State v. Walker

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
) I.D.: 2402004359
v. )
)
RASHAD WALKER )
)
Defendant. )
Submitted: October 4, 2024
Decided: October 9, 2024
OPINION AND ORDER
Upon Consideration of Defendant’s Motion to Suppress,
DENIED
Paige Todaro, Esquire, Deputy Attorney General, Delaware Department of Justice,
820 N. French Street, 7th Floor, Wilmington, Delaware, Attorney for the State.
Alicia Brown, Esquire, Assistant Public Defender, State Office Building, 820 N.
French Street, 3rd Floor, Wilmington, Delaware, Attorney for the Defendant.
JONES, J.
INTRODUCTION
On February 8, 2024, as the result of a protective sweep, incident to an
administrative search prompted by a different probationer, of Defendant’s listed
probation residence, Wilmington Police Department Sergeant Sean Nolan seized
Defendant’s firearm. Defendant, a Level III probationer, was charged with
Possession of a Firearm by a Person Prohibited and Possession of Ammunition by a
Person Prohibited. On July 29, 2024, Defendant filed the instant Motion to
Suppress. This is the Court’s decision on that Motion.
FACTUAL AND PROCEDURAL OVERVIEW
On October 4, 2024, a suppression hearing was held. At the suppression
hearing, the State proved the following facts by a preponderance of the evidence.
At approximately 5:24pm on February 8, 2024, Detective McNamara, of the
Wilmington Police Department, and Special Probation Officer Scioli, of Probation
and Parole, stopped the vehicle of Marquan Berry-Mills, a Level II Probationer, after
it was flagged regarding a shoplifting investigation. 1 Mr. Berry-Mills gave officers
consent to search his vehicle after the officers saw marijuana in plain view on the
center console.2 From the vehicle search, officers found approximately 117.5 grams
of marijuana and drug paraphernalia prompting SPO Scioli to send SPO Collins and
Sergeant Nolan to Mr. Berry-Mill’s listed probation address at 701C North Jefferson
1
Docket Item (“D.I.”) 18, at 2.
2
D.I. 25, at 2.
2
Street, Wilmington, Delaware.3 SPO Scioli testified that it is common practice to
immediately send officers from a car search scene to the probation address for an
administrative search because timeliness is key. It is common knowledge among
officers that “phone calls will be made” to move contraband from the probationer’s
residence. SPO Scioli then called Supervisor Wolfram and relayed to her
information he had from Mr. Berry-Mills’ traffic stop so that she could determine
whether there was reasonable suspicion to conduct an administrative search of 701C
North Jefferson Steet. Supervisor Wolfram gave her approval, and SPO Scioli
notified SPO Collins, who was already at the residence, and indicated for him to
conduct the administrative search. Sergeant Nolan, who was with SPO Collins,
began a safety sweep of the residence.
Upon arrival at the residence, Mr. Berry-Mills’ sister, Domunicque Berry-
Mills, informed the present officers, Sergeant Nolan, SPO Collins, and Detective
Rosembert, that she resided there along with her boyfriend, the Defendant, and
pointed them towards the location of Mr. Berry-Mills’ bedroom. 4 She informed
officers that another female was currently upstairs.5 She further stated that she was
unsure whether others were present or where they might be within the house.
Sergeant Nolan and SPO Collins were concerned about the lack of handle over the
3
Id. at 2-3.
4
Id. at 3-4; D.I. 18, at 3.
5
D.I. 25, at 4.
3
number and location of people in the residence and conducted a safety sweep of the
home. 6 During this sweep, Sergeant Nolan opened a closet door in Defendant’s
bedroom and discovered a loaded firearm with an extended magazine loaded with
27 rounds of ammunition.7 Ms. Berry-Mills told officers the firearm was not hers
and gave consent for officers to search the bedroom.8 There was a child sleeping in
the bedroom, and Ms. Berry-Mills informed officers it was her and Defendant’s
child. 9
Officers then discovered Defendant was a Level III probationer and that the
residence was his listed probation address.10 SPO Scioli contacted Supervisor
Wolfram to obtain approval for an administrative search for Defendant.11
DEFENDANT’S CONTENTION
Defendant seeks to suppress the seizure of Defendant’s firearm on the basis
that it was seized during an illegal search of his bedroom during an administrative
search prompted by and for probationer, Mr. Berry-Mills – not the Defendant. The
State contends, and this Court agrees, that Defendant’s firearm was lawfully
obtained in plain view to the officers while conducting a protective sweep of
Defendant’s home.
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.
11
Id. at 5; D.I. 18, at 4.
4
STANDARD OF REVIEW
On a motion to suppress, the burden of proof is on the State to show by a
preponderance of the evidence that the contested evidence was not obtained as the
product of an illegal search and seizure.12
ANALYSIS
The Fourth Amendment of the United States Constitution and Article I, §6 of
the Delaware Constitution shields an individual’s right from unreasonable searches
and seizures. 13 A warrantless search is per se unreasonable.14 However, there are
exceptions under certain circumstances that allow officers to conduct a warrantless
search.15
One exception to a warrantless search is an administrative search. The State
has a special interest in the supervision of a probationer.16 Therefore, probationers
have reduced expectations of privacy, and officers may conduct a valid, warrantless
search of a probationer’s residence “when the search is prompted by the officer’s
reasonable suspicion and is conducted in accordance with Department of Corrections
(“DOC”) procedure.”17 Officers may search areas they have “reason to believe . . .
12
State v. Barrett, 2019 WL 5110126, at *2 (Del. Super. Oct. 11, 2019).
13
Id.14
Id.15
Id.16
State v. Monroe, 2015 WL 721441, at *4 (Del. Super. Feb. 18, 2015).
17
Id; see 11 Del. C. § 4321(d)(“Probation and parole officers shall exercise the same powers as constables under the
laws of this State and may conduct searches of individuals under probation and parole supervision in accordance
with Department procedures while in the performance of the lawful duties of their employment.”)
5
is owned, possessed, or controlled by the probationer.” 18 The probationer does not
need “exclusive control” over these areas. 19 Officers complied with the procedure
in obtaining approval for and initiating the administrative search regarding Mr.
Berry-Mills. The basis of the search shifted from an administrative search to a
protective sweep after Ms. Berry-Mills informed officers other people were
potentially present in the residence.
A protective sweep is an exception to a warrantless search and is defined as a
“quick and limited search of premises . . . conducted to protect the safety of police
officers or others. It is narrowly confined to a cursory visual inspection of those
places in which a person might be hiding.” 20 A protective sweep does not require
prior authorization and must be based on reasonable grounds pertaining to officer
safety.21 It is proper to conduct a protective sweep when a searching officer
“posses[es] reasonable belief based on specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warranted the officer
in believing that the area swept harbored an individual posing a danger to officer or
others.”22 Considered under the totality of the circumstances, the potential presence
of another person or persons within a residence warrants reasonable articulable
18
State v. Tucker, 2007 WL 1065134, at *3 (Del. Super. Apr. 10, 2007).
19
Id.20
Maryland v. Buie, 494 U.S. 325, 327 (1990).
21
Monroe, 2015 WL 721441, at *5.
22
State v. Wallace, 2011 WL 2552640 (Del. Super. Mar. 4, 2011)(quoting Buie, 494 U.S., at 327).
6
suspicion for officers to conduct a protective sweep. 23 It is reasonable for officers
to infer that “relatives will lie about probationer’s whereabouts” making a protective
sweep valid even if a co-habitant says that no one else is home. 24 At the time
Defendant suggests the officers did not comply with the proper administrative search
procedures, officers were not conducting an administrative search but rather a
protective sweep of the residence. During a protective sweep, officers can search
any area where a potentially dangerous person may be.25 Therefore, Sergeant Nolan
opening the closet door in Defendant’s bedroom is valid because a person can easily
hide in a closet. 26
Seizure of contraband that is in plain view is proper because “the mere
observation of an item in plain view does not constitute a Fourth Amendment
search.”27 Sergeant Nolan’s discovery of the firearm in plain view in this case is
synonymous to the discovery of drug paraphernalia in Monroe.28 In that case,
officers found and lawfully seized drug paraphernalia in plain view while conducting
23
Wallace, 2011 WL 2552640, at *3 (holding the protective sweep was justified because officers had a reasonable
articulable suspicion to believe probationers were home based on a parked vehicle outside and the reasonable
inference that the co-habitant was potentially lying about probationers’ whereabouts.)
24
Id.25
Id.26
The difference between Defendant’s case and cases cited in Defendant’s Motion is that in the cited cases, the
plain-view contraband was not lawfully seized as the result of a protective sweep. In both Reese and Tucker, the
evidence suppressed was unlawfully obtained from areas outside the scope of the administrative search. See State v.
Tucker, 2007 WL 1065134 (Del. Super. Apr. 10, 2007) (granting a motion to suppress when officers conducted an
administrative search in a co-habitant’s bedroom that probationer told officers not to go into and of which
probationer had no control over); State v. Reese, 2010 WL 3707793 (Del. Super. Sept. 13, 2000) (granting a motion
to suppress when officers searched an entire empty apartment despite sufficient signs that only one bedroom was the
probationer’s).
27
State v. Swiggett, 2019 WL 245292, at *3 (quoting Hardin v. State, 844 A.2d 982, 985 (Del. 2004)).
28
2015 WL 721441, at *5-6.
7
a protective sweep on the suspicion that other people were in the residence.29
Officers were able to confirm the drug paraphernalia was the defendant’s based on
identifying clues indicating the defendant occupied the bedroom it was found in.30
In this case, Ms. Berry-Mills, the co-occupant of the bedroom, denied ownership of
the gun and confirmed to officers that she shared the bedroom from which the
firearm was seized with the Defendant.31
The Delaware Supreme Court held substantial compliance, not absolute
compliance, with DOC guidelines is sufficient to lawfully conduct an administrative
search.32 Probation and Parole Procedure 7.19B requires officers and their
supervisors to have a “case conference” for the supervisor to determine whether
there is reasonable suspicion for the execution of an administrative search.33
Defendant contends SPO Scioli’s phone conversation with Supervisor Wolfram at
the scene of Mr. Berry-Mills’ car search was not a sufficient case conference.
Defendant argues there needed to be more back-and-forth dialogue to meet the
requirements. The court disagrees with this argument and finds that SPO Scioli and
Supervisor Wolfram’s conversation substantially complies with the case conference
requirements. According to SPO Scioli’s testimony, he relayed all necessary
29
Id. at *5.
30
Id. at *2.
31
D.I. 25, at 4.
32
Pendleton v. State, 990 A.2d 417, 419 (Del. 2010) (citing Fuller v. State, 844 A.2d 290, 291 (Del. 2004)).
33
Probation and Parole Procedure 7.19B (D). Probation and Parole update the procedures on June 30, 2023 and
eliminated the search checklist that was required before conducting an administrative search.
8
information to Supervisor Wolfram for her to come to decision, and a longer
conversation was not in their best interest because of the importance of timeliness in
this situation.
Finally, Defendant points to the rule in Probation and Parole Procedure
7.19B34 which only allows probation officers, not police officers, to conduct
administrative searches. Defendant argues the State violated this rule by allowing
Sergeant Nolan to be part of the search. Defendant’s contention that Sergeant Nolan
should not have taken part in the administrative search is misguided because at the
time Sergeant Nolan was in Defendant’s bedroom he was conducting a protective
sweep and not an administrative search.
Under the totality of the circumstances, the officers had reasonable,
articulable suspicion to conduct a protective sweep of Defendant’s residence and
lawfully discovered and obtained Defendant’s firearm in plain view during this
protective sweep. Additionally, an occupant of the bedroom searched advised that
the gun found was not hers but the Defendants. The seized firearm was not the result
of an unlawful, warrantless search, and the Defendant’s protections against
unreasonable searches and seizures were not violated.
34
Id. at (VI)(F.3).
9
CONCLUSION
For the stated reasons Defendant’s Motion to Suppress is DENIED.
IT IS SO ORDERED this 9th day of October, 2024.
/s/ Francis J. Jones, Jr.
Francis J. Jones Jr., Judge
cc: Original to Prothonotary
10