IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN A. WALKER , Defendant Below, Appellant,

v. STATE OF DELAWARE , Plaintiff Below, Appellee. § § § § § § § § § § § No. 183 , 20 18 Court Below: Superior Court of the State of Delaware
I

. D

. No. 1607007865 (K)

Submitted: December 6 , 20 18 Decided: February 21 , 2019
Before VAUGHN , SEITZ , and TRAYNOR , Justices. Upon appeal from the Superior Court

. REVERSED

. Stephanie Blaisdell, Esquire, Assistant Public Defender, Dover, Delaware, for Appellant, Kevin A. Walker

. John Williams, Esquire, Deputy Attorney General, Dover, Delaware, for Appellee, State of Delaware

.

VAUGHN , Justice:1 I. INTRODUCTION Appellant, Kevin A. Walker, appeals from a Superior Court order finding that he violated the terms of his probation. The issue we address is whether evidence
seized as a result of an unlawful administrative search of Walker ’s residence should
have been suppressed from use as evidence at his violation of probation hearing.

II. FACTS AND PROCEDURAL HISTORY
Walker began probation on May 10, 2017 , as a result of a felony driving

under

- the

- influence conviction. On June 1, 2017, the State received a tip from a past

- proven reliable informant that Walker had heroin in his home that he planned to distribute. On June 5, 2017, Delaware probation officers conducted an administrative search of Walker’s residence pursuan t to an administrative warrant. Administrative warrants and searches are authorized by 11 Del. C. § 4321(d), which permits the State to conduct administrative searches of probationers that are “in accordance with Department [of Correction] procedures.” T he Department of
Correction promulgated Probation and Parole Procedure 7.19 (“Procedure 7.19”), which sets out the procedural requirements for conducting administrative searches. 1 During the search, probation officers discovered 252 bags of heroin, drug
pa raphernalia, and a locked safe. The officers took the safe to Delaware State

1 See Culver v. State , 956 A.2d 5, 10

- 11 (Del. 2008) (en banc) (discussing the requirements of Procedure 7.19).2

Police Troop 3. After the officers open ed the safe there, the y found a loaded 9mm handgun, five doses of Suboxone, 2 and five grams of marijuana. The Delaware
State Police then arrested Walker and took him to the Sussex Correctional Institution (“SCI”). At SCI, correctional officers found 86 bags of heroin and nine grams of
crack cocaine inside Walker’s rectum.
In the criminal proceeding based on t he new charges , Walker filed a motion to suppress all the evidence found as a result the administrative search, claiming that the search was not conducted in accordance with the provisions of 11 Del. C. §
4 321(d) and Procedure 7.19. At the suppression hea ring, the Superior Court , guided by our decision in Culver v. State , 3 analyzed the four factors that the probation officer and the officer’s supervisor were required to consider under
Procedure 7.19 before making the decision to conduct the admin istrative search . In
Culver , we explained that Procedure 7.19 requires the following :

The officer and supervisor will hold a case conference

. . . . During the case conference the supervisor will review the “Yes” or “No” responses of the officer to the following search decision factors: (1) Sufficient reason to believe the offender possesses contraband.

2 Suboxone is a prescription medication used to treat opiate and opioid addiction but is also frequently itself abused for its narcotic effects. 3 956 A.2d 5.3 (2) Sufficient reason to believe the offender is in violation of probation/parole. (3) Information from a reliable informant, indicating offender possesses contrab and or is violating the law. (4) Information from the informant is corroborated. 4 Where an informant is involved, P rocedure 7.19 also requires the officers to consider
the detail of the informat ion received from the informant, the consistency of the
inform ation, the reliabili ty of the informant in the past, and any reasons why the
informant would supply the information. 5 After considering these factors, the Superior Court concluded that the
administrative warrant failed to satisfy Procedure 7.19. In partic ular, it found there
was a lack of detail concerning the informant’s tip and that no effort was made at all to corroborate the tip or consider the reason why the informant was supplying
information. The court concluded that “there was no attempt to comply with these basic aspects of the probation procedures.” 6 A ccordingly, the court held that suppression of evidence in the criminal case was an appropriate remedy for the
violation of 11 Del. C. § 4321(d). The State did not appeal the suppression order.

4 Id. at 10 (internal quotation marks omitted). 5 Id. 6 App. to Appellant’s Opening Br. at A33.4

I nstead, the State dismissed the criminal action against Walker but continued to
pursue a violation of probation (“VOP”). The Superior Court then held a contested VOP hearing. Applying the balancing test from Pennsylvania Board of Probation & Parole v. Scott , 7 the court
held that “the exclusi onary rule does not apply in violation of probation proceedings, even when the illegal search was a result of an administrative warrant issued and executed by probation officials.” 8 The court accordingly denied Walk er’s motion to suppress the e vidence from his VOP proceeding

. Walker was then found to have violated his probation, his probation was revoked , and he was resentenced

. This appeal followed.
III. STANDARD OF REVIEW We review the Superior Court’s revocation of a defendant’s probation for an
abuse of discretion. 9 We review questions of law and alleged constitutional
violations de novo

. 10
IV. DISCUSSION
Walker contends that the evidence seized as a result of the administrative
search should have been suppressed under both the Fourth Amendment to the U.S.

7 524 U.S. 357 (1998). 8 State v. Walker , 177 A.3 d 1235, 1236 (Del. Super. 2018), available at Appellant’s Opening Br. Ex. A. 9 Thompson v. State , 192 A.3d 544, 549 (Del. 2018). 10 Zebroski v. State , 12 A.3d 1115, 1119 (Del. 2010) (en banc).5

C onstitution and Article I , § 6 of the Delaware C onstitution. Recently, in Thompson v. State , we recognized that the overwhelming weight of federal authority holds that the exclusionary rule of t he Fourth Amendment does not apply in VOP proceedings. 11 Our ruling in Thompson dis poses of Walker’s federal claim. 12
In Culver , this Court was confronted with a statutory violation of 11 Del. C. § 4321(d) in a criminal proceeding. 13 We concluded that “[w] ithout reasonable suspicion determined in compliance with [the probation officers ’] duties under Procedure 7.19, the unlawfully seized evidence . . . should have been suppressed.” 14
“To hold otherwise , ” we reasoned, “would render 11 Del. C. § 4321 and the regulations promulgated under it meaningless.” 15 This decision was no t base d on any constitutional bas is. As stated in a footnote, “[b] ecause we find that probation officers violated their clear statutory mandate, we do not reach any constitutional questions.” 16 The suppression of evidence based on violation of a statute enforces the public policy embodied by the statute and promot es the proper and orderly administration of justice. 17 Culver is consistent with other cases from this Court

11 192 A.3d at 551

- 552

. 12 See id. at 552 (“ We have no reason not to follow what appears to be the entirety of the federal weight of authority, and hold that the exclusionary rule does not apply to probation revocation proceedings under Amendments IV and XIV of the Federal Constitution. ”). 13 956 A.2d at 10

- 11. 14 Id. at 15. 15 Id. at 7. 16 Id. at 7 n.1. 17 See Webster v. State , 213 A.2d 298, 301 (Del. 1965) (“[T] he exclusionary rule with which we deal here [for an alleged statutory violation] is a rule of evidence, adopted by the courts as an6

where evidence has been suppressed based upon a statutory, rather than a constitutional, violation

. 18
Here , we are confronted with a statutory violation of 11 De l. C. § 4321(d) in
a VOP proceeding

. We have frequently recognized that the rights of probationers are curtailed as compared to the rights of ordinary citizens. 19 We have also recognized that probation officers are not required to “satisfy each technical requirement of the search and seizure regulations of the Department of Correction”
for a search to be reasonable. 20 In this case, however, the Superior Court found that
“there was no attempt to comply with . . . basic aspe cts of the probation procedure s ,” 21 a finding we accept and which has not been challenged. Because
there was no attempt to comply with basic aspects of the probation procedure, we think that the proper and orderly administration of justice calls for suppression,
under the statute

- based rul e enunciated in Culver , 22 o f the evidence seized in the

instrument to implement the proper administration of criminal justice; and it does not stand upon constitutional grounds. ”)

. 18 See Vorhauer v. State , 212 A.2d 886, 892 (Del. 1965) (applying an exclusionary rule based on a violation of a statute requiring the defendant to be presented to a magistrate within twenty

- four hours of detention and finding th at incriminating statements made after the expiration of that twenty

- four

- hour period should have been suppressed in a criminal proceeding ); see also W right v. State , 633 A.2d 329, 334

- 35 (Del. 1993) (en banc) ( applying the exclusionary rule from Vorhauer but finding no statutory violation ) ; Hanna v. State , 591 A.2d 158, 162

- 64 (Del. 1991) (explaining that a failure to comply with 11 Del. C. § 2308, which sets the requirements for a nighttime search, is alone sufficient for the evidence to be excluded under the statutory

- based exclusionary rule even if there was no constitutional violation)

. 19 E.g. , Donald v. State , 903 A.2d 315, 318

- 19 (Del. 2006) (en banc)

. 20 Id. at 319

. 21 App. to Appellant’s Opening Br. at A33. 22 956 A.2d at 7 n.1, 10

- 15.7

unlawful administrative search. We therefore find it unnecessary to consider
Walker’s claim under Article I , § 6 of the Delaware constitution. 23 Accordingly, the judgment of the Superior Court is reversed.

23 Id. at 7 n.1 (“We address any statutory violation before reaching questions under the United States and Delaware Constitutions.”).