OPINION

JURDEN, J.

I. INTRODUCTION

Before the Court is Defendant Michael D. Holden's Motion to Suppress evidence seized during a search of his residence.1 After an investigation spanning several months, the Wilmington Police obtained a search warrant to search Holden's home. The search produced empty pill bottles, a scale, a mixing agent for cocaine, prescription pills, and two ounces of cocaine.2 Holden was subsequently arrested and indicted for Trafficking in Cocaine of greater than 50 but less than 100 grams,3 Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance,4 Maintaining a Dwelling for Keeping or Delivering Controlled Substances,5 and Conspiracy in the Second Degree.6

Holden contends that the search warrant affidavit submitted by the police to support the search of his home lacked probable cause. As such, Holden claims that the search violated his constitutional rights under the Fourth Amendment to the United States Constitution and Article I, Section 6 of the Delaware Constitution. For the reasons that follow, Holden's Motion is GRANTED.

II. FACTS

On December 15, 2010, a past proven reliable confidential informant ("C.I. #1") contacted Officer Michael Rentz of the Wilmington Police Department in reference to Michael Holden.7 C.I. #1 told Rentz that he had spoken with Holden,8 and among other things, Holden told C.I. #1 how he had "beat the marijuana trafficking case."9 C.I. #1 also told Rentz that Holden had not stopped selling marijuana after his arrest, and was selling oxycodone. Further information provided by C.I. #1 established that Holden lived at 514 Shue Drive, Newark, Delaware with his girlfriend Lauren Lusby, he drove a white Chrysler 300 ("Chrysler"), and that most of Holden's customers came to his residence to buy marijuana or pills. C.I. #1 said that Holden used the Chrysler to make drug deliveries.

As part of Rentz's investigation, he conducted a criminal history check on Holden that linked Holden to the address provided by C.I. #1. Relying on C.I. #1's tip, Rentz conducted surveillance at Holden's home on January 5, 2011. Rentz observed the Chrysler parked in the driveway of Holden's home, and determined that it was registered to Joseph Lusby, the father of Holden's co-defendant. A DEA confidential informant ("C.I. #2") confirmed much of the information provided by C.I. #1, adding that Holden was also selling cocaine out of his house, and that Holden "maintains his stash at that location."10

During the second week of January 2011, Rentz and DEA Special Agent Robert Eiseman conducted surveillance on Holden's home. Rentz and Eiseman observed nothing out of the ordinary.

In the third week of February 2011, C.I. #1 contacted Rentz again about Holden. C.I. #1 informed Rentz that Holden was almost exclusively conducting drug sales from his home now. C.I. #1 suggested that Holden was afraid to sell drugs outside of his home because the police had stopped Holden while he was driving the Chrysler.11 A few months later, in April of 2011, C.I. #1 told Rentz that Holden had received multiple ounces of cocaine to sell. At this point, C.I. #1 still believed that Holden sold marijuana and pills.12

After receiving this information, Rentz and Eiseman conducted surveillance on Holden's home again on April 4, 2011. Eiseman observed a silver Chrysler stop and park in front of Holden's residence at 8:20 p.m. The driver remained in the car. After approximately five minutes, Holden arrived in his Chrysler. Holden, his passenger, and the driver of the silver Chrysler then entered Holden's house. Within minutes, a white Lexus registered to Arlene Holden (Holden's mother) pulled into the driveway of Holden's residence. Two females exited the Lexus and entered the house. Approximately ten minutes later, Rentz observed the driver of the silver Chrysler leave Holden's house and return to his car.

Rentz followed the silver Chrysler out of Holden's neighborhood to a shopping center parking lot. Rentz observed the driver exit his car and put small objects into his right hand.13 Rentz promptly approached the driver and identified himself as a police officer. Without any mention of the reason for the stop, the driver indicated that he had a prescription for the pills. When the driver was taken into custody, he dropped six pills on to the ground. Rentz determined that these pills were 30 milligram Oxycodone pills. The driver once again insisted that he had a prescription for the pills, and told Rentz that he had the bottle in the console. Rentz searched the car, but found no prescription bottle. The encounter with the driver led Rentz to believe that the driver purchased the Oxycodone from Holden.14

Based on the facts above, a magistrate granted Rentz a search warrant for Holden's residence on April 4, 2011. The search of Holden's residence produced contraband which led to his arrest.

III. THE PARTIES' CONTENTIONS

Holden argues that the affidavit of probable cause ("APC") submitted by Rentz lacked probable cause to justify a search of Holden's residence, i.e., that the APC did not provide the magistrate with a substantial basis to reasonably believe evidence or contraband would be found in his home. In support of this argument, Holden contends that the facts provided by the C.I.'s in this case are "wholly uncorroborated," and thus are legally deficient.15 Holden also argues that the APC "fails to establish a legally sufficient nexus between the area to be searched and the alleged criminal acts."16 Holden avers that nothing in the APC established probable cause to believe Holden possessed drugs on his person, in his vehicle, or in his residence.17

The State argues that within the "four-corners" of the APC sufficient probable cause exists under the totality of the circumstances to justify a search of Holden's home. The circumstances that the State relies upon are "the ongoing nature of the drug distribution crime, the use of two informants, including a past-proven reliable source, and the direct observations by investigators."18 Given those factors, the State asserts that the police had sufficient justification to search Holden's residence.

IV. DISCUSSION

The burden rests on a defendant moving to suppress evidence to establish that a search or seizure violated his rights under the United States Constitution, the Delaware Constitution, or the Delaware Code.19 To succeed, the defendant must demonstrate that he is entitled to relief by a preponderance of the evidence.20

To protect against unreasonable searches and seizures, the Delaware and the United States Constitutions provide that "a search warrant may be issued only upon a showing of probable cause."21 The requirements for obtaining a search warrant in Delaware are codified in Title 11, Sections 2306 and 2307 of the Delaware Code. Section 2306 provides that the application for a search warrant must "state that the complainant suspects that such persons or things are concealed in the house, place, conveyance or person designated [in the search warrant application] and shall recite the facts upon which suspicion is founded."22 According to Section 2307, a warrant may issue only upon a judicial determination of probable cause.23

When reviewing a magistrate's decision to issue a search warrant, the Court uses a "four-corners" test to determine whether an application for a search warrant demonstrates probable cause.24 On its face, within those four corners, the document must present sufficient facts for a judge or magistrate to form a reasonable belief that an offense has been committed and the property to be seized will be found in a particular place.25

To make an initial probable cause determination, a judge or magistrate must look at the facts under the totality of the circumstances, and attempt to ascertain whether probable cause exists to justify a search.26 Conducting a totality of the circumstances analysis provides a magistrate with leeway to draw reasonable inferences from the factual allegations included within the APC.27 Thus, where "there is a fair probability [under the totality of the circumstances] that contraband or evidence of a crime will be found in a particular place," probable cause exists to search that place.28

The four-corners test will "restrict[] the scope of a reviewing courts inquiry," but a common sense analysis is still permitted.29 This method of analysis avoids a "hypertechnical approach."30 With this approach, the Court gives great deference to the judge or magistrate who makes the initial probable cause determination when deciding whether to issue a search warrant.31 Giving deference, however, does not relieve the Court of its obligation to determine whether the information provides the magistrate with a substantial basis to find probable cause.32

A. The Nexus Requirement

The Court must determine whether a substantial basis existed in the APC to justify a reasonable belief by the magistrate that evidence or contraband could be found in Holden's residence.33 In order to search a particular place, a logical nexus must exist between the items sought and the place to be searched.34 While it is helpful in the overall analysis, probable cause to believe a crime has been committed does not always mean police have probable cause to search a person's residence.35 In fact, to establish probable cause to search a residence, there must be probable cause that an individual committed a crime, and "probable cause to believe that evidence of such crime can be found at the residence."36 A direct observation or facts placing evidence at the place to be searched are not needed to establish a nexus.37 Indeed, when reviewing an affidavit supporting a search warrant, inferences may be drawn by the Court as to probable cause by considering the "type of crime that is alleged and the nature of the items sought by police."38

B. The Confidential Informants

A confidential informant's tip may establish probable cause if, under the totality of the circumstances, the information is reliable.39 When evaluating the totality of the circumstances, the Court must consider factors such as: (1) "the reliability of the informant," (2) "the details contained in the informant's tip", and (3) "the degree to which the tip is corroborated by independent police surveillance and information."40 When assessing reliability, "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion that would be required if the tip were more reliable.41

In State v. Ivins, three confidential informants provided the Delaware State Police ("DSP") with information that Ivins sold drugs.42 Two of the three informants described Ivins' cars and residence, and the police conducted a background check to link Ivins to each.43 Further, DSP received information from Delaware Crimestoppers that Ivins traveled to Washington D.C. to purchase drugs to sell in Delaware.44 Police used this information to apply for and execute a search warrant on Ivins' residence.45 The Court held in Ivins that under the totality of the circumstances that the information contained within the search warrant lacked the support necessary to find probable cause.46 In so holding, the Court reasoned that two of the confidential informants "never stated that they saw Ivins sell drugs," and the information pertaining to Ivins' home and cars "is the type of information that any person living on Ivins' street could have provided."47

In Morgan v. State, confidential informants provided information to the police about the defendant's drug dealing, albeit in much greater detail than in Ivins.48 Specifically, the informant predicted Morgan's future actions. An accurate prediction of an individual's future actions is helpful when analyzing an informant's reliability.49 The informant advised police that Morgan sold drugs from his mobile home, drove an older maroon Toyota Camry, and that the defendant would leave his home in the Camry at a particular time to sell ecstasy at a local Safeway supermarket.50 The police confirmed part of the informant's statement when they observed a maroon Camry parked in front of the defendant's residence.51 Further confirmation came when the police followed Morgan as he left his residence (as the confidential informant predicted he would), and stopped him at the Safeway.52 When Morgan opened his glove compartment to retrieve his registration, a digital scale fell on the floor.53 Morgan argued that the information relied upon to establish probable cause failed to create a sufficient nexus between his home and the evidence sought by the police.54 The Court disagreed. In its analysis, the Court relied upon the following factors: (1) the police observed a car matching a description of the defendant's car parked in front of the defendant's residence; (2) the confidential informant told the police that the defendant sells ecstasy from that residence; (3) the police knew the exact time the defendant would leave his home to sell ecstasy at the Safeway; and (4) upon pulling over the defendant, there was no ecstasy in the car, but there was a digital scale (which is indicative of drug sales).55 These factors above allowed the police to verify the reliability of the confidential informant,56 and corroborate the information he provided. With that, the Court in Morgan reasoned that the absence of the ecstasy in the car made it "logical for [the police] to infer that ecstasy pills might be in Morgan's mobile home," and that those facts established a nexus between the contraband sought and Morgan's home.57 The Court held that under the totality of the circumstances probable cause existed to issue the search warrant.58

In State v. Backus, the defendant claimed that "finger pointing" by confidential informants accusing the defendant of keeping drugs in his home without corroboration did not establish probable cause for a search.59 Specifically, the defendant argued that there were no controlled buys conducted at his home, nor any surveillance to support the intrusion.60 The Court noted that controlled buys, surveillance, or informant's statements indicating that drugs are stored in particular locations are not always needed to establish probable cause.61 The Court in Backus relied on substantially similar facts to this case,62 plus one additional factor. Of particular importance in Backus is that the second C.I. bought cocaine from the defendant in a controlled buy immediately after the defendant left his residence.63 Considering the facts as a whole, a sufficient nexus linking drugs to the defendant's home existed, and thus the Court determined that probable cause existed to search the defendant's home.64

Here, aside from Rentz's claim that C.I. #1 is a past proven reliable informant (and C.I. #2 providing information similar to that provided by C.I. #1) nothing in the APC demonstrates C.I. #1's reliability.65 C.I. #1 and C.I. #2 never bought drugs from Holden (like the C.I. did in Backus), nor did they state that they ever saw Holden sell drugs from his home. Moreover, the police could not corroborate the confidential informant's statements to the extent necessary for a search. Similar to Ivins, the information provided by the confidential informants to the police describing Holden's house and car is information that any neighbor could have provided to police. C.I. #1 told police that Holden made drug deliveries in his Chrysler. But, when the police stopped Holden in his Chrysler, no drugs were found in his car. It is also important to note that although both confidential informants claimed Holden was selling drugs from his home, during surveillance over a significant period of time (on three separate occasions) the police only saw one person come to Holden's home. The Police never observed the "foot traffic" typically associated with drug sales from a home and the neighbors never complained to the police of drug activity at Holden's home.66 C.I. #2 said that Holden used his residence as a "stash house," yet the police did not mention suspected deliveries or people carrying bags in or out of Holden's home in the APC.67 Further, the APC never indicates that Holden's home is in a high drug area.

The Court is mindful of the great deference a magistrate's initial probable cause determination must be given. But the information provided by the confidential informants in this case, without more, does not provide the reliability and corroboration necessary to create a sufficient nexus to establish probable cause to search Holden's home.

C. The Alleged Oxycodone Purchase

In the APC, the police note that one individual entered Holden's home for a short period of time, and a subsequent traffic stop by police revealed that he possessed six 30 milligram Oxycodone pills. The State argues that under the totality of the circumstances this established probable cause to arrest Holden, and this created a sufficient nexus to believe drugs were located in Holden's home. The Court disagrees for the following reasons.

First (and most importantly), the alleged sale did not take place during a controlled buy. Therefore, the police had no way of knowing whether the individual carried the six pills into Holden's house. Jones establishes that controlled buys are not always necessary, but the facts of Jones are substantially different.68 Without the control factor used in Jones, the Court, nor a magistrate, have a basis to determine if the drugs were present in Holden's home on that day, or if the individual had them on his person when he entered (and left).

Second, at the time they applied for the warrant, the police only knew of one instance where an individual entered Holden's home and had drugs on his person when he left. The absence of a controlled buy would be less important to the Court's analysis if multiple people left Holden's with drugs on their person. That would provide a better basis to suggest that drug sales were taking place at 514 Shue Drive.

Finally, the individual stopped by the police claimed he had a prescription for the Oxycodone. Although no prescription bottles were found in the car, nothing in the APC suggests the police attempted to investigate whether the driver had a prescription. Moreover, the driver was not arrested.

V. CONCLUSION

Employing a common sense review of the information provided in this case under the totality of the circumstances, the information contained in the APC is insufficient to support a magistrate's finding of probable cause.69

Accordingly, Holden's Motion to Suppress is GRANTED.

IT IS SO ORDERED.