Thomas v. State

Supreme Court of Delaware

Thomas v. State

467 A.2d 954

CourtSupreme Court of Delaware

DecidedJune 16, 1983

StatusPublished

Cited by36 cases

This text of 467 A.2d 954 (Thomas v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Thomas v. State, 467 A.2d 954 (Del. 1983).

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Opinion

HORSEY, Justice:

These criminal appeals raise constitutional questions concerning the sufficiency of arrest warrants, standing to challenge search warrants and double jeopardy in sentencing. Defendants Andrew Thomas and Bernard Johnson were jointly tried and found guilty in two separate trials by jury in Superior Court of two robberies that occurred on the same day in Wilmington, Delaware. 1

Defendants Thomas and Johnson were first tried in March, 1981 on charges of committing an armed robbery in mid-afternoon on October 24, 1980 of a Wilmington loan company office. In the course of the robbery, the office manager was shot and seriously wounded. Indicted for Attempted Murder First Degree, Robbery First Degree, Possession of a Deadly Weapon during the Commission of a Felony and Conspiracy Second Degree, defendants were each convicted of Assault in the First Degree, Robbery First Degree, Possession of a Deadly Weapon during the Commission of a Felony and Conspiracy Second Degree. They were each sentenced to a total of 49 years in jail.

In September, 1981, Thomas and Johnson were tried and convicted of Robbery First Degree and Conspiracy Second Degree for the robbery at approximately 7:00 p.m. on October 24, 1980 of a U-Haul store in Wilmington. Defendants were each sentenced to prison terms of 11 years, with the terms to begin on completion of their March, 1981 sentences.

I

At 2:30 p.m. on October 24, 1980, three armed black males, all wearing ski masks, robbed at gunpoint the Mortgage Service Corporation in Wilmington. After taking some $60 from the tellers, two of the masked men fled. The third robber, before departing, singled out and deliberately shot the elderly office manager, who was lying on the floor, in the chest at close range.

Within minutes the police arrived, obtained descriptions of the three gunmen, and shortly recovered a palmprint and fingerprint. In the meantime, an anonymous tipster had telephoned police headquarters identifying Johnson, Thomas, and Johnson’s brother Sonny, also known as Wendell Hus-ser, as the perpetrators of the robbery. A short time later the prints were analyzed and found to match those of Thomas and Johnson. By 5:00 p.m. that day, a police bulletin for the arrest of Thomas, Johnson and Husser had been broadcast and arrest warrants issued based on the fingerprint identification and the anonymous caller’s information.

About 7:00 p.m. the same day, a U-Haul store in Wilmington was robbed by three black males who were also wearing ski masks. The store manager, a gun collector, described the pistol — which had been held to his head — as a small chrome-plated .25 caliber automatic believed to be manufactured by Raven Arms Corporation of California. Finger and palm prints found at the scene were also matched by the police to those of Thomas and Johnson.

About 7:45 the same day, Wilmington police set up a surveillance for the arrest of *956 Thomas, Johnson and Husser outside a Wilmington dwelling house of a third party. The police were also on the lookout for a car belonging to Johnson’s girlfriend. According to a second informant, Johnson often drove the ear.

About 8:00 p.m. that night the car, a 1969 Volkswagen, was found parked behind the residence under surveillance and three black males were seen going to and from the car.

About 9:30 that evening the police observed four men leaving the house. When the men saw that they were being watched, the plainclothes police identified themselves. Thomas, Johnson and Husser ran back into the house. The fourth man did not attempt to flee and put up his hands. The police pursued the three back into the house. They found several people in the living room, including Thomas, who was seated on the couch. Johnson and Husser were found on the dwelling’s roof top. All three were immediately placed under arrest. A search of the premises was deferred until a search warrant was obtained; a warrant was procured within an hour and the premises were then searched.

During the search, police recovered two .25 caliber automatic pistols which had been concealed behind the cushions of the living room couch where Thomas had been seated. One of the pistols was manufactured by Raven Arms. Both pistols were loaded; and one pistol was cocked. On the building’s rooftop the police found a ski jacket containing an identification card of Thomas and a striped ski hat.

The police then procured a search warrant for the 1969 Volkswagen parked behind the house. The police found three knit ski caps within the vehicle.

II

Of the numerous issues raised by defendants, the dispositive ones are: (1) whether the Trial Court abused its discretion in denying defendants’ motion to suppress evidence seized under allegedly defective arrest and search warrants; (2) whether an erroneous jury instruction on flight was given; (3) whether the Court erred in denying defendants’ motion for acquittal as to the Mortgage Service Corporation robbery; and (4) whether the Trial Court violated defendants’ Fifth Amendment Double Jeopardy rights by individually sentencing defendants on all counts arising from the mortgage company robbery.

Defendants first contend that the evidence seized in the search of the third party’s residence and of the automobile should be excluded as the product of an illegal arrest. Defendants contend the arrest was illegal because the arrest warrants were invalidly issued. They argue that the underlying affidavits do not provide a sufficient basis for a finding of probable cause. We agree, but for the reasons hereafter stated find the error to have been harmless.

For an arrest warrant to be valid, the issuing judicial officer must be presented with sufficient information to support an independent judgment that probable cause for the warrant exists. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); Caulk v. Municipal Court for the City of Wilmington, Del.Supr., 243 A.2d 707 (1968).

It is clear that the affidavits in support of the warrants are insufficient as they merely set forth the charges against the defendants in a conclusory fashion. They provide no factual basis for a judicial determination of probable cause. 2 Both Article *957 I, § 6 of the Delaware Constitution and the Fourth Amendment of the United States Constitution provide that arrest warrants may be issued only upon a showing under oath of probable cause. Caulk, supra, at 708. The insufficiency of the affidavits renders the arrest warrants invalid.

However, a warrantless arrest is lawful if the arresting officer has probable cause to believe the suspect has committed a felony. 11 Del.C. § 1904(b)(1) provides:

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