Culver v. State

956 A.2d 5

Jeffrey CULVER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 348, 2007.

Supreme Court of Delaware.

Submitted: June 18, 2008.

Decided: August 5, 2008.

Court Below: Superior Court of the State of Delaware in and for New Castle County, C.A. No. 0610016178.

Upon appeal from the Superior Court.

REVERSED, VACATED

and

REMANDED.

Albert M. Greto, Wilmington, DE, for appellant.

Gregory E. Smith, Department of Justice, Wilmington, DE, for appellee.

Before STEELE, Chief Justice, HOLLAND, JACOBS, RIDGELY, Justices and NOBLE, Vice Chancellor,^* constituting the court en banc.

STEELE, Chief Justice, for the Majority:

We address, for the first time, the proper procedures that parole and probation officers must follow after they receive a tip from police officers under their statutory authority to search probationers.¹ In this case, probation officers searched probationer-appellant Jeffery Culver's home after police "tipped off" probation officers that they suspected that he was involved in drug activity. On appeal, Culver contends that the probation officers violated 11 Del. C. § 4321, and Parole and Probation Procedure 7.19 promulgated under that statute, when they decided to search his home.² Specifically he contends that 7.19 does not permit probation officers to search a probationer's dwelling based solely on a request by police officers. Instead, he argues that 7.19 requires probation officers to assess independently the reliability of any information to determine whether that information, in the ordinary course and scope of the probation officer's supervisory duties, would support a reasonable suspicion to search a probationer's dwelling.

A majority agree that 7.19 requires probation officers to assess any "tip" relayed to them and independently determine if a reasonable suspicion exists that would, in the ordinary course of their duties, prompt a search of a probationer's dwelling. In this case, the probation officers accepted, without conducting any independent analysis, and relied on information police received from an anonymous caller whose "tip" made it clear the caller had no personal information about Culver consistent with illicit drug activity. Had probation officers independently analyzed the information consistent with their own agency's regulations, they would have concluded that no reasonable suspicion existed to search Culver or his dwelling. We therefore hold that probation officers unlawfully searched Culver's dwelling and that the fruits of that unlawful search must be suppressed. To hold otherwise would render 11 Del. C. § 4321 and the regulations promulgated under it meaningless.³ The Superior Court's denial of Culver's motion to suppress is REVERSED, his conviction is VACATED and the case is REMANDED for action consistent with this Opinion.

FACTS

In October 2006, the Superior Court placed Culver on Level III probation following a September 2006 conviction on two counts of misdemeanor theft and one count of criminal mischief. Culver's probationary conditions forbade him from possessing a weapon.

On October 16, 2006, Lt. Ogden of the Delaware State Police received an anonymous tip from an unknown caller with no past proven reliability. The tipster told Lt. Ogden that he suspected drug activity at Culver's home at 3210 Sapphire Court. The caller also described Culver's physical characteristics and stated that Culver drove a silver Mercedes Benz. According to Lt. Ogden's suppression hearing testimony, the caller specifically said that "it was obvious that [Culver] was involved in drug activity based on the volume of vehicles that would come to his residence, stay there for a few minutes and leave." It is clear from Lt. Ogden's testimony about the tip that the informant did not, in fact, have any personal knowledge or contact with Culver to support any conclusion about Culver being engaged in "drug activity." The caller provided Lt. Ogden with some easily observable information such as a physical description of Culver, an address (which turned out to be Culver's dwelling), and claimed that a silver Mercedes Benz with a Pennsylvania license plate was being used for the drug activity. There is no evidence that the caller had offered any basis from which an objective person could conclude the caller had personal knowledge of Culver's activities.⁴ Thus, at best, the caller's "tip" could be viewed as conclusions the caller drew based solely on observations from the street.

Despite the tipster's lack of personal knowledge, Lt. Ogden decided to follow up and went to Culver's address that same day, October 16. Lt. Ogden noticed a silver Mercedes Benz with a Pennsylvania license plate parked directly in front of Culver's house. Before Lt. Ogden left, he noticed that two black males got out of a car — which Lt. Ogden concluded was a rental based upon his training and experience — and entered Culver's home. Approximately ten minutes later, the two men, Culver and a fourth person, left Culver's house and drove away in the silver Mercedes.

Lt. Ogden contacted Corporal Daniels of the Delaware State Police and requested his immediate assistance. Lt. Ogden remained in front of Culver's dwelling and Daniels followed Culver's car. After noticing that the Mercedes had tinted windows, Daniels requested and received authorization from Lt. Ogden to stop and search the Mercedes and the four occupants. The police officers used a K-9 to search the car and its occupants. The police found nothing incriminating.

Undeterred by an evidently flimsy and unreliable tip followed by an utterly fruitless search, Lt. Ogden contacted Patrick Cronin, Culver's probation supervisor, and informed Cronin that the State Police had received an anonymous tip. Cronin testified that Lt. Ogden "advised me that [Lt. Ogden] had received a tip that an individual at 3210 Sapphire was involved in drug activity, that he was doing surveillance there, and observed something that he had found to be suspicious, a car stop and identified [sic] one of the participants in the suspicious activity was on Level III probation, and identified him to me as Jeffrey Culver, the defendant." At this point, (1) Lt. Ogden had only received an uncorroborated anonymous tip, not alleged to be based on personal knowledge, and (2) the police had searched (with the assistance of a K9) Culver's Mercedes, which was reportedly "involved in drug activity" — but that search yielded absolutely no evidence of drugs. While Cronin evidently knew of a "car stop," the record does not reveal whether Lt. Ogden told him State Police had searched Culver's car and found no incriminating evidence.

Shortly after Lt. Ogden contacted Cronin, Cronin contacted Melissa Roberts, the probation officer responsible for Culver's supervision. At this point, Cronin and Roberts decided to conduct an administrative search of Culver's home under Probation and Parole Procedure 7.19. Cronin testified they decided to conduct the search for three reasons: (1) Culver had failed drug tests during probation; (2) Culver had missed one curfew; and (3) Cronin had received information from a "reliable source"⁵ that Culver possessed contraband. Cronin also explained the basis for those three reasons to search Culver's home.

First, Cronin testified that Culver's failed drug test occurred in September 2006, shortly after Culver entered probation. According to Roberts, by the time of Culver's third drug test, the levels of marijuana in Culver's system had been coming down, and by his fourth drug test, he tested negative. To Roberts, this showed that Culver had stopped or at least decreased his use of marijuana. Nevertheless, Roberts considered it a factor in the analysis of whether to search Culver's dwelling. Second, Cronin testified that Culver had recently called in for his curfew about 20 minutes late. Third and finally, Cronin testified that Lt. Ogden "is my reliable source" and "he also gave me the characterization of the information that he had initially received in the form of the tip and his observations following the tip...."⁶ However, neither Cronin nor Roberts identified any known fact before Lt. Ogden's call that would have, in the ordinary course of business, triggered an administrative search.

Lt. Ogden testified that either he or another police officer remained in front of Culver's home until the probation officers searched it. Lt. Ogden testified that "I had had some conversations with Probation and was pretty certain that he going to be violated...." Lt. Ogden "decided to stay [at Culver's house] so that in case, you know, any phone calls were made, somebody could come and take something out of the house, that kind of thing, so I just kind of stayed there until [probation officers] got there to secure it."

When the probation officers searched Culver's home, they found a loaded .357 Magnum revolver, hidden in a heating vent, and a detoxification kit commonly used to attempt to circumvent or defeat urine screening for drug use. Probation officers did not find any drugs or evidence of drug dealing.

Probation officers took Culver into custody for violating his probation. While he was in custody at the VOP Center, an arrest warrant issued for possession of a weapon by a person prohibited. Detective David Kline went to the VOP Center to arrest Culver on the weapons charge. In response to being handed the arrest warrant, Culver stated: "I know why you're here. They found my gun. I'm a rap promoter, and I have a lot of money, and the gun is for protection."

Before trial, Culver moved to suppress (1) the evidence found at his home as the product of an unlawful warrantless search and (2) his statement to Detective Kline as a violation of his Miranda rights. A Superior Court judge denied the suppression motion.⁷ In April 2007, a Superior Court jury convicted Culver on the weapons charge.⁸

DISCUSSION

We first address whether the Superior Court judge...