IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
: ID No. 1509015531
: In and for Kent County
:
v. :
:
JEFFREY L. CRIPPEN, :
:
Defendant. :
:
ORDER
On this 15th day of June 2016, having considered Defendant Jeffrey L. Crippen’s
(“Defendant’s”) Motions to Suppress, and the State’s response, it appears that:
1. Before this Court are two motions to suppress evidence challenging two
separate search warrants. The first search warrant targets the Defendant and a
residence at 92 Village Drive, Delaware 19901 (“the 92 Residence”). The second
search warrant targets electronically stored data from a cell phone found as a result of
the first search warrant. Defendant argues that the four corners of the affidavits in
support of the warrants do not provide sufficient details to establish probable cause.
The State opposes stating that the facts set forth within the four corners of the affidavits
do establish probable cause. After considering the written submissions and the
arguments of the parties, the Court finds the State’s arguments persuasive. For the
reasons discussed below, Defendant’s motions to suppress are both DENIED.
2. All facts stated herein are derived from the four corners of the two affidavits.
On September 18, 2015, Detectives Jordan Miller (“Affiant 1") and Matthew Krogh
(“Affiant 2"), from the City of Dover Police Department, applied for a search warrant
for Defendant, the 92 Residence, and any property and vehicles linked to either. The
affidavit of probable cause for the search warrant (“the Affidavit”) contains information
from four separate past-proven reliable confidential informants regarding Defendant’s
sale of cocaine. The Affidavit also contains information regarding controlled purchases
that were conducted by one of the confidential informants, as well as information
discovered through independent investigation by law enforcement. The first
confidential informant (“CI-1"), referred to as CI number 495 in the Affidavit, provided
information to Affiant 1 on December 13, 2013. CI-1 stated that Defendant was going
to be one of three individuals purchasing 25 ounces of cocaine from an African
American male referred to as “L.” CI-1 provided the sale location to investigators who
conducted surveillance. After the exchange, where CI-1 and the Defendant were
observed to be present, through a subsequent traffic stop after the exchange, officers
seized $26,630, which was obtained from the sale of the drugs. At the time of the sale,
Defendant was on probation after a recent release from prison for a sentence related to
drug dealing.
3. In July of 2014, the next confidential informant, (“CI-2"), who was referred
to as CI number 445 in the Affidavit, provided information regarding the residence of
Defendant’s girlfriend at 92 Village Drive, DE 19901. CI-2 also stated that his
girlfriend drove a red box type Chevrolet. On August 4, 2014, Affiant 1 observed a red
Chevrolet HHR parked in front of the 92 Residence, which matched the description
provided by CI-2. The vehicle was registered to a female named Milagros Muriel.
4. In May of 2015, a third confidential informant (“CI-3") referred to as CI
number 17 in the Affidavit, contacted Affiant 1. CI-3 advised Affiant 1 that he or she
could conduct controlled drug purchases from Defendant. CI-3 also positively identified
Defendant as the same individual he or she knew to sell cocaine in the Dover area.
Furthermore, CI-3 had provided prior information that proved to be accurate and led
2
to the arrest and conviction of individuals for drug offenses. During the weeks of May
10-16, 2015 and May 17-23, 2015, CI-3 conducted two separate controlled purchases
of cocaine from Defendant at two different pre-determined meeting locations. Each
controlled purchase netted an amount of suspected cocaine that field tested positive as
cocaine. Also, each controlled purchase was directly with Defendant, according to the
statement CI-3 gave to Affiant 1 immediately after the purchases. Furthermore, each
controlled purchase was monitored and observed by Affiant 1 and other law
enforcement. Immediately after the exchange, Affiant 2 observed Defendant leaving
the predetermined location, and return to the 92 Residence.
5. Law enforcement attempted to conduct a third controlled purchase between
CI-3 and Defendant during the week of September 13th through the 19th. CI-3 called
Defendant, in the presence of Affiant 1, to schedule another controlled purchase. At
that time, Defendant stated that it would have to wait until after six in the evening
because he was going to be purchasing a semiautomatic pistol from another individual.
CI-3 also provided information to law enforcement regarding Defendant’s drug sales,
and that one of the individuals Defendant supplied cocaine to was Guy Brummell
(“Brummell”). The Affidavit corroborated identity information about Brummell. Affiant
was also able to confirm that Brummell was a member of Defendant’s drug distribution
network. Affiant, along with another detective, had, themselves, previously executed
a controlled purchase of cocaine from Brummell at 31 Moores Lane, Magnolia,
Delaware. Finally, CI-3 informed Affiants 1 and 2 that he or she had seen nine ounces
of cocaine inside the 92 Residence, as well as eight to nine ounces of cocaine inside
1163 Adams Court Dover (“1163 Residence”), which was Defendant’s residence of
record with probation and parole. CI-3 stated that Defendant utilized both residences,
and that he stored cocaine at the 92 Residence.
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6. A fourth confidential informant (“CI-4"), referred to as CI number 148 in the
Affidavit, provided similar information, stating that Defendant stored cocaine inside of
the 92 Residence, and that he made trips to New York for resupply.
7. On September 17, 2015, following the information provided by CI-3 and CI-4,
Affiant 1 contacted the City of Dover and confirmed that the electric for the 92
Residence was still active and was under the name of Milagros Muriel. On the same
day, Affiant 2, along with another detective, conducted surveillance on the 92
Residence. They observed an African American female, whom they believed to be
Milagros Muriel, exit the Residence and enter a black Mercedes before departing the
area. On that same day at 7:16pm, Affiant 2 observed a four door Honda Accord
parked in front of the 92 Residence, with a registration belonging to Defendant and an
individual named Natasha Maybin with an address at the 1163 Residence. On
September 18, 2015 at approximately 8:15 in the morning, Affiant 1 observed a
separate vehicle, a two door Honda Accord, with a registration also belonging to
Natasha Maybin of the 1163 Adams Court Residence, parked in front of the 92
Residence. At approximately 9:57 that morning, a detective observed Defendant
operating the aforementioned two door Honda Accord, that was previously parked in
front of the 92 Residence. The search warrant application was then approved on
September 18, 2015.
8.The search warrant was executed on September 21, 2015. The 92 Residence
itself was searched, as well as the two door Honda Accord which was parked directly
in front of the 92 Residence. Upon execution of the warrant, Defendant was observed
attempting to flee the Residence through the master bedroom window, but was
subsequently taken into custody at the bottom of the stairs in the living room of the
Residence. Among the evidence located and seized were: a Ruger .9mm
4
semiautomatic handgun with serial number 331-38973 which was reported as stolen in
August 2013; a magazine contained in the well of the gun with 17 rounds of .9mm
ammunition; 5.2 grams of crack cocaine; various drug paraphernalia; $13,584 in United
States Currency; and a LG flip style phone which was alleged to belong to Defendant.
Affiant 1 then sought a second search warrant, seeking all data that could be derived
from the cell phone.
9. The affidavit in support of the search warrant for the electronic data on the cell
phone (“Affidavit 2") listed the items, drugs, paraphernalia, and cash seized as a result
of the first search warrant. Furthermore, in Affidavit 2, Affiant 1 stated his belief that
electronic data was stored inside the phone relating to illegal drug sales and firearm
purchases. Affiant 1 also stated in Affidavit 2 that through his training and experience,
he knew that subjects involved in the sale of illegal drugs often utilize their cellular
phone for the purpose of facilitating illegal drug sales. He further stated that through
his training and experience, he knew that cellular telephones are able to capture and
store text messages, call logs, phone numbers, internet history, internet searches,
contact lists, and photographs. Affidavit 2 also stated that the phone at issue was
seized from the top of a night stand in the master bedroom. According to the affidavit,
officers observed Defendant fleeing from that same master bedroom window during the
execution of the search warrant.
10. On May 17, 2016, Defendant filed a motion to suppress any and all evidence
seized as a result of the search warrant of Defendant and the 92 Residence. Defendant
filed a second motion to suppress any and all evidence seized as a result of the search
warrant submitted for all electronic records of the cell phone, which was seized as a
result of the first search warrant. In his first motion, Defendant argues that the affiants
used information that was stale by including facts that occurred greater than a year prior
5
to the execution of the warrant. Defendant further argues that much of the allegations
were of potential, yet irrelevant criminal conduct and prior bad acts that were used as
an attempt to influence the neutral, independent and detached magistrate (“magistrate”).
Defendant’s final argument regarding the first search warrant was that the four corners
of the search warrant affidavit, prepared by Affiants 1 and 2, lacked sufficient detail
and specificity to allow a magistrate to issue a search warrant for Defendant and the 92
Residence. In his second motion, Defendant argues that Affiant 1 failed to provide
sufficient detail or evidence to allow a magistrate to find probable cause to believe that
incriminating evidence would be found on the cell phone. Defendant also argues that
Affiant 1 used conclusive statements and failed to provide the magistrate information
regarding his training to support his allegation that drug dealers use cell phones to
facilitate illegal drug sales. Finally, Defendant argues that the four corners of the
affidavit did not provide sufficient detail to find probable cause. In response, the State
argues that the four corners of the affidavits provide sufficient detail to find probable
cause and emphasize the key information contained in the affidavits that it alleges,
establishes probable cause for both search warrants.
11. Since the issues raised attack the sufficiency of the affidavits, and require a
“four-corners analysis,” the parties stipulated that no evidentiary hearing was
necessary. Oral argument on the motions was held on June 10, 2016, and the Court
reserved decision.
12. In a Motion to Suppress challenging the validity of a search warrant, the
defendant bears the burden of proving that the challenged search or seizure was
6
unlawful.1 The burden in a motion to suppress is by a preponderance of the evidence.2
“[T]he duty of a reviewing court is simply to ensure that the magistrate had a
substantial basis for ... conclud[ing] that probable cause existed.”3 Furthermore, “[a]
magistrate's determination of probable cause should be paid great deference by
reviewing courts.”4 Search warrant affidavits “in support of a search warrant
application must set forth facts, that, within the affidavit’s four corners, are sufficient
for a neutral magistrate to conclude that . . . [probable cause exists].”5 Probable cause
exists “when the officer possesses information which would warrant a reasonable man
in believing that a crime has been committed.”6 The finding of probable cause does not
require proof beyond a reasonable doubt, or even that the defendant’s guilt is more
likely than not.7 Probable cause only requires that the officer “present facts which
suggest, when those facts are viewed under the totality of the circumstances, that there
is a fair probability” that a crime has been committed and the defendant, or target of an
affidavit, committed the crime.8 The magistrate may make reasonable inferences from
the factual allegations located therein.9
13. Furthermore, a “tip from a confidential informant can provide probable
1
State v. Sisson, 883 A.2d 868, 875 (Del. Super. 2005).
2
State v. Darling, 2007 WL 1784185, at *1 (Del. Super. June 8, 2007), as corrected (July
3, 2007).
3
Illinois v. Gates, 462 U.S. 213, 214 (1983).
4
Id. at 236 (1983).
5
Lambert v. State, 110 A.3d 1253, 1255 (2015) (citing Rivera v. State, 7 A.3d 961, 966
(Del.2010)).
6
State v. Betts, 2015 WL 2066602, at *1 (Del. Super. Apr. 1, 2015).
7
Id.
8
Id. at *5.
9
Rybicki v. State, 119 A.3d 663, 668-69 (Del. 2015).
7
cause, if the totality of the circumstances demonstrates the tip's reliability.”10 “In
making that determination, a court must consider the reliability of the informant, the
details contained in the informant's tip, and the degree to which the tip is corroborated
by independent police surveillance and information.”11
14. In King v. State12, cited by the State, the Supreme Court of Delaware found
probable cause existed to make an arrest, even though probable cause was primarily
based on a tip from a past-proven reliable confidential informant.13 In that case,
officers received a call from a past, proven, reliable confidential informant who stated
that “there was a black male wearing a black baseball cap and cut-off blue jeans at a
card table on South Kirkwood Street who was in possession of a large amount of crack
cocaine.”14 The officers knew the area described to be “an open air drug market where
several arrests had been made in the past.”15 Based on this information alone, officers
went to the area described, located the defendant wearing attire matching the
description given to them, and arrested the defendant.16 The officers performed a
Terry17 frisk and discovered a Life Savers container containing 1.3 grams of crack
cocaine from the defendant’s person.18 The Court in King held that “the tip from the
past proven reliable confidential informant, coupled with the detectives' observations
10
State v. Holden, 60 A.3d 1110, 1115 (Del. 2013).
11
Id. at 1115-16.
12
King v. State, 633 A.2d 370 (Del. 1993) (TABLE).
13
Id. at *2.
14
Id. at *1.
15
Id.
16
Id.
17
Terry v. Ohio, 392 U.S. 1 (1968).
18
King, 633 A.2d at *1.
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at the scene, clearly established probable cause to arrest [the defendant].”19
15. Here, the first search warrant application and affidavit contained sufficient
information for a finding of probable cause. The confidential informants were all
established, by affiants, to be past-proven reliable, and the information they provided
was corroborated by investigation and observation by law enforcement. The affiants
were given information on numerous occasions that Defendant stored cocaine at the 92
Residence. The information about the 92 Residence, that confidential informants
provided, was corroborated by individual investigation by law enforcement.
Furthermore, CI-3 conducted controlled purchases under the observation and
surveillance of law enforcement, and each time law enforcement observed Defendant
to be present at the transaction. Movements of persons and vehicles linking the
Defendant to the 92 Residence were also observed. Sufficient details corroborated the
various tips from the confidential informants, to bolster the information provided by the
past-proven reliable informants under the totality of the circumstances. Based on the
most recent controlled purchase, the recent corroboration, and the recent linkage of the
Defendant to the searched residence, the Court also does not find that the affidavit fails
to establish probable cause due to staleness. Accordingly, based on the totality of the
circumstances, this Court finds that the first affidavit contained sufficient information
for a magistrate to find probable cause. For these reasons, Defendant’s first Motion to
Suppress regarding the search warrant for Defendant and the 92 Residence is
DENIED.
16. The second search warrant application and affidavit also contained sufficient
information for a finding of probable cause. Recently, this Court in in State v. Albert20
19
Id. at *2.
20
State v. Albert, 2015 WL 7823393 (Del. Super. Dec. 3, 2015).
9
recognized that “[t]he United States Supreme Court recently ruled that police officers
must generally secure a search warrant before a cell phone may be searched. Although
that general requirement to obtain a search warrant might be new, the substantive
requirements for securing a cell phone search warrant are not.”21 Delaware applies the
same four corners test as outlined above; that is, the affidavit must provide on its face
enough information to form a reasonable belief that evidence of Defendant's drug
dealing would be found on the cell phones.22
17. Furthermore, the Albert Court directly addressed the extent to which an
officer’s training and experience can establish the “evidentiary nexus” between a cell
phone and illegal drug activity.23 In examining this issue, that Court cited States v.
Gholston as persuasive authority for the law on cell phone search warrants due to the
lack of authority in Delaware on the matter.24 Namely, in Gholston the Federal District
Court for the Eastern District of Michigan held that the “affidavit established a
minimally sufficient nexus between the criminal activity under investigation and
Defendant's cell phone, such that a reasonable officer in [the affiant’s position] would
have had a good-faith belief in the validity of the warrant issued by the Magistrate
Judge.”25 There, the police seized a cell phone in defendant’s possession at the time of
his arrest.26 The arresting officer then submitted an application and affidavit to search
the cell phone.27 As in the case at hand, the affidavit at issue in that case provided
21
Id. at *3 (citing Riley v. California, 134 S.Ct. 2473, 2485 (2014)).
22
Id. at *3.
23
Id. at *4.
24
Id.
25
United States v. Gholston, 993 F. Supp. 2d 704, 720 (E.D. Mich. 2014).
26
Id. at 707-08.
27
Id.
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information regarding the crime that defendant allegedly committed, the results of the
search of the previous authorization of defendant’s home, and the officer’s belief, based
on the officer’s training and experience, that the phone contained evidence of the
crime.28 Furthermore, the Gholston Court cited various court decisions holding, that
under similar circumstances, probable cause existed to issue a warrant to search a cell
phone.29 As in Albert, this Court finds the reasoning of the Gholston Court persuasive.
18. Other federal district courts have found similarly. In United States v
Wiseman, the District Court for the District of Kansas found probable cause when the
cell phone was found in the defendant’s vehicle.30 There, the affidavit in support of the
warrant application described the circumstances surrounding the arrest of the
defendant. The affidavit there also set forth the opinion of the officer, based on the
officer’s experience, that the cell phone would contain evidence of a crime.31 The
Wiseman court stated that “it had become common knowledge in the courts that
cellular phones, complete with memory of numbers recently or frequently called, or
their address books, are a known tool of the drug trade.32 Finally, the District Court for
the Eastern District of Pennsylvania held, in United States v. Georgiou, “that probable
cause was not defeated by the absence of evidence that the particular devices to be
searched were actually used by the defendant in furtherance of his alleged criminal
activity.”33
19. Here, the second affidavit for the second search warrant established that the
28
Id. at 708.
29
Id. at 719-20.
30
United States v. Wiseman, 158 F.Supp.2d 1242, 1249 (D.Kan.2001).
31
Id.
32
Id.
33
United States v. Georgiou, 2009 WL 4641419, at *10 (E.D.Pa. Dec. 7, 2009).
11
cell phone was found in the master bedroom, at the time the Defendant was attempting
to flee, placing the Defendant in the same room as the cell phone, at the same time.
Also, Affidavit 2 established that during the search permitted by the first warrant, law
enforcement found 5.2 grams of cocaine in the vehicle parked outside of the 92
Residence, a digital scale and other drug paraphernalia on a shelf in a pantry, as well
as a stolen firearm. The second affidavit further stated the Affiant’s opinion, like in
Albert, Gholston, and Wiseman, that, based on the Affiant’s training and experience,
the cell phone would contain incriminating evidence of the crime alleged. Finally, this
Court finds the holding in Georgiou that the absence of evidence that the Defendant
actually used the device does not defeat probable cause to be persuasive. This Court
finds that the affidavit in support of the search warrant application for the phone
contained enough facts to provide a sufficient nexus between the criminal activity under
investigation and the cell phone seized. For these reasons, Defendant’s second motion
to suppress is also DENIED.
IT IS SO ORDERED.
/s/Jeffrey J Clark
Judge
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