State v. Friend ( 2016 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
: ID No. 1602017442
v. : In and For Kent County
:
DESHAWN T. FRIEND, :
:
Defendant. :
OPINION
Submitted: October 13, 2016
Decided: December 13, 2016
Gregory Babowal, Esquire, DEPARTMENT OF JUSTICE, Dover, Delaware, for
the State.
Alexander Funk, Esquire, CURLEY, DODGE & FUNK, LLC, Dover, Delaware,
Attorney for Defendant.
Clark, J.
I. Introduction
The Delaware State Police (hereinafter “DSP”) conducted a search at 79
Terry Drive in Magnolia, Delaware. DSP received information from a confidential
informant that Antwan Seney was selling cocaine out of the residence at that
address. While searching the premises, DSP found Defendant Deshawn Friend
(hereinafter “Friend”) in a shed located at the rear of that property. Pursuant to a
search of the shed, the DSP found 715 bags containing over 10 grams of heroin.
The State arrested and charged Friend with Aggravated Possession, Drug Dealing,
Conspiracy Second Degree, and Possession of Drug Paraphernalia.
Friend moves to suppress the evidence found during the course of DSP’s
search of the shed. In his motion to suppress, he argues in part, that the four
corners of the search warrant and affidavit failed to establish a sufficient
connection between the alleged criminal activity and the shed to justify a search of
the shed. The State opposes the motion, stating that the affidavit contained
sufficient information to support a finding of probable cause to search the shed.
For the reasons below, although there was adequate probable cause to search
the residence on the property, and the shed was located within the curtilage of the
property, the holdings in the Bradley decisions control this matter.1 Namely, under
Delaware law, there must be a separate causal connection between the criminal
activity alleged and each building on the property that the police seek to search.
Here, there was not. Accordingly, Friend’s motion to suppress is GRANTED.
1
State v. Bradley, 2011 WL 1459177 (Del. Super. Apr. 13, 2011) aff’d, 51 A.3d 423 (Del. 2012).
2
II. Facts and Procedural Background
The facts cited herein are those contained in the affidavit in support of the
search warrant. On February 25, 2016, the DSP obtained a search warrant from
Justice of the Peace Court No. 2 to search the premises located at 79 Terry Drive,
Magnolia, Delaware. The warrant indicated that the residence was to be searched
as well as “all outbuildings located on the property including but not limited to a
wooden shed white in color located in the rear of the property.”2 The magistrate
issued the warrant based on a police investigation of suspected drug dealing and
other drug related crimes allegedly committed by Antwan Seney at the residence.
In support of the warrant, two police officers provided the Justice of the
Peace Court with information regarding their investigation. One of the officers
was Detective Vernon. During December 2015, Detective Vernon contacted a
past-proven, reliable confidential informant (hereinafter “CI”). The CI informed
the police that he knew “Buzzy” was selling crack cocaine in Magnolia, Delaware.
The detectives were familiar with “Buzzy” from previous drug investigations and
knew his real name was Antwan Seney. The CI informed the detective that
“Buzzy” sells large quantities of crack cocaine and that he supplies several other
drug dealers with cocaine. The CI then offered to conduct a controlled buy from
“Buzzy.” Detective Vernon conducted a DELJIS inquiry regarding Antwan Seney
to obtain his address and prior convictions. During the first few weeks of January
2016, the CI continued to inform the police of “Buzzy’s” drug sales from both his
residence at 79 Terry Drive and his wife’s residence in Camden-Wyoming.
During the first two weeks of February 2016, Detective Vernon prompted
the CI to conduct a controlled buy from Antwan Seney. Accordingly, the CI then
2
Affidavit in Support of the Search Warrant at 2 (emphasis added).
3
contacted “Buzzy” and purchased drugs from him at 79 Terry Drive. Detective
Vernon collected and preserved the evidence from the purchase.
During the last two weeks in February 2016, the CI conducted another
controlled buy from “Buzzy” at his residence in Magnolia. The DSP conducted
surveillance of the 79 Terry Drive residence while the CI purchased drugs. The
police observed a male matching Seney’s description make contact with the CI.
Shortly thereafter, the CI left the residence and met with Detective Vernon and
gave Detective Vernon the cocaine he had just purchased from Seney.
Based on the detectives’ training and experience in past drug investigations,
the two detectives provided in the affidavit “[t]hat it is common for drug traffickers
to secrete contraband proceeds of drug sales and records of transactions in secure
locations within their residence and/or their business for their ready access and to
conceal their existence from law enforcement officers,” and that “the drug
trafficker will maintain the balance of the supply at a secure location, usually at
their residence.”3 The affidavit did not reference any outbuildings or the shed at
issue. Nevertheless, the Justice of the Peace Court found the information sufficient
to issue a search warrant for the residence and the outbuilding at 79 Terry Drive.
The police executed the search the next day.
Friend was not a target of the search, nor was he suspected to have been
involved the drug related crimes alleged to have occurred at Seney’s residence at
79 Terry Drive. Nevertheless, when the DSP executed the warrant, they found
Friend in the shed located on the rear of Seney’s property. While searching the
shed, the DSP located 715 bags containing 10.72 grams of heroin and then arrested
Friend.
3
Affidavit in Support of the Search Warrant at 9–10 (emphasis added).
4
Friend filed a motion to suppress asking this Court to suppress all evidence
found pursuant to the search of the shed. He argues that the search warrant lacked
probable cause as to the shed because the information in the affidavit in support of
the search warrant was based on stale, irrelevant, conclusory, unsupported,
speculative and uncorroborated information. Furthermore, Friend argues that the
warrant lacked probable cause to justify a search of the shed because it
insufficiently established a nexus, within its four corners, that demonstrated a
connection between suspected evidence or contraband and the shed located on the
property under investigation. Namely, Friend argues that because the warrant
lacked probable cause that evidence of criminal activity was located in the shed,
the Court must suppress the evidence found therein.4
III. Standard of Review
In a motion to suppress challenging the validity of a search warrant, the
defendant bears the burden of proving that the challenged search or seizure was
unlawful.5 A judge’s decision that a search warrant is supported by probable cause
and therefore should be issued “should be paid great deference by reviewing
courts.”6 The burden of proof in a motion to suppress is by a preponderance of the
4
Friend did not argue in his Motion to Suppress or at oral argument that the police required a
second warrant for the shed, pursuant to Maryland v. Garrison, on the basis that the structure
was his residence separate from Seney’s residence at 79 Terry Drive. 480 U.S. 79 (1987)
(cautioning that the police officers were required to discontinue their search immediately upon
discovering the apartment they were searching was a separate residence than the one intended to
be searched under the warrant). As Friend did not raise this argument, the Court does not
otherwise address it.
5
State v. Sisson, 883 A.2d 868, 875 (Del. Super. Mar. 11, 2005).
6
State v. Holden, 60 A.3d 1110, 1114 (Del. 2013).
5
evidence. 7 In this case, both parties stipulated at oral argument than an evidentiary
hearing was unnecessary and that this decision requires a four-corners analysis.
Namely, a search warrant affidavit “must, within the four-corners of the affidavit,
set forth facts adequate for a judicial officer to form a reasonable belief that an
offense has been committed and the property to be seized will be found in a
particular place.” 8
IV. Discussion
While Friend is unable to show that the magistrate issued the warrant based
on stale, irrelevant, conclusory, unsupported, speculative, or uncorroborated
information, the warrant is insufficient because the affidavit sets forth no facts
establishing a nexus between the illegal activities and the shed. Accordingly,
Friend’s motion to suppress evidence recovered from the shed must be granted.
A. Friend has standing to challenge the search of the shed.
The State argues that Friend did not have standing to object to the search of
the shed because it was not his residence. In response, Friend argues that it was his
residence, and as such, he had an expectation of privacy in the structure.
According to Friend, this provided the necessary standing to challenge the search.
When challenging a warrant in a motion to suppress, the burden is on the
defendant to establish he has standing9 as only those who have standing may
challenge the legality of a search or seizure and demand the suppression of
7
State v. Darling, 2007 WL 1784185, at *1 (Del. Super. June 8, 2007), as corrected (July 3,
2007).
8
Sisson v. State, 903 A.2d 288, 296 (Del. 2006).
9
State v. Felton, 2016 WL 3568523, at *7 (Del. Super. June 22, 2016).
6
evidence. 10 A person has standing to challenge the legality of a search when the
person “has a legitimate expectation of privacy in the invaded space.” 11 A person
has a legitimate expectation of privacy if it is “one society is prepared to recognize
as reasonable.” 12 The courts have consistently held a person has a reasonable
expectation of privacy in one’s home. 13
While the State argued that the shed was not Friend’s residence, the State
conceded that one of the two addresses identified for Friend on its Pre-Trial Case
Report included 79 Terry Drive. As the property was a listed residence for Friend
and the parties concede that he had been sleeping in the shed for some time, he had
a reasonable expectation of privacy in the shed and has standing to challenge the
search. Even if it was not his residence as the State contends, he would still have a
reasonable expectation of privacy in the structure. The United States Supreme
Court has held that the Fourth Amendment protects overnight guests. 14 In the
State’s written response to Friend’s motion to suppress, it acknowledged that he
had been “staying in the shed.”15 Therefore, Friend, at a minimum, had been
sleeping in the shed, making him at least an overnight guest. As such, he has a
reasonable expectation of privacy in the shed and has standing to challenge the
search.
10
Hanna v. State, 591 A.2d 158, 162 (Del. 1991).
11
Rakas v. Illinois, 439 U.S. 128, 143 (1978).
12
Id. at 151.
13
E.g., Payton v. New York, 445 U.S. 573, 589–90 (1979).
14
Minnesota v. Carter, 525 U.S. 83, 90 (1998).
15
State’s Response to Motion to Suppress at 1.
7
B. The warrant was not based on stale, irrelevant, conclusory,
unsupported, speculative, or uncorroborated information.
Friend argues that the search warrant lacked probable cause because the
information contained in the affidavit was stale, irrelevant, conclusory,
unsupported, speculative, and uncorroborated. In his written motion, he does not
provide any support for this argument nor was any provided at oral argument. In
response, the State emphasizes that the police conducted a controlled buy at 79
Terry Drive in February 2016 and the warrant was signed on February 25, 2016.
As such, the State argues, the information provided in the warrant was sufficient.
When staleness is alleged, “the test of temporal proximity is determined on
an ad hoc basis in the light of circumstances of each case.” 16 Probable cause must
be based on current information.17 Here, a confidential informant provided the
police with information regarding drug dealing by Antwan Seney at his residence
from December 2015 through February 2016 when the Justice of the Peace Court
issued the warrant.18 Additionally, the DSP conducted controlled in February
2016, a short time before the magistrate issued the warrant.19 While there is a short
period in between (1) the last controlled buy and the last exchange of information
between the police and the confidential informant, and (2) when the magistrate
issued the search warrant, this gap in time does not make the information stale. 20
16
Gardner v. State, 567 A.2d 404, 410 (Del. 1989) (quoting Jensen v. State, 482 A.2d 105, 111
(Del. 1984)).
17
E.g., Sisson v. State, 903 A.2d 288, 297 (Del. 2006); Gardner, 567 A.2d at 410.
18
Affidavit in Support of the Search Warrant at 4–5.
19
Id. at 5.
20
In Gardner, the Delaware Supreme Court upheld a warrant that set forth information detailing
a two-year history of drug dealing with the most recent information provided ten months prior to
the issuance of the warrant. 567 A.2d at 410. The Court determined this information was not
stale because the evidence was not subject to deterioration or change, the location of the alleged
8
Additionally, the information is clearly not irrelevant, conclusory,
unsupported, speculative, or uncorroborated. The information in the supporting
affidavit was based on a confidential informant who the police had used in the past
and was proven reliable. Furthermore, the information is based, in part, on
controlled purchases from Antwan Seney at his residence. The police conducted
these purchases with the assistance of the confidential informant and provided
surveillance of the residence while they took place. Based on this information, the
Court rejects Friend’s argument that the warrant did not establish probable cause to
search the residence.
C. The warrant lacked probable cause as to the shed because there was not
a sufficient nexus between the items sought and the place to be
searched.
Friend next argues that the warrant did not demonstrate a sufficient nexus to
search the shed because the supporting affidavit failed to provide information that
police would find evidence in the shed or that illegal activity was occurring in the
shed. Namely, Friend argues the warrant lacked probable cause because there was
not a sufficient nexus between the items sought and the place to be searched.
The United States and Delaware Constitutions as well as Delaware statutory
law govern the issuance of search warrants. In order to be valid, the warrant must
comply with all requirements from these various sources.
The Fourth Amendment of the United States Constitution states “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.”21 Additionally, the Delaware Constitution states “no warrant to search any
criminal conduct had not changed, and there was evidence that the target of the investigation
remained at the residence of the alleged location of the drug dealing. Id. at 410–11. For the
same reasons as in Gardner, the information in the warrant at issue here is not stale.
21
U.S. Const. Amend. IV.
9
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.”22
In furtherance of the Delaware Constitutional provision, the Delaware
legislature enacted legislation regarding the issuance of a search warrant. Section
2306 of Title 11 of the Delaware Code requires a search warrant to
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 or 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 found. 23
Furthermore, section 2307(a) of Title 11 of the Delaware Code provides “[t]he
warrant shall designate the house, place, conveyance or person to be searched, and
shall describe the things or persons sought as particularly as possible.” 24
Pursuant to the United States Constitution, the Delaware Constitution, and
Delaware law, a search warrant must describe the place to be searched with
particularity and there must be a nexus between the items sought and the location
to be searched. When determining whether probable cause exists, Delaware courts
use the totality of the circumstances test established by the United States Supreme
Court in Illinois v. Gates.25 Within the four corners of the supporting affidavit, it
“must set forth facts adequate for a judicial officer to form a reasonable belief that
22
D.E. Const. Art. I, § 6.
23
11 Del. C. § 2306.
24
11 Del. C. § 2307(a).
25
E.g., Bradley, 51 A.3d at 431; Sisson v. State, 903 A.2d 288, 296 (Del. 2006); Fink v. State,
817 A.2d 781, 787 (Del. 2003).
10
an offense has been committed and that seizable property would be found in a
particular place.”26 However, when a court reviews the issuance of a search
warrant, it does not “take the form of de novo review.”27 Instead, the reviewing
court is to “pay great deference to the factual inferences drawn by an issuing
magistrate in his probable cause determination.”28 In the case at hand, this Court
reviews the search warrant in this light.
While the warrant described the property to be searched with sufficient
particularity (it specifically identifies the outbuilding at issue as a place to be
searched), whether there was a nexus between the criminal activity and the place to
be searched remains at issue. If there was not a sufficient nexus, the Court must
suppress evidence obtained pursuant to the search.29
In support of suppression, Friend argues that the Delaware Constitution
provides additional protection above that guaranteed under the Fourth Amendment
of the United States Constitution by imposing a stricter nexus requirement. His
argument that the Delaware Constitution provides additional protection is based on
a reading of State v. Bradley, Bradley v. State, and Wheeler v. State.
It is well settled that the Delaware Constitution and the United States
Constitution do not provide identical protections. In this regard, the Delaware
Supreme Court has held that the Delaware Constitution and the Fourth Amendment
are not mirror images of each other.30 The Delaware Supreme Court outlined on
numerous occasions the history behind the Delaware Constitution and why, in
26
Bradley, 51 A.3d at 431 (quoting LeGrande v. State, 947 A.2d 1103, 1107 (Del. 2008)).
27
LeGrande, 947 A.2d at 1108 (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)).
28
Id.29
E.g., Dorsey v. State, 761 A.2d 807, 813–14, 821 (Del. 2000).
30
Dorsey, 761 A.2d at 814.
11
some areas, it provides more protection than the Fourth Amendment of the United
States Constitution. 31
The Delaware Supreme Court has heard several cases requiring an
examination of the nexus requirement providing the Court with ample
opportunities to find that the Delaware Constitution provides an additional layer of
protection regarding the nexus requirement. Despite those opportunities, the Court
has not imposed a stricter nexus requirement than that provided by the Federal
Constitution. The Court does not find a basis for Friend’s argument that State v.
Bradley, Bradley v. State, and Wheeler v. State, together require additional
protection under the Delaware Constitution over that which the Federal
Constitution already provides in this area.
Namely, while the Court in Wheeler noted that the Delaware Constitution
provides “protections somewhat greater than those of the Fourth Amendment,”32 in
a footnote the Court set forth three areas where the Delaware Constitution’s
protections vary from those provided by the Fourth Amendment, incorporated
through the Fourteenth Amendment.33 Noticeably absent from that list was the
nexus requirement. Although the Court may not have intended for the enumerated
areas identified in Wheeler to be a comprehensive list, Friend has not cited
31
E.g., id. at 814–17; Jones v. State, 745 A.2d 856, 863–867 (Del. 1999). For example, in Jones
v. State, the Court had to determine whether the Delaware Constitution’s search and seizure
provisions mean the same thing as similar language found in the Fourth Amendment of the
United States Constitution. 745 A.2d at 864. There, the Court determined that based on
historical divergence from the Fourth Amendment, the two provisions do not mean the same
thing; the Delaware Constitution provides additional protections beyond those provided by the
Fourth Amendment. Id. at 866.
32
Wheeler v. State, 135 A.3d 282, 298 (Del. 2016).
33
Id. at 298 n.71 (stating that the Delaware Constitution provides additional protections in
determining whether a seizure has occurred, that the good faith exception to the exclusionary
rule does not apply in Delaware, and by requiring more than probable cause for the issuance of a
night time search warrant).
12
authority that provides for any additional protection under the Delaware
Constitution in areas outside those articulated in Wheeler.34 Moreover, the Court
has been unable to find any historical evidence of a divergence between the
Delaware Constitution and the Fourth Amendment in terms of the nexus
requirements that would justify finding additional protection under the Delaware
Constitution in that area.
Furthermore, the Delaware Supreme Court has examined the nexus
requirement of a search warrant on several different occasions and has not
articulated additional protections or requirements due under the Delaware
Constitution.35 For instance, in Sisson, where the Court reviewed the nexus
requirement, it analyzed cases from several different states to determine whether
an AOL username was sufficient to establish a nexus between the defendant’s
residence and his computer and an intercepted image of child pornography. 36 In
analyzing other jurisdictions’ evaluation of the nexus requirements based on
Federal Constitutional law, the Court found a sufficient nexus in that case. 37 It did
not analyze the issue at hand in terms of Delaware Constitutional law. Likewise,
its decision did not turn on Delaware statutory search and seizure provisions.
Accordingly, there is a convergence of the Federal Constitution, Delaware’s
Constitution, and Delaware’s statutes regarding the nexus requirement. They
provide parallel protection regarding this matter.
34
See Randy J. Holland, The Delaware State Constitution 43–47 (2011) (setting forth the
Delaware Constitutional history with regard to search and seizure law and three areas where the
Delaware Constitution diverges from the Fourth Amendment).
35
E.g., Sission v. State, 903 A.2d 288 (Del. 2006); Dorsey, 761 A.2d 807.
36
Sission, 903 A.2d at 303–08.
37
Id.13
While the Delaware Constitution does not provide additional protections
regarding a search warrant’s nexus requirement, this Court must determine whether
the warrant at issue here was constitutional under the Fourth Amendment as
applied to the states through the Fourteenth Amendment. In order for a warrant to
be supported by probable cause, there must be “a logical nexus between the items
sought and the place to be searched.” 38
The State argues that there was a nexus between the items associated with
drug dealing and the place to be searched, the entire property at 79 Terry Drive,
including the outbuilding. The supporting affidavit contains information that drug
deals took place at the residence based on controlled buys conducted by a
confidential informant. Based on the detectives’ training and experience, the
detectives knew “that it is common for drug traffickers to secrete contraband
proceeds of drug sales and records of transactions in secure locations within their
residence and/or their business for their ready access and to conceal their existence
from law enforcement officers.”39 The State, while acknowledging that the
outbuilding at issue is not mentioned at any place in the affidavit, argues that this
language establishes the required nexus as to the outbuilding.
To the contrary, Friend draws a distinction between the residence at 79 Terry
Drive and the shed located at the rear of the property. He argues that the nexus
connecting the residence to criminal activity merely implicates the house located at
79 Terry Drive and not the entire property, which would include the shed. He
further emphasizes that the facts contained in the affidavit establish controlled buys
only at the residence at 79 Terry Drive. Friend argues that the portion of the
affidavit that states drug dealers commonly hide drugs and proceeds in their
38
Jones v. State, 28 A.3d 1046, 1057 (Del. 2011); Dorsey, 761 A.2d at 811.
39
Affidavit in Support of the Search Warrant at 9.
14
residence or business is insufficient to justify a search of the shed. He notes that
this information does not implicate the shed in any manner, and mention of the
residence does not implicate the property as a whole.
For a logical nexus to be present, the affidavit must “set forth facts that
would permit an impartial judicial officer to reasonably conclude that the items
sought would be found in those locations.”40 In the supporting affidavit and
warrant at issue here, no mention was made of the shed other than in the
description of the property to be searched.41 The affidavit merely stated drug
dealers often conceal contraband in their residence and/or their business. 42
The common, ordinary meaning of the term residence is the house in which
one lives; it does not include detached outbuildings on the same property.43 Since
within the four corners of the supporting affidavit, the DSP did not mention drugs
or proceeds from drug dealing being concealed in any outbuildings on the property,
an impartial judicial officer could not reasonably conclude that the items sought
would be found in the shed. 44
While there was no independent nexus to the shed itself, the State notes, and
the Court agrees, that there was clearly a nexus to the residence and probable cause
to search it. Based on other jurisdictions’ decisions, one could reasonably argue
that because there was a sufficient nexus to the residence, that nexus was sufficient
to cover a search of the entire property. If the Court were to accept the argument
40
Dorsey, 761 A.2d at 811.
41
Affidavit in Support of the Search Warrant at 2–11.
42
Id. at 9.
43
See Black’s Law Dictionary (10th ed. 2014) (defining residence as “[a] house or other fixed
abode; a dwelling); Webster’s Dictionary (1987 ed.) (defining residence as a dwelling).
44
The affidavit did not mention that the DSP expected to find evidence in the outbuildings. The
State merely made this argument at oral argument.
15
that the nexus for the residence provided a legal basis to search the entire property
including the shed, then the search warrant at issue here would be constitutional.
However, based on a clear reading of State v. Bradley, Bradley v. State, and
Wheeler v. State, the Court must reject that argument.
In State v. Bradley, the Superior Court was confronted with a warrant that
described Dr. Bradley’s main office building and one outbuilding. 45 However,
when the police officers arrived to search the premises, there were a total of four
buildings on the property instead of the two the police officers initially thought. 46
Despite this, the police searched all four buildings. 47 Upon review, the Superior
Court determined that there was a sufficient nexus to search the main building and
one outbuilding. 48 The Court noted the nexus for the main building was clear
because patient files, the items sought, would logically be in the main building
where Dr. Bradley primarily examined patients. 49 However, the nexus for the one
outbuilding was less clear.50 As to that building, there was the lone factor cited in
the affidavit that one victim’s father witnessed Dr. Bradley carrying that patient-
victim to that building. 51 The Superior Court determined that a reasonable
conclusion from this would be that Dr. Bradley used that outbuilding for medical
procedures.52 The court then inferred that “if a patient is taken to an outbuilding to
45
Bradley, 2011 WL 1459177, at *1 (Del. Super. Apr. 13, 2011).
46
Id.47
Id. at *2.
48
Id. at *8.
49
Id.
50
Id.
51
Id.
52
Id.
16
perform a medical procedure, there may be records of what occurred at that
location.”53 Consequently, the Superior Court held that it was reasonable to
believe that the outbuilding “may hold medical files that would be related to the
treatment of his patients.”54 It then held that there was a sufficient nexus to justify
the search of that one outbuilding. 55 Accordingly, the court denied, in part,
Bradley’s motion to suppress with regard to the main office and that one
outbuilding.56
While there was a sufficient nexus for the primary building and the one
outbuilding, the warrant and its supporting documents did not mention the two
remaining outbuildings. The State argued that while the warrant did not mention
the two other outbuildings on the property, the warrant’s identification of the
premises authorized an expanded search to those additional outbuildings because
there was a nexus for the property as a whole. The Court rejected the State’s
argument stating “that it cannot find a legal basis under the warrant for the police
to search the remaining two outbuildings . . . located on Dr. Bradley’s property.” 57
The Superior Court rejected the State’s argument that a nexus for one or two
buildings on a property was sufficient to justify a nexus for all of the buildings
located on the property. The fact that there was not a nexus for the remaining two
outbuildings on the property required the Superior Court to suppress all evidence
that the police found therein. 58
53
Id.
54
Id.
55
Id.
56
Id.
57
Id. at 7.
58
Id.
17
In attempting to avoid suppression, the State argued that the police legally
searched the other two outbuildings because they were part of the curtilage of the
doctor’s office.59 The Superior Court rejected that argument.60 The Court was
reluctant to find that this building was part of the office’s curtilage as it did not
satisfy all four factors identified by the United States Supreme Court in United
States v. Dunn.61 More importantly, the Superior Court was troubled by allowing
the search of this structure through an expanded application (almost an inverse
application) of the curtilage doctrine since this doctrine was established by the
United States Supreme Court to extend Fourth Amendment privacy protections.62
As such, the Superior Court refused to expand the concept of the curtilage doctrine
to allow the State to search a building that it should have specifically addressed in
the affidavit and warrant.63
When the Delaware Supreme Court reviewed the case, it declined to address
Dr. Bradley’s argument regarding the search of the two outbuildings not mentioned
in the warrant.64 The Court merely stated “[a]ny defect in the search of” the two
remaining outbuildings “is immaterial to this appeal, because no evidence collected
from these buildings was introduced at Bradley’s trial.” 65
Though the Delaware Supreme Court declined to address the two remaining
outbuildings on appeal, its analysis in Bradley regarding the other outbuilding
59
Id. at *13.
60
Id.
61
Id.
62
Id.
63
Id.
64
Bradley v. State, 51 A.3d 423, 434–35 (Del. 2012).
65
Id. at 434.
18
mentioned in the warrant, controls this Court’s holding in Friend’s case. Namely,
the Delaware Supreme Court, in affirming the Superior Court, entertained the same
nexus analysis as to the other outbuilding as follows:
[t]he affidavit clearly stated that Bradley used a white outbuilding on
the premises, and that on at least one occasion a father had seen
Bradley carry a patient to the outbuilding . . . . The affidavit of
probable cause supported a reasonable inference that patient files,
whether documentary or photographic, could be found in the
outbuilding . . . .66
That the Supreme Court in Bradley reviewed the link between the evidence
of criminal activity and the outbuilding by applying a separate nexus analysis,
while also affirming the Superior Court’s decision rejecting the curtilage based
argument, controls the disposition of Friend’s case. Furthermore, the fact that the
Bradley case involved a business, with outbuildings near the main office on the
same property does not distinguish it from Friend’s circumstances involving a
residence with an outbuilding. An outbuilding to a residence engenders no less of
an expectation of privacy than does an outbuilding next to an office. The Bradley
decision can be read in no other way than to require an independent nexus for each
and every detached building on a property that the police wish to search.
Furthermore, based on controlling Delaware authority, it is clear that the curtilage
doctrine will not justify a search of the outbuildings on a property based on
probable cause of criminal activity limited to the house on that property.
Other jurisdictions have taken a similar approach when confronted with such
an issue.67 In jurisdictions that refuse to expand the search, courts provide two
66
Id. at 432.
67
See United States v. Smith, 533 F.Supp.2d 227, 231 (D. Mass. 2008) (stating that the court
could find no authority to conclude that a search warrant for a particular residence authorized a
search of the entire property); State v. Hamilton, 290 P.3d 271, 273 (N.M. Ct. App. 2012)
(holding that an independently occupied guesthouse located in the backyard of the residence was
19
primary justifications. One justification for declining to extend a valid search
warrant to the curtilage is that one of the “fundamental characteristics of a search
warrant is that the” search is limited to the place specifically described in the
warrant.68 The person executing the warrant should not have any discretion
regarding where to search. 69 Extending a search warrant that validly authorizes the
search of a home to authorize a search of the curtilage extends the search warrant
beyond what was specifically described, giving the person executing the warrant
too much discretion. Another justification for declining to broadly interpret a
search warrant as preferred by the State in this case is that the United States
Supreme Court recognized the curtilage doctrine in Oliver v. United States as an
extension of privacy, and therefore, it should not be used to justify the inverse –
further infringing upon a person’s privacy interest.70
This Court, however, does not fully agree with the Superior Court decision
in Bradley that the State’s curtilage argument inappropriately twists the curtilage
doctrine. 71 A significant number of jurisdictions have held similar searches to be
justified. These courts have been willing to uphold the search of outbuildings
where the warrant only authorized the search of the home or where there was not
not covered by the search warrant because the warrant did not provide sufficient particularity
regarding the guesthouse); McTyre v. State, 19 S.W.2d 49, 51 (Tex. Crim. App. 1929) (holding a
search warrant for a private residence, outbuildings, and premises did not authorize the search of
an outhouse because that structure was not linked to criminal activity in the supporting affidavit).
68
People v. Caruso, 572 N.Y.S.2d 216, 216 (N.Y. App. Div. 1991).
69
Id.70
Hamilton, 290 P.3d at 276–77.
71
State v. Bradley, 2011 WL 1459177, at *13.
20
an independent finding of probable cause for the outbuildings. 72 In fact, a
significant number have found warrants similar to those in Friend’s case to justify
a search of outbuildings on the property on the basis of the curtilage doctrine.73
Those courts view the curtilage to be “part and parcel of the home,” and therefore,
the person executing the search warrant can search the curtilage and all buildings
thereon pursuant to a valid warrant for the home.74 Some look to the United States
Supreme Court decision in United States v. Ross to justify extending the search to
the curtilage.75 In Ross, the Supreme Court held
72
See e.g., United States v. Furrow, 229 F.3d 805, 816–17 (9th Cir. 2000) (overruled on other
grounds by United States v. Johnson, 256 F.3d 895 (9th Cir. 2001)) (finding a search of the
entire property constitutional because the warrant for the residence and four outbuildings was
sufficient despite the fact that there was only probable cause for the residence and no separate
probable cause that contraband would be found in the four outbuildings); United States v.
Bennett, 170 F.3d 632, 639 (6th Cir. 1999) (holding a search warrant issued for the defendant’s
home authorized a search of the premises including an outbuilding despite the fact that there was
no separate probable cause for the outbuilding); United States v. Gorman, 104 F.3d 272, 275 (9th
Cir. 1996) (holding that a search warrant for the residence authorized a search of the entire
property); Nebraska v. Vicars, 299 N.W.2d 421, 425–26 (Neb. 1980) (finding that a warrant
authorizing the search of a residence and not mentioning any outbuildings on the property
allowed police to search a calf shed on defendant’s property).
73
E.g., Gorman, 104 F.3d at 274; see also United States v. Moore, 743 F.2d 254, 256 (5th Cir.
1984) (holding that the search of the detached garage not specified in the warrant was authorized
under the warrant for the house); State v. Trapper, 269 S.E.2d 680, 684 (N.C. Ct. App. 1980)
(holding a warrant authorizing a search for a house also allowed a search of a shed thirty feet
from the house because it was within the curtilage); State v. Stewart, 274 A.2d 500, 502 (Vt.
1971) (holding the search of a tree was authorized by a warrant to search the house because the
tree was within the curtilage).
74
E.g., Gorman, 104 F.3d at 274; see also Bennett, 170 F.3d at 639 (stating that the search
warrant for the residence covered the search of the shop building within the curtilage of the
residence because the curtilage and the residence are “for all practical purposes one single
location”).
75
E.g., United States v. Cannon, 264 F.3d 875, 880 (9th Cir. 2001); Gorman, 104 F.3d at 275;
United States v. Griffin, 827 F.2d 1108, 1114 (7th Cir. 1987); Walls v. State, 944 A.2d 1222,
1232–33 (Md. Ct. Spec. App. 2008).
21
a warrant that authorizes an officer to search a home for illegal
weapons also provides authority to open closets, chests, drawers, and
containers in which the weapon might be found. A warrant to open a
footlocker to search for marijuana would also authorize the opening of
packages found inside. A warrant to search a vehicle would support a
search of every part of the vehicle that might contain the object of the
search.76
According to the jurisdictions that extend the search to the curtilage, there is
no “privacy based reason why this principle should be restricted to the inside of a
residence and stop at the residence’s threshold.” 77 In this regard, these
jurisdictions find the curtilage of a home to be analogous to a search of containers
inside the house. 78 Therefore, a search warrant authorizing the search of the home
authorizes the search of anywhere on the property that a suspect could hide those
items without the need for separate, independent probable cause recited as to those
places.79 This conclusion is warranted, according to those jurisdictions, because of
the cannon that the greater generally includes the lesser, and in this context, the
warrant is justifying an intrusion of the home, one of the greatest areas of
privacy.80 Based on this cannon, a logical interpretation of the warrant authorizing
the search of the home would also justify the search of the curtilage, which
provides a lesser privacy interest.81
76
United States v. Ross, 456 U.S. 798, 821 (1982).
77
Gorman, 104 F.3d at 275.
78
Id.79
Id.80
United States v. Brown, 822 F.Supp. 750, 754 (M.D. GA 1993), aff’d 50 F.3d 1037 (11th Cir.
1995); see also Gorman, 104 F.3d at 275 (using the privacy interest reasoning in Brown to justify
extending the search to the curtilage).
81
Brown, 822 F.Supp. at 754.
22
In addition to the Bradley decision foreclosing that approach in the instant
case, the jurisdictions upholding such a search use reasoning inconsistent with the
Delaware Supreme Court in Wheeler. While the Wheeler case, in the context of
computer related searches, did not directly address the defendant’s nexus
argument, the Court rejected general warrants.82 General warrants provide the
police with “blanket authority to indiscriminately search persons, houses, papers,
and effects.”83 In so holding, the Court distinguished between a general warrant
and a warrant that is merely overbroad.84
In Wheeler, the warrants sought to permit a search of any personal computer,
any digital or optical data storage device, any cell phone, any digital camera, any
and all data stored on the items seized, and any file stored electronically or in print.
The Court found them to be general warrants. 85 While the Wheeler decision did
not directly address the nexus requirement, it strongly supports the proposition that
a warrant needs to have an independent source of probable cause linking each
building searched on a single property.
Based on the Bradley decisions and the Wheeler decision, this Court must
reject the argument that clear probable cause to search the residence alone was
sufficient to justify a search of the curtilage separately, including the shed. The
supporting affidavit was devoid of facts linking the shed to any illegal activity and
did not contain any facts alleging that it was likely that evidence would be found in
82
Wheeler v. State, 135 A.3d 282, 296–99 (Del. 2016).
83
Id. at 296.
84
Id. The Court noted that a general warrant is one that allows “a general, exploratory
rummaging in a person’s belongings” whereas an overly broad warrant “describe[s] in both
specific and inclusive generic terms what is to be seized, but it authorizes the seizure of items as
to which there is no probable cause. Id.
85
Id. at 295.
23
that outbuilding. As such, this was an unconstitutional search and the evidence
found must be suppressed from use at trial.
V. Conclusion
For the aforementioned reasons, Friend’s motion to suppress is GRANTED.
24