Free Brief/Memorandum in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA Plaintiff, v. CHARLES A. WEBSTER, JR., Defendant.

: : : : : : : : :

Criminal Action No. 07-115-SLR

GOVERNMENT'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO SUPPRESS PHYSICAL EVIDENCE AND STATEMENTS The United States, by and through its undersigned counsel, Colm F. Connolly, United States Attorney for the District of Delaware, and Edward J. McAndrew, Assistant United States Attorney for the District of Delaware, respectfully requests that the Court deny Defendant's Motion to Suppress Physical Evidence and Statements for the reasons stated below. First, Defendant has abandoned that portion of his Motion that seeks suppression of his statements based on an alleged Miranda violation.1 Second, neither the contraband discovered at Defendant's residence nor the statements that he made on August 23, 2007 should be suppressed, because the probation and parole officers had a reasonable basis for conducting an administrative search of Defendant's residence.

Defendant now seeks suppression of his statements based solely on his Fourth Amendment argument that they are fruit of the poisonous tree, in that the officers had no legal basis to conduct a search of his residence. (Suppression Hr'g Tr. 2:12-3:7, July 1, 2008.)

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I.

PROPOSED FINDINGS OF FACT

On August 29, 2008, Defendant Charles A. Webster was indicted on two counts of possession of a firearm by a prohibited person, in violation of Title 18, United States Code, Section 922(g)(1). (Indictment, Docket Item ("D.I.") 8.) Those charges stemmed from the Delaware Probation and Parole Office's August 23, 2007 administrative search of Defendant's residence, wherein two stolen firearms were found. (Aff. Supp. Complt. ¶ 6, D.I. 2.) At the time of the August 23, 2007 administrative search, Defendant was statutorily prohibited from possessing a firearm. On March 23, 1998, Defendant had entered into a plea agreement in the Superior Court for New Castle County, pursuant to which he had pled guilty to charges of: (1) Assault First Degree, in violation of Title 11, Delaware Code, Section 613; (2) Possession of a Firearm During the Commission of a Felony, in violation of Title 11, Delaware Code, Section 1447A; and (3) Reckless Endangering First Degree, in violation of Title 11, Delaware Code, Section 604. (Plea Agreement, Gov't Ex. 2, at 44.) On or about January 29, 1999, Defendant was sentenced to more than one year of imprisonment, to be followed by Level 3 intensive probation. (Sentencing Order, Gov't Ex. 2, at 45-48.) The sentencing court imposed a number of express conditions to the sentence, including: 1. Defendant would pay his financial obligations during the first two years of the probationary period; Defendant would have no contact with the victim; Defendant would maintain employment; and Defendant would be evaluated for substance abuse and emotional and/or psychological problems and follow any directions for counseling, testing or treatment made by the probation officer.

2. 3. 4.

The sentencing court also included a "zero tolerance" statement, (Hr'g Tr. 13:4-11), in its order: 2

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NOTE: DEFENDANT HAS LONG VIOLENT JUVENILE RECORD. AS SOON AS DEFENDANT VIOLATES PROBATION, HE MUST BE TAKEN OFF THE STREET. DEFENDANT IS LUCKY HE RECEIVED A RULE 11 PLEA. (Sentencing Order, Gov't Ex. 2, at 48 (emphasis in original).) The sentencing court's note was an accurate comment on what Senior Probation Officer Janet Lingafeld described as Defendant's "extensive violent criminal history." (Hr'g Tr. 10:1319.) Officer Lingafeld testified that she reviewed Defendant's DELJIS report prior to the August 23, 2007 administrative search that resulted in the instant charges. See id. 7:23-11:10. That report shows that Defendant had amassed seven felony convictions as of the August 23, 2007 administrative search. (DELJIS Rpt. Gov't Ex. 1; Hr'g Tr. 10:9-12). In reviewing the report prior to the search, Officer Lingafeld noted that Defendant had been convicted of, or charged with (with certain charges dismissed in consideration of guilty pleas), Assault First Degree; Robbery First Degree Possession of a Firearm During the Commission of a Felony; Reckless Endangerment; Aggravated Menacing and other crimes.2 (Hr'g Tr. 10:20-11:4.) Also prior to conducting the administrative search, Officer Lingafeld was familiar with the terms of Defendant's intensive probation. See id. 13:22-14:1. As indicated in the "Level III Standard Curfew" form, Defendant was subject to a curfew from 6:00 p.m. to 6:00 a.m. if he was unemployed. If employed full-time, he was subject to a curfew of 10:00 p.m. to 6:00 a.m.

The DELJIS Report also indicates that Defendant was convicted of Escape After Conviction in 1992; Attempted Murder First Degree in 1991; Criminal Impersonation in 1991; Possession with Intent to Deliver Cocaine in 1989; Receiving Stolen Property in 1989; Criminal Trespass Third Degree in 1989; Burglary Third Degree, Conspiracy and Theft in 1986. (DELJIS Rpt., Gov't Ex. 1.) The DELJIS Report also includes myriad charges that were ultimately dismissed, all of which Officer Lingafeld testified that she takes into account in accessing the likelihood of suspected criminal activity by probationers. (Tr. 32:15-17.) 3

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(Level III Standard Curfew Form, Gov't Ex. 3; Hr'g Tr. 14:2-16:17.) Defendant signed this form and dated it June 14, 2006, under the sentence that reads: I understand and acknowledged the above curfew as established under condition 13 of my supervision. (Curfew Form, Gov't Ex. 3.) At the time of the administrative search, Officer Lingafeld and Probation Officer Angela Latsko knew that Defendant was unemployed, and was therefore subject to a 6:00 p.m. curfew. (Hr'g Tr. 16:21-17:3.) Defendant also signed a document entitled "Conditions of Release," which listed conditions that Defendant was subject to on August 23, 2007. (Conditions of Release Form, Gov't Ex. 4; Hr'g Tr. 17:20-23.) Conditions expressly listed in that document include: · · · · reporting any new arrest, conviction or police contact within 72 hours; reporting any changes in residence or employment within 72 hours; maintaining employment; and abiding by a curfew established by the probation officer.

(Conditions of Release Form, Gov't Ex. 4.) The form also twice includes the following sentence in capitalized and bold lettering: YOU ARE SUBJECT TO ARREST AND TO A SEARCH OF YOUR LIVING QUARTERS, PERSON OR VEHICLE AT ANY TIME BY A PROBATION/PAROLE OFFICER. Id. at 169. Immediately below this sentence, each time it appears, are the following sentences: I have read or have had read to me the above Conditions of Supervision. I consent to and fully understand their content and meaning. Id. On August 23, 2007, Officer Lingafeld received information from New Castle County

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Detectives Alfree and Lankenstein and Probation Officer Angela Latsko regarding two shooting incidents relating to Defendant. (Hr'g Tr. 18:21-21:15.) The New Castle County Police Department had opened investigations into each of the shootings. Id. 20:8-21:15. Officer Lingafeld learned that on August 22, 2007 ­ just one day before the administrative search ­ Defendant, who resided in Newark, was "in the city with his cousin" who was shot in the face "moments after" Defendant left her. Id. 19:8-13. Officer Lingafeld also learned that just days prior to that incident, Defendant was the victim of a shooting at 10:18 p.m. ­ more than four hours after his curfew. Id. 19:14-17. Because Defendant had been shot just two days earlier, the temporal ­ and Defendant's logistical ­ proximity (even though he was not present at the very moment it occurred) influenced the way Officer Lingafeld viewed the second shooting. Id. 60:15-23. Officer Lingafeld also was aware that Defendant may have been the intended target of the August 22, 2007 shooting. Id. 23:10-18; 60:7-14. In fact, the New Castle County detectives investigating the two shootings had a theory that Defendant "was robbing drug dealers in the city," which Officer Lingafeld believed may have been the motive for targeting him in the shootings. Id. 41:13-43:3. Officer Lingafeld considered these facts in light of her training and experience in supervising violent probationers and parolees. Through that training and experience, she has found that "people involved in criminal activity often have a tendency to have violent crimes committed upon them more frequently." Id. 21:22-22:6. She believed that Defendant might be armed, because of his prior history of violent crime involving firearms. Id. 22:7-22. In particular, she focused on the fact that Defendant had "several charges of possession of a

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firearm, which led [her] to believe that he would obtain a firearm to protect himself." Id. 22:1316. Officer Lingafeld also testified on cross examination that in addition to Defendant's history of violence and involvement in two shootings in three days, she also considered Defendant's failure to maintain employment, as required by the sentencing court, and his being shot after his curfew as factors leading her to decision to seek approval to search Defendant's residence. Id. 34:8-35:15. Officer Lingafeld also testified that Defendant violated his curfew a second time on the evening that his cousin was shot (the shooting occurred around 7:30 p.m. in the city). Id. 49:8-50:6. Officer Lingafeld also testified that she was aware that Defendant had a history of nine capiases. Id. 39:9-21; 59:23-60:6.3 Based on this information, Officer Lingafeld sought and obtained approval to conduct an administrative search of Defendant's residence from her supervisor, Patrick Cronin. Id. 22:1722; 67:9-70:15. Mr. Cronin explained that he approved the request for the search based on the information summarized above. Mr. Cronin was aware: of the nature and circumstances of Defendant's extensive criminal history; that he had been shot in buttocks in the days prior to the search; and that he was the intended target in another incident days later in which his cousin was shot in the face in the city. Id. 68:14-16. Finally, Mr. Cronin believed that Defendant might be armed based on his training and experience. As he testified regarding research done by Delaware's Criminal Justice Counsel:

Probation Officer Latsko testified that she was aware that Defendant also violated his curfew on January 8, 2007. (Tr. 78:19-24.) Defendant also failed to remain employed and did not meet the financial obligations imposed upon him by the sentencing court. Id. 79:8-11. 6

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individuals who were shot frequently were the persons who were involved as shooters in the incident or in a previous incident, and, as a result, that once somebody became a victim of a shooting and they had a criminal history that involved a shooting, we expected another shooting probably would be following out of that and the individual may be arming himself to protect himself from future shootings and to initiate any revenge. Id. 69:17-70:15. Officers Lingafeld and Latsko, along with New Castle County Police Department officers, executed the administrative search at approximately 8:00 p.m., on August 23, 2007. Id. 26:15-27:19. Defendant was present and was arrested. Id. Officers found a firearm in a boot located in the hallway closet, and a second firearm "between the cushion and the arm in the couch in the living room." Id. 27:20-28:10. After being mirandized, Defendant consented to an interview, during which he indicated that he knew who shot him and that the shooter was from Marcus Hook. (Aff. Supp. Complt. ¶ 7, D.I. 2.) He stated that he was in Marcus Hook conducting surveillance earlier that week. He also indicated that he was at 4th and Rodney Streets on August 22, 2007, where he was hanging out with his cousin and friends shortly before the shooting incident. See id. He stated that others were telling him that he was the target of the August 22 shooting. See id. II. PROPOSED CONCLUSIONS OF LAW

To conduct an administrative search of a probationer's residence, probation and parole officers need only have "reasonable suspicion" of the probationer's legal wrongdoing. United States v. Knights, 534 U.S. 112, 121 (2001); United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005); United States v. Barnard, No. 06-73, 2008 WL 331424, at *3 (D. Del. Feb. 6, 2008). A warrantless search of a probationer's residence based on reasonable suspicion is permissible because "a probationer's reasonable expectation of privacy is reduced, and the government's 7

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reasonable need to monitor that individual [is] likewise increased." Barnard, 2008 WL 331424, at *3; see also Williams, 417 F.3d at 376. In striking this constitutional balance, the Supreme Court has explained that probation is "`one point on a continuum of possible punishments'" for a violation of criminal law. Knights, 534 U.S. at 119 (quoting Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)). "Inherent in the very nature of probation" is the notion that "probationers do not enjoy the absolute liberty to which every citizen is entitled." Id. (internal quotations omitted). Search conditions imposed on probationers further the primary goals of rehabilitating the probationer while protecting the community from future criminal violations.4 Id. A probation and parole officer has reasonable suspicion to conduct an administrative search where, under the totality of the circumstances, she has "a particularized and objective basis for suspecting legal wrongdoing." Williams, 417 F.3d at 376; Barnard, 2008 WL 331424, at *3; United States v. Cottman, 497 F. Supp. 2d 598, 602 (D. Del. 2007). Factors that may support such reasonable suspicion in the probation/administrative search context include: the defendant's involvement (as the perpetrator or victim) in other crimes while on probation; the defendant's criminal history (and particularly a history of violence); the defendant's history of

Citing Department of Justice statistics showing that "the recidivism rate of probationers is significantly higher than the general crime rate," the Supreme Court recognized that "`the probationer is more likely than the ordinary citizen to violate the law.'" Knights, 534 U.S. at 120 (quoting Griffin, 483 U.S. at 880). The Court also explained that "probationers have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply." Id.; accord United States v. Sczubelek, 402 F.3d 175, 183 (3d Cir. 2005) (reciting Knights reasoning and affirming district court order requiring defendant to provide DNA sample). 8

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past or active warrants; the defendant's non-compliance with curfews, drug testing, employment, residency or similar requirements imposed by the probation office; information received from other law enforcement officers regarding such matters; and the probation officers' general knowledge, training and experience regarding potential recidivism by particular types of offenders. See, e.g., Williams, 417 F.3d at 376-77; Cottman, 497 F. Supp. 2d at 602-03; Barnard, 2008 WL 331424, at *3-*4. All of these factors gave rise to the officers' reasonable suspicion that Defendant may have been involved in legal wrongdoing on or about August 23, 2007. First, the crimes for which he was on probation and the sentencing court's statements regarding the need to arrest him at the first sign of a violation informed the officers' approach to supervision. Defendant was on probation after being convicted of, inter alia, Assault First Degree and Possession of a Firearm During the Commission of a Felony. See supra at 2 (citing Plea Agreement, Gov't Ex. 2, at 44). The sentencing order explicitly stated that Defendant had a "long violent juvenile record" and that he was "to be taken off the street" if he violated the conditions of his probation. See id. at 2-3 (citing Hr'g Tr. 13:4-11). Second, Defendant had myriad arrests, charges and seven felony convictions prior to the August 23, 2007. See id. at 3 & n.2 (citing DELJIS Rpt. Gov't Ex. 1; Hr'g Tr. 10:9-12). In addition to those noted above, Defendant had been convicted of, or charged with, Robbery First Degree; Reckless Endangerment; Aggravated Menacing; Escape After Conviction; Attempted Murder First Degree; Criminal Impersonation; and Possession with Intent to Deliver Cocaine. See id. (citing Hr'g Tr. 10:20-11:4; 32:15-17; DELJIS Rpt., Gov't Ex. 1). Thus, the probation officers weighed the facts surrounding the August 2007 shooting incidents in the context of

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Defendant's "extensive violent criminal history." Id. at 3 (citing Hr'g Tr. 10:13-19); cf. Barnard, 2008 WL 331424, at *4 (criminal history for drug offenses helped to support finding of reasonable suspicion of similar activity); Cottman, 497 F. Supp. 2d at 604 (prior arrests for similar crimes is relevant to reasonable suspicion determination). The officers also weighed the facts of the shooting incidents in light of Defendant's other violations of his conditions of probation. In particular, the officers considered that Defendant was not employed and had violated his curfew on a number of occasions as of the August 23, 2007 administrative search. See supra at 5, 6 & n.3 (citing Hr'g Tr. 16:21-17:3; 34:8-35:15; 49:8-50:6; 78:19-24; 79:8-11). In fact, Defendant was in violation of his curfew on the nights that he and his cousin were shot. See id. 5, 6 (citing Hr'g Tr. 19:14-17; 49:8-50:6); cf. Williams, 417 F.3d at 375 (probationer's having violated parole by, inter alia, quitting his job and violating his curfew were relevant to reasonable suspicion analysis); Cottman, 497 F. Supp. 2d at 603-04 (probationer's presence in high crime area while violating curfew was relevant to reasonable suspicion determination). In addition, the officers were aware that Defendant had a history of nine capiases. See supra at 6 (citing Hr'g Tr. 39:9-21; 59:23-60:6); Cottman, 497 F. Supp. 2d at 604 (history of warrants relevant to probation violation/reasonable suspicion issue). It was in this context that the officers received reports from law enforcement officers that Defendant had been the victim of a shooting on August 20, 2007, about four hours after his evening curfew began. See supra at 5 (citing Hr'g Tr. 18:21-23:18; 60:7-23). The officers also learned that just two days later, Defendant was apparently the intended target of an incident in the city that resulted in Defendant's cousin being shot in the face ­ with this incident also

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occurring after Defendant's evening curfew began. See id. They also knew that the detectives believed that Defendant may have been robbing drug dealers in the city, thus creating a motive for the shootings. See id. (citing 41:13-43:3); cf. Williams, 417 F.3d at 375-76 (probationer's presence at time of shooting and information that he was the target of shooting were relevant to the reasonable suspicion analysis); Cottman, 497 F. Supp. 2d at 604 (probationer's presence in high crime area after curfew was relevant to the reasonable suspicion analysis). Finally, the officers considered all of these facts in light of their training and experience in supervising probationers convicted of violent crimes. They considered that those who are the victims of shootings are known to arm themselves for protection and/or retaliation. See supra at 5 (citing Hr'g Tr. 21:22-22:22), and 6-7 (citing Hr'g Tr. 69:17-70:15). The totality of these circumstances known to the probation officers provided them with the requisite reasonable suspicion to conduct the August 23, 2007 search. CONCLUSION For all of the foregoing reasons, the Government respectfully requests that Defendant's motion to suppress be denied.

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Respectfully submitted, COLM F. CONNOLLY United States Attorney By: /s/ Edward J. McAndrew Edward J. McAndrew Assistant United States Attorney United States Attorney's Office 1007 Orange Street Suite 700 Wilmington, Delaware 19899-2046 (302) 573-6227 [email protected]

Dated: August 11, 2008

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA, Plaintiff, v. CHARLES A. WEBSTER, JR., Defendant. : : : : : : : : :

Criminal Action No. 07-115-SLR

ORDER WHEREAS, on October 29, 2007, Defendant filed a Motion to Suppress Physical Evidence and Statements; WHEREAS, on July 1, 2008, the Court held an evidentiary hearing on Defendant's Motion; WHEREAS, both parties have submitted briefs outlining their legal and factual positions on the instant Motion; WHEREAS, the Court has considered all of the foregoing; it is hereby ORDERED, ADJUDGED AND DECREED THAT: Defendant's Motion to Suppress Physical Evidence and Statements is DENIED.

Dated: August ___, 2008 ____________________________ Honorable Sue L. Robinson United States District Judge