State v. Johnson ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
)
v. )
)
CAPICE JOHNSON, ) ID NO. 2209003269A
)
Defendant. )
)
)
)
)
Date Submitted: June 9, 2023
Date Decided: July 7, 2023
Upon the Defendant’s Motion to Suppress. DENIED.
ORDER
Isaac Rank, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.
Sean A. Motoyoshi, Esquire, Assistant Public Defender, Wilmington, Delaware,
Attorney for Defendant Capice Johnson.
SCOTT, J
1
INTRODUCTION
Defendant Capice Johnson (“Mr. Johnson”) is charged in this Court with one
count of Possession of a Firearm by Person Prohibited (“PFBPP”), one count of
Possession of Oxycodone (Tier 2), one count of Possession of Cocaine
(misdemeanor), and one count of Possession of MDMA (misdemeanor). Mr.
Johnson moved to suppress all evidence seized as a result of an alleged unlawful
execution of search warrants, for lack of probable cause and insufficient nexus
between the items sought and place searched, for a residence on Janvier Court and
black Jeep Cherokee. For the following reasons, the Motion to Suppress is
DENIED.
FACTS FROM AFFIDAVITS
On August 9, 2022, a shooting occurred on East Cole Blvd. in Middletown,
Delaware. The shooter was riding an orange dirt bike. After firing multiple gunshots
and injuring a female pedestrian standing outside of her residence, the biker fled the
scene. The female victim was driven to the hospital by two witnesses. The two
witnesses were later interviewed and described the shooting as perpetrated by a black
male on an orange dirt bike. Neither witness provided the name of the shooter at the
time of the interview. A surveillance video was recovered and upon review, by
Detective Joshua Stafford (“Lead Detective”) of the Middletown Police Department,
revealed two individuals arriving to the residence where the shooting occurred on
2
dirt bikes. One dirt bike was blue and the other orange. The shooter, who rode on
the orange dirt bike, had his face covered by a black balaclava mask and wore multi
pattern camouflage shorts, black socks, dark colored sneakers, a white t shirt and a
bag or satchel strapped across his body. The shooter also had visible tattoos on each
arm. The dirt bike had letters KTM on the side. On the surveillance footage, the
shooter is seen firing multiple rounds at a group of people in front of the targeted
residence at 7:02 P.M. before fleeing the scene.
Lead Detective was contacted by two past proven reliable confidential sources
that informed him that the shooter was Capice Johnson. The confidential sources
both correctly identified what Mr. Johnson was wearing at the time of the shooting.
Further, the sources informed Lead Detective of the apparent motive, which was an
alleged disagreement between Jasmine Morgan, Mr. Johnson’s child’s mother, and
the victim who was shot. Both confidential sources had previously observed
Defendant on the same orange dirt bike and wearing the same mask on previous
occasions. An additional witness also contacted Lead Detective and advised him that
Mr. Johnson was the shooter and he operates a black SUV with temporary tags.
Detective Starrett, another detective for the Middletown Police Department,
provided additional information to Lead Detective. Detective Starrett advised he had
observed Mr. Johnson at the apartment complex of the Residence on several
occasions and had also observed him operating a black Jeep Cherokee with Delaware
3
temporary tags. Detective Starrett was aware Mr. Johnson lived at the Residence
with the mother of one of his children, Ashley Skinner. Additionally, Detective
Starrett shared Instagram posts to Lead Detective, depicting Mr. Johnson operating
a bike identical to the one seen used in the shooting and photos that showed Mr.
Johnson wearing similar pants to those observed on the surveillance footage and
showing his tattoos which were similar in location, shape and size to those seen on
the shooter on the surveillance recording.
Lead Detective contacted the apartment manager who confirmed Ashley
Skinner lived at the Residence with Mr. Johnson’s child. Lead Detective contacted
an employee of the company who confirmed Mr. Johnson had been seen at the
Residence on multiple occasions, and that he uses an orange and black dirt bike. The
employee informed Lead Detective that Mr. Johnson resided at the Residence and
had been doing so for several months.
Lead Detective reviewed surveillance of the Residence from the date of the
shooting. On the footage, at about noon on August 9, 2022, Lead Detective observed
an individual leaving the Residence wearing clothing consistent with what the
shooter wore in the surveillance footage of the shooting. Mr. Johnson was also seen
operating the Vehicle after the shooting.
4
Upon beginning surveillance on the property on August 24, a Middletown
Police officer observed Mr. Johnson standing directly in front of the Residence at
approximately 7:05 P.M.
APPLICATION FOR WARRANTS
On August 30, 2022, Lead Detective presented search warrant applications
and affidavits, which included all of the above referenced information, at JP Court
#2 for the searches of 967 Janvier Court in Middletown (“Residence”) and a black
2015 Jeep Cherokee registration XQ274469. Those search warrant applications were
signed on the day of presentation and executed on September 7, 2022. The search
warrant applications identify the following items to be searched for and seized:
Firearms, ammunition, firearm accessories to include magazines, holsters; receipts
for firearms and/or firearm accessories; electronic communication devices, any
device capable of accessing the internet and sending/receiving multimedia messages,
multi-pattern shorts, a black mask/balaclava, a bag/satchel with a crossbody strap,
dark colored sneakers, an orange motor bike (commonly referred to as a dirt bike),
a blue and white motor bike, photographs of the motor/dirt bikes. Receipts and or
accessories for the motor/dirt bike. During the execution of the search, Mr. Johnson
was arrested, and drugs and firearms were discovered and seized.
5
DISCUSSION
No Standing to Challenge Search of Vehicle
Mr. Johnson does not own, nor did he exercise control over the vehicle at the
time of the search. A person only has standing to challenge evidence seized as a
result of a violation of one's own constitutional rights.1 The petitioner must
demonstrate his own “legitimate expectation of privacy in the invaded place” before
he may challenge the validity of a search or seizure.2 For purposes of protection
under the Fourth Amendment, automobiles are treated differently than houses.3 A
passenger who does not own or exercise control over a vehicle does not possess a
reasonable expectation of privacy in the vehicle in which he is traveling.4 Therefore,
a mere passenger in a vehicle does not have standing to challenge a search.5
Because Mr. Johnson does not claim any possessory or proprietary interest in
the car that was searched, Mr. Johnson lacks standing to attack the sufficiency of the
search. The prevailing rule of standing was enunciated by the United States Supreme
Court in Rakas v. Illinois.6 The Court in Rakas stated that:
1
Mills v. State, 2006 WL 1027202 (Del.Super. Apr. 17, 2006).
2
Wilson v. State, 812 A.2d 225 (Del.2002) (citing Rakas v. Illinois, 439 U.S. 128(1978)).
3
Rakas, 439 U.S. 128.
4
See Mills, 2006 WL 1027202; see Rakas, 439 U.S. 128.
5
Id.6
439 U.S. 128 (1978).
6
Fourth Amendment rights are personal rights which, like some other
constitutional rights, may not be vicariously asserted. A person who is
aggrieved by an illegal search and seizure only through the introduction of
damaging evidence secured by a search of a third person's premises or
property has not had any of his Fourth Amendment rights infringed. And since
the exclusionary rule is an attempt to effectuate the guarantees of the Fourth
Amendment, it is proper to permit only defendants whose Fourth Amendment
rights have been violated to benefit from the rule's protections.7
The Supreme Court held that a proponent of a motion to suppress has standing to
contest the legality of a search and seizure only if he can assert either a property or
a possessory interest in the areas searched on the property seized and if he can show
a legitimate expectation of privacy in the areas searched.8
Mr. Johnson asserts neither a possessory nor a property interest in the
automobile as Mr. Johnson does not own the vehicle nor was he exercising any
control over it at the time of the search. Mr. Johnson has also failed to show that they
had a legitimate expectation of privacy in the areas searched. Therefore, Mr. Johnson
lacks standing to contest the search and seizure of the evidence in question on Fourth
Amendment grounds.
7
Id. at 133-4 (internal citations omitted).
8
Id. at 148. See also Rawlings v. Kentucky, 448 U.S. 98 (1980); Brown v. United
States, 411 U.S. 223 (1973).
7
Nexus Present and Probable Cause Exists for Issuance of Residence Search
Warrant
Defendant argues lack of probable cause and there is no nexus between the
items sought and the complaint being investigated. “On a motion to suppress
challenging the validity of a search warrant, the defendant bears the burden of
establishing that the challenged search or seizure was unlawful.”9 Moreover, “a
search warrant may be issued only upon the showing of probable cause.” 10 This
Court “must employ a ‘four corners’ test to determine whether an application for a
warrant demonstrates probable cause.”11 “Under this test, sufficient facts must
appear on the face of the affidavit so that a reviewing court can glean from that
document alone the factual basis for a determination that probable cause exists.”12
“An affidavit of probable cause must contain the facts sufficient to establish probable
cause within the four corners of the affidavit.”13 Additionally, “[p]robable cause
exists in the affidavit when there is ‘a logical nexus between the items sought and
the place to be searched’.”14 “For a logical nexus to be present, the affidavit must
9
State v. Sisson, 883 A.2d 868, 875 (Del. Super. 2005).
10
Id.11
Id. at 876 (citing Pierson v. State, 338 A.2d 571, 573 (Del. 1975)).
12
Id.13
State v. Monroe, 2015 WL 721441, at *6 (Del. Super. Feb. 18, 2015) (citing
Dorsey v. State, 761 A.2d 807, 811 (Del. 2000)).
14
State v. Monroe, 2015 WL 721441, at *6.
8
‘set forth facts that would permit an impartial judicial officer to reasonably conclude
that the items sought would be found in those locations’.”15
This Court finds there was a nexus between the apartment to be searched and
the evidence sought. There is a logical connection that evidence, such as the clothes,
weapon and dirt bike used during the commission of the crime, linking Mr. Johnson
to the shooting would be present at the place in which he resides.
Looking at the four corners of the document, probable cause exists for the
issuance of the search warrant based on a multitude of findings sworn to by Lead
Detective. Probable cause exists because two past proven reliable confidential
sources that informed him that the shooter was Mr. Johnson, identified what Mr.
Johnson was wearing at the time of the shooting and had previously observed
Defendant on the same orange dirt bike and wearing the same mask on previous
occasions, Detective Starrett advised that Mr. Johnson resided at the Residence,
Instagram posts depicting Mr. Johnson operating a bike similar to the one seen used
in the shooting and photos that showed Mr. Johnson wearing similar pants to those
observed on the surveillance footage and showing his tattoos which were similar in
location, shape and size to those seen on the shooter on the surveillance recording.
Additionally, there was confirmation from the apartment complex employee that Mr.
15
State v. Friend, 2016 WL 7232170, at *7 (Del. Super. Dec. 13, 2016).
9
Johnson had been seen at the Residence on multiple occasions using an orange and
black dirt bike and that Mr. Johnson resided at the Residence. Surveillance of the
Residence from the date of the shooting which showed an individual leaving the
Residence wearing clothing consistent with what the shooter wore in the surveillance
footage of the shooting. Taking all the above information into consideration,
probable cause exists that Mr. Johnson was the shooter from August 9th and the
property sought to be seized would be found in the place he resided.
The information in the affidavit was not stale
Mr. Johnson brought up the point of staleness. He argued some of the
information provided in the search warrant was too old and should not have been
considered for the basis of probable cause, such as the Instagram posts of Mr.
Johnson on a similar bike. With respect to staleness, it is clear that “[p]robable cause
must be based on current information, not conjecture, for stale information will not
support a finding of probable cause.”16 In other words, “probable cause must exist
to believe that the specified items are presently on the premises....” 17 While
16
Pierson v. State, 338 A.2d 571, 573 (Del.1975).
17
Id. (emphasis in original). See also United States v. Grubbs, 547 U.S. 90, ––––,
126 S.Ct. 1494, 1499 n. 2, 164 L.Ed.2d 195 (2006) (parenthetical) (quoting United
States v. Wagner, 989 F.2d 69, 75 (2nd Cir.1993)) (“[T]he facts in an affidavit
supporting a search warrant must be sufficiently close in time to the issuance of the
warrant and the subsequent search conducted so that probable cause can be said to
exist as of the time of the search and not simply as of some time in the past.”);
United States v. Hython, 443 F.3d 480 (6th Cir.2006).
10
statements of dates and times are instructive, they are not dispositive to ascertaining
the existence of probable cause.18 Instead, magistrates and courts must consider other
factors including the kind of property for which authority to search is sought, and
whether the evidence sought is highly incriminating or consumable and thus less or
more likely to remain in one location.19 The validity of probable cause cannot be
quantified “by simply counting the number of days between the occurrence of the
facts relied upon and the issuance of the affidavit.”20 Rather, in determining whether
information has become stale due to an impermissible delay in securing a warrant,
courts must examine all the relevant facts and circumstances in a “practical and
flexible manner.”21
Looking at all the relevant facts and circumstances, there was no
impermissible delay in securing a warrant. The information Mr. Johnson complains
about being stale were further confirmed closer to the time of the issuance of the
search warrant. As such, there is no staleness associated with the issuance of the
search warrant.
18
Jensen v. State, 482 A.2d 105, 111 (Del.1984) (citations omitted).
19
Id. at 112. See United States v. Abboud, 438 F.3d 554, 572–73 (6th Cir.2006).
20
Jensen, 482 A.2d at 112 (quoting United States v. Johnson, 461 F.2d 285, 287
(10th Cir.1972)).
21
Smith, 887 A.2d at 475 (quoting Jensen, 482 A.2d at 112). See also United States
v. Washington, 139 Fed.Appx. 479, 482 (4th Cir.2005).
11
CONCLUSION
Based on the totality of the circumstances, probable cause existed for the
issuance of the Residence search warrant. For the aforementioned reasons,
Defendant’s Motion to Suppress is hereby DENIED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
12