State v. Morris ( 2017 )


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  • IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    STATE OF DELAWARE, )
    ) ID No. 1706015581
    v. ) In and for Kent County
    )
    RODNEY MORRIS, )
    )
    Defendant. )
    OPINION
    Submitted: November 29, 2017
    Decided: December 19, 2017
    Upon Defendant’s Motion to Suppress
    DENIED
    Dennis Kelleher, Esquire, Departrnent of Justice, Dover, Delaware for the State of
    Delaware.
    Alexander W. Funk, Esquire, Curley, Dodge and Funk, Dover, Delaware for
    Defendant.
    Primos, J.
    State v. Rodney Morris
    ID No. 1706015581
    Page 2
    Before the Court is the motion to suppress filed by Defendant Rodney Morris
    (hereinafter “Defendant”), challenging the search of his home located at 322 Cecil
    Street (hereinafcer the “Residence”) pursuant to warrant. The Court has considered
    this motion and the State’s responses, as well as oral arguments by counsel on
    November 29, 2017, and for the reasons set forth below, Defendant’s motion is
    DENIED.
    I. FACTUAL BACKGROUND
    The relevant facts are taken from the affidavit of probable cause attached to the
    search warrant (hereinafcer the “Warrant”). The affiants are Officer Joshua
    Boesenberg and Detective Jordan Miller of the Dover Police Department.
    In December of 2016, Private First Class James Johnson of the Dover Police
    Department (hereinafter “Officer Johnson”) was contacted by a past proven reliable
    confidential informant (hereinafter the “CI”). The CI informed Officer Johnson that
    Defendant, whom the CI knew by the alias “Dreds,” was selling crack cocaine from
    his bicycle in Dover, Delaware, and was currently living in the area of Cecil Street.
    On June 20, 2017, Officers Johnson and Barrett observed Defendant leave the
    Residence on a bicycle. The officers followed him and saw him participate in a hand
    to hand transaction with a man later identified as Mahdi Wilson (hereinafcer “Mr.
    Wilson”) on Mary Street in Dover, Delaware. Surveillance of Defendant by law
    enforcement showed that Defendant returned to the Residence shortly after the hand
    to hand transaction Mr. Wilson left the scene of the transaction in a Kia minivan and
    was tailed by the officers, who pulled him over for a traffic stop. When stopped, Mr.
    Wilson fled. He was pursued, taken into custody, and found in possession of crack
    cocaine.
    State v. Rodney Morris
    ID No. 1706015581
    Page 3
    In his motion to suppress, Defendant argues that the allegations recited in the
    warrant affidavit are insufficient to constitute probable cause because the affidavit
    contains “(l) stale, outdated and irrelevant information provided by a ‘confidential
    source,’ that is not probative of evidence of criminal activity being found at
    [Defendant’ s] residence; and (2) conclusory hearsay allegations of purported criminal
    activity that occurred wholly outside of the residence and are not probative of
    evidence of illegal activity being found in [Defendant’s] residence.”l
    II. STANDARD OF REVIEW
    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.2 A search warrant may not issue unless there is a showing of a factual basis
    for probable cause within the “four comers” of the affidavit that was submitted to the
    magistrate in the officer’s application for the warrant.3
    When considering the affidavit, the magistrate is to make a “practical,
    common-sense decision whether, given all the circumstances set forth in the affidavit
    before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying
    hearsay information, there is a fair probability that contraband or evidence of a crime
    will be found in a particular place.”4 For a warrant to evidence probable cause to
    search a home, “a nexus between the items to be sought and the place to be searched”
    l Amended Motion to Suppress Evidence at 11 31.
    2 State v. Sisson, 
    883 A.2d 868
    , 875 (Del. Super. 2005), ajj"d, 
    903 A.2d 288
     (Del. 2006).
    3 Pierson v. State, 
    338 A.2d 571
    , 573 (Del. 1975).
    4 Illinois v. Gates, 
    462 U.S. 213
    , 238-39 (1983). See also Aguilar v. State of T exas, 
    378 U.S. 108
    , 114 (1964).
    State v. Rodney Morris
    ID No. 1706015581
    Page 4
    must be established5 Put another way, law enforcement must also have “probable
    cause to believe that evidence of such crime can be found at the r'esialence.”6
    A magistrate's determination of probable cause “should be paid great deference
    by reviewing courts” and should not “take the form of a de novo review.”7
    Nonetheless, the highest courts of both the United States and Delaware have
    instructed that the people’s privacy interests in their homes are afforded special
    protection,8 and this Court may not permit the requirement that the affidavit show an
    adequate fact-based connection between illegal activity and an arrestee’ s home to go
    unenforced.9 However, in considering “whether the warrant application presented the
    issuing magistrate with a ‘substantial basis’ to conclude that probable cause existed,”
    this Court “eschews ‘a hypertechnical approach to the evaluation of the search
    warrant affidavit in favor of a common-sense interpretation.”’10
    III. DISCUSSION
    Defendant relies upon four primary grounds to attack the validity of the Warrant:
    (l) the affidavit’s reliance upon hearsay information rather than the personal
    observations of the affiants; (2) the affidavit’s reliance upon allegedly stale and
    irrelevant information from the CI; (3) the affidavit’s alleged failure to show the
    presence of criminal activity based upon an observed hand-to-hand transaction, Mr.
    5 Morgan v. State, 
    962 A.2d 248
    , 253 (Del. 2008).
    6 Cannon, 
    2007 WL 1849022
    , at *4 (emphasis added). See also Illinois v. Gates, 
    462 U.S. 213
    ,
    238 (1983) (requiring a showing of “a fair probability that contraband or evidence of a crime Will
    be found in a particular place”).
    7 Gates, 
    462 U.S. at 238-39
    .
    8 Payton v. New York, 
    445 U.S. 573
    , 585 (1980); Mason v. State, 
    534 A.2d 242
    , 246-49 (Del.
    1987).
    9 Cannon, 
    2007 WL 1849022
    , at *4.
    10 Id. at *3 (quoting Gardner v. State, 
    567 A.2d 404
    , 409 (Del.l989)).
    State v. Rodney Morris
    ID No. 1706015581
    Page 5
    Wilson’s subsequent flight from law enforcement, and the discovery of crack cocaine
    on Mr. Wilson’s person; and (4) the alleged absence from the affidavit of any nexus
    between the alleged criminal activity and the Residence. The Court, after considering
    each of these arguments in turn, has concluded that the affidavit does establish
    probable cause justifying the issuance of the search warrant.
    A. Aff`ldavit’s Reliance Upon Hearsay
    Defendant argues that the affidavit in support of` probable cause is deficient
    because it relies solely upon hearsay observations of the alleged criminal activity and
    its connections to the residence. In fact, no direct observations reported in the
    affidavit were made by the affiants. This, however, does not automatically invalidate
    the Warrant.
    An affidavit relying on hearsay “is not to be deemed insufficient on that score,
    so long as a substantial basis for crediting the hearsay is presented.”ll In Warrant
    contexts, probable cause may be “founded on hearsay information provided to the
    affiant by other officers . . . . [A]n officer-informant relaying the information to the
    affiant will be considered a reliable source for the information needed to determine
    probable cause.”12 The United States Supreme Court has similarly held that hearsay
    observations of a warrant applicant’s qualified fellow officers are “plainly a reliable
    basis” on which a magistrate may rely in determining probable cause.13
    ll Jones v. United States, 
    362 U.S. 257
    , 269 (1960).
    12 HOOkS v. State, 
    416 A.2d 189
    , 202-03 (Del. 1980).
    13 United States v. Ventresca, 
    380 U.S. 102
    , lll (1965).
    State v. Rodney Morris
    ID No. 1706015581
    Page 6
    The United States Court of Appeals for the Eighth Circuit, in Gallagher v.
    United States, considered whether an affidavit composed entirely of hearsay is
    deficient, and reached its conclusion for reasons this Court finds persuasive:
    At this point in the development of jurisprudence interpreting the
    Fourth Amendment, a claim that a search warrant is invalid because it
    is based entirely on hearsay is frivolous . . . . Particularly is this true in
    the now complex field of criminal investigation . . . . Unless authorities
    do act quickly upon an evaluation of reports received by them, the fruits
    of the crime and the trail of the offenders could easily be irretrievably
    lost.14
    The collective knowledge doctrine also suggests that the personal knowledge
    of the affiant is irrelevant when the source of the hearsay was another officer.
    Pursuant to this doctrine, the knowledge of other investigating officers is imputed to
    the affiant.15 The Supreme Court of Delaware indicated in State v. Cooley that when
    officers have been in communication with one another, “the collective knowledge of
    an entire organization may be imputed to an individual officer.”16 Similarly, the
    United States Court of Appeals for the Third Circuit, along with other jurisdictions,
    has indicated that probable cause is to be evaluated on the basis of the collective
    information of the police.17 While the collective knowledge doctrine only applies
    when the officers have been in communication, the Court can infer communication
    14 Gallagher v. United States, 
    406 F.2d 102
    , 107 (8th Cir. 1969).
    15 State v. Sisson, 
    883 A.2d 868
    , 875 (Del. Super. 2005), afd, 
    903 A.2d 288
     (Del. 2006).
    16 State v. Cooley, 
    457 A.2d 352
    , 355 (Del. 1983) (quoting State v. Schoenbneelt, 
    171 Conn. 119
    ,
    
    368 A.2d 117
    , 119 (Conn. Supr. 1976)).
    17 United States v. Bianco, 
    189 F.2d 716
    , 719 (3d Cir. 1951). See also State v. Smith, 
    277 A.2d 481
    , 489 (Me. 1971); State v. Fioravanti, 
    215 A.2d 16
    , 23 (N.J. 1965) (“[p]robable cause must
    be judged on the basis of [the] composite information” in possession of the police).
    State v. Rodney Morris
    ID No. 1706015581
    Page 7
    in this case between the hearsay declarant officers and the affiants, as the declarant
    officers’ specific observations are contained in the affidavit prepared by the affiants.
    In arguing that the affidavit’s reliance upon hearsay renders the Warrant
    invalid, Defendant cites to three Delaware decisions, none of which were decided in
    the context of a search warrant, and all of which involved warrantless arrests: Garner
    v. State,18 State v. Holmes,19 and State v. Hopkins.20
    In Garner, police were investigating a robbery where the suspect was a masked
    robber. An officer received “a tip from an unidentified informant that the defendant
    was the masked robber.” The tip provided information about the defendant’s
    whereabouts and allowed officers to apprehend the defendant.21 “At trial, the arresting
    officer testified to the above facts and the informant's known reliability, but refused
    to testijj) as to what facts were related to him by the informant which would support
    the allegation that [ the defendant] was the robber.”22 The Garner court found that
    this uncorroborated testimony was insufficient to demonstrate probable cause to arrest
    the defendant.
    In Holmes, a defendant was arrested during a traffic stop, and the defendant
    moved to suppress evidence discovered after a search of his vehicle.23 The officer
    testifying at the suppression hearing had limited knowledge of what had happened at
    18 
    314 A.2d 908
     (Del. 1973).
    19 
    2015 WL 5168374
     (Del. Super. Sep. 3, 2015).
    20 
    2016 WL 6958697
     (Del. Super. NOV. 23, 2016).
    21 Garner, 
    314 A.2d at 910
    .
    22 
    Id.
     (emphasis added).
    
    23 Holmes, 2016
     WL 6958697 at *1-3.
    State v. Rodney Morris
    ID No. 1706015581
    Page 8
    the traffic stop. When pressed for details as to what the officers conducting the stop
    had done and said, the testifying officer “was not familiar with any of the arresting
    officers’ reports and . . . the Court could not ascertain what the arresting officers said,
    how the occupants responded, or what those officers were thinking.”24 The Holmes
    court found that the testifying officer lacked material details regarding what had
    happened, and the Court was left only with “assumptions and conclusions.”25 The
    court determined that “una'er the circumstances of this case, [the State’s] burden
    cannot be predicated entirely on hearsay.”26
    In Hopkins, a defendant moved to suppress evidence discovered during the
    search of his person.27 The State’ s only justification for the search was consent.28 The
    testifying officer at the suppression hearing had not been present at the scene when
    the defendant had allegedly given consent.29 The testifying officer informed the Court
    that he had been told only that the defendant had consented and did “not testify
    regarding how [the defendant] was asked to consent, the degree to which he initially
    cooperated with the police, or any other factor enabling the Court to determine
    whether [the defendant’s] will was overborne, and that it was not the product of
    duress or coercion, express or implied.”30 The Hopkins court concluded that probable
    cause could not be established based on this testimony alone.31
    24 Id. at *9.
    23 Id.
    26 Id. (emphasis added).
    27 HOpkinS, 
    2015 WL 5168374
     at *2.
    22 
    Id.
    29 
    Id.
    30 
    Id.
    31 
    Id.
    State v. Rodney Morris
    ID No. 1706015581
    Page 9
    The facts in Garner are distinguishable from the instant case in three ways:
    first, Garner was analyzing a warrantless arrest; second the hearsay originated from
    an unidentified inforrnant; and third, the proffered hearsay in Garner constituted mere
    conclusions rather than observations. Here, probable cause was found by a magistrate
    considering a warrant application, who requires a somewhat lesser quantum of
    evidence demonstrating reliability than does an officer making a warrantless search
    or arrest.32 Second, the hearsay observations in this case were made by police officers,
    whose observations are “plainly reliable.”33 Third, and most critically, the affiants
    here reported the content of the hearsay observations, not merely conclusions based
    on those observations
    Similarly, Defendant’s reliance on the Holmes and Hopkins decisions is
    misplaced. In each, the testifying officer lacked key details as to the factual basis for
    probable cause, offering mere conclusions and assumptions The holdings in those
    cases do not control cases like the one before this Court, where a warrant affiant
    provides substantial detail as to the observations of investigating officers and the
    factual bases for a finding of probable cause. Another key factor distinguishing these
    decisions, as noted above, is that they invalidated warrantless arrests rather than
    search warrants. As the Holmes court observed, one of the primary issues in that case
    was “whether the State ’s burden in a motion to suppress can be met solely by
    hearsay.”34 In this case, by contrast, Defendant bears the burden.
    32 Id. 31914.
    33 Ventresca, 380 U.S. at lll.
    34 State v. Holmes, 
    2015 WL 5168374
     at *l (Del. Super. Sep. 3, 2015) (emphasis added).
    State v. Rodney Morris
    ID No. 1706015581
    Page 10
    Defendant appears to recommend a requirement that the affiant possess some
    quantum of corroborative first-hand knowledge The Court declines to accept this
    recommendation Such a requirement would needlessly invalidate warrants that, upon
    a common-sense reading, establish a fair probability that contraband or evidence will
    be found in a particular location. Rather, this Court follows the Well-established
    “totality of the circumstances” analysis, cognizant of the policy preference for a
    “flexible, easily applied standard” expressed by the United States Supreme Court in
    Illinois v. Gates.35
    Here, the Court does not find that the affidavit’s reliance on hearsay renders it
    defective. An affidavit of probable cause may rely solely on hearsay, so long as the
    sources of the hearsay are the affiant’s fellow officers and the hearsay allegations are
    not conclusory. The Court does not opine on whether hearsay alone would support
    probable cause if the hearsay had some other source. That question is not before the
    Court,36
    B. Tip from Conf`ldential Informant
    The Court now turns to the next factor that, according to Defendant,
    demonstrates the invalidity of the warrant, the alleged staleness and unreliability of
    the tip from the confidential informant
    35 
    462 U.S. 213
    , 238-39 (1983).
    36 The affidavit also contains hearsay information from fellow law enforcement officers
    regarding Johnmikah Daniels, who allegedly engaged in drug activity in the Dover area, parked
    her vehicle in front of the Residence, and lived at the Residence. In the Court’s view, this
    information provides no basis for probable cause to search the residence, but by the same token,
    does not render the Warrant invalid, as there are other bases in the affidavit for the probable
    cause iinding. The same analysis applies to the information in the affidavit that Defendant and
    Ms. Daniels were arrested at the Residence over a year before the instant case, and were charged
    with drug dealing. Such information, while irrelevant, is not fatal to the affidavit’s validity.
    State v. Rodney Morris
    ID No. 1706015581
    Page 11
    A tip may be supportive of probable cause when the totality of the
    circumstances demonstrate reliability.37 Relevant considerations include whether the
    tip has been shown to be reliable or trustworthy through its specificity, corroboration
    with other facts within the officer’s knowledge, or accurate predictions of a suspect’s
    future behavior.38 When staleness is alleged, “the test of temporal proximity is
    determined on an ad hoc basis in the light of circumstances of each case.”39 Probable
    cause must be based on current information.40
    Here, the affidavit informed the magistrate that Officer Johnson had received
    a tip that Defendant lived on Cecil Street and sold crack cocaine from his bicycle in
    Dover. The CI did not allege any connection between the Residence and illegal drugs,
    except that Defendant was alleged to be a drug dealer, and that he lived at the
    Residence.
    The State has indicated that the informant was previously proven reliable. The
    tip’s content was largely generic, alleging merely the sale of crack cocaine from a
    bicycle, with no particulars as to When sales were made, who they were made to, or
    Where they were transacted, except in Dover, generally.41
    37 
    Id. at 230
    .
    38 Jones v. State, 
    745 A.2d 856
    , 870 (Del. 1999) (stating relevant considerations for finding of
    reasonable suspicion: “(l) 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.”).
    39 Gardner v. State, 
    567 A.2d 404
    , 410 (Del. 1989) (quoting Jensen v. State, 
    482 A.2d 105
    , 111
    (Del. 1984)).
    40 E.g., Sisson v. State, 
    903 A.2d 288
    , 297 (Del. 2006); Gardner, 
    567 A.2d at 410
    .
    41 Compare the tip received here with the more detailed tip received in Illinois v. Gates, 
    462 U.S. at 245-46
    .
    State v. Rodney Morris
    ID No. 1706015581
    Page 12
    Subsequent investigation did appear to corroborate the tip’s few details. The
    CI advised that Defendant used a bicycle when conducting transactions, and the
    observations made by the officers were consistent with this. The CI also predicted
    with accuracy that crack cocaine Was the drug being trafficked. Moreover, while the
    tip was provided six months before the incident in question, the Court finds that this
    time gap is not so great as to render the information stale with regard to whether the
    officers were observing criminal activity when they viewed the hand-to-hand
    transaction.
    While it seems a close case as to whether the tip is supportive of probable
    cause to search Defendant’s person, it certainly provides no probable cause to search
    the Residence. The tip does not mention any connection between the Residence and
    illegal activity, but simply states that Defendant “sells Crack Cocaine from his
    Bicycle in the Dover Delaware area.”
    The tip alone could not provide probable cause for the search of the Residence.
    However, it did provide additional information upon Which the magistrate could base
    his conclusion that the Defendant participated in criminal activity aHer leaving the
    Residence and before returning there.
    C. Suspected Criminal Activity
    Tuming to Defendant’s third primary argument, Defendant contends that the
    following facts_the observed hand-to-hand transaction, Mr. Wilson’s subsequent
    flight, and the discovery of crack cocaine on Mr. Wilson_were insufficient to allow
    the magistrate to determine that Defendant had been involved in criminal activity,
    The Court concludes otherwise. The affidavit indicates that Defendant left the
    Residence, got on a bike, and traveled to the area of Mary Street, where he engaged
    State v. Rodney Morris
    ID No. 1706015581
    Page 13
    in a hand to hand transaction with Mr. Wilson. To be sure, this was not a controlled
    buy, and law enforcement did not determine with certainty that Mr. Wilson obtained
    the crack cocaine in his possession from Defendant.
    Nonetheless, While a controlled buy may be the typical method for determining
    probable cause in a case such as this, “a template of ‘typical’ facts is not the sine qua
    non for a finding of probable cause.”42 Probable cause was found by this Court on
    similar facts in State v. Watson.43 In Watson, officers observed a defendant participate
    in what appeared to be a hand-to hand drug transaction with a driver of a Buick.44
    ARer the transaction, law enforcement pulled over the driver of the Buick and found
    marijuana and cash in the vehicle, providing probable cause to believe contraband or
    evidence of criminal activity would be found in Defendant’s vehicle.45 Here, the
    hand-to-hand transaction combined with Mr. Wilson’s subsequent flight, and the
    discovery of contraband on his person, provides a substantial basis to believe that an
    illegality, namely, a drug transaction, had occurred between himself and Defendant.46
    As indicated previously, this conclusion is also supported by the CI’s tip which,
    although independently unsupportive of probable cause, renders it more likely that
    Defendant sold crack cocaine to Mr. Wilson during their hand-to-hand transaction.
    42 State v. Holden, 
    60 A.3d 1110
    , 1116 (Del. 2013).
    43 
    2015 WL 2210343
     (Del. Super. May 8, 2015).
    44 
    Id.
     at *l.
    45 Id. at *4.
    46 Id. (holding that magistrate had substantial basis for finding probable cause where police
    found “oxycodone without a prescription on a person who made a brief visit to the house and
    then dissembled about the location he had just lefc”).
    State v. Rodney Morris
    ID No. 1706015581
    Page 14
    Defendant has also argued both in writing and in open court, that the fact that
    the affidavit did not specifically allege that the transaction was an “illegal” or “drug”
    transaction somehow renders the allegation meaningless as a matter of probable
    cause. The Court declines to take such a “hypertechnical” approach. Rather, it was
    appropriate for the magistrate to take all the circumstances in the affidavit into
    account, notwithstanding the absence of a single word or phrase.
    D. Nexus Between Criminal Activity and Residence
    Defendant’s final argument is that there is no nexus between the alleged
    criminal activity and the Residence. The Court finds the opposite. Defendant’ s direct
    travel between the Residence and the site of the transaction constitutes a sufficient
    connection. This is evidenced by this Court’s decision in State v. Cannon, where the
    Court stated that “[d]irect or indirect evidence that a defendant traveled immediately
    to his home after engaging in illegal activity might be sufficient to establish probable
    cause that evidence or contraband are located in the residence.”47 In this case, law
    enforcement Watched Defendant travel fi'om his house to the site of the transaction
    and also noted that he returned to the Residence shortly after the transaction. In light
    of this evidence, law enforcement had probable cause to believe that contraband was
    located in the Residence. This conclusion is additionally supported by the affiants’
    assertion that, based on their knowledge, training, and experience, persons involved
    in drug trafficking will hide certain contraband in their houses.48
    47 State v. Cannon, 
    2007 WL 1849022
     at *6 (Del. Super. June 27, 2007). See also State v.
    Church, 
    2002 WL 31840887
     at *6 (Del. Super. Dec. 18, 2002) (probable cause found where
    defendant left residence in question and participated in probable drug transaction).
    48 Cannon, 
    2007 WL 1849022
     at *4 (“The nexus need not be based on direct observation or facts
    placing evidence at the location to be searched and may be inferred from the factual
    circumstances, including ‘the type of crime, the nature of the items sought, the extent of an
    State v. Rodney Morris
    ID No. 1706015581
    Page 15
    CONCLUSION
    Given this Court’s deferential review of a magistrate’s decision to issue a
    search warrant, and the consideration of that decision in light of common sense, the
    Court concludes that it cannot overturn the magistrate’s decision in this case. The
    affiants’ reliance upon hearsay information provided by fellow officers was
    appropriate, particularly since the information was both detailed and consistent with
    information regarding prior criminal activity provided by a past proven reliable
    inforrnant. Prohibiting search warrant affiants from relying upon credible and specific
    information provided by fellow law enforcement officers would be “impractical and
    border on the absurd”49 and would inhibit efficient law enforcement Furthermore,
    while the CI’s tip did not itself provide probable cause to search the Residence, it
    indicated that criminal activity was afoot. Finally, the magistrate made a common
    sense conclusion that the transaction and subsequent law enforcement interaction
    with Mr. Wilson supported a conclusion that criminal activity had occurred, and that
    there was a nexus between that activity and the Residence due to Defendant’ s contact
    with the Residence both before and after the transaction
    WHEREFORE, for the foregoing reasons, Defendant’s motion to
    suppress is DENIED.
    opportunity for concealment and normal inferences’ regarding where a criminal might hide
    evidence.”) (quoting State v. Ivins, 
    2004 WL 1172351
    , at *4 (Del. Super. May 21, 2004)).
    49 State v. Smith, 
    277 A.2d 481
    , 489 (Me. 1971).
    State v. Rodney Morris
    ID No. 1706015581
    Page 16
    IT IS SO ORI)ERED.
    /s/ Noel Eason Primos
    Judge
    NEP/dsc