State v. Brown

THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. No. 2306012215
)
)
DAWON BROWN, )
Defendant. )
Date Submitted: February 13, 2024
Date Decided: March 1, 2024
Upon Defendant’s Motion to Suppress
This 1st day of March, 2024, upon consideration of Defendant Dawon Brown’s
Motion to Suppress1, the State’s Response in Opposition and the record in this
matter, it appears to the Court that:
1. Defendant Dawon Brown (“Defendant”) was arrested on June 21, 2023,
following the execution of a search warrant at his home where guns and drugs were
discovered.2 Defendant was thereafter indicted on two (2) counts of Possession of a
Firearm During the Commission of a Felony, two (2) counts of Possession of a
Firearm by a Person Prohibited, one (1) count of Possession of Ammunition by a
Person Prohibited, two (2) counts of Drug Dealing, one (1) count of Tampering with
1
State v. Dawon Brown, Crim. Act. No. 2304012215, D.I 7.
2
D.I. 1.
Physical Evidence, one (1) count of Conspiracy Second Degree and two (2) counts
of Endangering the Welfare of a Child.3
2. Defendant filed the instant motion, moving to suppress the evidence
seized from his residence at 724 North Pine Street, Wilmington, Delaware, on June
21, 2023, by the Wilmington Police Department (hereinafter “WPD”).4 Defendant’s
motion argues the search warrant obtained for his residence by WPD fails to
establish probable cause in that: 1) it was based, in part, upon stale information; 2)
the Affidavit to the warrant (hereinafter “Affidavit”) is based upon hearsay and
unreliable information; and that 3) the warrant does not provide authority for WPD
to have seized weapons during their search.5
3. The State opposes this motion, arguing the Affidavit establishes
probable cause based upon proper, reliable information.6
4. A review of a magistrate’s finding of probable cause in issuing a search
warrant is limited to a “four corners” review.7 A magistrate may only issue a search
warrant upon a finding of probable cause; a magistrate’s determination is to be given
great deference by a reviewing court.8 The Affidavit supplied in support of the
3
D.I. 3.
4
D.I. 7.
5
D.I. 7 & 13.
6
D.I. 10.
7
State v. Holden, 60 A.3d 1110, 1114 (Del. 2013).
8
Id. (internal citations omitted).
warrant must be reviewed as a whole and evaluated for probable cause while looking
at the totality of the facts supplied. For instance, a tip from a confidential informant
may give rise to a finding of probable cause if the totality of the other facts provided
support such a finding.9 A reviewing court must be assured that the magistrate had
a substantial basis for their finding, and if such basis exists, the warrant should be
upheld.10 If a portion of the search warrant application is found to be improper, the
reviewing court may strike that portion and review the remaining facts for a probable
cause determination.11
5. The search warrant at issue here states, in the “Greetings” section, that
the magistrate was satisfied that:
“there is probable cause to believe that certain property, namely 724
North Pine Street, Wilmington, Delaware, 19801… is used or intended
to be used for Title 16, Section 4754, Delaware Code [sic],
Manufactures, delivers, or possession with intent to manufacture,
deliver a controlled substance to wit: heroin/fentanyl and any drug
related paraphernalia commonly used to process, package, and/or
consume drugs are being concealed on (premises)(person) [sic]
described in the annexed affidavit and application or
complaint…[sic]”.12
6. The Affidavit and Application of the warrant states the Affiant has
reason to believe 724 North Pine Street contains “…heroin/fentanyl, paraphernalia,
9
Id.10
Id.11
Thomas v. State, 305 A.3d 683, 703 (Del. 2023).
12
Def. Mtn. to Suppress, Ex. A.
weapons and proceeds of heroin/fentanyl sales…”13 Further, the application seeks,
in paragraph 7 of the application page, “Any rifle, pistol, handgun or any device that
a short may be discharged or any weapon manifestly utilized to protect illegal
drugs.”14
7. The Affidavit goes on, in a new set of numerical paragraphs, to list the
probable cause in support of the warrant. The Affidavit details: “[d]uring the second
week of January 2023, the [Drug Organized Crime and Vice Division (hereinafter
“DOCV”)] unit received information from an anonymous source …who advised of
illegal drug sales originating from the inside of 724 North Pine Street, Wilmington,
DE. The source advised of a possible suspect named Brandy, identified as a black
female with braids. The source advised that there is a firearm inside the residence.”15
8. The Affidavit then states during the first week of May, 2023, the
“DOCV unit received a drug watch complaint from the WPD administration,
advising of drug sales conducted out of 724 North Pine Street from possible suspect,
Emanuel Turner [].” The Affidavit includes that in the second week of June, 2023,
“the DOCV unit received information, originating from a community contact, who
13
Id.14
Id.15
Id. at ¶ 3.
advised that a third party informed of drug dealing that is occurring at all hours of
the day from renters located at 724 North Pine Street, Wilmington, Delaware.”16
9. The Affidavit then details the surveillance that the DOCV conducted
on this property during the third week of June, 2023. The surveillance revealed that
multiple subjects were seated on the front steps of this property conversing with one
another. It was observed that a black male, “in his 30’s of age, of average height
and weight, with a black beard and light brown twisty style hair which was shoulder
length…wearing a black baseball cap and wearing a black fanny pack…over his
shoulder, and appeared to have the word ‘LEVIS’” written on it was observed
entering and leaving the house multiple times. This male was identified, “[t]hrough
investigative means” to be Defendant.17
10. At one point, Defendant was observed having just exited the residence,
and was approached by a subject “on foot and briefly engaged in a verbal
conversation…before [they walked] northbound together” and into an alleyway out
of WPD sight. Within 10-20 seconds of the two entering the alleyway, the subject
emerged first, followed by Defendant, who returned to 724 North Pine. The subject
was then stopped by WPD and was found to be in the possession of heroin. The
subject stated the heroin was just purchased from someone known as “Wani” and
16
Id. at ¶ 4, 5.
17
Id. at ¶ 6.
positively identified Defendant, via a single photograph provided by WPD.18 The
Affiant details how the activity observed by Defendant was “consistent with and
indicative of a street level drug deal[.]”19 Two zip lock bags containing a white
powdery substance, “consistent with heroin/fentanyl” was recovered from the
subject who was stopped.20
11. Finally, the Affiant states that the DOCV received a tip, in the third
week of June, 2023, from a past proven, confidential source, that a black male
subject, nicknamed “Wani” sells heroin on the 700 block of North Pine Street.21 The
Affiant also confirmed through a DELJIS inquiry, that Defendant lists 724 North
Pine Street, Wilmington, as his address. The confidential informant identified
Defendant as “Wani.”22
12. First and foremost, Defendant is correct that the information provided
in January, 2023, is stale and it will not be considered in the review of the four
corners of the warrant to determine if probable cause existed.23 While there is no
precise calculation for a set amount of time in which information becomes stale for
such an analysis, the determination is to be made given the facts of each particular
18
Id. at ¶ 10.
19
Id. at ¶ 9.
20
Id.
21
Id. at ¶ 13.
22
Id. at ¶ 14.
23
Sisson v. State, 903 A.2d 288 (Del. 2006); State v. Puglini, 374 A.2d 822 (Del.
1977).
case. In this case, the information was known to WPD approximately six (6) months
prior to the more recent tips before any confirmatory action was taken. Taken
together with the fact the information was provided by an anonymous source – with
no further details listed in the warrant – who provided information regarding a
seemingly unrelated female named “Brandy,” this information is not appropriate for
consideration in a probable cause analysis.24
13. That said, the remainder of the information provided in the warrant
establishes probable cause for the search of 724 North Pine Street. The Affidavit
details multiple information sources all telling WPD about drug sales occurring from
this location. To the extent that the reliability of the information sources can be
questioned, i.e. the “drug watch complaint” listed – with no further information
provided – and the “community contact” – again, with no further information
provided, the totality of the tips including the information provided with respect to
the past, proven reliable confidential informant lend credence to the reliability of the
information. While the less informative sources alone would be insufficient, looking
at the tips collectively and in conjunction with the observations of the officers was
well as the past, proven reliable informant, the magistrate had a substantial basis to
support a finding that probable cause exists to search 724 North Pine Street.25
24
Puglini, 374 A.2d at 823.
25
Holden, 60 A.3d at 1114; Morgan v. State, 962 A.2d 248 (Del. 2008); c.f. State
v. Spady, 2018 WL 4896335 (Del. Super. Oct. 8, 2018) (invalidating a controlled
14. Finally, Defendant contends the seizure of the firearms was invalid, as
the search warrant fails to give authority to such a search, based upon the “Greetings”
page only granting authority to search for “heroin/fentanyl and any drug related
paraphernalia commonly used to process, package, and/or consume drugs are being
concealed on (premises)(person) [sic] described in the annexed affidavit and
application or complaint…[sic].”26
15. Defendant’s argument, while not misplaced, is unavailing. It is without
question that this warrant lacks attention to detail. However, the warrant mentions
the request to seize firearms throughout the Application and Affidavit, as listed
above. The failure to also include firearms on the “Greetings” page of the warrant
is akin to a “scrivener’s error.” It is clear from the intent of the warrant that weapons
were sought, and information was included in the Affidavit regarding the correlation
between drug dealing and the use of firearms.27 Therefore, it is reasonable to assume
buy for probable cause determination because the subject was out of view from the
officers in a multi-unit apartment building casting doubt on whether the drugs in
question were, in fact, purchased by Spady; which is distinguishable from the facts
in this case.).
26
Def. Mtn. to Suppress, Ex. A.
27
The Affidavit in paragraph 17, lists out commonly known activities of “Drug
Traffickers”, which includes the possession of firearms in items “F” and “I”. It is
not lost on the Court that the Affiant previously mentioned Defendant’s activities
were consistent with “street level drug sales” in paragraph 9, however, given the
standard of proof required to establish a nexus for a search, it is met here, albeit
with an admonition from the Court to be more mindful of the quality of the
Affidavit submitted.
the omission of detailing “firearms” from the Greetings page, while certainly not
ideal or condoned by the Court – does not invalidate the seizure.
16. Even if it would, Title 11, Section 1447A of the Delaware Code
prohibits possessing a firearm during the commission of a felony. Notably,
Defendant was charged with two (2) counts under this statute.28 The weapons-
related offenses of which Defendant was charged globally stem from the location of
eight (8) rounds of ammunition located on the windowsill of the living room,29 a
loaded Ruger EC9S 9mm handgun in a holster on the Defendant’s nightstand,30 and
a loaded Springfield Armory XDM 9mm handgun located under a bed in an adjacent
bedroom.31 Under 11 Del C. §1447A, Defendant was charged with possession the
Ruger EC9S 9mm handgun located in his bedroom and the Springfield Armory
XDM 9mm handgun located in the adjacent bedroom, during the commission of a
felony in Counts I and II of the Indictment. Therefore, even if the seizure of the
firearms wasn’t legally authorized on the face of the warrant, these weapons may
have been lawfully seized under the plain view doctrine.
28
D.I. 3, Counts I & II. It is not clear from the record whether the officers knew of
Defendant’s alleged prohibited status at the time of the seizure, therefore the
Court’s finding is limited to offenses under this section and not 11 Del. C. § 1448.
29
State’s Resp. to Mtn. to Suppress, p. 4.
30
Id. at p. 5.
31
Id.
17. Based upon the record before the Court from the parties’ submissions,
it appears as if the plain view doctrine is satisfied in that: 1) the officers were
lawfully in the house pursuant to the search warrant; 2) the items evidentiary value
would have been immediately apparent given the very nature of the evidence at hand
– firearms; and 3) the officer had lawful right of access to the firearms.32 This
finding is qualified, however, because the full record has not been established insofar
the parties did not request an evidentiary hearing on this matter, given the four-
corner review, and this issue was raised in detail in the Defendant’s “Sur-Reply” to
his initial motion.33 Should the record in this case be further expanded to question
whether this doctrine has been met, Defendant is free to re-litigate this finding.
THEREFORE, for the reasons stated above, Defendant’s Motion to Suppress
is DENIED.
IT IS SO ORDERED.
_____________________________
Danielle J. Brennan, Judge
Cc: Brett Fallon, Esquire, Deputy Attorney General
Diane Coffey, Esquire, counsel for Defendant
Original to Criminal Prothonotary
32
Hardin v. State, 844 A.2d 982, 985-986 (Del. 2004) (citing Minnesota v.
Dickerson, 508 U.S. 366 (1983).
33
D.I. 13, 15.