Volkomer v. State

KENNEY, J. Christopher Robert Volkomer appeals the denial of his motion to suppress evidence allegedly obtained in violation of his Fourth Amendment rights. He presents two questions for our review, which we have reworded as follows: I. Did the circuit court err in finding that the State had satisfied its burden of establishing that evidence found during the execution of a search warrant was legally obtained?

II

Did the circuit court err in finding that a warrantless intrusion of appellant’s home by Delaware probation officers was a lawful “home visit” and that incriminating evidence observed during the home visit was admissible under the “plain view” doctrine? ⁴⁷³ For the following reasons, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY Appellant was charged in the Circuit Court for Caroline County with three counts of second degree burglary, three counts of fourth degree theft, two counts of theft of property having a value greater than $500, and three counts of theft of property having a value less than $500. Appellant moved to suppress evidence obtained from his home and vehicle following the execution of a search warrant by the Delaware State Police. He also sought to suppress inculpatory statements made by himself, his wife, and two associates.

At the hearing on appellant’s motion, Sergeant Carsten Wendlandt of the Wicomico County Sheriffs Office testified that, on October 9, 2002, he received a report that the Winter-place Animal Hospital in Salisbury, Maryland had been burglarized. Sergeant Wendlandt spoke with the owner or operator of the business, Ms. Clark, who informed him that she witnessed a suspicious man peering into the windows of the office the evening before. Clark had written down the tag number of the man’s vehicle. The vehicle was registered in Delaware to appellant and his wife, Emma Volkomer.

Sometime during the week ending October 19, 2002, Sergeant Wendlandt showed Clark a photographic array that included appellant’s picture. Although she “got a good look,” Clark was unable to identify appellant as the man she saw on October 8, 2002. Detective William Porter, a Delaware State Police Officer, informed Sergeant Wendlandt that the address listed on the vehicle registration was outdated and that the Volkomers’ current address was “7489 Canterberry Road” in Felton, Delaware. On October 14, 2002, Sergeant Wendlandt, accompanied by another officer, went to the Felton address to verify that it was a residence.

On October 18, 2002, Sergeant Wendlandt was contacted by Detective Porter, who was preparing a warrant to search ⁴⁷⁴ appellant’s home and vehicles for veterinary medicine. Sergeant Wendlandt did not remember whether he had shown Clark the photo array before the conversation with Detective Porter, but he testified that if he had done so, he would have informed Detective Porter that Clark was unable to identify appellant as the man she saw the night before the break-in. After speaking with Detective Porter, Sergeant Wendlandt went to appellant’s home. He “assist[ed]” the Delaware State Police in executing the search warrant, but did not personally seize any items.

Detective Porter testified that Sergeant Wendlandt contacted him after the October 9, 2002 burglary of the Winterplace Animal Hospital. Sergeant Wendlandt relayed the tag number recorded by Clark. An investigation revealed that the vehicle was registered to appellant and Emma Volkomer. According to Detective Porter, the Delaware State Police had an agreement with Delaware Probation and Parole officers, whereby Delaware state troopers would report “tips” that a probationer or parolee was suspected of violating the terms of his or her probation or parole or otherwise suspected of involvement in criminal activity.

The state police officers would then accompany the probation and parole officers on “searches” of the probationer’s home. The Delaware State Police did this “on numerous occasions” because “[ijt’s just easier using them than ... typing up a search warrant and that takes a couple of hours to do something like that when you can just get on the phone and call the probation officer and if the person’s on probation they’re allowed to go.” When Detective Porter checked to determine whether appellant was on probation or parole, he discovered that both appellant and Emma Volkomer were on probation. On October 18, 2002, Detective Porter contacted Thomas Webster, a Delaware State Probation and Parole Officer. He informed Officer Webster that appellant was a suspect in the Winter-place Animal Hospital burglary, and asked to accompany Officer Webster on a “search” of appellant’s home.

Officer Webster agreed and met Detective Porter at appellant’s home ⁴⁷⁵ between 1:15 p.m. and 1:30 p.m. In total, four law enforcement officers were present; two Delaware State Police detectives, Porter and Durham, and two Delaware State probation and parole officers, Webster and Thompson. All of the officers entered appellant’s house. Officers Webster and Thompson looked through the household, while Detective Porter “followed them and ... observed what they opened and looked in.” When questioned about the scope of the “search,” Detective Porter testified, “I think they [, the probation officers,] looked in ah, closets ah, I believe and I believe they opened up ah, cupboards and drawers.

I think so, I don’t....” Detective Porter recalled that appellant remained seated in the living room. He could not remember whether Emma Volkomer escorted the officers around the house. The probation and parole officers “searched” for approximately twenty-five to thirty minutes, but nothing inside was seized. After all of the officers had exited appellant’s home and were preparing to depart, Detective Porter observed a see-through “Walmart bag” containing “numerous [identical] boxes,” “underneath the foundation of the house.” Because it appeared “strange,” he “pointed this bag out to one of the probation officers.” Detective Porter testified, “I think it was [Officer] Webster and ah, [I] gave him the bag and he looked in the bag.” Inside the bag, the officers found “ketamine drugs,” a “veterinary animal medication.” Appellant and Emma Volkomer were immediately arrested.

Following appellant’s arrest, Detective Porter applied for a warrant to search appellant’s home and vehicles. In support of the warrant application, Detective Porter described the initial intrusion into appellant’s home as an “administrative search.” After securing a warrant, Detective Porter returned to appellant’s home between three and four hours after he was arrested. During the subsequent search, seven items were seized. Relevant to this case, the items included a box recovered from appellant’s vehicle that contained “costume jewelry ... and some little trinkets,” which still had price tags ⁴⁷⁶ attached.

The attached price tags “stood out” to Detective Porter because he thought that a merchant would have removed them after selling the items. Detective Porter also discovered a business card in the bottom of the box. When he called the phone number on the card, he learned that “a little antique strip mall in Caroline County ... had been burglarized.” Detective Porter related his discovery to the Caroline County Sheriffs Department. Officer Webster was the next witness to testify.

In October 2002, he was a probation and parole supervisor for Emma Volkomer. On the morning of October 18, 2002, he received a phone call from Detective Porter, informing him “that the Volkomers were suspects in a burglary.” Appellant’s probation supervisor was not present, but Officer Webster also reviewed appellant’s file. Officer Webster did not complete the “administrative search” form required to search a probationer’s home because “there was no [administrative] search, it was a home visit.” Officer Webster arrived at appellant’s home at approximately 1:80 p.m. on October 18, 2002. He intended “[t]o walk through during a home visit and to verify if anything [Detective Porter] said was corr[ect].” He requested that Detective Porter accompany him “as security.” Officer Webster did not inform the Volkomers that he was coming because a home visit, unlike an administrative search, did not require prior notice.

Officer Webster knocked on appellant’s door and was greeted by Emma Volkomer. He informed her who he was and that he was there to conduct a home visit. Emma Volkomer gave Officer Webster a tour of the home; Detective Porter followed. The officers walked through appellant’s home for approximately fifteen to twenty minutes.

Officer Webster did not recall opening any doors, closets, or cupboards. Upon exiting appellant’s home and walking to his vehicle, Officer Webster, along with Detective Porter, observed a “Walmart bag or a clear plastic bag like you would get in a store. With boxes in it.” As he walked closer to the bag, ⁴⁷⁷ Officer Webster could see boxes through the bag that were labeled “ketamine,” one of the drugs that had been taken during the burglary of the Winterplace Animal Hospital. Officer Webster believed that he picked up the bag before Detective Porter did.

He could clearly read the labels on the boxes inside before moving, or looking inside of, the bag. Upon discovery of the ketamine, Officer Webster arrested appellant for “violation of probation” and Emma Volkomer for “breach of release.” During cross-examination, Officer Webster explained that he performs approximately thirty home visits per week. In a typical home visit, he requests the probationer to “show [Officer Webster] around his house, show ... his refrigerator, that ... kind of stuff.” He is permitted to “touch stuff’ and may request probationers to open doors, drawers, and closets. To perform a more intrusive “administrative search,” he must obtain prior approval from his superiors.

Generally, and at a minimum, reasonable suspicion that the probationer is violating the terms of probation is required to conduct an administrative search. Officer Webster reiterated his intention on October 18, 2002, to perform a home visit, not an administrative search. In addition, prior to discovering the bag of ketamine, he was prepared to “say good-bye” to the Volkomers, but possibly urine test them for drugs at their next regularly scheduled meeting. Appellant also testified.

In October 2002, he was on probation for one count of carrying a concealed weapon and one count of aggravated menacing. He had signed two “Conditions of Supervision” agreements, consenting to be “subject to arrest and to a search of [his] living quarters, person or vehicle without a warrant at any time by a probation/parole officer.” He did so because he had “a choice of being in jail away from everything or being on the street, ... as far as [he][was] concerned it wasn’t a choice.” On October 18, 2002, he woke up to four officers knocking on his door. He sat in the living room, where he “th[ought]” ⁴⁷⁸ he “heard [Officer Webster] say we’re here to do an administrative search.” According to appellant, the officers requested Emma Volkomer to escort them around the home and “ordered] her to open up cabinets and ... a little cupboard underneath the stairs ... they didn’t like lift the couch up and look under stuff like that, but they were searching through stuff....” When the officers went outside, he became worried they would find the “bag of drugs” he secreted “beneath the foundation the night before.” When the bag was discovered, he admitted the drugs were his. The State called Detective Phil Dixon, a member of the Caroline County Sheriffs Department, as its sole rebuttal witness.

Detective Dixon testified that, on September 20, 2002, the Denton Station Antiques Mall was burglarized, resulting in the theft of more than $5,000 worth of silver, glass items, and costume jewelry. The night prior to the break-in, the manager observed “[two] white males and two young white females” approach the business “right at closing time.” The two males walked around the back of the building, before returning to their “greenish, turquoise colored” vehicle with Delaware registration. On November 13, 2002, Sergeant Ronald Dixon of the Caroline County Sheriffs Department, 1 was contacted by Detective Porter, who inquired about the Caroline County Sheriffs Department’s investigation of an antique store burglary. During the October 18, 2002 search of appellant’s home and vehicles, Detective Porter had discovered a business card for “Rosie’s Past and Present” in the box of antique items.

Sergeant Dixon contacted the owner, Rose Mulligan, who confirmed that her business “had items inside the Denton [Station] Antique[s] Mall that were stolen.” Mulligan’s description of the items, including the “little [numbered] tags,” matched items recovered from appellant’s vehicle on October ⁴⁷⁹ 18, 2002. Several days later, Detective Porter gave the recovered box and its contents to Detective Phil Dixon. When Detective Dixon showed Mulligan the items, she confirmed that some of the items were hers. On January 2, 2003, Detective Dixon visited appellant, who was incarcerated in Delaware.

After advising appellant of his Miranda rights and obtaining appellant’s written waiver of those rights, Detective Dixon questioned appellant concerning the burglary of the Denton Station Antiques Mall. At first, appellant denied any knowledge of the burglary. He then stated, “just because Detective Porter got that stuff from my house, it’s not enough to convict me.... [H]e might get me with being in possession of stolen goods, but that’s better than burglary.” At the conclusion of the interview, appellant instructed Detective Dixon to tell his co-worker “that he was about six or eight feet from a good collar.” Detective Dixon interpreted appellant’s comment as an admission that he was present when a member of the Caroline County Sheriffs Department responded to the alarm at the Denton Station Antique Mall on September 19, 2002. Appellant then stated that he would tell Detective Dixon everything he knew about the robbery if Detective Dixon would arrange for appellant to have a phone conversation with Emma Volkomer.

When Detective Dixon informed appellant that he could not arrange such a phone call, the interview ended. Detective Dixon interviewed Emma Volkomer at the Wicomico County Detention Center on April 15, 2003. She made a statement implicating appellant and two other individuals, Eric Myers and Sheena Eastridge, in the Denton Station Antiques Mall burglary. She said that the participants used false names to purchase “walkie talkies” from a store.

Detective Dixon “tracked down the sales receipts for those items.” He then spoke with Myers, who admitted that he and appellant “were the primary persons that entered the [Denton Station Antiques Mall] and stole silver and other items that were missing.” Detective Dixon also questioned Eastridge, ⁴⁸⁰ who initially denied any knowledge or participation in the burglary. Eastridge later confessed her complicity in the burglary to Detective Porter. During cross-examination, Detective Dixon agreed that he “would never have had [appellant] as a suspect in the [Denton Station Antiques Mall burglary] case,” but for the call from Detective Porter. Following the close of evidence, appellant argued that the initial visit was, in fact, an “administrative search,” conducted in violation of his Fourth Amendment Rights.

Because the officers were not legally present at his home, their discovery of the bag of ketamine did not fall within the plain view exception to the Fourth Amendment. Therefore, the evidence upon which the search warrant was secured was illegally obtained, and all of the evidence obtained as a consequence of that search, including the box of stolen items, the receipts for the “walkie talkies,” and the inculpatory statements from appellant, Emma Volkomer, Myers, and Eastridge should be suppressed as fruit of the poisonous tree. The State countered that the bag of ketamine was discovered, in plain view, during a lawful “home visit.” Therefore, the search warrant was issued based upon legally obtained evidence and all of the evidence was admissible. On September 10, 2004, the circuit court issued an order denying appellant’s motion to suppress.

In its memorandum opinion, the court credited Officer Webster’s testimony that the intrusion into appellant’s home on October 18, 2002, was a “home visit,” and not an “administrative search.” The court stated, in relevant part: The Delaware Department of Corrections has promulgated rules governing administrative searches of probationers^] homes. An administrative search of a probationer’s home can be a full search for named items conducted by Parole & Probation Officers rather than police officers. The [Superior] [C]ourt [of Delaware] in State v. Harris, 734 A.2d 629 (1998), suggested that if Parole & Probation officers do not comply with the Delaware Department of Corrections’ rules ⁴⁸¹ governing such administrative searches, evidence seized in violation thereof might be suppressed. The only suggestion that this was not a home visit but an administrative search comes from [appellant’s] characterization of it.

The testimony of [Officer] Webster, who conducted it, was that it was not an administrative search. He said if it had been, he would have followed the procedures requiring him to seek his supervisor’s approval and he did not do so. In addition, the evidence is that the intrusion was short in time and limited in scope. [Officer] Webster told [appellant] and his wife that he wanted them to “show him their home,” not that he was there searching for anything in particular or in general. The fact that a police officer (Detective Porter) accompanied [Officer] Webster does not make it any more of an administrative search than it does a home visit.

Police assistance is a matter of policy and procedure in either instance. A provision of the probation forms signed by both [appellant] and his wife allows home visits, unannounced. Delaware Parole & Probation policy is that officers should be accompanied by an officer from the jurisdiction in which the home visit is being conducted. As Detective Porter was from the agency having jurisdiction, and was available, he accompanied [Officer] Webster and [Officer] Thompson on his home visit. [Officer] Webster testified that they arrived at the home, knocked at the door, and identified themselves. [Appellant’s] wife was asked to show them around their house, which she did. [Officer] Webster testified that they did not open any doors, closets, cupboards or containers but they may have asked [appellant’s] wife to do so for them. [Appellant] says they went through and into everything, but he remained downstairs and could only see them for a portion of their visit.

The home visit lasted approximately twenty (20) minutes. As the three officers were leaving, they noticed a transparent shopping or supermarket bag (hereinafter “Wal-Mart bag”) in plain view beside the steps and partially under the foundation. [Officer Webster] said that without moving the ⁴⁸² bag or taking out the contents, he could see it had numerous identical boxes in it, labeled as a type of veterinary medicine .... [Officer] Webster did not need to move or open the bag to identify the contents. [Appellant] and his wife admitted they had no prescription for the medication, so they were arrested, either for possession of prescription drugs without a prescription, or violation of probation, or both. Affording full faith and credit to the search warrant issued by the Delaware court, the circuit court determined that the second search of appellant’s home and vehicles was constitutional in both justification and scope. The court concluded that the evidence resulting from the second search was not subject to suppression as fruit of the poisonous tree.

Following the court’s suppression decision,