Valentine v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

LAMONT VALENTINE, §
§ No. 17, 2018
Defendant Below, §
Appellant, § Court Below—Superior Court
§ State of Delaware
v. §
§ Cr. ID No. N1603023004
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §

Submitted: January 9, 2019
Decided: March 20, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

Upon appeal from the Superior Court. REVERSED AND REMANDED.

Benjamin S. Gifford, IV, Esquire, Wilmington, Delaware for Appellant Lamont
Valentine.

Brian L. Arban, Esquire, Department of Justice, Wilmington, Delaware for Appellee
State of Delaware.
TRAYNOR, Justice:

Based upon an informant’s tip and some largely unproductive surveillance

activity, two Wilmington police detectives applied for a warrant to search Lamont

Valentine’s apartment and automobile for evidence that Valentine, a convicted

violent felon, was in possession of a firearm or ammunition. A magistrate issued the

warrant, and when the officers conducted the search, they found marijuana, drug

paraphernalia, and ammunition in the apartment and a firearm in the vehicle. These

discoveries and other information provided by another resident of the apartment

building resulted in numerous criminal charges against Valentine, including

possession of a firearm by a person prohibited, drug dealing, aggravated possession

of marijuana, terroristic threatening, and conspiracy. 1

Valentine moved to suppress the fruits of the search on the grounds that the

warrant affidavit and application did not establish probable cause that he had

committed or was committing the offense of unlawfully possessing a firearm or that

evidence of that crime was likely to be found in his apartment or car. The Superior

Court denied the motion, and Valentine was eventually convicted of drug dealing,

aggravated possession of marijuana, possession of drug paraphernalia, and

1
The jury was unable to reach a unanimous verdict on the charges of possession of a firearm by a
person prohibited and carrying a concealed deadly weapon, and the State entered a nolle prosequi
on these charges. Valentine was acquitted of terroristic threatening and conspiracy. App. to Op. Br.
A6–7 (hereinafter, “A__”).

2
endangering the welfare of a child. 2 Valentine was sentenced to six years of Level

V incarceration, suspended for 18 months of Level III probation. 3 He then filed this

appeal, which is confined to the Superior Court’s denial of his suppression motion. 4

We agree with Valentine that the warrant application was insufficient to

support a finding of probable cause that he had committed or was committing the

crime identified in the warrant—possession of a firearm by a person convicted of a

violent crime felony—or that a firearm was in his apartment or car. Accordingly,

Valentine’s convictions must be reversed.

I. FACTS

During the first week of March 2016, a confidential informant told

Wilmington Police Department detectives that she5 “had information [that Valentine]

was in possession of illegal narcotics and a handgun, [which were] kept inside his

residence . . . [at] 2901 Broom Street, Apartment 4”6 in Wilmington. A couple weeks

later, Valentine, who had been convicted of a felony drug offense in Pennsylvania in

2009, was arrested and charged with possession of a firearm by a person prohibited

2
Id. at A10–16.
3
At the same sentencing hearing, Valentine was sentenced to 10 years of Level V incarceration for
the possession of a firearm by a person prohibited charge arising out of his March 19 arrest, which
is described below.
4
Id. at A428–29.
5
In their search warrant affidavit, the officers were careful not to disclose the gender of the
informant to whom we have randomly ascribed the feminine gender in this opinion.
6
A47.

3
after the Delaware State Police stopped a car Valentine was driving and found a

weapon in the car.

During the third week of March, the detectives began surveillance of

Valentine’s Broom Street apartment. Beyond seeing Valentine leave the building

and climb into a Dodge Challenger, it does not appear as though the detectives saw

much of interest during the first week of surveillance. At some unidentified time

during the next week—that is, the second week of surveillance and now the fourth

week of March—the detectives observed Valentine meeting and exchanging a duffle

bag with an unidentified male outside the building. So far as we know, this encounter

was the only arguably suspicious behavior witnessed by the detectives during the

entire surveillance period.

On March 30, a woman who lives in the Broom Street apartment building and

who also provides cleaning services there made a terroristic-threatening complaint

against Valentine. Although the record is murky on this point, it appears as though

Valentine may have believed that the woman had stolen some of his money and had

demanded that she return it. In her report to the police, the woman described

Valentine as a known drug dealer.

On these facts and on the same day as this terroristic-threatening complaint,

the detectives applied for a warrant to search Valentine’s Broom Street apartment

and his Dodge Challenger for firearms and documents tending to show that Valentine

4
lived in the Broom Street apartment. A magistrate issued the warrant, which the

detectives promptly executed, finding cash on Valentine’s person, ammunition,

marijuana, and drug paraphernalia in his apartment, and a loaded handgun in his car.

Valentine moved to suppress the evidence seized from his apartment and car

on the grounds that the detectives’ search warrant affidavit did not set forth sufficient

facts within its four corners from which the magistrate could conclude that probable

cause for the searches existed. The State countered—and the Superior Court

agreed—that, reviewing the totality of the circumstances, including the informant’s

tip, Valentine’s March 19 arrest and his past criminal history, the duffle bag

exchange, and the purported altercation with the cleaning woman, probable cause

existed.

II. STANDARD OF REVIEW

We review the Superior Court’s grant or denial of a motion to suppress for an

abuse of discretion.7 But where the facts are not undisputed and only a constitutional

claim that a search warrant was issued upon an insufficient showing of probable

cause is at issue, we review the Superior Court’s ruling de novo.8

7
Lopez-Vasquez v. State, 956 A.2d 1280, 1284 (Del. 2008).
8
LeGrande v. State, 947 A.2d 1103, 1107 (Del. 2008).

5
 III. DISCUSSION

Valentine contends that the searches of his home and car violated the Fourth

Amendment of the United States Constitution9 and that, therefore, the evidence

seized during those searches should have been excluded at his trial. The Fourth

Amendment provides that “no warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly describing the place to be

searched, and the person or things to be seized.” 10 Thus, under the Fourth

Amendment a search warrant may issue only upon a showing of probable cause.

In Delaware, the procedure for making this showing to a judicial officer is set

forth in Chapter 23 of Title 11 of the Delaware Code. Particularly, 11 Del. C. § 2306

describes the necessary elements of a search warrant application:

The application or complaint for a search warrant shall be in writing,
signed by the complainant and verified by oath or affirmation. 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. (emphasis added)

9
Valentine makes a passing reference in a footnote in his opening brief on appeal to Art. I, § 6 of
the Delaware Constitution but does not argue that our analysis of his claims under state
constitutional law would or should be different than under the Fourth Amendment.
10
U.S. CONST. amend. IV.

6
 Section 2307(a) addresses the issuing magistrate’s role and the contents of the

warrant itself:

(a) Issuance of search warrants; contents — 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.

It is well settled that any finding of probable cause must be based on the

information that appears within the four corners of the application or affidavit. 11 By

requiring that the facts relied upon by the issuing magistrate be recorded in the

affidavit, the ability of a reviewing court to assess whether the probable cause

requirement has been satisfied without the need to resort to extrinsic testimony is

preserved.12 Sticking to only those facts and circumstances set forth in the affidavit,

the magistrate is charged with making “a practical, common-sense decision whether

. . . here is a fair probability that contraband or evidence of a crime will be found in

a particular place.13

A. “Four Corners” Review

The key factual assertions in the affidavit can be summarized as follows:

11
State v. Holden, 60 A.3d 1110, 1114 (Del. 2013); Dorsey v. State, 761 A.2d 807, 811 (Del. 2000)
(referring to the four-corners test as a “time honored standard”).
12
Dorsey, 761 A.2d at 811.
13
Holden, 60 A.3d at 1114 (citing Illinois v. Gates, 462 U.S. at 237).

7
  The two detectives who filed the application and affidavit
collectively have “over (15) fifteen years police experience and (7)
seven years of investigative experience,” have “attended schools
and seminar specifically dealing with narcotics investigations,” and
have “authored and/or co-authored over (100) one hundred search
warrants.”14

 During the first week of March 2016, an individual identified by the
detectives as a “past proven reliable informant” told the detectives
that Valentine “was known to sell marijuana” and kept “illegal
narcotics and a handgun” inside his home at 2901 North Broom
Street, Apartment 4, in Wilmington. 15

 On March 19, which was between when the detectives received the
tip and when they filed the warrant application on March 30,
Valentine was arrested by the Delaware State Police. He was
charged with possession of a firearm by a person prohibited,
carrying a concealed deadly weapon, and speeding.

 In 2009, Valentine had been convicted of a “controlled substance
charge” in Pennsylvania.16

 Police surveillance confirmed that Valentine appeared to live at the
Broom Street address provided by the informant and regularly drove
a 2016 Dodge Challenger—the car named in the search warrant.

 During the fourth week of March, Valentine was observed leaving
2901 Broom Street “and briefly meeting with an unknown black
male where a duffle bag was exchanged between the two men.” 17
Valentine then got into the Dodge Challenger and drove to
Pennsylvania.

 On March 30, the same day that the officers applied for the search
warrant, another resident of the Broom Street apartment building
made a “terroristic threatening complaint” against Valentine,

14
A47.
15
Id.
16
Id.
17
A48.

8
 claiming that he had called her on her cell phone and stated: “I know
you have my money. Don’t come home unless you have my f---ing
money.”18 This person also alleged that Valentine’s girlfriend also
said something similar in person to her and that Valentine is a
“known drug dealer.”19

In denying Valentine’s motion to suppress, the Superior Court recognized the

centrality of the informant’s tip during the first week of March to the determination

of whether the detectives alleged sufficient facts upon which the magistrate could

find probable cause for the search. But the Superior Court’s decision was not based

exclusively on the informant’s tip:

The warrant at issue in the present case contains more than the tip from
the past-proven reliable confidential informant. The tip coupled with
the officers’ surveillance of Defendant, Defendants past criminal
history including his arrest on March 19, and the altercation with the
victim on March 30 establish probable cause to search Defendant’s
house and vehicle.20

Thus, the court found that the totality of these circumstances—the tip,

corroborative facts gathered by way of surveillance, Valentine’s criminal history, and

the March 30 argument with the cleaning woman—supported the magistrate’s

probable cause finding. We disagree.

18
Id.
19
Id.
20
A123.

9
 A. The Informant’s Tip

Much has been written over the years about the extent to which the police,

when applying for a search warrant, may rely on hearsay statements of informants

whose identity is not disclosed in the search warrant affidavit. It is now settled that

the assessment of informants’ tips must take into account the reliability or veracity

of the informant,21 the basis of the informant’s knowledge, 22 and “the degree to

which the tip is corroborated by independent police surveillance and information.” 23

(i) Veracity/Reliability

Police officers frequently attempt to demonstrate the credibility of an

undisclosed informant by pointing to his past performance. 24 Here, the State

contends that the detectives sufficiently checked that box by referring to the

informant as a “past proven reliable confidential informant.”25 But such a

conclusory allegation regarding the informant’s past performance is problematic

because it interferes with the issuing magistrate’s ability to make an independent

determination regarding the informant’s reliability.26

21
Brown v. State, 897 A.2d 748, 751 (Del. 2006).
22
Holden v. State, 60 A.3d 1110, 1114 (Del. 2013).
23
LeGrande v. State, 947 A.2d 1103, 1108 (Del 2008).
24
2 Wayne R. Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.3(b) (5th ed.
2012).
25
A47.
26
See Illinois v. Gates, 462 U.S. 213 (1983) (“Sufficient information must be presented to the
magistrate to allow that official to determine probable cause; his action cannot be a mere
ratification of the conclusion of others.”).

10
 The detectives’ affidavit in this case said nothing about the manner in which

the informant had proved to be reliable in the past (e.g., investigation of prior tips

corroborated their accuracy or led to convictions). For instance, the affidavit did not

disclose whether prior tips provided by the informant had been established as

accurate or led to arrests or convictions. In Aguilar v. Texas,27 the United States

Supreme Court held that an affidavit merely describing the informant as a “credible

person” was insufficient to establish credibility because it was a “mere conclusion”

lacking any information on “the underlying circumstances from which the officer

concluded that the informant was . . . ‘credible.’” 28 Similarly, in Spinelli v. United

States,29 where the affidavit only described the informant as “credible” and his

information “reliable” the Supreme Court concluded that the affiant “offered the

magistrate no reason in support of this conclusion.” 30 And while Illinois v. Gates31

abandoned the two-pronged test that had evolved from Aguilar and Spinelli in favor

of a totality-of-the-circumstances test, Gates explicitly endorsed the proposition that

27
378 U.S. 108 (1964)
28
Id. at 109, 114.
29
393 U.S. 410 (1969)
30
Id. at 416.
31
462 U.S. 213 (1983).

11
conclusory allegations regarding an informant’s past performance are insufficient to

establish credibility. 32

We therefore conclude that, at least to the extent it relied upon the informant’s

past performance, the affidavit was insufficient to establish the informant’s

credibility.33 But our conclusion that the affidavit was insufficient to establish the

informant’s credibility on the basis of past performance does not end our inquiry.

We must also consider whether other circumstances lend credence to the informant’s

report sufficient to support a probable cause finding for some other reason.

(ii) Basis of knowledge

As mentioned, allegations that establish the basis of the informant’s

knowledge of the events or conduct he has reported to law enforcement can be

“highly relevant in determining the value of his report.”34

32
Id. at 239 (quoting Aguilar, 378 U.S. at 117) (“An officer’s statement that ‘affiants have received
reliable information from a credible person and believe’ that heroin is stored in a home, is likewise
inadequate.”); see also State v. Lechner, 557 S.W.2d 195, 198 (Ark. 1977) (“Catch phrases alone
such as ‘reliable confidential informant, who has proven to be very reliable in the past,’ carry no
weight.”); State v. Woodall, 666 P.2d 364, 366 (Wash. 1983) (“The affidavits merely state that the
informant is ‘a reliable informant who has proven to be reliable in the past’ . . . the affidavits
presented by [the officer] did not supply any facts establishing the credibility of the informant.”).
33
In reaching this conclusion, we are mindful that, in Morgan v. State, 962 A.2d 248 (Del. 2008),
we concluded that information from an informant who was described as having “provided
information in the past that has proven to be accurate” supported the magistrate’s probable cause
determination. But our holding in Morgan turned more on the informant’s accurate prediction of
the defendant’s future movements than on his reliability based on past performance.
34
Illinois v. Gates, 462 U.S. at 230.

12
 The most straightforward way to establish an informant’s basis of knowledge

is by alleging that the informant is providing first-hand information. 35 The detectives

in this case were apparently unable to make that allegation. Their affidavit does not

disclose how the informant learned of the presence of drugs and a handgun in

Valentine’s apartment (did she see them herself or was she told of their presence?);

how fresh or stale the informant’s information was; the nature of the informant’s

relationship to Valentine; or whether the informant had ever been in Valentine’s

apartment or car. Thus, there is nothing in the substance of the tip itself that sheds

light on the purported basis of the informant’s knowledge.

Under certain circumstances, the absence of allegations that the informant had

first-hand knowledge can be excused when the tip contains “sufficient detail that the

magistrate may know that he is relying on something more substantial than a casual

rumor circulating in the underworld or an accusation based merely on an individual’s

general reputation.”36 For example, in Spinelli, the tipster “describe[d], with minute

particularity, the clothes that [a suspect] would be wearing upon his arrival at the

Denver station.”37 Once again, we find the affidavit deficient on that score.38

35
See Illinois v. Gates, 462 U.S. at 234. “[E]ven if we entertain some doubt as to an informant’s
motives, his explicit and detailed description of alleged wrongdoing, along with a statement that
the event was observed first-hand, entitles his tip to greater weight than might otherwise be the
case.”]
36
Spinelli, 393 U.S. at 416.
37
Id. at 417.
38
Compare to Henry v. State, 1991 WL 12094, at *2, 588 A.2d 1142 (Del. 1991) (Table); Tolson
v. State, 900 A.2d 639, 643 (Del. 2006).

13
Beyond saying that Valentine “was in possession of illegal narcotics and a handgun

that was kept inside his residence,” the tip contained no detail whatsoever. It did not

disclose the kind or quantity of narcotics kept by Valentine in his apartment, a

description of the handgun, nor does it say even in the most general terms where in

the apartment the drugs and gun might be found. In sum, the warrant affidavit does

not contain any self-verifying detail that can stand in the place of first-hand

knowledge so that the magistrate could reasonably know that the informant knew

what she was talking about.

(iii) Other indicia of reliability

When the United States Supreme Court abrogated the two-pronged Aguilar-

Spinelli test39 in favor of a totality-of-the circumstances test, it recognized that a

deficiency in one of the Aguilar-Spinelli factors “may be compensated for . . . by a

strong showing as to the other, or by some other indicia of reliability.” 40

Accordingly, a question remains: despite the affidavit’s failure to set forth facts

39
Professor LaFave has succinctly described this test: “Under the first prong of Aguilar, or what
might more precisely be called the basis of knowledge prong, facts must be revealed which permit
the judicial officer making the probable cause determination to reach a judgment as to whether the
informant had a basis for his allegations that a certain person had been, was or would be involved
in criminal conduct or that evidence of crime would be found at a certain place. By contrast, under
the second prong of Aguilar, properly characterized the veracity prong, facts must be brought
before the judicial officer so that he may determine either the inherent credibility of the informant
or the reliability of his information on this particular occasion. Thus, the second or veracity prong
of Aguilar was said to have a credibility spur and a reliability spur.” 2 LaFave, Search & Seizure
§ 3.3(a) (5th ed.) (footnotes and quotations omitted).
40
Gates, 462 U.S. at 233.

14
regarding the informant’s past performance and basis of knowledge and the lack of

detail in the tip itself, were there other indicia of reliability providing a substantial

basis for the magistrate’s conclusion that probable cause existed? The Superior

Court’s view was that “the officers’ surveillance of [Valentine], [Valentine’s] past

criminal history including his arrest on March 19, and the altercation with the victim

on March 30”41 provided sufficient additional heft to the affidavit, tipping the scales

in favor of the magistrate’s probable cause finding. Addressing these additional

factors in reverse order, we reach the opposite conclusion.

a. The March 30 “altercation”

The affidavit recites that, on March 30, Valentine called the woman who

resided at the Broom Street apartments by telephone and told her, “I know you have

my money. Don’t come home unless you have my f---ing money.”42 The woman

told the detectives that she “usually cleans up around the apartment building” 43 and,

earlier that day, she had thrown a grocery bag and a hat into the trash, not knowing

what was in the grocery bag. The clear import of this statement was that she

surmised that the bag must have contained money belonging to Valentine and that

Valentine thought that she had stolen it. In any event, when she returned to the

apartment building, she saw Valentine “waiting for her with his hands inside of his

41
A123.
42
A48.
43
Id.

15
hooded sweatshirt pocket.”44 The affidavit does not say that the woman believed

that Valentine was armed. According to the affidavit, Valentine’s girlfriend came out

of the building and accused the unidentified woman of “hav[ing] the money.”45 The

woman then called the police, but Valentine intervened,” grab[bing] [the] victim’s

phone from her hand and stat[ing] to the dispatcher that everything was fine and that

the police did not need to respond.”46 Valentine then went into his apartment, where

he remained until the police arrived. The woman told the police that she feared for

her safety because Valentine is a known drug dealer who might act on his threats. 47

The State argues that this interaction between Valentine and the unidentified

woman and the woman’s opinion that Valentine was a drug dealer corroborated the

earlier informant’s tip “that Valentine possessed a handgun.” 48 For good measure,

the State opines, without any support within the four corners of the affidavit, that the

incident was indicative of Valentine’s “apparent loss of a large amount of money.” 49

Although the Superior Court found this incident to be relevant to the magistrate’s

finding of probable cause that Valentine was concealing a weapon in the Broom

Street apartment or in his car, it did not state how this was so.

44
Id.
45
Id.
46
Id.
47
Although the woman characterized Valentine’s statements as threats, the jury ultimately
acquitted Valentine of terroristic threatening.
48
Ans. Br. 10.
49
Id.

16
 To be sure, search warrant affidavits must be “considered as a whole and not

on the basis of separate allegations.”50 Nevertheless we pause here to remark on the

questionable utility of the information provided by the purported victim51 of

Valentine’s threats to the assessment of the reliability of the initial informant’s tip.

First, nothing about the incident tends to corroborate the tip, which was that

Valentine possessed illegal drugs and a handgun, let alone that he did so in the Broom

Street apartment. And even if one were inclined to infer from Valentine’s misguided

effort to recover his money from the unidentified woman that the source of that

money was illegal activity—an inference we do not make—it would be mere

speculation to conclude that the activity was drug dealing and, more to the point,

that a handgun was involved. Viewed objectively, the March 30 incident was

corroborative of nothing more than Valentine’s reputation as a drug dealer. And we

50
Gardner v. State, 567 A.2d 404, 409 (Del. 1989) (quoting Jensen v. State, 482 A.2d 105, 111
(Del. 1984)).
51
The jury acquitted Valentine of the terroristic-threatening charge.

17
have long recognized that information developed by way of general rumor or

reputation is of limited, if any, reliability in the search warrant context. 52

b. Valentine’s March 19 Arrest

The affidavit states that Valentine was arrested on March 19, 2016 by the

Delaware State Police for possession of a firearm by a person prohibited, carrying a

concealed deadly weapon, and speeding. The fact of this arrest was noted by the

Superior Court, and the State now asserts that the arrest was “corroborative evidence

that Valentine possessed a handgun.” But, the March 19 arrest, if anything,

undermines the affidavit’s claim that Valentine possessed the handgun on March 30.

Stated differently, the March 19 arrest cannot simultaneously corroborate the

informant’s tip that Valentine possessed a handgun in his home and support the

inference that that same handgun, having been seized by the Delaware State Police

on March 19, would be found in his home or car on March 30.

52
See Schramm v. State, 366 A.2d 1185, 1191 (Del. 1976) (noting the importance of the
determination that “the informant had gained his information in a reliable manner, and not by way
of general rumor or reputation.”); Spinelli, 393 U.S. 410, 416 (“In the absence of a statement
detailing the manner in which the information was gathered, it is especially important that the tip
describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is
relying on something more substantial than a casual rumor circulating in the underworld or an
accusation based merely on an individual’s general reputation”); Marvel v. State, 290 A.2d 641,
643 (Del. 1972) (noting that holding in Spinelli with approval). But see United States v. Harris,
403 U.S. 573, 583 (1971) (“a policeman’s knowledge of a suspect’s reputation” is “a practical
consideration of everyday life upon which an officer (or a magistrate) may properly rely in
assessing the reliability of an informant’s tip” (internal quotations omitted)).

18
 c. Valentine’s Criminal History

Although the Superior Court found that Valentine’s criminal history—a 2009

“controlled substance charge out of the State of Pennsylvania” 53—supported the

magistrate’s probable cause determination, the purpose for which the Superior Court

considered the history is unclear. The fact of a prior conviction, had it been for a

felony-level crime, might have been relevant to Valentine’s status as a person

prohibited from possessing firearms, but the affidavit does not say whether the

conviction was a felony or a misdemeanor. For all that we know from the affidavit,

it could have been a simple possession charge. In any event, the State takes a

different tack, arguing that Valentine’s prior drug conviction corroborated “[t]he CI’s

statement that Valentine possessed and dealt drugs.” 54

The State’s contention is flawed for two reasons. First, the detectives did not

seek the warrant to search for drugs; they were looking for a gun and ammunition.

Second, the conviction was nearly seven years in the past as of the date of the warrant

application. As we noted in Jones v. State,55 “[p]robable cause must be manifest at

the time the police seek the search warrant, not at some earlier point in time.” By

53
A47.
54
Answering. Br. 10.
55
28 A.3d 1046, 1058 (Del. 2011) (holding that drugs and weapons charges dating back
approximately six years before a warrant application do not support a factual inference that the
police would find contraband at the defendant’s home).

19
any reasonable standard, a 2009 drug conviction is stale and does not support an

inference that the detectives would find contraband, much less a gun, in 2016.

d. The Officers’ Surveillance

The warrant affidavit suggests that the police placed the Broom Street address

under surveillance approximately two weeks before they applied for the search

warrant. During that period, the detectives saw Valentine exiting the apartments on

two separate occasions. On one of those occasions, they saw Valentine “exiting the

rear door of 2901 Broom Street and briefly meeting with an unknown black male

where a duffle bag was exchanged between the two men.” 56 The affidavit does not

disclose any particularized facts upon which an independent fact-finder could

conclude that the men were acting in a suspicious manner, that they were making an

effort to conceal their conduct, or even that the duffle bag contained contraband

instead of, say, clothing. The affidavit does not even say which of the two men gave

or received the bag during the exchange. Moreover, in their affidavit, the detectives

do not offer any opinion on why, based on their training and experience, the duffle

bag exchange was indicative of criminal activity of any sort or why the exchange

would tend to indicate that police would find illegal weapons and ammunition in

Valentine’s home or car. Put simply, the police surveillance uncovered no facts

relevant to or corroborative of the informant’s tip save Valentine’s association with

56
A48.

20
the Broom Street apartment, and gave a neutral, independent fact-finder no

additional reason to think that there was probable cause to believe that there would

be contraband in Valentine’s home or car.

***

Although we review a magistrate’s probable cause determination with great

deference, we must nevertheless test the reasonableness of the magistrate’s

conclusion that the items sought—here, a handgun and ammunition—would be

found in the places to be searched. 57 Where the police are acting on the basis of an

unidentified informant’s tip whose past performance as an informant and basis of

knowledge of the subject matter of the current tip are not set forth in the affidavit

and where the tip is devoid of detail and not corroborated in any meaningful way, a

conclusion that there was probable cause for a search warrant is not reasonable.

We therefore find that the search of Valentine’s apartment and car violated his

rights under the Fourth Amendment to the United States Constitution. Accordingly,

the evidence seized during those searches should have been suppressed.

IV. CONCLUSION

The judgments of conviction of the Superior Court are REVERSED and the

matter is REMANDED for further proceedings consistent with this Opinion.

57
Jones, 28 A.3d 1057.

21