Opinion
No. 9909013999.
Submitted: March 20, 2000.
Decided: March 27, 2000.
Defendant's Motion Suppress — Denied.
Dennis Kelleher, Esquire, Deputy Attorney General, 45 The Green, Dover, Delaware 19901.
Joseph A. Hurley, Esquire, 1215 King Street, Wilmington, Delaware 19801.
Counsel:
Before the Court is the Motion to Suppress of Defendant, Robert S. Saunders. From the submissions of the parties, and after presiding over the hearing, it appears that at the absolute minimum on September 17, 1999, the Dover Police had in their possession facts 1 — 17 as enumerated by defense counsel in his letter brief. These facts were obtained from a confidential informant that had been working with the Dover Police for seven-to-ten days prior to the seizure. The information available to the police from the informant included: the first name of the supplier, his physical description, the state where he resided, the vehicle he was driving, the state where the vehicle was registered, various phone numbers of the supplier, the amount of marijuana being transported, where the Defendant would be meeting the informant, the route he would take to get into the parking lot and that the drugs would be located in a brown cardboard box. Tellingly, the Defendant did not include an important fact in his summary, and that is that the informant positively identified the supplier, now the Defendant, to the police when he arrived at the meeting place.
The defense would have this Court believe that the seventeen articulable facts cited in its submission, in addition to the factor added by the Court, are not enough for the police to garner probable cause since the Defendant has pointed to sixteen facts of which the informant was not in possession. However, the specific facts that the Defendant has articulated to the Court are too high a burden to ask of any informant that the State uses to obtain information about a drug supplier. The Defendant has zeroed in on the information the informant did not know, i.e., the supplier's last name, his address, who owned the truck he was driving, when he was leaving, that no recorded phone conversations had taken place, and exactly where the drugs would be located in the car.
It is common knowledge, and Officer DiGirolomo testified to the same at the suppression hearing, that this type of information is usually not known to an informant or anyone involved in the drug business because a supplier wants to keep his identity a mystery to the people with which he is conducting his illegal transactions. Therefore, the fact that the informant lacked this specific information does not affect the credibility of the information that he did possess, most notably, that he set up the time and place of the delivery, knew what type of vehicle the supplier would be driving and what State the car was registered in, knew the supplier's physical description and corroborated this by positively identifying the supplier when he arrived at the specified meeting place.
Although the Defendant would like this Court to focus on the facts that the informant was not in possession of, this approach would overlook the abundance of information that the informant knew and transmitted to the Dover Police. The United States Supreme Court in Illinois v. Gates, held that a court must look to the "totality of the circumstances" to demonstrate that the police had probable cause as a result of the confidential informant's basis of knowledge.
462 U.S. 213 (1983).
In Alabama v. White, the United States Supreme Court, interpreting reasonable articulable suspicion with regard to an anonymous telephone tip of criminal activity, held that a trial court must look at the totality of the circumstances when deciding whether the tip amounts to reasonable suspicion. In White, the Court did find that reasonable suspicion existed and relied on the specific facts of that case, including: (1) the specificity of the anonymous tip; (2) independent police corroboration of the facts underlying the tip; and (3) the ability of the tipster to predict future behavior by the suspect. Although in the present case, the police needed probable cause, these factors play a role in the totality of the circumstances test called for by Gates. As referenced above, all of these factors are apparent in the case at bar.
496 U.S. 325 (1990).
Our Supreme Court has most recently dealt with this issue in Jones v. State, Del. Supr.,___ A.2d ___, No. 115, 1998, Veasey, C.J. (Dec. 16, 1999). In Jones, the Court held under the totality of the circumstances before it there was no indicia of reliability in the information that an anonymous tipster provided. The information relayed to the police by the tipster was vague according to the Court and could have been ascertained by anyone observing the suspect's activities. The instant case is easily distinguishable though. Here, the informant knew more than the readily observable activities that anybody could have seen the Defendant complete, as found in Jones. As admitted by the Defendant, the informant here supplied the Dover Police with at least seventeen different articulable facts about the Defendant and corroborated those facts by positively identifying the Defendant when he arrived at the meeting place which the informant and the Defendant had previously used.
The Defendant would also ask this Court to discount the informant's reliability because, according to the Defendant, the testifying officer referred to him as a "criminal informant." This Court finds that regardless of the term used to describe the informant, as long as the information that he passed on to the police had an indicia of reliability and aids in the totality of the circumstances test to establish probable cause, the informant's information will be deemed reliable. In addition, the Defendant points out that the State never offered evidence that referred to the informant as reliable. However, the information provided by the informant was corroborated when his predictions of the future activities of the supplier came to fruition. Therefore, even though the informant was not labeled as reliable by the police, the fact that there are at least seventeen articulable facts that can be pointed to that did match the information supplied by the informant self-authenticates the reliability of the informant.
The final argument espoused by the Defendant is that his activities were not evasive and should not have alerted the police that he was a drug dealer. This fact taken alone is a true statement. However, when looked at under the totality of the circumstances it is not as innocuous as the Defendant would have this Court believe. The fact that the Defendant did everything that the informant foreshadowed him doing corroborated the informant's basis of knowledge. As a result, the fact that the Defendant did not act in an evasive manner was totally consistent with the informant's description of the events that would occur at the meeting place. Since this was a confidential informant, the Defendant had no idea that the police would be lying in wait.
The Court does not need to reach the factual issue that the Defendant would like resolved regarding whether the police officer was correct in stating that the truck's doors were open when the Defendant was apprehended or the Defendant's seven-year-old daughter was correct when she said that the doors were closed. When the police officers apprehended the Defendant they already had probable cause that criminal activity was afoot. The police had at least seventeen facts supplied by the informant, they had a positive identification by the informant of the Defendant, Officer DiGirolomo testified that a strong odor of bulk marijuana was emanating from the truck and, finally, the officer testified that since the truck had factory-tinted windows, he had to look inside the truck to determine if there was anyone else present besides the Defendant and his two children.
As a consequence, with the events unfolding as predicted by the informant, Officer DiGirolomo had probable cause to apprehend the Defendant and to take the brown cardboard box, which the informant said would be in the truck and had a strong odor of marijuana, out of the vehicle. When the K-9 then positively alerted to the cardboard box, the officer had probable cause to open the box to discover its content. Therefore, under the totality of the circumstances, the Dover Police had probable cause to believe that this Defendant was engaged in criminal activity. They also had probable cause to search the Defendant's vehicle and seize the brown cardboard box which contained the drugs at issue. As a result, the Defendant's Motion to Suppress is denied. IT IS SO ORDERED.
Very truly yours,
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WLW/dmh oc: Prothonotary xc: Order Distribution