Opinion
ID. No. 1004000821.
March 8, 2011.
ORDER
AND NOW, TO WIT, this 8th day of March, 2011, IT IS HEREBY ORDERED as follows:
Introduction
On March 4, 2011, an order was issued denying the Defendant's motion to suppress evidence. Defendant filed a motion for reargument on March 7, 2011, one day before trial is set to begin. For the following reasons, the motion is DENIED.
Discussion
The basis of the Defendant's motion is (1) the State never argued the officers had reasonable articulable suspicion to enter the residence and (2) this Court is bound by the reasons articulated in an arrest affidavit of probable cause.Defendant's First Argument: Reasonable Suspicion
Defendant's first argument fails because not only did the State argue reasonable suspicion to enter 79 Chaucer Drive, but the Defendant argued against it. In his letter to the Court dated January 28, 2011, the Defendant argues "The probation officers did not have sufficient reasonable suspicion to make a warrantless, non-consentual entry into the residence in order to conduct a routine compliance check." The Defendant then frames the issue: "This Court must determine whether there was a reasonable basis to make a warrantless entry into the residence." In his letter to this Court dated February 8, 2011 he once again argues the importance of whether reasonable suspicion existed for the officer to enter the residence: "It is well established that a probationer is protected against warrantless searches and seizures unless there is reasonable suspicion to believe that criminal activity is afoot." This Court found that the officers had reasonable articulable suspicion that criminal activity was afoot as articulated in the March 4, 2011 order denying the Defendant's motion to suppress, and as stated below.As previously stated, the State argued reasonable suspicion to enter the residence existed if this Court found the consent was invalid. As the State correctly points out in response to this motion, the following argument was contained in the supplemental briefing filed on February 4, 2011:
If after listening to the evidence the Court is persuaded that P.O. Graham's initial entry into 79 Chaucer Drive was in fact a search, the State would argue that the search is still valid. First, Mr. Wallace did sign conditions of supervision which clearly state that he and his residence are subject to search at any time, by probation and parole. Mr. Wallace was on notice. Second, even though there was no pending violation of probation, Mr. Wallace's arrest for Offensive Touching and subsequent arrest for Breach [of] Conditions of Release are clearly violations of probation. There was testimony that it is very common for defendants with pending no contact orders in domestic violence cases to violate the no contact order. It was entirely reasonable to go to the residence and search for the person of Branden Wallace to see if he was in fact violating the no contact order as he had already done in the past. In fact when Devonte Garcia answered the door he responded that his Mom and Branden weren't home. He did not say Branden isn't living here anymore.
Since the State did advance the alternate theory of valid entry into the residence based on reasonable articulable suspicion, the Defendant's assertion that theory was not advanced is incorrect.
Defendant's Second Argument: Four Corners Test for Affidavit of Probable Cause
The Defendant's second argument also fails because this is not a situation where an affidavit of probable cause was introduced into evidence or previously discussed. The Defendant cites State v. McDonald in support of his position. However, that case involved whether an officer had probable cause to stop a motorist. Under the totality of the circumstances, the Superior Court concluded reasonable suspicion existed because the defendant failed to use a turn signal when exiting a private parking lot to enter onto a public highway, there were two people in the car with a third standing nearby in an area known for criminal activity, there was an issue with the car's registration, and there was an unprovoked flight. In that case, the Delaware Supreme Court noticed "[t]he Superior Court's decision did not identify what criminal activity was reasonably suspected from those facts" or how those facts were relevant. The Delaware Supreme Court applied the four corner test to determine whether the arrest affidavit demonstrated probable cause. This case is distinguishable from McDonald since no arrest or search affidavit of probable cause was previously discussed or introduced into evidence and Officer Graham had reasonable articulable suspicion to believe that Wallace was either committing the crime of criminal contempt or in breach of conditions of release.
An arrest affidavit of probable cause was not previously argued in any motion, supplemental briefing, or at the suppression hearing itself. The Defendant raises this argument for the first time in his motion for reargument. Therefore, it will not be considered because it is outside the record.
947 A.2d 1073 (Del. 2008).
Id. at 1077.
Id.
Here, Wallace was a Level II probationer on April 1, 2010 and a no contact order was in place prohibiting him from being near 79 Chaucer Drive. To enter the residence the officers only needed reasonable suspicion. Even though Officer Graham did not learn the vehicle parked in the driveway belonged to Wallace until after the administrative search was conducted it is not relevant to find the officers had reasonable suspicion that evening. The fact that Officer Graham noticed a vehicle parked in the driveway at approximately 9:40 p.m., Devonte Garcia stated "my mom and Branden aren't home" when he answered the door, that a no contact order was in effect prohibiting Wallace from being near the residence, and that relatives of probationers often lie to the police, Officer Graham not only had reason to believe an adult may have been home, but also that Wallace was in violation of the no contact order. If Wallace was in violation of the no contact order he could have been arrested for criminal contempt, in violation of 11 Del. C. § 1271.
King v. State, 984 A.2d 1205, 1208 (Del. 2009); Sierra v. State, 958 A.2d 825, 828 (Del. 2008).
Subsection (3) states: "Intentional disobedience or resistance to the process, injunction or other mandate of a court."
As soon as Devonte Garcia stated "my mom and Branden aren't home" Officer Graham had reason to believe that Wallace was in breach of release because he had not changed his address with probation and parole, even though it was later determined that Wallace did change his address with probation and parole. The reason Officer Graham chose this particular residence to conduct a home compliance check was based on the fact that two probationers resided there and there was a no contact order in effect prohibiting Wallace from being near the residence. Officer Graham went there to ascertain Wallace's address because if he was still living there then he was in violation of the no contact order and in breach of conditions of release. Therefore, Officer Graham and the other members of the Governor's Task Force had reasonable suspicion to enter 79 Chaucer Drive on April 1, 2010. The Defendant's argument that entry into the residence was not based on reasonable articulable suspicion is without merit.
Conclusion
In his motion for reargument, the Defendant makes it clear that he wants this Court to rule on whether or not Devonte Garcia gave the officers valid consent to enter 79 Chaucer Drive. As this Court stated in footnote eight of the March 4, 2011 order, having found the officers possessed reasonable articulable suspicion to enter the residence the issue of whether or not Devonte Garcia gave valid consent does not need to be addressed.
Based on the forgoing, Defendant's Motion for Reargument is DENIED.
IT IS SO ORDERED.