State v. Irwin

252 A.3d 471

STATE of Delaware,

v.Christopher IRWIN, Defendant.

ID No. 2003010641

Superior Court of Delaware.

Submitted: January 20, 2021

Decided: April 30, 2021

James K. McCloskey, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

Thomas A. Foley, Esquire, Wilmington, Delaware, Attorney for Defendant.

OPINION

Adams, J. Defendant Christopher Irwin ("Irwin") filed this Motion to Terminate Probation after officers with Operation Safe Streets ("Safe Streets Task Force" or "Safe Streets") detained Irwin at his first visit with Probation & Parole ("P&P") and conducted warrantless searches of his house and vehicle. In his Motion, Irwin requests that the Court terminate the remainder of his probation, arguing that the searches of his house and vehicle violated the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution; Article I, §§ 6 and 7 of the Delaware Constitution ; and Delaware statutory law.

This opinion presents two issues: (1) whether P&P had reasonable suspicion to conduct the searches, specifically whether P&P substantially complied with Department of Correction, Bureau of Community Corrections, Probation and Parole Procedure 7.19 ("Procedure 7.19"), which permits warrantless searches of a probationer's house; and (2) if P&P violated Irwin's rights by the search, but seized no evidence, what remedy is appropriate. The second issue presents a matter of first impression in this Court. For the reasons set forth below, Irwin's Motion to Terminate Probation is GRANTED, in part.

I. Factual Background ¹

A. Operation Safe Streets

Safe Streets is a statewide crime reduction initiative that partners P&P officers with police officers "to identify, monitor, and investigate high risk and/or repeat offenders" who have demonstrated a history of criminal behavior. Safe Streets officers do not supervise probationer caseloads and are not re-entry coordinators.

The New Castle County Police Department ("NCCPD") is one of the police departments that partners with Safe Streets. Safe Streets officers accompany NCCPD officers on drug and gun investigations and vehicle stops. Safe Streets officers also engage in proactive patrols, conduct home visits, administrative searches, office visits, and investigate individuals who are not on probation.

B. Christopher Irwin's Arrest

In March of 2020, NCCPD and Safe Streets conducted a non-probation investigation into suspected drug dealing by a man named Joseph McDaniel ("McDaniel"). During this investigation, NCCPD Detective Donald Witte observed interactions indicative of drug dealing between McDaniel and Irwin on Laura Lee Court in Bear, Delaware. As a result of this investigation, NCCPD took McDaniel into custody.

Shortly after McDaniel's arrest, NCCPD stopped Irwin's vehicle. During this stop, Irwin admitted he had methamphetamine and marijuana in his vehicle. He further admitted that he went to McDaniel's residence to sell the methamphetamine and that he had additional drugs and firearms at his residence. Irwin then consented to a search of his house. During the search of Irwin's house, NCCPD seized 101.2 grams of marijuana, 6.3 grams of methamphetamine, digital scales, firearms, firearm rounds, and $1,450.00 cash. NCCPD subsequently arrested Irwin because of the search.

On October 7, 2020, Irwin pleaded guilty to Drug Dealing – Tier 2 Methamphetamine, Possession of a Firearm by a Person Prohibited, and Conspiracy Second Degree. The Court sentenced Irwin to a total of fifteen years at Level V, suspended for eighteen months at Level III probation. Following Irwin's initial intake at the courthouse, P&P directed him to report to the Hares Corner Probation and Parole Office ("Hares Corner") by Tuesday, October 13, 2020, where he was assigned to Probation Officer ("P.O.") Joseph Manno.

C. NCCPD Receives a Tip About Defendant's Purported Sales of Methamphetamine

On October 11, 2020, Detective Witte provided information to P.O. William Walker² from a past proven reliable confidential informant ("CI").³ P.O. Walker testified that the CI told Detective Witte that Irwin was selling drugs out of his house and that Irwin possessed a "large bag" of drugs.⁴ P.O. Walker also testified that the CI told Detective Witte that Irwin was not concerned about his urinalysis at probation, even though he was actively smoking marijuana, because Irwin knew "the first urine screens were free."⁵

During this conversation about the CI, Detective Witte and P.O. Walker learned that Irwin would be reporting to P&P on October 13. At this point, Detective Witte and P.O. Walker came up with a plan: if Irwin tested positive for marijuana at his initial visit to P&P, they would perform an administrative search of his house. Therefore, Detective Witte requested that P.O. Walker ask a supervisor for approval to obtain a urine screen as soon as Irwin reported to probation to "corroborate the information that there was marijuana usage" to form the basis for an administrative search.

On October 13, 2020, Irwin reported to probation at the Hares Corner office. Immediately after reporting, P.O. Jacob Selba, the officer on duty,⁶ instructed Irwin to provide a urine sample. The urine sample tested positive for marijuana, and P.O. Selba told Irwin to flush the sample down the toilet rather than submitting it to a lab.⁷ Another probation officer immediately handcuffed Irwin, placed him in a holding cell, and took his keys, cell phone, and wallet.⁸

Within minutes of Irwin's positive urine screen for marijuana,⁹ P.O. Selba informed P.O. Walker, who then called Detective Witte to inform Witte of the positive urine screen. Detective Witte, who was not on duty that day, arrived at Hares Corner within twenty-five minutes where he met with P.O. Michael McHugh, another probation officer assigned to Safe Streets. Detective Witte went to Irwin's holding cell where he confronted Irwin about using drugs on probation and asked if there were any weapons at Irwin's house. Irwin disputed any drug use while on probation and denied having weapons in his house. Detective Witte then retrieved Irwin's keys and left, leaving Irwin handcuffed inside the holding cell.

P.O. Walker testified that sometime after Irwin's positive urine screen, he called his supervisor, Carlo Pini ("Officer Pini"), to obtain approval for the search of Irwin's house. According to P.O. Walker, during the one-to-three-minute phone call, he discussed the Arrest-Search Checklist as required by Procedure Number 7.19 with Officer Pini. After this brief conversation, Officer Pini purportedly gave verbal consent for the search of Irwin's house. There is no real-time evidence of this phone call occurring, such as a text message, phone record, or DACS entry.¹⁰

D. The Searches of Irwin's House and Vehicle

After leaving Irwin's cell, P.O. McHugh used Irwin's keys to open his vehicle and search it. Officer Pini testified that he could not remember if he approved the search of Irwin's vehicle, but did not believe he did. There is no evidence that P.O. Walker or any other member of Safe Streets sought approval to search Irwin's vehicle or that Officer Pini approved the search. P.O. McHugh did not find evidence of any crime in Irwin's vehicle.

P.O. Walker and P.O. McHugh and NCCPD Detectives Witte and Kenneth Guarino then went to Irwin's house. After arriving, the officers used Irwin's house key to open his back door. The State produced a three-minute-long video of the beginning of the search from Detective Witte's body camera, where it shows the four officers "clearing"¹¹ Irwin's house and commenting on items therein, such as BB guns and bullets in Irwin's basement. After three minutes, Detective Witte turned his body camera off.¹² Detective Witte testified that he did this because NCCPD is only there to assist with clearing the house, but not the search of the house.

P.O. Walker testified that only Safe Streets probation officers conducted the search of the house without the assistance of NCCPD, but there is no body camera footage from either NCCPD detective or the Safe Streets probation officers to corroborate this testimony. Detective Witte did testify, however, that he stayed inside while the Safe Streets probation officers performed their search. The Safe Streets officers did not seize any evidence from the search of Irwin's house, but Irwin testified that $1,200 was missing from his house.¹³

After the search took place—approximately three hours after Irwin was placed in the holding cell—P.O. Walker met with Irwin in his holding cell. Irwin and the State dispute what subsequently transpired. Irwin claims that P.O. Walker told him that Safe Streets found ammunition inside his house and that P.O. Walker asked Irwin if he still wanted a lawyer, and told Irwin, "[H]e should be locking [him] up for it[,] but if [he] didn't say anything to anybody and kept my mouth shut, that he would let me walk out of there tonight." The State claims that P.O. Walker told Irwin that while they found ammunition at his house, which would constitute violation of his probation, he "would not be violated for the ammunition and was given an opportunity to dispose of it himself because he just started probation." Both parties agree that P&P did not file a violation of probation report for Irwin's positive urine screen or for the ammunition found at his house.

II. Parties’ Contentions

Irwin argues that P&P violated his constitutional and statutory rights by the search of his house and vehicle. Because Safe Streets officers did not seize any evidence from Irwin's house nor charge him with a crime, however, there is no evidence to suppress. Nonetheless, Irwin argues that he is entitled to some remedy because of these alleged violations. Here, Irwin argues that as a remedy, the Court should terminate the remainder of his eighteen-month probation. The State argues that the October 13 administrative search of Irwin's house and vehicle was lawful and reasonable...