State v. Briscoe ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
) ID No. 2004003492
v. )
)
SHUAKA M. BRISCOE, )
)
Defendant. )
Submitted: November 17, 2021
Decided: November 30, 2021
OPINION AND ORDER ON DEFENDANT’S
MOTION TO SUPPRESS: DENIED
Matthew C. Keating, Deputy Attorney General, Wilmington, Delaware, Attorney for
the State of Delaware
John S. Malik, Esquire, Wilmington, Delaware, Attorney for Defendant.
Jones, J.
1
Defendant, Shuaka M. Briscoe (“Briscoe”) has filed a Motion to Suppress to
challenge the admissibility of evidence resulting from a search of his person, his
vehicle, and the vehicle he was detained in, as well as any and all statements made
by him in response to custodial interrogation and processing. For the reasons that
follow, Defendant’s Motion to Suppress is DENIED.
There is no dispute that on April 21, 2021, around 9:30 PM, Safe Street
Officers Gaetan MacNamara (“MacNamara”), Matthew Rosiao (“Rosiao”), and
Sean Nolan (“Nolan”) of the Wilmington Police Department and SPO Joseph Scioli
(“Scioli”) of Probation and Parole found Shuaka Briscoe (“Briscoe”) sitting in the
front passenger seat of a white, Chevrolet Cruze with a dark/black color interior,
parked on east 17th Street. The officers approached the vehicle and viewed Briscoe
wearing a camouflage jacket. There was another occupant in the vehicle, Seth
Briscoe, who was in the driver’s seat. Upon making contact with the vehicle, officers
immediately detected the odor of marijuana and smoke emanating from the car. Both
Briscoe and the other occupant, Seth Briscoe, were removed from the vehicle and
the latter admitted to smoking marijuana in the vehicle.
It is also undisputed that the officers had knowledge that Briscoe was
previously convicted of Possession of a Narcotic Schedule 1 Controlled Substance
within 1,000 feet of a School in 2010, which prohibits Briscoe from possessing a
firearm. Prior to making contact with Briscoe, the officers determined that Briscoe
2
had a pending summons for a violation of probation, for failure to complete a court-
ordered course addressing a conviction for Driving Under the Influence. This
conviction would revoke Briscoe’s license or driving privileges until he completed
a DUI “Treatment Program” pursuant to 21 Del. C. §2732(3).
It is not contested that MacNamara then conducted a search of Briscoe which
produced a key. The key was to an unoccupied, Chevrolet Malibu, dark in color,
which was also parked on the same block, about 25 feet away from the white
Chevrolet Cruz. Prior to this contact with police, months prior, Briscoe had been
arrested for disregarding a Police Signal and multiple traffic charges. The dark in
color Chevy Malibu matched the car that fled from the police in those circumstances.
Scioli went to the Chevy Malibu because, based on his training and experience, he
knew individuals would likely put drugs and/or firearms in a near-by car so that they
would go undetected, otherwise known as a “stash car.” He shined his flashlight into
the interior of the car and determined that the center console of the Malibu was
consistent with the console displayed in the picture shown to the officers which was
provided by a confidential information and where Briscoe was also holding a gun.
(See below). Scioli inserted the key into the Malibu, and it fit the vehicle’s lock. At
this point, Scioli contacted his supervisor to get permission to search the vehicle by
way of an administrative warrant.
3
There is no dispute that at the scene of the incident, SPO Scioli of Probation
and Parole was with the officers and obtained an administrative warrant to search
the two vehicles after discussion with his supervisor. Both vehicles were transported
to Wilmington Police Department and searched. The search revealed one (1) black
Glock 22 with an extended magazine, two (2) 19 rounds of ammunition with the
magazine with an additional round in the gun’s chamber, one (1) bag of cocaine,
four (4) small bags of marijuana, a wallet with Briscoe’s driver’s license and
paperwork displaying Briscoe’s name. The previous items were discovered in the
Malibu, and in the Cruze, three (2) bags of suspected marijuana were discovered.
There is no question that Briscoe himself was also searched incident to arrest
at the police station. During the search, officers discovered another bag of suspected
cocaine. After this discovery, Briscoe made the following statement to officers,
“y’all finally got me.”
What is factually disputed is how the officers arrived at east 17th Street on the
night in question. According to the State, on April 21, 2021, during roll call between
6:00 and 7:00 pm that evening, Officers MacNamara and Rosiao were informed by
a past-proven, reliable, confidential informant (“CI”) that Briscoe was in possession
of a firearm. The CI texted a picture of Briscoe to both MacNamara and Rosiao and
the text said that Briscoe had posted to his social media account. In the picture,
Briscoe is holding a black in color, Glock handgun with an extended magazine,
4
sitting in what appeared to be a motor vehicle with gray interior. Briscoe appeared
to have his arm on top of a gray armrest, presumed to be a center console. The CI
additionally informed the officers through text that Briscoe is frequently “up north.”
Officers, based on their own personal knowledge and experience with Briscoe, knew
he was frequently in the area of the 900 block on East 17 th Street in Wilmington,
Delaware, in the northern part of the city. MacNamara accessed Briscoe’s Instagram
account and discovered on the account the same picture that the CI had texted to
both Rosiao and MacNamara.
According to Briscoe, a confidential informant did not provide the
information that led the officers to east 17th Street on the night in question. According
to Briscoe, law enforcement were covertly monitoring Briscoe’s activity on social
media and it was as a result of this covert monitoring that law enforcement saw the
picture with Briscoe holding a gun and led to the chain of events described above.
STANDARD OF REVIEW
On a Motion to Suppress evidence in a warrantless search or seizure, the
burden of proof lies with the State. A search occurs only where “the individual
manifested a subjective expectation of privacy in the object of the challenged
5
search,” and that expectation is one “society [is] willing to recognize … as
reasonable.”1
Where an individual is on probation, Delaware requires only that probation
officers have reasonable grounds to conduct an administrative search of a
probationer’s home.2 This is true even though probation officers may not follow
every technical requirement of the Department of Corrections search and seizure
regulations.3 “The special nature of probationary supervision justifies a departure
from the usual warrant and probable cause requirements for searches, but a search
of a probationer’s home must be reasonable.”4 Reasonable suspicion exists where,
based on the totality of the circumstances, a probation officer has a “particularized
and objective basis for suspecting legal wrongdoing.”5
Where officers receive an anonymous tip regarding a probationer’s
involvement in criminal activity, probation officers must follow the proper
procedures, specifically Procedure 7.19. Procedure 7.19 requires that the probation
officer “assess independently the reliability of the information provided to them.”6
In Culver v. State, the Delaware Supreme Court held that:
Procedure 7.19 makes it plain that probation officers must rationally
assess the facts made known to them before reaching the critical
1
Everett v. State, 186 A.3d 1224, 1229 (Del. 2018).
2
Culver v. State, 956 A.2d 5, 11 (Del. 2008).
3
Id.4
Id.5
Sierra v. State, 958 A.2d 825, 828 (Del. 2008).
6
Culver, 956 A.2d at 7.
6
conclusion that there is a reasonable basis to search a probationer’s
dwelling. Procedure 7.19 specifically requires:
In evaluating reliability of information, was the information
detailed, consistent, was the informant reliable in the past, and
consider the reason why the informant is supplying information.7
The totality of the circumstances is also considered in determining whether a
confidential informant’s tip is enough to satisfy a showing of reasonable suspicion
and the informant’s credibility, reliability and basis of knowledge are key to this
analysis.8
ANALYSIS
THE CONSTITUTIONAL CHALLENGE
Briscoe contends that law enforcement found out about the gun by covertly
monitoring his social media account, and that such covert monitoring violates the
Fourth Amendment to the United States Constitution and Article I, Section 6 of the
Delaware Constitution. Specifically, Briscoe advances that such covert monitoring
violates the reasonable expectation of privacy in social media posts.
The first factual question that this Court must resolve is whether law
enforcement was covertly monitoring Briscoe’s activity on social media or whether
a confidential informant provided the picture at issue here to the officers.
7
Id. at 10.
8
Sierra, 958 A.2d at 829.
7
Based on the record developed, this Court finds by a preponderance of the
evidence that a CI, who was past proven and reliable, was involved in the case and
that it was the information of the CI that led law enforcement to Briscoe. The
argument that covert monitoring by law enforcement was involved in this case is just
that – an argument. There is simply no credible evidence to support Briscoe’s
assertion of covert monitoring. Having reached this factual conclusion, this Court
finds that Briscoe’s expectation of privacy argument is controlled by the Delaware
Supreme Court’s decision in Everett v. State.9
In Everett, the Court concluded that the defendant had no expectation of
privacy in a picture he posted to social media.10 A detective had used the picture to
obtain a search warrant to search the defendant’s residence.11 The detective in
Everett monitored the defendant’s Facebook profile for approximately two years by
creating a fake name and profile and sending a “friend request” to the defendant.12
The defendant accepted the “friend request” and the detective was able to see the
defendant’s posts.13 The detective observed a picture posted by the defendant of a
nightstand with a handgun, a Mercedes car key, a large amount of cash, a pay stub,
two cell phones, and a framed photograph of the defendant wearing a black T-shirt
9
186 A.3d 1224 (Del. 2018).
10
Id. at 1236.
11
Id. at 1225.
12
Id.13
Id.8
and a red necklace.14 The defendant himself was not in the picture.15 A search
warrant was obtained by the officer based on the picture posted on defendant’s social
media and the officer’s own independent investigation to corroborate the picture. 16
The defendant claimed that the monitoring of his Facebook account by the
officer was a violation of his constitutional rights.17 In evaluating this argument, the
Court employed a two-step analysis.18 First, the Court considered whether the
monitoring violated the Delaware or United States Constitution.19 The Court found
that it had not and its analysis concluded.20 The Court concluded that the defendant
did not have a reasonable expectation of privacy in his social media post because he
voluntarily shared it with his “friends,” including the officer’s fake profile.21
The Everett Court recognized that Delaware had not yet confronted this issue,
but cited to cases from other jurisdictions as well as federal cases to support its
conclusion, which was:
We resolve the case on narrow grounds – namely, that the Fourth
Amendment does not guard against the risk that the person from whom
a “friend request” and to whom one voluntary[il]y disclosed such
information might turn out to be an undercover officer or a “false
friend.” One cannot reasonably believe that such “false friends” will
not disclose incriminating statements or information to law
14
Id. at 1226.
15
186 A.3d at 1226.
16
Id.
17
Id. at 1227-28.
18
Id. at 1228.
19
Id.
20
Id. The second prong of the Court’s two-step analysis is not relevant for the purposes of the instant matter because
it relates to making a determination as to whether there was probable cause for the search warrant, absent the tainted
evidence, and the search at issue here was warrantless.
21
186 A.3d 1229.
9
enforcement – and acts under the risk that one such person might
actually be an undercover government agent. And thus, one does not
have a reasonable expectation of privacy in incriminating information
shared with them because that is not an expectation that the United
States Supreme Court has said that society is prepared to recognize as
reasonable.22
As the defendant in Everett did, Briscoe himself posted a picture of himself
holding a gun to his social media account. As such, he “assumed the risk that one of
[his friends] might be a government officer or share his information with law
enforcement.”23 Here, one of Briscoe’s “friends” shared his social media post with
Officers MacNamara and Rosiao. Officer MacNamara was also able to
independently view Briscoe’s Instagram account and confirmed that the picture was,
in fact, on the account. In applying the framework employed by the Court in Everett,
this Court does not need to go further than the first prong as it finds that Briscoe did
not have a reasonable expectation of privacy in his social media because he
voluntarily shared it with his “friends.” MacNamara was able to corroborate the
information provided by the CI by viewing the picture on Briscoe’s social media
himself. MacNamara testified that he did not remember whether Briscoe’s account
was public or whether he requested to be Briscoe’s “friend” in the past. Regardless,
Briscoe either voluntarily made the decision to have his account viewed by the
22
Id. at 1236.
23
Id.10
public, or to grant MacNamara access to his account by “accepting his friend
request.”24
Boscoe also relies on Carpenter v. United States,25 a United States Supreme
Court decision decided shortly after Everett, in support of his argument that he had
a reasonable expectation of privacy in his social media post. In Carpenter, the issue
before the Court was “whether the Government conducts a search under the Fourth
Amendment when it accesses historical cell phone records location that provide a
comprehensive chronicle of the user’s past movements[,]” or cell-site location
information (CSLI).26 The Court held that such a search is a violation of a person’s
constitutional rights. “A cell phone faithfully follows its owner beyond public
thoroughfares and into private residences, doctor’s offices, political headquarters,
and other potentially revealing locales.”27 The Court expressed that this posed a
greater privacy concern than GPS tracking it addressed in another decision.28 The
Court also, as to CSLI, rejected the third-party doctrine or “voluntary exposure”
noting that CSLI “is not truly ‘shared’ as one normally understands the term.”29 The
Court reasoned that absent a person disconnecting from a network, “there is no way
24
MacNamara testified if he had requested access to the account, the account would not have displayed his personal
name. However, this does not change this Court’s decision being that in Everett the officer there also created a fake
profile, using a fake name and profile picture. The Court nonetheless concluded that there was no violation of the
defendant’s reasonable expectation of privacy. Everett, 186 A.3d at 1225.
25
138 S.Ct. 2206 (2018).
26
Id. at 2211.
27
Id. at 2218 (internal citations omitted).
28
Id.29
Id. at 2220.
11
to avoid leaving behind a trial of location data. As a result, in no meaningful sense
does the user voluntarily ‘assume [] the risk’ of turning over a comprehensive dossier
of his physical movements.”30
Both Everett and Carpenter address information that a person chooses to share
with others via social media. The picture at issue here is not information that a
business collected without Briscoe’s knowledge or intent to use. Briscoe, on his own
volition, made the post. What Briscoe chooses to post, when to post, and who can
view it, are all decisions he makes on his own accord. Briscoe made the conscious
decision to take the picture, post the picture on his social media account, and allow
others to view the picture. In short, Carpenter does not overrule the Everett decision
and Everett is controlling.31
Finally, Briscoe argues that the adoption of 11 Del. C. § 1335(a)(9)(b)
evidences an expectation of privacy of shared photos or videos. Section § 1335
provides that a person who has consented to the capture or possession of a visual
depiction of nudity or sexual conduct “retains a reasonable expectation of privacy
with regard to the reproduction, distribution, exhibition, publication, transmission or
other dissemination of that depiction, even if another person possesses a copy of the
30
Id. (internal citations omitted).
31
Briscoe also cites to United States v. Chavez, 423 F.Supp.3d 194 (W.D.N.C. 2019), a case decided by the Western
district of North Carolina, in support of his position. This Court finds that Chavez is inconsistent with Everett, and
because Everett was decided by this State’s Supreme Court and the former is merely persuasive authority, this
Court chooses not to follow it.
12
depiction.”32 According to Briscoe, this statute undercuts the rationale in Everett that
a person who voluntarily posts a picture that friends can see does not have a
reasonable expectation that the picture or post will not be disclosed. This Court
disagrees. A law that addresses nudity, and the obvious expectation of privacy
involved with nudity, lends no support to an argument that there is an expectation of
privacy in general social media postings.
Therefore, this Court concludes that Everett controls the instant matter and
that Briscoe did not have a reasonable expectation of privacy in his social media
post. As such, there has been no violation of Briscoe’s Fourth Amendment rights or
a violation based on an unlawful search and seizure under the Delaware Constitution.
THE ADMINISTRATIVE SEARCH
Briscoe’s second argument for suppression of evidence is that the State cannot
make a showing that the police officers and probation officer substantially complied
with Delaware statutory law and the Administrative Regulations governing the
search of probationers and their property.
Reasonable grounds must exist for probation officers to conduct an
administrative search of a probationer’s property in which he has a privacy interest.33
Probation officers are not required to “satisfy each technical requirement of the
32
11 Del. C. § 1335(a)(9)(b).
33
Culver v. State, 956 A.2d 5, 11 (Del. 2008).
13
search and seizure regulations of the Department of Correction.”34 In determining
whether a search should be conducted, the Delaware Supreme Court has set forth
factors for a probation officer to consider:
Generally, the following factors should be considered when deciding
whether to search: The Officer has knowledge or sufficient reason to
believe the offender possesses contraband; The Officer has knowledge
or sufficient reason to believe the offender is in violation of probation
or parole; There is information from a reliable informant indicating the
offender possesses contraband or is violating the law; the information
from the informant is corroborated; Approval for the search has been
obtained from a Supervisor.35
Applying these factors to this case, this Court finds that SPO Scioli had
reasonable grounds to conduct an administrative search of Briscoe’s vehicle and the
vehicle in which he was sitting.
As to the first factor, SPO Scioli had knowledge or sufficient reason to believe
that Briscoe possessed contraband. During roll call that evening, Scioli was present
when the picture was received from the CI was displayed among the officers. He
was also present when MacNamara accessed Briscoe’s account and viewed the same
picture. The picture depicted Briscoe wearing the same jacket he was wearing at the
time of his arrest. SPO Scioli was with officers when they approached Briscoe.
When officers approached the vehicle to make contact with Briscoe they
34
Donald v. State, 903 A.2d 315 (Del. 2006).
35
Sierra v. State, 958 A.2d 825, 829 (Del. 2008) (citing Delaware Department of Corrections Bureau of Community
Corrections Probation and Parole Procedure No. 7.19, § VI.E (amended effective June 5, 2011).
14
immediately detected the odor of marijuana and smoke emanating from the car. SPO
Scioli was further aware that Briscoe’s probation prohibited him from using and/or
possessing controlled substances. In short, prior to conducting the search, SPO Scioli
believed Briscoe to be smoking marijuana in the parked car, which was a
misdemeanor and a violation of Briscoe’s probation.36
As to the second factor, SPO Scioli had knowledge or sufficient reason to
believe that Briscoe was in violation of probation. As previously noted, SPO Scioli
suspected Briscoe was using and/or possessing marijuana, which his probation
prohibited. Scioli’s suspicion was based on the odor of marijuana and the smoke
emanating from the vehicle when officers made contact with Briscoe and also Seth
Briscoe’s statement to officers that they were smoking marijuana. Also, SPO Scioli
was aware that Briscoe was believed to have posted the picture earlier that day
wearing a camouflage jacket, the same one he was wearing when officers made
contact with him, while holding a firearm inside a motor vehicle that had a gray
console.37 Scioli was aware that Briscoe possessed a key to a Malibu parked between
36
On this basis alone, a search of Briscoe and the cars was justified. See State v. Swigget, 2019 WL 245292 (Del.
Super. Ct. 2019).
37
Briscoe also argues that there is no evidence or testimony establishing when the picture was actually taken or
when it was posted. Briscoe argues that without this there was no basis for the administrative search. This Court
does not find this argument compelling . There is no requirement that the State must establish the recency of a
picture relied upon by law enforcement in making an arrest. Rather, the fact that Briscoe was on Level I probation at
the time of his arrest and was found to be in violation of his probation for possessing and/or using contraband –
based on the odor and smoke emanating from the vehicle when officers made contact with him – the State must only
establish by a preponderance of the evidence that there were reasonable suspicion for the search. Reasonable
suspicion is “evaluated in the context of the totality of circumstances to assess whether the detaining officer had a
particularized and objective basis to suspect criminal activity.” Jose Lopez-Vazquez v. State of Delaware, 956 A.2d
1280, 1288 (Del. 2008). The totality of the circumstances of the surrounding situation is “viewed through the eyes of
a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an
15
twenty-five (25) to fifty (50) feet away that had a center console consistent in color
and shape as the one in the picture. Scioli was provided that key after MacNamara
conducted a search incident to arrest of Briscoe, as it was believed that he had
smoked marijuana in violation of his probation. Scioli was also aware that the key
in Briscoe’s pocket fit the Malibu. Not only did Briscoe’s probation prohibit him
from possessing and/or using marijuana, but he is also a person prohibited from
possessing a firearm due to a prior felony conviction, which Scioli knew.
Briscoe contends that by Scioli putting the key into the Malibu that this
constituted a search. This Court does not agree. In State v. Hall38, the defendant was
arrested and people came to the police station asking about keys to a vehicle they
believed were in the defendant’s possession. The defendant denied that he had the
keys but an officer observed a set of keys to a Ford on his key chain. The officer
took the keys to Kent Apartments to see if there was a vehicle there that matched the
keys. The vehicle was located and the officer was able to unlock the vehicle with the
key. The officer then relocked the vehicle’s door without opening it and waited to
receive consent from the owner to conduct a search.39 This Court concluded that “the
insertion of the key into the car door lock was merely for identification purposes and
officer’s subjective interpretation of those facts.” Id. Applying this standard, there is no question that based on the
totality of the circumstances, Scioli had reasonable suspicion for the search.
38
1997 WL 528318, at *2 (Del. Super. Ct. 1997).
39
Id. at 2.
16
was not a ‘search’ within the meaning of the Fourth Amendment.”40 Here, SPO
Scioli testified that once he put the keys in the Malibu’s lock and was able to unlock
it, he immediately called his supervisor to obtain permission to conduct an
administrative search of the vehicle. Scioli did not enter the vehicle until he obtained
the administrative warrant. As such, there was no violation of Briscoe’s
constitutional rights.
As to the third factor, Scioli was informed by officers that a past-proven
confidential informant provided the picture to officers.41 Scioli was also present
when MacNamara viewed the picture on Briscoe’s account on his own. This
information indicated that Briscoe was in possession of a firearm which his
probation prohibits, as well as his prior felony conviction.
As to the fourth factor, the information from the informant was corroborated
as Officer MacNamara was also able to view the picture on Briscoe’s social media
account before making contact with him. Additionally, the informant told officers
that Briscoe was frequently “up north,” and officers knew, based on their own
knowledge and experience with Briscoe, that Briscoe did frequent the area of the
900 block of East 7th Street in Wilmington, Delaware, in the northern section of the
40
Id. at 6.
41
MacNamara and Rosiao both testified to receiving the text from the CI on the day in question. This particular CI
had supplied information in the year prior to the events described herein eight (8) to ten (10) times. On three (3) to
five (5) of those occasions, the CI’s efforts resulted either in arrests or the apprehension of drugs and/or guns. The
officers testified that the CI had been paid by them for this information.
17
city. Briscoe was, in fact, found where the CI said he would be found. All of this
information was relayed to SPO Scioli prior to conducting the search.
As to the last factor, SPO Scioli did discuss the details of the investigation
with his supervisor and then obtained the administrative search warrant for the two
(2) vehicles. Therefore, this Court concludes that SPO Scioli had reasonable grounds
to conduct an administrative search of the two (2) vehicles.
Briscoe also argues that SPO Scioli did not comply with Procedure 7.19.
Where officers receive an anonymous tip regarding a probationer’s involvement in
criminal activity, probation officers must follow the proper procedures, specifically
Procedure 7.19.42 Procedure 7.19 requires that the probation officer “assess
independently the reliability of the information provided to them.” 43 In Culver v.
State, the Delaware Supreme Court held that:
Procedure 7.19 makes it plain that probation officers must rationally
assess the facts made known to them before reaching the critical
conclusion that there is a reasonable basis to search a probationer’s
dwelling. Procedure 7.19 specifically requires:
In evaluating reliability of information, was the information
detailed, consistent, was the informant reliable in the past, and
consider the reason why the informant is supplying
information.44
42
Culver, 956 A.2d at 11.
43
Id.
44
Id. at 11.
18
The totality of the circumstances is also considered in determining whether a
confidential informant’s tip is enough to satisfy a showing of reasonable suspicion
and the informant’s credibility, reliability and basis of knowledge are key to this
analysis.45
This Court does not agree with Briscoe and finds that SPO Scioli did properly
comply with Procedure 7.19. The past-proven confidential informant provided the
tip to the officers, who then relayed that information to SPO Scioli. Scioli was also
present when MacNamara accessed Briscoe’s social media account. The informant
provided officers a picture of Briscoe that he had posted on his social media account
in what appeared to be a motor vehicle with gray interior, wearing a camouflage
jacket, and holding a black in color firearm. The informant also informed police that
Briscoe was frequently “up north.” When officers and SPO Scioli made contact with
Briscoe he was “up north,” in a motor vehicle with dark/black color interior, parked
on east 17th Street, wearing a camouflage jacket, and an examination of a vehicle
parked between twenty-five (25) and fifty (50) feet away unveiled a black Glock 22
with an extended magazine and Briscoe’s personal belongings, including his driver’s
license, were in the car. The key in Briscoe’s pocket was the key to this car.
Despite Briscoe’s contentions, this Court finds both Culver v. State and Sierra
v. State distinguishable from this case. In Sierra, officers received the information
45
Sierra, 958 A.2d at 829.
19
from an unidentified DOH employee, not an informant, that the defendant possessed
drugs in his residence.46 Additionally, there was no evidence about why the CI knew
about the drug delivery.47 Further, there was no indication that the confidential
informant was past-proven reliable.48 And finally, as to why the CI was providing
the information the officer testified that “he assume[d] the informant has something
to gain by providing the tip,” and the Court agreed. 49 The court concluded that the
“self-interested top alone was insufficient to establish a basis for a search.”50
In Culver, the Court stated that the information the informant provided was
“nothing more than his speculative analysis of traffic patterns in front of Culver’s
home and the caller’s conclusion that those pattens established that drug activity was
afoot.”51 Additionally, the officer’s continued surveillance of the home provided
nothing to corroborate the tip.52 The information was found to be “neither internally
consistent with its own inferred conclusion nor with the later independent
investigation undertaken in an attempt to corroborate it.”53 The information that was
provided by the caller was merely “observable information.”54 The State also
conceded that the informant was not past-proven reliable.55 Lastly, there was no
46
Id. at 831.
47
Id.48
Id.49
Id. at 832.
50
Id.51
Culver, 956 A.2d at 11.
52
Id. at 12.
53
Id.54
Id.55
Id.20
evidence of the caller’s intent in providing the tip.56 Therefore, the Court concluded
that the “the probation officers improperly relied on conclusory, inconsistent, an
unreliable information that cannot sustain a reasonable suspicion to search Culver’s
home.”57
In the instant matter, all of the following was done prior to the execution of
the administrative warrant. Officers MacNamara and Rosiao and SPO Scioli relied
on information they were given from a CI, not a third-party intermediary. The
information was verified by accessing Briscoe’s social media account. Additionally,
they described the CI as a past-proven confidential informant. The picture provided
to officers by the CI included illegal activity because of Briscoe’s status as a person
prohibited from possessing a firearm due to a felony conviction and was not merely
“observable information.” The officers were able to corroborate the information
provided to them by the CI – the location of Briscoe in the northern part of the city,
as well as Officer MacNamara viewing the post himself. Officers were also able to
identity Briscoe based on their prior interactions with him as the person in the social
media post. When officers made contact with Briscoe he was wearing the same
camouflage jacket he was wearing in the picture. Officers were able to compare the
interior of the car in the picture with the interior of the vehicle, including the one
56
Id. at 13.
57
Culver, 956 A.2d at 14.
21
Briscoe was in at the time officers made contact and the Malibu parked on the same
street and determine that the interior of the Malibu was consistent with the picture.
Based on the foregoing, this Court concludes that SPO Scioli properly
followed Procedure 7.19, and therefore there was a reasonable basis to conduct the
searches of the two (2) vehicles.
WHEREFORE, for all the reasons stated herein, the Defendant’s Motion to
Suppress is DENIED.
IT IS SO ORDERED.
/S/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge.
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