State v. Love ( 2018 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
) I.D. No. 1802008471
v. ) Kent County
)
IKEEN L. LOVE, )
)
Defendant. )
Submitted: September 13, 2018
Decided: September 27, 2018
OPINION AND ORDER
Upon Defendant’s Motion to Suppress
Denied
Lindsay A. Taylor, Esquire of the Department of Justice, Dover, Delaware; attorney
for the State of Delaware.
Zachary A. George, Esquire of Hudson, Jones, Jaywork, & Fisher, LLC, Dover,
Delaware; attorney for Defendant.
WITHAM, R.J.
State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
Bef``ore this Court is Defendant Ikeen L. Love’s (“Love”) Motion to Suppress
evidence seized from searches conducted by the Delaware Department of Corrections
Probation and Parole (“Probation”) and a statement taken subsequent to his arrest.
Love is charged with Possession of a Firearrn by a Person Prohibitedl and Possession
of Firearm Ammunition by a Person Prohibited.2 After careful consideration of all
submissions and oral arguments, the motion is denied.
FACTS
On February 12, 2018, Probation Off``icer (PO) Ricky Porter (“Porter”)
reviewed a Snap Chat video post depicting Love3 in possession of what appeared to
be three firearms4 While parked outside a known probationer’s home in a silver Ford
SUV.5 Love, a Level III probationer and a person prohibited, was subsequently
identified by the Dover Gang Intelligence Unit and Delaware State Bureau of
Identification (SBI). A DACS6 search indicated that Love resided at 390 Post Blvd.,
1 11 Del. C. § 1448(a)(1).
2 Id..
3 Porter did not know Love’s identity upon his initial viewing of the social media posting.
4 Test. at 1 1, 24. Porter testified he believed one of the weapons was a BB gun, and at least
one of the remaining firearms was a .3 57 magnum. Porter’s suspicion Was based on the size of the
barrel and Love’s admission of possessing three “straps” - a slang term for a “Hrearm.” Cannon v.
State, 126 A.3d 641 (table, text in Westlaw), 2015 WL 6280776.
5 Corrections R. at 2; Test. at 14. Love’s SUV had a red steering wheel cover.
6 Delaware Automated Corrections System.
2
State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
Dover, but had not had a positive home visit with Probation in two years. Further
investigation in DELJIS showed Love had used a phone number associated with 21
Clark’s Corner in Harrington,7 the residence of Randi Harris (“Harris”), Who had a
“no-contact” order against Love.8 Porter, suspecting Love was lying about his
residence due to his negative home visit history and connection to Harris, asked his
partner to coordinate a drive-by of 21 Clark’s Corner to verify the presence of Love’ s
vehicle from the Snap Chat posting.9 Harrington Police later viewed a silver Ford
Expedition, with a distinctive red steering wheel cover, parked at 21 Clark’s Corner
on the initial drive-by and a subsequent drive-by the next day.
After receiving the subsequent verification on February 13, Porter contacted
the Clark’s Corner property manager and asked if she was familiar with Love or the
Expedition. The manager confirmed the Expedition was parked outside the residence,
but was unfamiliar with Love. Porter emailed a photograph of Love to the manager
and asked if she could make any further identification Approximately an hour later,
she reported to Harrington Police that a man matching the photograph had recently
departed the residence in the Expedition.
Porter, believing Love was en route to Melvin’ s office, contacted her and asked
7 This corroborated information PO Summer Melvin received from April Trice (“Trice”) on
February 2, 2018. Trice, who resided at 390 Post Blvd., Dover, told Melvin that Love had moved
out of the residence to 21 Clark’s Corner. Love never disclosed the relocation to Melvin.
8 Test. at 15, 27. Harris was also connected to Domingo Rodriguez, owner of the Snap Chat
account that contained the video posting.
9 Community Corrections R. at 2.
State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
to be notified when he arrived. Upon his arrival later, Porter made contact with Love
and obtained his consent to search the Expedition.10 Porter’s search yielded one BB-
gun from the Snap Chat posting, but no other weapons. Deducing from the evidence
already uncovered, Porter reasoned the outstanding weapons may be located at 21
Clark’s Comer. In accordance with Probation Procedure 7.19 (“7.19”) protocols,
Porter obtained an administrative search warrant to search 21 Clark’s Comer.11 The
search yielded a .357 magnum and ammunition, resulting in Love’s arrest.12 Love
subsequently waived Miranda rights and made a statement.13
Love filed this motion to suppress evidence and the statement obtained as a
result of those searches.14 This Court heard oral arguments on September 13, 2018,
and reserved judgment on the motion.
DISCUSSION
I. Reasonable Suspicion to Search Love’s Residence.
Love argues that the .3 57 magnum seized should be suppressed, first because
10 During the search, the unidentified male, later identified as Roy Stevens, stated Love had
resided at 21 Clark’s Corner f``or at least three months.
11 Delaware Department of Corrections Bureau of Community Corrections Probation and
Parole Procedure No. 7.19 (amended effective June 5, 2001). Officer Porter briefed and received
authorization to conduct the search of 21 Clark’s Corner from PO Supervisor Joel Duquette.
12 Community Corrections R. at 3. Medical documents and a prescription bottle made out
to Love, and male clothing that Love wore in the video posting, were also discovered.
13 Community Corrections R. at 4.
14 D. Mot. at 6.
State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
Porter failed to follow 7.19 and second, because an insufficient nexus existed
between the Snap Chat video posting and 21 Clark’s Comer.15 For the forthcoming
reasons, this Court disagrees.
The Constitution of the United States and the State of Delaware protects
individuals, including probationers, from unreasonable searches and seizures.16
Probation is a criminal sanction17 however, and thus, probationers do not have the
same liberties as ordinary citizens.18 While Delaware probation officers are
authorized to conduct searches of probationers,19 probationers never “surrender all [
] privacy rights” simply because they are on probation.20 lt has been long settled in
Delaware that suspicionless searches of probationers are unlawful.21 As a result,
Delaware follows the “reasonable suspicion” standard in justifying searches of
probationers.22 “Reasonable suspicion” exists when the “totality of the
15 D. Mot. at 1111 10, 12.
16 U.S. Const. Amend. IV, XIV; Del. Const. art I, § 6.
17 State v. Harris, 734 A.2d 629, 634 (Del. Super. July 23, 1998).
18 State v. Riley, 2018 WL 648037 at *2 (Del. Super. Jan. 16, 2018) citing Sierra v. State, 958
A.2d 825, 828 (Del. 2008).
19 11 Del. c. § 4321(d).
20 King v. s¢a¢e, 984 A.2d 1205, 1208 (Del. 2009) quoting sierra 958 A.2d at 832.
21 Murray v. State, 45 A.3d 670, 678 (Del. 2012), as corrected (July 10, 2012) citing Sierra,
958 A.2d at 829.
22 Id.State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
circumstances” indicate a “particularized and objective basis” for suspecting a
probationer of wrong doing.23
To ensure probationers’ rights are protected, Probation adopted regulations
governing searches of probationers.24 A probation officer is deemed to have acted
reasonably so long as they “substantial[ly] compl[y]” with regulations.25
a. Porter’s alleged failure to comply with 7.]9
Love first argues that Porter had insufficient reason to believe he possessed
firearms and failed to comply with 7.19.26 7. 19 provides guidelines to consider when
determining the reasonableness of a probationer search including:
1) Sufficient reason to believe the offender possesses contraband;
2) Sufficient reason to believe the offender is in violation of probation/parole;
3) Inforrnation from a reliable informant, indicating offender possesses
contraband or is violating the law;
4) Information from the informant is corroborated; and
5) Approval obtained from [a] Supervisor, Manager, or Director is granted.27
In this case, this Court finds Porter was not just in “substantial compliance”
23 Jacklin v. State, 2011 WL 809684, at *2 (Del. 2011) (TABLE) citing Sierra, 958 A.2d at828 quoting United States v. Arizu, 534 U.S. 266, 273 (2002).
24 11 Del. C. § 4321(d); see also Probation No. 7.19 (amended effective June 5, 2001).
25 Full€r v. Stat€, 844 A.2d 290, 292 (Del. 2004).
26 D. Mot. at 3.
27 Probation No. 7.19.
State v. Ikeen L. Love
I.D. No. 1802008471
September 27 , 2018
with 7.19, but in full compliance First, Porter testified under oath that he followed
all protocols of 7.19.28 Second, the evidence presented supports Porter’s testimony
and demonstrated he had sufficient reason to believe that Love possessed firearms,
a probation violation. This belief was not based on any unsubstantiated and/or
anonymous tip, but rather on Porter’s knowledge and experience with firearms and
probationers; coupled With Love’s own admission of having “three straps.” Third,
Porter had suspicions regarding Love’s negative home visit history that were
heightened when he learned of Trice’s disclosure to Melvin.29 Finally, in accordance
with 7.19, Porter obtained authorization from his supervisor prior to conducting a
administrative warrant search at 21 Clark’s Comer.30
Assuming arguendo, that Porter was not in full compliance with 7.19, that in
itself is not fatal to the State’s case. In Pendleton, our Supreme Court, finding an
probation officer achieved “substantial compliance:” held:
[ ]’s failure to complete the technical requirements does not negate the
importance of his discussion of the five factors with [the supervisor].
Although he did not physically fill out the pre-search checklist, [ ]'s
conduct fulfills the spirit of the guidelines. In analyzing the factors,
rationally assessing the facts known to him, and obtaining supervisory
approval, [ ] ensured that the Department of Corrections had sufficient
211 Test. at 20.
29 Trice’s claim was verified in total by DELJIS, Harrington P.D., and Stevens.
30 The 7.19 checklist had been completed in full by Porter,
7
State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
grounds before searching Pendleton's home.31
Likewise in Fuller, our Supreme Court again held substantial, not full,
compliance was sufficient.32 The Fuller Court stated:
[] purpose of [7. l 9] is to ensure that [Probation] has sufficient grounds
before undertaking a search. The individual procedures advance that
goal but are not independently necessary, as demonstrated by the fact
that the regulations explicitly state exceptions for when the search
checklist need not be used.33
Thus, this Court finds Porter fully complied with 7.19 and that the resulting
administrative search of 21 Clark’s Corner was lawful.
b. Insufjicient nexus - 21 Clark’s Corner and Snap Chat posting
Love next argues an insufficient nexus exists between the video posting and
the search of 21 Clark’s Comer.34 Love contends that even if Porter had a reasonable
belief that he possessed firearms, 21 Clark’s Corner was not where the Snap Chat
posting was created and additionally the search of 21 Clark’s Corner took place 4
days after its posting, thus, creating the lack of nexus and an unlawful search.
31 Pendleton v. State, 990 A.2d 417, 420 (Del. 2010).
32 Fuller, 844 A.2d at 293.
33 Id.34 D. Mot. at 11 12.
State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
In support, Love relies upon State v. Fax35 and State v. Johnson,36 both cases
involving administrative searches of probationers that resulted in this Court
suppressing evidence due to a lack of nexus. Here, however, Love’ s reliance on those
cases appears misplaced.
In Fax, a probationer tested positive for marijuana, yet was not cited for a
violation of probation.37 Fifteen days later, another probation officer discovered
Fax’s positive urinalysis and based an administrative search request solely on that
failed test.38 Probation officers searching Fax’s home later found drugs, including
cocaine and heroin.39 In suppressing the evidence, this Court held that the fifteen day
old failed urinalysis was not sufficient to establish reasonable suspicion to search
Fax’s residence, stating Fax’s failed drug test alone fell below the indicia of
reasonable suspicion.40
In Johnson, an anonymous email claimed that Johnson was selling drugs near
his residence.41 A probation officer, without conducing any additional investigation
35 State v. Fax, 2017 WL 2418275 (Del. Super. June 2, 2017).
36 State v. Johnson, 2014 WL 6661154 (Del Super. Oct. 30, 2014).
37 Fax, 2014 WL 6661154, at *1.
38 Id. at *1.
39 Id. at *2.
40 Id. at *4.
41 Johnson, 2014 WL 6661154, at *1.
State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
or consultation with Johnson’s actual probation officer, searched DACS and
confirmed Johnson had: (1) tested positive for marijuana; 92) missed curfew; (3)
missed an office visit; and (4) failed to complete court-ordered behavioral treatment
courses.42 The Johnson court held the probation officer lacked reasonable suspicion
to search Johnson’ s residence, as he failed to connect those uncharged violations with
the search of the probationer's residence.43
In this case, Porter’s information far exceeded that available in Johnson and
Fax. Moreover, unlike in Johnson, where the inquiry began with an anonymous tip
of drug dealing near Johnson's residence, Porter’s investigation began with the Snap
Chat posting of Love, in an open source social media page. Also, this is not an
anonymous tip since it is tied to a known individual’s user account.
Additionally, and unlike F ax and Johnson, Porter’ s conducted an investigation
that uncovered or confirmed several probable probation violations before he sought
the administrative warrant including the following:
1) Reviewed social media profiles and enlisted the SBI for identification;
2) Investigated and verified Love’s residence discrepancy;
3) Verified the presence of Love’s Expedition twice at 21 Clark’s Corner
within 48 hours;
4) Verified Love’s utilization of the phone number associated with 21 Clark’s
42 Johnson, 2014 WL 6661154, at *l.
43 Id. at *4.
10
State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
Corner;
5) Verified Love’s presence at 21 Clark’s Corner for at least three months;
6) Verified Love’s “no contact” order with Harris, the resident of record at 21
Clark’s Corner; and
7) Spoke with Love directly and was told Love had a key to 21 Clark’s Corner.
Porter still only sought an administrative search warrant per 7. 19 when the search of
Love’s Expedition yielded only one of the weapons seen in the video posting and he
reasonably concluded that the other two may be located at 21 Clark’s Corner since
it was clear that Love had been residing there for a period of time.
The facts here are clear and as a result this Court finds a sufficient nexus
existed between 21 Clark’s Corner and the Snap Chat posting and that Porter had
reasonable suspicion to conduct a lawful search at 21 Clark’s Comer.
II. Consent to Search Love’s Vehicle.
Love next argues that the search of his vehicle was unlawful and that evidence
obtained should be suppressed. He contends that law enforcement conducted a
warrantless search upon his vehicle while in custody and that the search did not meet
the Automobile Exception standard for warrantless searches because officers did not
observe any weapons in plain view, nor had they corroborated any information to
suggest Love was in possession of contraband
Love is correct in stating that the automobile exception to warrantless searches
must be justified by probable cause and exigent circumstances.44 This Court also
44 D. Mot. at 11 18. See also Schramm v. State, 366 A.2d 1185, 1189 (Del. 1976).
11
State v. Ikeen L. Love
I.D. No. 1802008471
September 27 , 2018
agrees that there appear to be no exigent circumstances in the present case. However,
Love’s argument fails in two ways.
First, as discussed above, Porter had corroborated information that suggested
that Love was in possession of firearms, a probation violation.
Second, police officers are not limited to plain view as justification for
warrantless searches, but may also conduct searches and seizures based upon
voluntary consent.45 Our Supreme Court has stated that those in police custody can
voluntarily consent, even though coercion is inherent in such custody.46 Valid
consent may be express or implied47 and voluntariness is determined by the totality
of the circumstances surrounding the consent, including (1) knowledge of the
constitutional right to refuse consent; (2) age, intelligence, education, and language
ability; (3) the degree to which the individual cooperates with police; and (4) the
length of detention and the nature of questioning, including the use of physical
punishment or other coercive police behavior.48
Here, the circumstances under which Love consented do not indicate an undue
coercive atmosphere. It is true that Porter made contact with Love during his required
43 Cooke v. State, 977 A.2d 803, 855 (Del. 2009) citing Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973).
46 Buckingham v. State, 482 A.2d 327, 333 (Del. 1984) citing Scha/j‘er v. State, 184 A.2d 689(Del. 1962), cert. denied, 374 U.S. 834, (1963).
47 Cooke, 977 A.2d at 855 citing Schneckloth, 412 U.S. at 241.
48 Id.12
State v. Ikeen L. Love
I.D. No. 1802008471
September 27, 2018
meeting with his probation officer, a custody of sorts, but the visit was not extended
unreasonably or otherwise.49 During that time, Love fully cooperated with Porter and
expressly verbalized consent to the search50 as well as “provided the keys”31 to the
Expedition without protest. Additionally, Love is an adult with experience in the
criminal justice system. This Court finds it difficult to believe that Love, with his
knowledge of the criminal justice system, would not know he has the right to
withhold consent, and make it necessary for Porter to seek a warrant.
Based on the above facts, this Court finds that the search of Love’s Expedition
was subject to his valid consent, and thus, lawful.
III. Post Arrest Statement Was lawful and did not violate Miranda.
Finally, Love argues his statement to law enforcement subsequent to arrest
must be suppressed as fruit of the illegal search of 21 Clark’s Corner.52
Since this Court determined the searches were lawful, there is no fruit of the
poisonous tree.53 Here, Love was read Miranda and had an absolute right to remain
silent. Instead, he chose to speak. As a result, this Court sees no violation of Love’s
rights and no reason to suppress his statement.
49 State Reply at 11 19.
50 Test. at 30.
51 Test. at 17.
52 D. Mot. atj{ 13.
53 Wong Sun v. United States, 371 U.S. 471 (1963).
13
State v. Ikeen L. Love
I.D. No. 1802008471
September 27 , 2018
CONCLUSION
F or the above stated reasons, Love’s motion to suppress is denied.
M/A/WL/Q
Hon. William L. Witham, Jr.
Resident Judge
oc: Prothonotary
cc: Lindsay A. Taylor, Esquire
Zachary A. George, Esquire
14