Opinion
ID No. 0804037667.
Date Submitted: October 8, 2008.
Date Decided: November 26, 2008.
John A. Barber, Esq., Department of Justice, Wilmington, DE.
Joe A. Hurley, Esq., Wilmington, DE.
Upon Defendant's Motion to Suppress: GRANTED
Dear Counsel:
Before the Court is the Defendant's Motion to Suppress Evidence obtained after a warantless search of the Defendant's residence. The issue presented is whether the Defendant voluntarily consented to the warrantless search.
A warrantless entry into a home for the purpose of conducting a search ordinarily violates the Fourth Amendment. An exception exists when the search is conducted pursuant to a valid consent. The State bears the burden of proving that the consent was freely and voluntarily given. Whether consent is voluntary "is a question of fact to be determined from the totality of all the circumstances. While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish knowledge as the sine qua non of an effective consent. In this case, the Court is not concerned about police coercion. Rather, the Court's concern centers on whether the State has proven by a preponderance of the evidence that the defendant unequivocally consented to the search of his room.
See Payton v. New York, 445 U.S. 573 (1980); State v. Harris, 642 A.2d 1242 (Del.Super.Ct. 1993).
See Harris, 642 A.2d 1242 citing Schneckloth v. Bustamonte, 412 U.S. 218, 221-22 (1973).
See Harris, 642 A.2d at 1245.
See Schneckloth, 412 U.S. at 227.
Id.
The defendant does not argue, and the Court does not find, any police coercion.
See Harris, 642 A.2d at 1246.
On April 28, 2008 at approximately 3:30 p.m., members of the Governor's Task Force (hereinafter "Task Force" or "officers") responded to a residence in Claymont, Delaware in an attempt to return three capiases on Sean Rispoli ("Rispoli"). As the officers were speaking with Rispoli in the first floor living room, Rispoli's roommate, the defendant, William Fabrega ("Fabrega"), emerged from the basement. Probation and Parole Officer Mark Lewis ("Lewis") testified on direct examination that when Fabrega came upstairs, Lewis asked him if "we could take a look around his bedroom and if we could see it." Lewis testified that Fabrega said, "yes, we could," and proceeded to take them downstairs to the basement where his room was located. On cross examination, however, Lewis backed off his assertion that Fabrega answered "yes," and testified as follows:
Suppression Hearing Tr. (hereinafter "Tr.") at 13, October 8, 2008, Docket Item ("D.I.") 18.
Id.
Q. . . . What was the next topic addressed?
A. I asked if we could — if he could show us his bedroom.
Q. And did he verbally respond or act by conduct only, or act — yeah, by conduct only, a head nod or —
A. He verbally responded.
Q. What did he say?
A. And proceeded to take us down to his bedroom.
Q. What did he say?
A. I can't recall exactly, but he — pretty much in his actions and his words, was allowing us to go see his bedroom .
Q. Okay. So its fair to say with regard to any verbal response he made . . . whatever he said you don't remember what it was, but you interpreted it as his agreeing to let you see his bedroom?
A. Yes.
Tr. at 17-18. (Emphasis added)
Lewis testified that Fabrega told the officers he was on Level 1 probation after he indicated they could see his bedroom. He could not recall, however, whether Fabrega "volunteered it or I asked it." On the way down to the basement, Fabrega told Lewis he had a shotgun behind his headboard. The officers secured the shotgun and Lewis called his supervisor to obtain approval for an administrative search. During the administrative search, the officers uncovered "some money . . . and what was determined to be marijuana residue."
Tr. at 18.
Id.
Tr. at 19.
Tr. at 14.
Tr. at 9.
Fabrega's recollection of the conversation preceding his alleged consent differs from the officers'. According to Fabrega, after he answered the officers' question as to where his room was located, "they just started walking straight towards my room . . . I just followed right with them." Fabrega testified that:
Tr. at 31.
. . . [the officer] . . . started asking me what have I been in trouble with. He started, like, asking me all types of questions. And as soon as I said I was on probation, he then asked me where my room was at. And nobody ever said, can I go in your room.
I told him my room was downstairs in the basement. He started walking straight towards the basement, and I — then he stopped in front of my basement door and I followed — I went in front of him, he followed behind, then he walked downstairs and then they started searching . . . all through the basement.
Tr. at 30.
When asked on cross examination, "[a]nd at no point they asked if they could go see your bedroom?" Fabrega responded, "no sir." Fabrega testified that after he realized they were searching his room he told them about the shotgun, "because I knew they were eventually going to find it."
Tr. at 32.
Tr. at 35.
After reviewing all of the testimony, the Court is not satisfied that the State demonstrated with "clear and positive testimony that consent was `unequivocal and specific' and `freely and intelligently' given." The police interpreted Fabrega's willingness to tell them the location of his bedroom and his failure to physically prevent them from entering and searching his room as valid consent. It was not.
U.S. v. Dewitt, 946 F.2d 1497, 1500 (10th Cir. 1991) quoting Villano v. U.S., 310 F.2d 680, 684 (10th Cir. 1962).
CONCLUSION
Viewing the totality of the circumstances, the Court finds that the State has not proven by a preponderance of the evidence that Fabrega's consent was voluntarily given. Consequently, the search was in violation of the Fourth and Fourteenth Amendments and the Defendant's Motion to Suppress must be GRANTED.
IT IS SO ORDERED.