaine from Ivins' residence. However, this investigation occurred in 1998. There is absolutely no evidence to suggest that Miller actually purchased the cocaine from Ivins in 1998, or that Miller or any other person has recently purchased cocaine from Ivins at his residence.
E. Crime Stoppers
The Delaware Crime Stoppers received information about Ivins on their answering machine on January 11, 2002. The anonymous caller stated that Ivins travels to Washington, D.C. once a week to bring back drugs and that a delivery was made to a bar in the Rehoboth Beach area. The caller stated that Ivins has bank accounts between Rehoboth and Washington, D.C. and stores a lot of cash in safety deposit boxes. The caller also said that Ivins usually rents a car to drive to Washington, D.C., but occassionally drives one of his own vehicles. The caller believed that Ivins may store his drugs at a trailer in the Camelot Trailer Park.
There is no evidence to suggest that the caller witnessed any of these activities or that the caller was shown to be "past proven reliable." The caller's statement regarding Ivins' trips to Washington, D.C. was not independently corroborated by the DSP. The DSP also failed to confirm the information about Ivins' various bank accounts and safety deposit boxes. The DSP did, however, confirm that Ivins' wife owns a residence at the Camelot Trailer Park. It is possible that if Ivins were to store drugs, he may well store them there. However, this information is not sufficiently corroborated to be of any value.
F. EIPD
The EIPD stopped Ivins for driving under the influence of drugs and/or alcohol on September 20, 2002. The EIPD conducted a search of Ivins and his vehicle. They found cocaine on his person and two grams of marijuana in the console and ashtray of the car. The EIPD searched Ivins' North Carolina residence on September 20, 2002 and found five grams of cocaine in a plastic bag and a "cocaine grinder." According to the EIPD, a "cocaine grinder" is commonly used to sift cocaine into powder form for distribution.
Although the EIPD's arrest of Ivins and subsequent seizure of drugs are evidence of unlawful activity in North Carolina, it does not suggest that Ivins is engaged in the distribution of illegal drugs in Delaware. The amount of cocaine and marijuana is small and is not indicative of drug distribution. There is no evidence, such as cocaine residue on the grinder, to suggest that the grinder was anything more than a hand-held kitchen grinder. Moreover, there is no evidence to show that the grinder was found near the cocaine or that any drug paraphernalia was found. There is simply no nexus between the EIPD's discovery of drugs in Ivins' North Carolina residence and the objects reasonably believed to be found at Ivins' Rehoboth residence.
G. Trash Search
The DSP conducted a search of Ivins' trash at his residence and discovered mail addressed to Ivins and "drug paraphernalia." However, it is unclear what type of evidence was actually discovered in Ivins' trash since the DSP failed to identify the "drug paraphernalia" found. It is true that "affidavits 'are normally drafted by non lawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity . . . have no proper place in this area.'" Although the Court recognizes this pragmatic approach, the affidavit at issue is completely devoid of any description of the "drug paraphernalia" found in the trash. 16 Del. C. § 4771 defines "drug paraphernalia" as potentially including a vast array of objects, some of which by themselves are not evidence of criminal activity. Thus, the District Court of Delaware, in Delaware Trade Ass'n v. Gebelein, 497 F. Supp. 289 (D. Del. 1980), found it necessary to refer to the use and the intent or design of the person alleged to be in violation of the statute to determine whether or not an object may be considered "drug paraphernalia."
United States v. Conley, 4 F.3d 1200, 1207 (3rd Cir. 1993), quoting United States v. Ventresca, 380 U.S. 102, 108 (1965).
This case was decided under prior law.
The statute referred to is 16 Del. C. § 4701, which contains language identical to 16 Del. C. § 4771.
In State v. Ada, 2001 WL 660227 (Del.Super.Ct.), this Court found that the affidavit of probable cause failed to provide a sufficient nexus between the items sought and the residence searched because the "police observed no illegal or suspicious activity occurring at the residence." The State argues that Ada is distinguishable from the case at bar because the Warrant application at issue here included information that drug paraphernalia was discovered in the trash outside of Ivins' residence. Although it is a criminal offense to possess drug paraphernalia under 16 Del. C. § 4771, as discussed above, the affidavit is devoid of any identification of the alleged drug paraphernalia. Consequently, based on the information provided, it was not reasonable for the magistrate to infer that illegal or suspicious activity occurred at the residence without further description of the "drug paraphernalia."
Ada, 2001 WL at *5.
Moreover, the Eighth Circuit, in United States v. Reinholz, 245 F.3d 765 (8th Cir. 2001), found that the discovery of drug paraphernalia, documentation identifying the defendants as residents, and one defendant's criminal record were sufficient to support a finding of probable cause that drugs would be found in the residence. However, United States v. Reinholz is factually different from this matter. In Reinholz, the police searched the defendant's trash and discovered 20 syringes with methamphetamine residue, a brass pipe with cocaine residue, and documents addressed to the defendants. The amount of drug paraphernalia discovered in the trash indicates a significant amount of drug activity. Furthermore, the police learned that one of the defendants had been convicted of drug charges in the past.
Id.
Id. at 777.
Id.
Id.
In this regard, the inclusion of the discovery of such "drug paraphernalia," without further identification of the actual objects seized, lends no support to the magistrate's finding of probable cause. When applying the totality of the circumstances analysis, the information provided in the Warrant application is insufficient to establish probable cause necessary to issue a search warrant. A reasonable person would not find a connection between the objects to be seized and Ivins' residence. Further investigation and/or corroborating evidence is necessary for probable cause to exist to search Ivins' residence.
In the case at bar, there were several confidential informants who provided similar accounts of the defendant's alleged unlawful activities. However, none of the informants were shown to be "past proven reliable" and none of the statements given were probative of any unlawful activity. Any citizen could have described the cars driven by Ivins, his residence, or that he does not sustain employment. The DSP could have taken steps to see if Ivins worked, but failed to do so. Although Ivins was arrested in the past for drug violations, those arrests were in 1977 and 1982 and there was no mention of any drug convictions. More recently, Ivins was found in possession of narcotics while stopped for a possible DUI violation in North Carolina and narcotics were found during a search of Ivins' North Carolina home. However, the quantity of narcotics found on Ivins was insufficient to suggest that he is engaged in the sale of drugs in Delaware. Moreover, the "drug paraphernalia" found in Ivins' trash, without further identification, provides no support for the existence of probable cause.
Therefore, the information provided in the affidavit is insufficient to encroach upon Ivins' constitutional right against an unreasonable search of his residence. There is no connection between the items sought to be found and the place to be searched. Without further evidence through police investigation, it was unreasonable for the magistrate to accept the information provided in the Warrant application as probable cause to issue a search warrant. The Court recognizes the deference owed to a magistrate by a reviewing court. Nevertheless, when viewing the information in light of the totality of the circumstances, the information contained in the Warrant application is insufficient to support the magistrate's finding of probable cause.
CONCLUSION
For the reasons stated herein, Ivins' Motion to Suppress is granted.