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requiring a "fact-based connection between illegal activity" and the place to be searched
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ID No. 0701003821.
Submitted: June 7, 2007.
Decided: June 27, 2007.
Upon Defendant's Motion to Suppress.
Granted.Shawn E. Martyniak, Deputy Attorney General, Department of Justice, for the State of Delaware.
Thomas A. Foley, Esquire, Thomas A. Foley, Attorney at Law, for the Defendant.
MEMORANDUM OPINION
I. Introduction
This is the Court's decision on a Motion to Suppress evidence seized during a search of Shamayim N. Cannon's ("Cannon") residence at 1515 Lancaster Avenue, Wilmington, Delaware. Following the search, Cannon was indicted by a Grand Jury on charges of Trafficking in Cocaine, Possession of a Firearm During the Commission of a Felony, Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance, and Use of a Dwelling for Keeping Controlled Substances.
See DEL. CODE ANN. tit. 11, § 1447A.
See DEL. CODE ANN. tit. 16, § 4751.
The search was conducted incident to a warrant which also authorized a search of Cannon's person and vehicle. Cannon challenges only the search of his residence. Cannon submits that the evidence found in his residence should be suppressed because the affidavit in support of the search warrant lacked probable cause to support a search of the 1515 Lancaster Avenue premises. Specifically, Cannon contends that the affidavit failed to establish the required nexus between the items sought and his residence. Therefore, Cannon claims that the search of his residence violated his rights under the Fourth Amendment to the United States Constitution and Article 1, § 6 of the Delaware Constitution.
Cannon's Motion to Suppress was filed on April 7, 2007. The Court held a hearing to consider Cannon's motion on May 18, 2007. Following the hearing, both parties submitted Memoranda of Law addressing the issues raised in the motion. For the reasons that follow, Cannon's motion is GRANTED.
II. Statement of Facts
During the first week of December 2006, Detective Jeffrey Silvers of the Wilmington Police Department was contacted by a concerned citizen who advised him that Cannon was selling large quantities of drugs at two locations in the City of Wilmington, in the area of the 100 and 200 blocks of Delamore Place and in the area of 4th and Clayton Streets. The concerned citizen also informed Detective Silvers that Cannon drove a gold Acura with Delaware registration number 153885 and was living with his grandmother at 1515 Lancaster Avenue. The concerned citizen reported that Cannon carried a gun at all times. The next week, Detective Silvers received a Crime Stoppers tip which confirmed the information given to him by the concerned citizen.
See Docket 8, Ex. A.
Detective Silvers ran a criminal history check on Cannon, which revealed one arrest in July 2006 on numerous drug charges. A license and registration check confirmed that Cannon used 1515 Lancaster Avenue as his address and that a 2000 Acura, registration number 153885, was registered in his name.
On January 4, 2007, Detective Silvers conducted surveillance of 1515 Lancaster Avenue based on this information. Detective Silvers observed Cannon leave the residence and get into his vehicle (the Acura) at 11:31 A.M. Cannon then traveled to 2nd and Rodney Streets, where Cannon stopped and spoke with three subjects on the corner. After this conversation, Cannon drove west on 2nd Street and parked on the south side of the 1500 block of Lancaster Avenue. The same three individuals from the corner approached and entered Cannon's vehicle. They exited approximately five minutes later.
Cannon then drove to South DuPont Street, where he exited his vehicle and entered a silver vehicle at 11:39 A.M. Cannon got out of the silver vehicle approximately three minutes later, returned to his car, and drove away, heading west on Tulip Street.
Detective Silvers stopped the silver vehicle Cannon had just left. In the course of the stop, Detective Silvers seized 0.1 grams of an off-white substance which field-tested positive for cocaine. The driver of the silver vehicle reported having received the cocaine from Cannon.
See id.
Detective Silvers applied for a warrant to search Cannon's person, the Acura, and 1515 Lancaster Avenue. The affidavit for the warrant set forth the facts summarized above. The affidavit also included several statements submitted by the affiant on the basis of "training, experience, and participation in other drug investigations." Many of these statements addressed "common practices" of drug trafficking which are tied to residences. For example, Detective Silvers stated "that it is common for drug traffickers to secrete contraband, proceeds of drug sales and records of drug transactions in secure locations within their residence" and "that drug traffickers only transport enough drugs tht [sic] they will need for the sale" while maintaining "the other drugs at a secured location, including but not limited [to] their residence."
See id.
The search warrant was issued by a Justice of the Peace on January 4, 2007 and executed at 2 P.M. The search of Cannon's residence produced contraband and evidence, including 10.6 grams of crack cocaine, a .40-caliber handgun, .40-caliber bullets and magazines, and $4,490.00 in U.S. currency.
See Docket 10. The inventory filled out following the search does not specify the location from which each item was seized, and the search warrant was issued not just for Cannon's home, but for his person and car. However, the State's response to the Defendant's motion to suppress states that all of the items listed on the inventory sheet, except for a box for a .40 caliber handgun were discovered in the residence. The handgun box and a receipt for a handgun were found in Cannon's vehicle, and $336.00 was found on Cannon's person. Id.
III. Parties' Contentions
Cannon contends that the police lacked probable cause to search his Lancaster Avenue residence. He argues that the affidavit in support of the search warrant failed to provide a substantial basis for the magistrate to reasonably believe that evidence or contraband would be found at his home. Therefore, he seeks suppression of all evidence seized from his residence pursuant to the search warrant.The State counters that the warrant was supported by probable cause to believe that drugs, drug paraphernalia, and/or other evidence of illegal activity was located at Cannon's residence. The State contends that the totality of the circumstances contained within the warrant affidavit — including police surveillance of Cannon's involvement in drug activity away from his home and police expert statements concerning common practices of drug traffickers — gave rise to a logical nexus between the items sought and Cannon's residence.
IV. Standard of Review
A defendant moving to suppress evidence bears the burden of establishing that a search or seizure violated his rights under the United States Constitution, the Delaware Constitution, or the Delaware Code. The defendant must prove that he is entitled to relief by a preponderance of the evidence.
Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978); State v. Dollard, 788 A.2d 1283, 1286 (Del.Super.Ct. 2001); State v. Bien-Aime, 1993 WL 138719, at *3 (Del.Super.Ct. Mar. 17, 1993).
Dollard, 788 A.2d at 1286; Bien-Aime, 1993 WL 138719, at *3 (citing United States v. Casteneda, 951 F.2d 44 (5th Cir. 1984)).
V. Discussion
The Fourth Amendment protects against unreasonable searches and seizures and provides that warrants cannot issue absent a showing of probable cause supported by oath or affirmation. The Delaware Constitution also safeguards the right to be free from unreasonable searches and seizures and requires that warrants be based upon a sworn statement establishing probable cause.The Delaware General Assembly codified the requirements for a constitutionally adequate showing of probable cause in DEL. CODE ANN. tit 11, §§ 2306 and 2307 ("Section 2306" or "Section 2307"). Requirements for the content of the affidavit in support of the search warrant are set forth in Section 2306:
It shall designate the house, place, conveyance or person to be searched and the owner or occupant thereof (if any), and shall describe the things or persons sought as particularly as may be, and shall substantially allege the cause for which the search is made or the offense committed by or in relation to the persons or things searched for, and shall state that the complainant suspects that such persons or things are concealed in the house, place, conveyance or person designated and shall recite the facts upon which such suspicion is founded.
The judicial officer issuing the search warrant must adhere to procedural and substantive requirements contained in Section 2307:
If the judge, justice of the peace or other magistrate finds that the facts recited in the complaint constitute probable cause for the search, that person may direct a warrant to any proper officer or to any other person by name for service. The warrant shall designate the house, place, conveyance or person to be searched, and shall describe the things or persons sought as particularly as possible.
The specific statutory provisions of Sections 2306 and 2307 were enacted to enhance and elucidate the Federal and State constitutional safeguards against unreasonable searches and seizures.
See State v. Church, 2002 WL 31840887, at *4 (Del.Super.Ct. Dec. 18, 2002); State v. Fleming, 1994 WL 233938, at *2 (Del.Super.Ct. May 11, 1994).
Delaware courts have interpreted Sections 2306 and 2307 as imposing a four corners test for probable cause. The facts alleged in the affidavit must suffice to allow the issuing magistrate to independently evaluate the existence of probable cause. The face of the affidavit must present adequate facts to allow a reasonable person to conclude that an offense has been committed and that seizable property would be found in a particular place or on a particular person. By requiring all facts relied upon by the magistrate to be contained within the written affidavit, the four corners test insures that the reviewing court can determine the warrant's validity without "reliance upon faded and often confused memories."
E.g., Pierson v. State, 338 A.2d 571, 573-74 (Del. 1975); State v. Ivins, 2004 WL 1172351, at *4 (Del.Super.Ct. May 21, 2004).
Jensen v. State, 482 A.2d 105, 111 (Del. 1984) (citing Franks v. Delaware, 438 U.S. 154, 165 (1978)).
Blount v. State, 511 A.2d 1030, 1032-33 (Del. 1986); Ivins, 2004 WL 1172351, at *4.
Dorsey, 761 A.2d at 811 (quoting Pierson, 338 A.2d at 574).
The four corners test restricts the scope of a reviewing court's inquiry, but does not constrain the court from adopting a flexible, nontechnical approach in evaluating a warrant's validity. The reviewing court's task is to determine whether the warrant application presented the issuing magistrate with a "substantial basis" to conclude that probable cause existed. In making this determination, the reviewing court takes a deferential approach to the magistrate's decision and eschews "a hypertechnical approach to the evaluation of the search warrant affidavit in favor of a common-sense interpretation." The affidavit must be "considered as a whole and not on the basis of separate allegations."
Illinois v. Gates, 462 U.S. 213, 239 (1983) (citing Jones v. United States, 362 U.S. 257, 271 (1960)). See also Ivins, 2004 WL 1172351, at *4.
See Gardner v. State, 567 A.2d 404, 409 (Del. 1989); Ivins, 2004 WL 1172351, at *4.
Jensen v. State, 482 A.2d at 111.
Unlike an arrest warrant, a search warrant is not directed at a person, but rather at the particular place where police have probable cause to believe that evidence is located. Probable cause to search depends upon the existence of a logical nexus between the items sought and the place to be searched. In other words, probable cause to believe that a suspect has committed a crime will support an arrest, but not necessarily a search warrant for the suspect's home. Rather, the factual showing necessary to establish probable cause to search a residence is two-fold: first, there must be probable cause that a crime was committed, and second, there must be probable cause to believe that evidence of such crime can be found at the residence. The nexus need not be based on direct observation or facts placing evidence at the location to be searched and may be inferred from the factual circumstances, including "the type of crime, the nature of the items sought, the extent of an opportunity for concealment and normal inferences" regarding where a criminal might hide evidence. Requiring this nexus upholds the probable cause requirements of the Federal and State constitutions and properly maintains the distinction between probable cause to arrest and probable cause to search.
See, e.g., Zurcher v. Stanford Daily, 436 U.S. 547, 555-56 (1978); State v. Jones, 2000 WL 33114361, at *3 (Del.Super.Ct. Dec. 5, 2000).
See, e.g., Dorsey, 761 A.2d at 811; Hooks v. State, 416 A.2d 189, 203 (Del. 1980); State v. Jones, 1997 WL 528274, at *4 (Del.Super.Ct. Aug. 1, 1997).
See, e.g., United States v. Jones, 994 F.2d 1051, 1055 (3d Cir. 1993) ("[P]robable cause to arrest does not automatically provide probable cause to search the arrestee's home."); Dorsey, 761 A.2d at 812-13 ("The focus of probable cause to search is upon a `place', i.e., whether contraband or evidence will be found in a particular location. The focus of probable cause to arrest is upon a `person', i.e., whether a criminal offense has been or is being committed by the person to be arrested."); Commonwealth v. Kline, 335 A.2d 361, 364 (Pa.Super.Ct. 1975) ("Probable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home.").
United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983) (citing United States v. Harris, 403 U.S. 573, 584 (1971)).
See Ivins, 2004 WL 1172351, at *4 (quoting United States v. Feliz, 182 F.3d 82, 88 (1st Cir. 1999)).
See Dorsey, 761 A.2d at 812-13 ("Probable cause to search and probable cause to arrest are not fungible legal concepts, and each involves a distinctly separate inquiry.").
Courts in many jurisdictions, including this one, have addressed what constitutes an adequate nexus where police have evidence of crimes taking place outside a defendant's residence and rely in whole or part upon police expert opinion in attempting to establish probable cause for a residence search. Decisions in this area are necessarily fact-specific. However, while some courts have permitted an officer's statement of belief based on training and experience to establish a sufficient nexus, Delaware courts, consistent with many other jurisdictions, require that the affidavit contain specific factual information adequate to support probable cause to search a residence. Failure to require an adequate fact-based connection between illegal activity and an arrestee's home risks licensing "virtually automatic searches of residences of persons arrested for narcotics offenses." It is also inconsistent with the view repeatedly expressed by the United States Supreme Court and the Delaware Supreme Court that our Federal and State constitutional search and seizure provisions are intended to protect special privacy interests which inhere in the home.
See, e.g., State v. Dick, 2004 WL 1172883, at *6-8 (Del.Super.Ct. May 21, 2004); Ivins, 2004 WL 1172351, at *9; Church, 2002 WL 31840887, at *5-8; State v. Backus, 2002 WL 31814777, at *5-6 (Del.Super.Ct. Nov. 18, 2002); Jones, 2000 WL 33114351, at *3-4. See also United States v. Lalor, 996 F.2d 1578, 1582-83 (4th Cir. 1993) (collecting cases requiring affidavit to contain information linking criminal activity to defendant's residence); State v. Thein, 977 P.2d 582, 587-88 (Wash. 1999) (collecting cases and detailing jurisdictional conflicts over type of information required for affidavit to establish nexus); 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 3.7.
See, e.g., United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993) (finding probable cause to search defendant's residence where affidavit described defendant's involvement in crack sales elsewhere and confirmed that defendant resided at address to be searched because, "[i]n the case of drug dealers, evidence is likely to be found where the dealers live") (internal citations and quotation marks omitted); United States v. Williams, 974 F.2d 480, 481-82 (4th Cir. 1992) (finding probable cause to search motel room where defendant resided where affidavit established only that defendant was a drug dealer and was currently residing in the motel room).
See, e.g., United States v. Schultz, 14 F.3d 1093, 1097 (6th Cir. 1994) ("While an officer's `training and experience' may be considered in determining probable cause, it cannot substitute for the lack of evidentiary nexus.") (citations omitted); United States v. Rios, 881 F.Supp. 772, 776 (D. Conn. 1995) (finding that an officer's general averments based on her training and experience cannot, standing alone, serve as a "substantial basis" for issuing a search warrant); Thein, 977 P.2d at 582 ("Most courts, however, require that a nexus between the items to be seized and the place to be searched must be established by specific facts; an officer's general conclusions are not enough.").
See, e.g., Ivins, 2004 WL 1172351, at *9; Church, 2002 WL 31840887, at *8 (noting specific factual elements implicating defendant's residence in his drug trafficking activities); State v. Ada, 2001 WL 660227, at *5 (Del.Super.Ct. June 8, 2001); Jones, 2000 WL 33114361, at *4 (holding that a police officer's training and experience can be factored into probable cause determination "when combined with other facts") (emphasis added). The Court also notes that the requirement that the nexus between items sought and the location to be searched be supported by factual statements specific to the case appears implicit in the affidavit requirements of the Delaware Code, which states that an affiant "shall state that the complainant suspects that such . . . things are concealed in the . . . place . . . designated and shall recite the facts upon which such suspicion is founded." DEL. CODE ANN. tit. 11, § 2306 (emphasis added). See Dorsey, 761 A.2d 807, 812 (applying § 2306 to require a specific factual showing as to why evidence would be found in the location targeted by a search warrant).
United States v. Gomez, 652 F. Supp. 461, 463 (E.D.N.Y. 1987).
See, e.g., Payton v. New York, 445 U.S. 573, 585 (1980) ("physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed") (quoting United States v. United States District Court, 407 U.S. 297, 314 (1972)); Silverman v. United States, 365 U.S. 505, 511 (1961) ("At the very core [of the personal rights secured by the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."); Mason v. State, 534 A.2d 242, 246-49 (Del. 1987); 2 LAFAVE, SEARCH AND SEIZURE § 2.3.
For example, in State v. Ada, this Court held that police lacked probable cause to search a suspected drug trafficker's residence where police had also surveilled an apartment which the defendant used as a drug sales location and submitted a warrant containing statements based on police training and experience that "drug dealers . . . often keep their main supply location separate [sic] from their sales location." The affidavit in support of the warrant described the defendant coming and going from the residence, detailed one instance in which the defendant traveled from the residence with a gym bag to the area of the apartment from which he conducted drug sales, and reported that police had information that another suspected drug dealer was "possibly selling" for a subject living on the block where the defendant's residence was located. These facts, even considered in light of the police expert statements, did not establish a nexus, "given that police observed no illegal or suspicious activity occurring at the residence."
Ada, 2001 WL 660227, at *5.
Id. See also Ivins, 2004 WL 1172351, at *3-9 (holding that police failed to demonstrate probable cause to search the Rehoboth Beach residence of a suspected drug trafficker where the warrant affidavit contained: (1) statements of confidential informants, who lacked past proven reliability, reporting that Ivins sold drugs in the Rehoboth Beach area; (2) information that Ivins had past drug arrests more than two decades prior; (3) statements identifying Ivins' house and vehicles; (4) the fact that another individual had been the subject of a drug investigation in close proximity to Ivins' residence; (5) a Crime Stoppers tip that Ivins traveled to Washington, D.C. once a week for drugs and that he made several deliveries to bars in the Rehoboth Beach area; (6) information that Ivins had recently been arrested in Emerald Isle, North Carolina, for driving under the influence of drugs and/or alcohol and that the Emerald Isle Police Department discovered drugs during a subsequent search of Ivins and his residence in North Carolina; and (7) statements that a search of Ivins' trash by the Delaware State Police revealed mail addressed to Ivins and "drug paraphernalia" described without any further specificity.)
In the instant case, the warrant affidavit did not present the issuing judicial officer with a substantial basis for finding probable cause to search Cannon's residence. The factual information and police expert statements in the affidavit were inadequate to establish an evidentiary nexus between the evidence of drug trafficking that police hoped to find and Cannon's home. The tips in this case, like those in State v. Ivins, were from citizen informants who did not have past proven reliability. Moreover, neither of the citizen informants in this case indicated that Cannon was using his residence to deal drugs or to store drugs, drug paraphernalia, or any other evidence of drug transactions. The tips conveyed to police, and later contained in the affidavit, identified specific street locations, not Cannon's home, as the sites where he conducted drug transactions.
See id. at *5.
Cf. United States v. Morales, 851 F. Supp. 112, 115-16 (S.D.N.Y. 1994) (finding probable cause to search suspected drug trafficker's residence where affidavit included information from government's cooperating witness, who had past proven reliability, that defendant kept weapons in his residence and affiant's expert opinion regarding "additional tools of the drug trade which are often found in the vicinity of firearms"); Backus, 2002 WL 31814777, at *6 (upholding search warrant for suspected drug dealer's residence based in part upon statements that past, proven and reliable informants reported defendant was cooking crack inside the residence and had conducted multiple drug deals inside the residence).
The other details of the police investigation contained in the affidavit likewise fall short of establishing probable cause that evidence was present in Cannon's home. Police did not conduct a controlled buy from 1515 Lancaster Avenue. Cannon was never observed leaving or entering his residence with a bag or anything else that would suggest he was bringing evidence or contraband to or from his home. His interaction with the three subjects first seen on the corner of 2nd and Rodney Streets could be consistent with a transaction in which Cannon was bringing drugs from his residence, or one in which he was picking up or purchasing drugs to bring to another transaction. Police did not question any of the three individuals who met with Cannon during this encounter.
Cf. State v. Lewis, 691 P.2d 1231, 1235-36 (Idaho 1984) (finding probable cause for search warrant directed at residence where police investigator had conducted controlled buy in residence and defendant indicated that an additional five pounds of marijuana could be provided, giving rise to reasonable inference that additional contraband was on the premises); Gardner, 567 at 409-10 (finding probable cause for search of residence where affidavit detailed "a two-year history of drug dealing at the [defendant's] residence, including evidence of a direct controlled buy and various reports from police officers and anonymous sources").
Cf. People v. Pinchback, 631 N.E.2d 100, 101 (N.Y. 1993) (finding probable cause to search defendant's home where police observed defendant's brother leaving the residence for suspected drug sales at an adjacent corner with a clear plastic bag containing baggies for apparent drug transactions and returning from apparent drug sales to the residence while carrying money received from others involved in apparent and confirmed drug sales).
The evidence stemming from Cannon's interaction with the driver of the silver vehicle did not corroborate the citizen informants' description of Cannon as a trafficker of "large quantities" of drugs. To the contrary, Detective Silvers found only 0.1 grams of cocaine on the driver of the silver vehicle stopped after his encounter with Cannon. Cannon's relatively recent arrest on drug charges only substantiated his involvement in the world of drugs, and did not affect the probability that evidence would be found in his home. There was no information in the affidavit that demonstrated that Cannon had received shipments of drugs at his residence, that there was other unusual traffic at the residence, or that Cannon made or received telephone calls from his residence immediately prior to or following a drug transaction.
Cf. Gardner, 567 A.2d at 410 (finding probable cause to search residence where affidavit included information that defendant routinely received drug shipments at home and search took place at time of week when drugs were usually delivered).
Cf. United States v. Adams, 401 F.3d 886 (8th Cir. 2005) (finding probable cause to search defendant's residence where police had intercepted incoming and outgoing telephone calls which revealed defendant was engaged in narcotics activity); United States v. Hulett, 22 F.3d 779, 781 (8th Cir. 1994) (finding probable cause to search defendant's residence where co-conspirator in drug trafficking ring called defendant's home phone immediately after the co-conspirator discussed a drug transaction with an undercover operative and informed the operative that defendant had the money to complete the purchase).
The State points to State v. Jones as squaring factually with the instant case. In Jones, a confidential informant carried out a controlled marijuana sale with the defendant, known to the informant as "Germ." When police attempted to arrest Jones at the scene, he fled in his Honda, striking an undercover vehicle in the escape. Police ran a vehicle registration check, confirmed Jones's name and address, performed a criminal history check that revealed two prior drug arrests, and had the confidential informant identify Jones in a photo. Approximately one week later, police observed the damaged Honda parked in front of Jones's residence. The next day, state police engaged in a brief chase of the Honda. The chase was broken off, and officers proceeded to Jones's residence. Jones arrived at the house in the Honda and was arrested. Police then sought and obtained a warrant to search the residence using an affidavit which included statements "based upon police training, expertise, and participation in past drug investigations" that it is "common for drug traffickers to secrete contraband, proceeds of drug sales and records of transactions in secure locations within their residence." This Court upheld the Jones search warrant, finding that the affidavit presented "sufficient specific facts . . . to form a nexus between the items which were sought and [Jones's] residence."
See Docket 10, 13.
Jones, 2000 WL 33114361, at *1.
Id.
Id.
Id. at *4.
In Jones, this Court specifically stated that it was not deciding "whether the affiant's statement . . . that drug traffickers commonly keep contraband in their homes would be sufficient, alone, to provide probable cause to support the search warrant." The Court emphasized the importance of the proximity between the Honda's involvement in a police chase and Jones's arrival at his residence in the same car. The Jones opinion does not precisely detail where the chase occurred in relation to Jones's residence or how soon after the chase Jones arrived at his home in the Honda. Given the Court's focus on the importance of Jones's arrival in the Honda after the chase, it appears that the Jones court found that the temporal and spatial proximity of the chase to Jones's arrival at the residence supported a reasonable inference that Jones drove the Honda directly to his residence after fleeing police. Jones may potentially be distinguishable from the case sub judice, in which police broke off surveillance of Cannon to apply for a search warrant and therefore could not present the issuing magistrate with information about whether Cannon returned directly home after the confirmed drug transaction they observed or not. However, to the extent the facts in this case mirror the facts in Jones, the Court declines to follow the holding in Jones. That is to say, in the absence of precise information about the timing of the Jones defendant's return to his residence, this Court declines to follow Jones to the extent that it can be interpreted as holding that probable cause to search a residence may be formed solely by statements of police expertise combined with the mere presence of a defendant's car at both a drug transaction and his confirmed residence. Direct or indirect evidence that a defendant traveled immediately to his home after engaging in illegal activity might be sufficient to establish probable cause that evidence or contraband are located in the residence, but the affidavit in this case does not present such a scenario.
Id.
Id. (" Most significantly, the affidavit sets forth that the same Honda [involved in the controlled buy and registered to Defendant's address] was involved in a pursuit with the [Delaware State Police,] . . . that police went to [Defendant's residence] when the pursuit was called off and that the Defendant arrived thereafter driving the Honda.") (emphasis added).
See United States v. Burton, 288 F.3d 91, 104 (3d Cir. 2002) ("[The] inference [that drug dealers often keep evidence of their transactions at home] is much stronger when the home is the first place a drug dealer proceeds following such a transaction.").
The Court describes types of factual allegations that are absent in the warrant here, but have contributed to establishing probable cause in other cases, not to suggest that any of these factual circumstances is required or necessarily dispositive on the issue of nexus, but rather to illustrate why the affidavit in this case lacked probable cause for the search of Cannon's residence. The statements in the affidavit clearly established that Cannon was involved in the drug game and that he resided at 1515 Lancaster Avenue. However, without additional factual information giving rise to a probability that evidence would be found in Cannon's home, it was unreasonable for the issuing magistrate to accept the affidavit's content as supporting the evidentiary nexus necessary for a search of 1515 Lancaster Avenue. While the Court acknowledges the deference due to a magistrate's finding, the affidavit, viewed in light of the totality of the circumstances, did not provide a substantial basis from which the issuing judicial officer could reasonably conclude that probable cause to execute a residence search existed. Accordingly, all evidence seized from Cannon's residence pursuant to the search warrant is hereby suppressed.
Dorsey, 761 A.2d at 819.
VI. Conclusion
For the foregoing reasons, Cannon's Motion to Suppress is GRANTED.IT IS SO ORDERED.
Original to Prothonotary