Opinion
I.D. No. 1005001549.
Submitted: December 6, 2010.
Decided: December 27, 2010.
On Defendant's Motion to Suppress. DENIED.
Matthew B. Frawley, Esquire, Mark A. Denney, Jr., Esquire, Deputy Attorneys General, Delaware Department of Justice, Wilmington, Delaware, Attorneys for State.
James M. Stiller, Jr., Esquire, Benjamin A. Schwartz, Esquire, Schwartz Schwartz, P.A., Dover, Delaware, Attorneys for Defendant Abubakr A. Bior.
Dear Counsel:
INTRODUCTION
This case arises from a May 2, 2010 altercation between Abubakr A. Bior ("Defendant") and Eric E. Ray, the alleged victim. As a result of this altercation, Mr. Ray received a stab wound to his abdomen. The police responded to this incident and were directed to Defendant's residence, 212 Tinsley Court, Newark, Delaware. Defendant was apprehended, and the police engaged in a "protective sweep" of the home, then "held the residence pending a search warrant." During the course of this protective sweep, a knife was located under a mattress in a second floor bedroom. The police did not seize the knife at this time; the knife was collected after a nighttime search warrant was issued.
Def.'s Mot. to Suppress at 1.
Adult Complaint and Warrant of May 3, 2010 Ex. B.
Def.'s Mot. to Suppress at 1.
Suppression Hearing Transcript of Nov. 12, 2010 at 15 [hereinafter "Tr. at ___ ].
Id.
On June 21, 2010, Defendant was indicted by a Grand Jury. The indictment included one count of Attempted Murder First Degree and one count of Possession of a Deadly Weapon During the Commission of a Felony.
Defendant filed the instant motion to suppress on September 22, 2010, seeking to exclude all evidence obtained from Defendant's residence, 212 Tinsley Court, Newark, Delaware, "on or after May 2, 2010." Defendant alleges that the police conducted a "warrantless search" of the residence, in violation of the Fourth Amendment of the United States Constitution. In Defendant's post-suppression hearing brief of November 29, 2010, Defendant articulated three related arguments: 1) the initial entry into the residence was improper because the police did not have sufficient justification for a "protective sweep;" 2) assuming, arguendo, that the initial entry was proper, the police exceeded the scope of a legitimate protective sweep by looking underneath the mattress; and 3) the nighttime search warrant is invalid because it failed to establish exigent circumstances.
Def.'s Mot. to Suppress at 1.
Id. at 2.
Def.'s Br. of Nov. 29, 2010 at 3-7. Defendant first raised the issue of the nighttime search warrant at the November 12, 2010 suppression hearing. Tr. at 5. This Court allowed the issue to be considered at the suppression hearing and directed the parties to complete supplemental briefing. Id. at 97-100.
DISCUSSION
I. The Initial Entry Was Proper.A. The Warrantless Entry by Police Was Justified Pursuant to the "Emergency Doctrine Exception."
As noted in the State's letter memorandum, Defendant first raised the argument that the initial entry by police was improper in his November 29, 2010 Brief. Thus, according to the State, Defendant has waived this contention pursuant to Superior Court Criminal Rule 12(f). However, this Court may grant relief from any such waiver for "cause shown." In light of the interconnectedness of Defendant's contentions with respect to the protective sweep, this Court finds sufficient cause to grant relief from any waiver in this regard and address this issue.
State's Letter Mem. of Dec. 6, 2010.
"Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver."
However, given the Court's holding, the disposition of this motion would be identical, whether the Court addressed this issue or deemed it waived.
As a threshold matter, on a motion to suppress evidence seized pursuant to a search warrant, the defendant bears the burden of establishing that the search of the residence and seizure of the disputed evidence was unlawful. However, the State bears the burden of proof on a motion to suppress evidence seized during a warrantless search. Indeed, warrantless searches and seizures are presumptively unreasonable, subject to certain exceptions. One such exception is a "protective sweep," which is evaluated under a three-prong test recently adopted by the Supreme Court of Delaware. As stated by the Supreme Court of Delaware:
See, e.g., State v. Sisson, 883 A.2d 868, 875 (Del. Super. Ct. 2005) ("On a motion to suppress challenging the validity of a search warrant, the defendant bears the burden of establishing that the challenged search or seizure was unlawful.") (citations omitted).
Hunter v. State, 783 A.2d 558, 560 (Del. 2001) ("Despite some arguable earlier confusion in the Delaware case law over which party bears the burden of proof on a motion to suppress evidence seized during a warrantless search, the rule in Delaware should now be clear. The State bears the burden of proof.") (citation omitted).
See State v. Hedley, 593 A.2d 576, 582 (Del. Super. Ct. 1990) (citing Payton v. New York, 445 U.S. 573, 586 (1980)).
Guerreri v. State, 922 A.2d 403, 406 (Del. 2007).
[T]he State must show, by a preponderance of the evidence, that:
(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.
A warrantless entry into and following search of a person's home do not violate the Fourth Amendment if this three-pronged test is satisfied.
* * *
To satisfy the third prong of the test, there must be a "direct relationship between the area to be searched and the emergency." Thus, the search may include not only a search of the premises to find people in need of aid, but also a protective sweep to ensure that no further danger is present. The scope of a warrantless search under the emergency aid exception is limited to "those areas necessary to respond to the perceived emergency."
If the foregoing test is satisfied, then the warrantless entry is justified under the "emergency doctrine exception."
Blake v. State, 954 A.2d 315, 319 (Del. 2008) ("Only under certain limited circumstances are police justified `in making a warrantless entry and conducting a search of the premises to provide aid to people or property.' One of those circumstances is the emergency doctrine exception, which does not violate the Fourth Amendment if the three-pronged test [set forth in Guerreri v. State, see discussion infra p. 6] is satisfied.") (citation omitted).
In this case, the police were advised of a stabbing, and a witness informed police that Defendant ran back towards his residence. During the suppression hearing, Detective Jason Wilson, of the New Castle County Police Department, testified that "[o]fficers performed a protective sweep of the residence and then held the residence pending a search warrant." Detective Wilson stated that, although the police reports state that "[a] search of the second floor was conducted," his "understanding is that the house was searched as a protective sweep, not that [the officers] searched the house looking for evidence."
Tr. at 13-14.
Id. at 15.
Id. at 24.
Detective Wilson testified that it would take approximately five minutes to "clear" a residence as part of a protective sweep, and the purpose of the protective sweep is to "make sure there are no people in there that can hurt you." Consequently, officers are "not going to be looking in places where a person would be too large to hide."
Id. at 29-30. Officer Ivy also stated that "clearing" a residence is "a term commonly used to mean conducting a protective sweep of the residence for people to make sure nobody else is there." Id. at 71.
Id. at 30.
Officer Scott Ivy, also of the New Castle County Police, was a responding officer. He testified that it "is standard procedure to make sure no one else was injured or needed assistance inside that residence." He further stated that his purpose was to "clear the residence" and "make sure there were no other individuals inside that residence." At the time of his arrival, Officer Ivy "did not have any information" as to whether there may be more than one suspect in this residence. Thus, this extremely early stage of the investigation coupled with the uncertainty as to the number of potential suspects provides all the more reason for the first responders to carefully "sweep" the residence for hiding individuals; this is particularly true with respect areas of the residence where the police had observed an individual through a second story window.
Id. at 53. According to Officer Ivy, the instant mattress was lifted by Officer Shotwell. Id. at 59. Officer Shotwell did not testify at the suppression hearing.
Id. at 54.
Id.
Id. at 60.
Defendant testified that, upon arrival, the police asked him if there was anyone else in the house, and "[he] said no." He stated that the police then handcuffed him and placed him in their vehicle for about 30 minutes before departing. Significantly, Defendant testified that he was in his room, the room containing the knife, when he saw the police arrive. Detective Wilson similarly testified that an individual, later confirmed to be Defendant, was seen on the second floor when police arrived at the residence.
Id. at 78.
Id.
Id. at 78-79.
Id. at 14.
The foregoing facts satisfy the "emergency doctrine exception," pursuant to the three-prong Guerreri test. As set forth in Guerreri, the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property, the search must not be primarily motivated by intent to arrest and seize evidence, and there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. In this case, the police received a report of a stabbing, and a witness testified that Defendant ran towards his residence. Further, Detective Wilson testified that the police arrived at the residence in "certainly under an hour" from the time of the 911 call. Consequently, at the time of their arrival, the police had "reasonable grounds to believe that there is an emergency at hand. . . ."
Guerreri, 922 A.2d at 406.
Id.
Tr. at 13.
Guerreri, 922 A.2d at 406.
Although the police arrested Defendant very shortly after their arrival, and Defendant matched the description that the police received on the radio, there was nonetheless a "reasonable basis, approximating probable cause" to conduct a protective sweep of the residence. The bare fact that Defendant matched the description received by the police does not require the police conclusively accept that Defendant and the fleeing suspect were one and the same. Further, Officer Ivy testified that he "did not have any information" as to whether there was more than one suspect in this case. Thus, the police certainly were not required to accept Defendant's representation that no one else was present in the residence. To the contrary, given the reports of a stabbing and the necessary inference that a possibly armed suspect had fled into the residence, the police were entitled to conduct a "protective sweep," pursuant to the "emergency doctrine exception" in order to "ensure that no further danger is present."
Tr. at 31-32.
Id. at 60.
See Guerreri, 922 A.2d at 408 (noting that a police officer is not necessarily required to accept a defendant's representations that "no one else was in the house or in need of emergency assistance," and that "it may be a dereliction of duty for the officers to have left [the defendant's] premises without searching for potentially injured parties.")
Guerreri, 922 A.2d at 407 (citation omitted).
B. The Instant Protective Sweep Was Valid Regardless of the Location of Defendant's Arrest.
Defendant contends that he was arrested outside his home. If an arrest occurs outside a suspect's home, the standard for a protective sweep is more exacting. If the "arrest occurs outside the residence, a protective sweep would only be legal if the officers have articulable facts which, taken with the logical implications therefrom, would lead a reasonably prudent officer to believe the area to be searched harbors a person or persons that posed danger to those on the arrest scene."
Tr. at 77.
State v. Hedley, 593 A.2d 576, 581 (Del. Super. Ct. 1990).
Id. (quoting Buie, 494 U.S. at 334).
Conversely, the State contends that Defendant was arrested inside his home. According to the State, this fact would obviate the need for reasonable suspicion or probable cause.Ultimately, however, the location of Defendant's arrest is immaterial to the resolution of the instant motion; even under the more demanding standards applicable to an arrest executed outside Defendant's home, the police nonetheless had sufficient grounds for the instant protective sweep.
State's Letter Memorandum of Dec. 6, 2010.
See Hedley, 593 A.2d at 580-81 (noting that, given the officers' inherent disadvantage when arresting an individual on his or her "turf," officers can conduct a protective sweep of "spaces from which an attack could be immediately launched" without probable cause or reasonable suspicion.) (quoting Maryland v. Buie, 494 U.S. 325, 334 (1990)).
At the time of their arrival on scene, the police had information that an individual had been stabbed, that the perpetrator "produced a shiny object," that a witness stated "look out, I think he has a knife," and that the perpetrator "ran back towards [the Tinsley Court] residence. . . ." Moreover, the police observed an individual in the second story bedroom, which is adjacent to the bedroom where the knife was discovered. In short, the police had information suggesting that an armed suspect fled the scene of a stabbing and entered the instant residence. This chain of events contains sufficient "articulable facts which, taken with the logical implications therefrom, would lead a reasonably prudent officer to believe the area to be searched harbors a person or persons that posed danger to those on the arrest scene."
Tr. at 13-14.
Search Warrant Application and Affidavit at 4.
Hedley, 593 A.2d 581 (citation omitted).
Under the instant circumstances, the police were justified in conducting a protective sweep secondary to Defendant's arrest, regardless of whether the arrest occurred inside or outside of Defendant's home. Accordingly, the protective sweep was validly executed pursuant to the emergency doctrine exception.
II. The Police Did Not Exceed the Scope of the Protective Sweep.
Defendant contends that, even if the initial entry by police was valid as a protective sweep, the evidence should nonetheless be suppressed because the scope of the protective sweep was exceeded by searching under a mattress. Under Guerreri, an emergency doctrine exception search may include a protective sweep "to ensure that no further danger is present," but "[t]he scope of a warrantless search under the emergency aid exception is limited to `those areas necessary to respond to the perceived emergency.'" Put another way, there must be a "reasonable nexus between the emergency and the area searched." The search cannot be "unlimited or random, such as, for example, peering into drawers, cupboards or wastepaper baskets." Instead, the search must be confined to those areas in which the police might find potential victims or a person presenting "further danger."
Def.'s Br. of Nov. 29, 2010 at 5.
Guerreri, 922 A.2d at 407 (quoting U.S. v. Stafford, 416 F.3d 1068, 1075 (9th Cir. 2005)).
Id. at 408.
Id.
Id.
Herein, the police searched under a mattress, and the knife was located "between the mattress and frame" of the bed. This mattress was located "in a room adjacent to another bedroom where [Defendant] was seen looking out of the residence when officers initially knocked on the door of the residence." According to Officer Ivy, the purpose of flipping this mattress was "[t]o make sure no one was hiding under that mattress." Officer Ivy testified that, in light of the drawers and "spacing" underneath the bed, he did not believe that a person hiding underneath the mattress would cause the mattress "stick way up" or be otherwise conspicuous. Consequently, a more detailed inspection of this mattress and bed, including lifting the mattress, was necessary to confirm that no one was hiding under the mattress. He also stated that, when clearing a house and looking for persons, he would search "[u]nder the bed, closet, [and] open areas."
Tr. at 24.
Search Warrant Application and Affidavit at 4.
Tr. at 56-57.
Id. at 64.
Id. at 56.
Significantly, former police officer Gary Marshall, an expert proffered by Defendant, was equivocal in his testimony about the reasonableness of searching under a mattress:
It would be hard for me to answer [the question of whether it's unreasonable for an officer to check underneath a mattress in clearing a house] putting myself in the mind of the officer at the scene. I would think or hope that an officer would take every precaution to make sure that the environment was safe for he and his fellow officers. But I would think there would be something to indicate lifting up a mattress. It's kind of a yes and no.
Id. at 90-91.
Mr. Marshall further agreed that it would be "reasonable" for an officer to more thoroughly check a given room if a person is observed in that particular room.
Id. at 92.
In this case, the officers lifted the mattress to the bed in Defendant's bedroom; this room is adjacent to the bedroom where the knife was discovered. Officer Ivy stated that, given the design of the bed, it "[l]ooks like it could have been a large open space underneath the mattress." Officer Ivy also stated that he has previously searched for individuals under beds. Thus, it appears that lifting this mattress was in lieu of searching under the bed, given the design of this particular bed.
Search Warrant Application and Affidavit at 4.
Tr. at 61.
Id. at 63-64.
The space under a bed is not an "unlimited or random" area to search, but is in fact a place where the police might have found a hiding suspect who presented a danger to those at the scene. Indeed, Mr. Marshall, Defendant's expert, testified that he has searched for people under beds. Consequently, the lifting of this mattress, given the design of this bed, was analogous to, and equally as proper as, an officer searching under a bed as part of a protective sweep.
Guerreri, 922 A.2d 408.
Tr. at 90.
In light of the foregoing holdings, the seizure of this knife was valid and Defendant's motion to suppress must be denied. As observed by the Supreme Court of Delaware, "the police may seize any evidence that is in plain view during the course of their legitimate emergency activities." Given that this knife was observed by the police during the course of a legitimate protective sweep, the police were entitled to seize the knife immediately upon its discovery. Thus, the subsequently issued search warrant was not necessary for the valid seizure of this knife. The fact that the police took the extraneous measure of obtaining a warrant is, if anything, indicative of an abundance of caution and due diligence. Accordingly, the seizure of this knife by police was proper by virtue of the fact that it was discovered during the course of their legitimate emergency activities.
Guererri, 922 A.2d at 408 (quoting Mincey v. Arizona, 437 U.S. 385, 393 (1978)).
III. The Validity of the Nighttime Search Warrant is Irrelevant.
Defendant contends that the police failed to show exigent circumstances on the Search Warrant Application and Affidavit, thereby invalidating the nighttime search warrant. Defendant further contends that the police used "incorrect verbiage" for the issuance of a nighttime search warrant; the instant search warrant contained the standard language for a daytime search warrant.
Def.'s Br. of Nov. 29, 2010 at 8. Notably, this contention was first raised by Defendant at the November 12, 2010 suppression hearing. Tr. at 6-7. Although suppression hearings are generally confined to issues previously raised by the movant, this Court nonetheless permitted Defendant to advance this argument during the suppression hearing based on counsels' representations that the search warrant was not received by the defense until after the initial motion to suppress was filed. Id. at 9.
Def.'s Br. of Nov. 29, 2010 at 10.
This Court need not reach the issue of the nighttime search warrant given the validity of the protective sweep. As stated, the police were entitled to seize the knife during the course of the protective sweep, thereby precluding the suppression of the knife on the basis of an allegedly deficient nighttime search warrant.
In its December 6, 2010 Response, the State contends that Defendant's motion must also be denied based on the doctrine of "inevitable discovery." Given the foregoing holdings, the Court also need not reach the issue of inevitable discovery.
See Guerreri, supra note 64; Hedley, 593 A.2d at 579-80 ("During the course of a legitimate warrantless search, the police may seize any evidence in plain view.") (citations omitted).