State of Delaware v. Patricia Kostyshyn

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,
V. C.A. No.: 2309014065
PATRICIA R. KOSTYSHYN.
MEMORANDUM OPINION

Defendant Patricia R. Kostyshyn brings this motion in accordance with Court
of Common Pleas Criminal Rule 12(b)(3) to suppress all evidence gathered on
Defendant’s property pursuant to a search warrant executed on September 12, 2023.
The Court conducted a hearing on Defendant’s motion on March 19, 2025.

I. FACTS

Defendant was originally charged with sixteen (16) offenses, including
fourteen (14) counts of Animal Cruelty and two other animal-related offenses.!
Before Defendant was charged, the State obtained seven (7) search warrants in
connection to violations of New Castle County Property Maintenance Code.

On September 5, 2023, New Castle County Code Enforcement Constable
Frank Walsh submitted a search warrant application and probable cause affidavit (the

“A ffidavit”) to a magistrate in the Justice of the Peace Court. In the Affidavit,

| The State entered a nolle prosequi on fifteen (15) of the sixteen (16) charges but is pursing the
sole remaining animal cruelty charge.
Constable Walsh alleged that Defendant’s property was in violation of the New
Castle County Maintenance Property Code by having open storage of rotting food,
multiple flies, unkept kitty litter containers, blocked egresses throughout the unit,
and the emission of strong pungent odors. Constable Walsh asserted that the property
had ongoing code violations dating back to September 21, 2021, and listed the dates
upon which prior warrants were executed on the property.” The most recent warrant
had been issued a week prior on August 28, 2023. Notably, Constable Walsh did not
point to any observations or other information to suggest that the property continued
to be in violation of the code after August 28". Nevertheless, the magistrate issued
a warrant, which was executed on September 12, 2023 (the “Warrant”).

Defendant moves to suppress the photographs and videotapes made in the
execution of the Warrant on the grounds that it was based on stale information
insufficient to prove probable cause of a crime or that evidence of a crime was
present at Defendant’s property.

On the other hand, the State argues that the August 28" search, which was
referenced in the Affidavit, is evidence of an ongoing and continuous crime. In other
words, the State contends that the facts in the Affidavit are not stale because they

still existed at the time of the application for the Warrant.

? According to the Affidavit, search warrants were obtained on September 1, 2021; May 2, 2023;
May 4, 2023; May 9, 2023; June 12, 2023; and August 28, 2023.

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II. DISCUSSION

On a motion to suppress challenging a warrant’s validity, the defendant bears
the burden of establishing, by a preponderance of the evidence, that the challenged
search warrant or seizure was unlawful.? A reviewing court will give great deference
to the magistrate that determined there was probable cause and it “will not be
invalidated by a hyper-technical, rather than a common sense, interpretation of the
warrant’s affidavit.”* However, that “does not mean that reviewing courts should
simply rubber stamp a magistrate’s conclusion.”>

Defendant asserts that the warrant authorizing the search of her residence is
not supported by probable cause as required under the Delaware Constitution,
codified in Title 11, Sections 2306 and 2307 of the Delaware Code. Section 2306
provides that an 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.” Section 2307 provides that the magistrate, or issuing

judge, may only issue a warrant upon the finding of probable cause.

3 Miller, 2009 WL 162238, at *2.

4 US v. Ventresca, 380 U.S. 102, 109 (1965); Ilinois v. Gates, 462 U.S. 213, 236 (1983); Jensen
v. State, 482 A.2d 105, 111 (Del. 1984); Cooper v. State, 228 A.3d 399, 404 (Del. 2020).

5 Rivera v. State, 7 A.3d 961, 967 (Del. 2010).

6 11 Del. C. § 2306.
The Delaware Supreme Court has held that § 2306 and § 2307 “contemplate
a ‘four-comers’ test for probable cause.”’ In accordance with that standard,
“sufficient facts must appear on the face of the affidavit so that an appellate court
can verify the factual basis for the judicial officer’s determination regarding the
existence of probable cause.”® “The requirement that all facts relied upon by the
magistrate be in a written affidavit ensures that the reviewing court may determine
whether the constitutional requirements have been met without reliance upon faded
and often confused memories.”? Therefore, an affidavit in support of a search
warrant must set forth facts adequate to warrant a reasonable person to believe that
an offense has been committed and that seizable property would be found in a
particular place or on a particular person.!° In addition, the alleged facts must be
such “as to allow the magistrate to make an independent evaluation of the matter.”!!

However, when it comes to staleness, “[p]robable cause must be based on
current information, not conjecture, for stale information will not support a finding

of probable cause.”!” It is not sufficient that at some prior time there existed

circumstances that would have warranted the search in question.'? Indeed, the

7 Dorsey v. State, 761 A.2d 807, 811 (Del. 2000).

8 Id.

9 Pierson v. State, 338 A.2d 571, 573 (Del. 1975).

10 State v. Ranken, 25 A.3d 845, 862 (Del. Super. 2010).
11 Franks y. Delaware, 438 U.S. 154, 165 (1978).

12 Sissons, 903 A.2d at 297.

13 Jensen v. State, 482 A.2d 105, 111 (Del. 1984).

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“validity of probable cause cannot be quantified by simply counting the number of
days between the occurrence of the facts relied upon and this issuing of the
affidavit.”!4 To determine if “information has become stale due to an impermissible
delay in securing a warrant depends upon all the facts viewed in a flexible and
practical manner.”!

The State counters Defendant’s argument by relying on two cases, Sisson v.
State! and State v. Miller.'” In Sisson v. State, law enforcement obtained a warrant
to search the defendant’s residence for evidence of child pornography based upon a
tip from the defendant’s email provider.!® As a result of the search, the defendant
was arrested on an array of child pornography charges.'? The defendant moved to
suppress the evidence seized during the search, arguing, inter alia, that the warrant
was predicated on stale information, as it was not possible to determine the duration
of time between when the alleged offense occurred and when law enforcement was
made aware of it.”°

Affirming the trial court’s ruling, the Delaware Supreme Court found that the

information was not stale because in the underlying affidavit, law enforcement

14 Sissons, 903 A.2d at 297.

15 State v. Barnes, 2025 WL 327427, at *4 (Del. Super. Ct. Jan. 29, 2025).
16 903 A.2d 288 (Del. 2006).

17 9009 WL 1622388 (Del. Com. Pl. June 10, 2009).

18 Sission v. State, 903 A.2d 288, 294 (Del. 2006).

19 Td. at 295.

20 Sisson, 903 A.2d at 297-298.
explained that those who collect child pornography typically retain it for a long
time.2!_ That statement, coupled with the “fair probability” that the email provider
had notified law enforcement within days of the offense occurring, rendered the
issuing magistrate’s decision to grant the warrant reasonable. *

Unlike Sisson, in this instance, the Constable never gave such a statement that
would lend credit to the Magistrate’s ability to believe that the code violations were
still in existence. The affidavit of probable cause contained only dates of the
execution of other warrants and what law enforcement found upon the execution of
those warrants. If the Constable had investigated, such as going to Defendant’s
residence and talking to a neighbor(s), observing an odor, or seeing that the code
violations had not been remedied and stated so in the affidavit, there would be no
issue. Or if, like the law enforcement affiant in Sission, the Constable had explained
why there was a reason(s) to believe the code violations were still in existence, the
affidavit of probable cause may be sufficient. However, the Constable took no such
action. Therefore, the State’s reliance on Sisson is misplaced.

The same is true for the State’s reliance on State v. Miller.” In Miller, the

defendant was charged with code violations after law enforcement executed two

21 Td. at 297-298.
2 Td. at 299,
23 2009 WL 1622388 (Del. Com. Pl. June 10, 2009).

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search warrants within a month of each other.”4 The defendant moved to suppress
the items seized, arguing that the affidavit of probable cause for the second search
warrant was too remote in time to support a finding of probable cause because it was
largely based upon the findings of the first warrant.”> The court disagreed, and found
that the second warrant’s affidavit of probable cause contained statements from law
enforcement that they had direct knowledge that the defendant had done very little
work on the property to bring it into compliance and having viewed the property
from the street, they observed that the code violations continued to exist.2° The
affidavit also referenced calls from citizens that complained about the defendant’s
property.”’ Those statements, the court reasoned, were sufficient to support a finding
of probable cause to issue the warrant.?8

In the present case, the Affidavit specifies that the property at issue has a
history of code violations, detailing the execution of previous warrants during which
the affiant had observed numerous property code violations, namely that the property
was unsanitary, and the conditions were unfit for living. Outside of that, the affiant

gave no information as to his current knowledge of whether any work had been done

to the property to bring it into compliance.

24 Td. at * 1.

25 Sate v. Miller, 2009 WL 1622388, at *1-2 (Del. Com. Pl. June 10, 2009).
26 Td. at *3.

27 Miller, 2009 WL 1622388, at *2.

28 Del. Const. art. I, § 6; State v. Ranken, 25 A.3d 845, 853 (Del. Super. 2010).

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The State argues that the August 28" search of the property is evidence of an
ongoing and continuous crime. That argument, taken to its logical conclusion, would
mean that once a court grants a warrant for the search of a premises, the State can
come back time an again, without any change in circumstances or additional
information, to obtain additional warrants. However, the very purpose of an affidavit
of probable cause is to establish that facts currently exist to support the belief that a
crime has occurred. The affidavit should indicate that the items related to the crime
will likely be found at the location specified for the search. If the minimum
requirement of the State was to set forth facts in an affidavit based upon findings
from a previous issued warrant, even if only a few days has passed, it would self-
defeat the spirit of the Constitutional requirements codified in § 2306 and § 2307.”

For those reasons, the Court finds that the information set forth in the Affidavit
was stale and the resulting Warrant lacked probable cause to believe a crime had
occurred. As such, this Court cannot find that the magistrate’s determination that

probable cause existed was sufficiently supported.

29 See State v. Rankin, 25 A.3d 845, 855 (Del. 2010) (“Delaware [has a] long history of protecting
its citizens, the Delaware Constitution requires actual probable cause and not a good faith basis for
probable cause to secure a valid Warrant in Delaware.”); Dorsey v. State, 761 A.2d 807, 820 (Del.

2000).
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THEREFORE, IT IS HEREBY ORDERED, that Defendant’s Motion to
Suppress the evidence gathered from the execution of the Warrant on September 12,
2023, is GRANTED.

IT IS SO ORDERED this 5" day of May, 2025.