State v. Ortiz-Bedolla

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
) Def. I.D. # 2311001498
) 2311001199
) 2302002926 (VOP)
) 2305009153 (VOP)
v. )
)
)
MARCO ORTIZ- BEDOLLA, )
)
Defendant. )

Submitted: October 22, 2024
Decided: November 8, 2024

Upon Defendant’s Motion to Suppress

DENIED

MEMORANDUM OPINION AND ORDER

Julie Johnson, Esquire, Deputy Attorney General, Department of Justice, 13 The
Circle, Georgetown, DE 19947; Attorney for State of Delaware.

Zachary A. George, Esquire, Hudson Jones Jaywork & Fisher, LLC, 225 South
State Street, Dover, DE 19901; Attorney for Defendant Marco Ortiz-Bedolla.

KARSNITZ, R.J.
Introduction

Many criminal defendants in Delaware have heard a knock on the door by

police announcing that they have a warrant to enter and search their home. Far fewer

criminal defendants, at least in Delaware, have received a package delivered to them

in the mail which, in and of itself, operates as the trigger for the entry of the police

and the search of their home. This latter practice of a “controlled delivery,” which

was used in this case, is the subject of the Motion to Suppress (the “Motion”) by

Marco Ortiz-Bedolla (“Defendant”). It involves what is often referred to as an

“anticipatory search warrant,” defined as “a warrant based upon an affidavit showing

probable cause that at some time in the future (but not presently) certain evidence of

crime will be located at a specified place.”1

Background

On November 1, 2023, a postal inspector in Wilmington intercepted a package

suspected to contain drugs. The package was opened pursuant to a federal search

warrant and was determined to contain methamphetamine. A warrant was issued for

Defendant’s arrest. On November 3, 2023, Defendant was arrested and charged with

1
State v. Gutman, 670 P.2d 1166, 1172 (Alaska Ct. App. 1983) (quoting 2 W. LAFAVE, SEARCH
AND SEIZURE § 3.7(c) at 94 (2d ed. 1987)); see United States v. Garcia, 882 F.2d 699, 704 (2d
Cir. 1989); see also United States v. McGriff, 678 F. Supp. 1010, 1014 at n.5 (E.D.N.Y. 1988).

2
a single count of Attempted Drug Dealing in connection with this controlled delivery

via the mail.

Earlier, on November 2, 2023, Delaware State Police applied for an

anticipatory search warrant for Defendant’s home address in Laurel, Delaware. The

anticipatory search warrant was executed the next day. Pursuant to the search

authorized by the warrant, Delaware State Police located a variety of controlled

substances and drug paraphernalia.

Also on November 3, 2023, prior to execution of the anticipatory search

warrant, Delaware State Police arrested Defendant in New Castle County based on

his outstanding warrant for the package intercepted in the mail. The application for

the arrest warrant also included assertions that over the period of about six months

police had conducted, through a confidential informant, at least four “buys” of illegal

drugs from Defendant. Pursuant to a search incident to his arrest, Delaware State

Police discovered a controlled substance and U.S. Currency on Defendant's person.

After his arrest Defendant made allegedly inculpatory statements to the police.

Defendant was arrested and charged with a variety of criminal offenses

including Attempted Drug Dealing, Drug Dealing, and Drug Possession; multiple

counts of Possession of Drug Paraphernalia; multiple counts of Possession of a

Firearm by a Person Prohibited; and Possession of a Firearm during the Commission

of a Felony.
3
At the time of his November 2023 arrest, Defendant was on probation for

other drug dealing charges. His probation officer filed a report alleging that

Defendant violated his probation based upon the new charges. Defendant contests

the violation by raising the same claim of wrongful search and seizure.2

On August 6, 2024, Defendant filed the Motion, which sought to suppress

from both trial on the new charges and the contested VOP hearing ( 1 ) all evidence

obtained from the search of Defendant’s residence and from the search of his person

incident to his arrest, including controlled substances, paraphernalia, and currency,

and (2) Defendant’s statements made during his arrest. The State filed its Response

on August 28, 2024. On October 22, 2024, I held a hearing on the Motion. The State

called one witness. I denied the Motion with respect to the statements made by

Defendant during his arrest from the bench, but reserved judgment on the search and

seizure issues. Trial was continued. This is my decision on the remainder of the

Motion, after a review of the Motion, the Response, the hearing testimony, and oral

argument.

2
Under 11 Del. C. § 4321(d) and Probation Procedure 7.19, there is a statutory exception to the
search warrant requirement for persons on probation. However, this statutory exception does not
apply in this case because this was not a probation search. Rather, it was conducted by the
Delaware State Police; therefore, Defendant is entitled to his full constitutional protections. The
exclusionary rule applies in a contested VOP. See Thompson v. State, 192 A.3d 544 (Del. 2018);
Walker v. State, 205 A.3d 823 (Del. 2018).
4
Burden of Proof

The burden of proof in challenging the validity of a search warrant rests with

Defendant.3 However, as in warrantless searches and arrests,4 the burden of proof

for establishing the occurrence of the triggering condition precedent of an

anticipatory search warrant rests with the State as the party asserting that the

triggering condition occurred.5

Defense Arguments

Defendant asserts six reasons to find the search and seizure unconstitutional

and therefore to suppress the evidence found in the residence. First, Defendant

argues that neither of the conditions precedent for the search and seizure were met:

the package was never in fact opened by Defendant,6 and the mere passage of time

is, in and of itself, insufficient grounds to execute a warrant. Otherwise, search

warrants could be issued based on speculative future events, and the probable cause

3
State v. Sisson, 883 A.2d 868 (Del. Super. 2005).
4
Hunter v. State, 783 A.2d 558 (Del. 2001).
5
See United States v. Schwarte, 645 F.3d 1022 (8th Cir. July 15, 2011). See also United States
v. Curtis, 2023 WL 9546952 (W. D. Tenn. Nov. 8, 2023). See also United States v. Kamen, 2006
WL 1697176 (D. Mass. June 20, 2006).
6
In my view, the fact that Defendant himself was not at home to personally take delivery of, and
open, the package is a matter of proof and weight of the evidence at trial on the charges of
Attempted Drug Dealing, not a matter for consideration under the Motion.

5
determination would not be grounded in a specific and likely event. An anticipatory

search warrant based solely on the passage of time could theoretically be issued for

any location, which would undermine constitutional protections.7

Second, there was no probable cause established that contraband would be

found on the premises if the trigger event (delivery of the package) occurred, because

the drugs inside the package were replaced with "sham" drugs. The Affidavit

supporting the anticipatory search warrant does not state that any of the controlled

buys involved methamphetamine, which was the drug intercepted in the mail.

Third, even if there was probable cause that contraband would be found on

the premises if the trigger event occurred, there was not probable cause that either

trigger condition (delivery of the package or the passage of time) would actually

occur.

Fourth, the four corners of the search warrant did not establish probable cause

that contraband other than the methamphetamine mailed from California was likely

to be found on the premises.

Fifth, information provided about the delivery of the methamphetamine by a

confidential informant was stale and therefore unreliable.8

7
United States v. Andrews, 577 F.3d 231 (4th Cir. Aug. 12, 2009); United States v. Caraher,
973 F.3d 57 (2nd Cir. Aug. 25, 2020).
8
See State v. Ivins, 2004 WL 1172351 (Del. Super. May 21, 2004).
6
Sixth, under the Delaware Constitution there was no nexus specifically to

Defendant’s residence, which is a heightened requirement under the Delaware

Constitution.9 There must be an individual nexus for the residence, not just the shed

on the curtilage. None of the controlled buys described in the Affidavit supporting

the anticipatory search warrant are alleged to have happened at the residence, and

the Affidavit does not state where or from whom the controlled buys were made.

There is no observation of anyone coming or going from the residence to meet the

confidential informant. There are no observations of any interactions with anyone

at the residence such as controlled buys or heavy foot traffic. Even if the search

warrant established a nexus to the property generally, it was only to the shed in the

back yard and not to the residence itself. The confidential informant stated that the

contraband would be in the shed on the curtilage of the property.

State Arguments

The State counters Defendant’s six arguments. First, the State argues that

delivery of the package to the premises established probable cause for the search and

acted as the trigger for execution of the anticipatory search warrant. Because of the

nature of the controlled delivery of the package, the successful delivery of the

9
State v. Bradley, 2011 WL 1459177 (Del. Super. Apr. 13, 2011), aff’d 51 A.3d 423 (Del. 2012);
Wheeler v. State, 135 A.3d 282 (Del. 2016); State v. Friend, 2016 WL 7232170 (Del. Super. Dec.
13, 2016).

7
package established probable cause that the package would be found on the premises

during execution of the warrant and that contraband would be found on the premises

during execution of the warrant. The United States Postal Inspector arranged with

the Delaware State Police a controlled delivery and executed the anticipatory search

warrant only after the delivery occurred. The Affidavit supporting the anticipatory

search warrant stated that on November 3, 2023, "a controlled delivery of the

package was being conducted,” and defined the term "deliver" as dropping the

package off at the doorstep of the residence or delivery by knocking on the door and

passing it to a resident of the premises.

The actual opening of the box by Defendant or someone else and/or the

passage of time were not the only triggers for execution of the anticipatory search

warrant. The successful delivery of the package to the premises was an additional

trigger for execution. The affidavit for the anticipatory search warrant expressly

stated that a search was authorized “so long as the subject parcel enters into the target

premises.” Delivery was accomplished when Defendant’s mother pushed the box

inside the residence. Thus, opening of the package and the “mere passage of time”

were not the only conditions precedent to the search, because a successful delivery

had just occurred once the package had entered the premises. The warrant required,

in the absence of proof of opening of the package, the passage of 30 minutes from

the time of delivery. Officers surveilling the delivery timed the entrance of the
8
package into the residence by use of a clock timer and waited an additional minute

(for a total of 31 minutes) before entering the premises.

Moreover, the Fourth Amendment specifies only two matters that a warrant

must particularly describe: "the place to be searched" and "the persons or things to

be seized."10 This particularity requirement does not include the conditions

precedent to execution of the anticipatory search warrant.11 Thus, although the

language in the affidavit described opening of the package and a thirty-

minute time frame, the Fourth Amendment itself does not require such particularity,

and the successful controlled delivery of contraband to the premises was an adequate

basis for execution of the warrant.

Second, the State argues that substitution of sham drugs for methamphetamine

resulted from the salutary effort to remove drugs from the stream of commerce and

to keep them out of the hands of suspected drug dealers and has no adverse effect on

the probable cause analysis.

Third, the four corners of the anticipatory search warrant provided probable

cause that other contraband was likely to be found on the premises, given

Defendant’s prior history of drug dealing and the confidential informant’s

information. (See further discussion, below.)

10
United States v. Grubbs, 547 U.S. 90 at 97 (2006).
11
Dalia v. United States, 441 U.S. 238 (1979).
9
Fourth, not only did the anticipatory search warrant provide probable cause

that other contraband would be found on the premises, but the confidential

informant’s information also provided probable cause that the trigger condition –

delivery of the package containing drugs -- would occur. Once the package was in

the mail, it was on a “sure course” of delivery to the premises. Regarding triggering

events based on the delivery of a package in the mail, courts have held that

anticipatory search warrants are constitutional where the contraband is, in fact, on a

"sure course" for the target destination.12

Fifth, information provided about the delivery of the methamphetamine by a

confidential informant was not stale. The Delaware Supreme Court has considered

the ongoing nature of the criminal activity of drug trafficking and found that the

police are reasonable to enlarge the time frame for receiving reports of repetitive

suspicious conduct in order to present a stronger case for a search warrant.13 It

agreed with the general rule:

Together with the element of time, we must consider the
nature of the unlawful activity. Where the affidavit recites
a mere isolated violation, it would not be unreasonable to
imply that probable cause dwindles rather quickly with the
passage of time. However, where the affidavit properly
recites facts indicating activity of a protracted and
12
United States v. Hale, 784 F.2d 1465 (9th Cir. March 21, 2006); United States v. Goodwin, 854
F.2d 33 (4th Cir. Aug. 4, 1988); United States. v. Dornhofer, 859 F.2d 1195 (4th Cir. 1988); McNeil
v. Commonwealth., 10 Va. App. 674, 395 S.E.2d 460 (1990).
13
Hopkins v. State, 501 A.2d 774 (Del.1985).
10
continuous nature, a course of conduct, the passage of time
becomes less significant.14

This Court has held that, given the continuous nature of the possession and sale of

controlled substances, the passage of time is not significant.15 Here, there were only two

weeks between the confidential informant's latest information and the anticipatory

search warrant. Affiant also established the continuous, ongoing nature of possession

and sale of contraband from Defendant's residence. The Affidavit lists events of drug

activity twice in February, twice in April, again in May and again in October in 2023.

Sixth, under the United States and Delaware Constitutions, there was a logical

nexus between the evidence of criminal activity and Defendant’s residence. An

affidavit in support of a search warrant must, within the four-corners of the affidavit,

set forth facts adequate for a judicial officer to form a reasonable belief that an

offense has been committed and the property to be seized will be found in a

particular place.16 A neutral and detached magistrate may draw reasonable

inferences from the factual allegations in the affidavit under the totality of

circumstances.17 Although the Affidavit here did not describe a controlled purchase

to have occurred at the residence, the totality of the circumstances test allows the

magistrate to draw reasonable inferences that it would be "objectively reasonable"

14
United States v. Johnson, 461 F.2d 285 (10th Cir.1982).
15
State v. Ivins, 2004 WL 1172351 (Del. Super. May 21, 2004).
16
Sisson v. State, 903 A.2d 288, 296 (Del. 2006).
17
Id.
11
for the police to find evidence of illegal drug activity at Defendant's residence.18

Specifically, the Affidavit states that during the last two weeks of October 2023, the

confidential informant stated that Defendant was “very worried that police will

conduct another search at his residence and in case that happens the illegal narcotics

would be in the shed to distance himself from the illegal narcotics." This statement

demonstrates that evidence of illegal drug activity was located at Defendant’s

residence approximately two weeks before execution of the anticipatory search

warrant, and that Defendant had the intention of moving this evidence from his

residence to his shed. In addition, reasonable inferences that evidence would be

found at the Defendant's residence can be drawn from the information that Defendant

was expecting contraband in the mail addressed to his residence. The Affidavit

states that Affiant “believes the intended recipient of the Subject Parcel intended to

receive a delivery of methamphetamine." The address on the package was

Defendant’s residence. Given these details, it is reasonable to infer that Defendant

may have received similar packages from other mail carriers and that packages were

delivered to Defendant's residence, not the shed.

18
See State v. Bradley, 2011 WL 1459177 (Del. Super. Apr. 13, 2011).

12
Analysis

The Fourth Amendment to the United States Constitution, as applied to the

States by the Fourteenth Amendment to the United States Constitution, and Article

I §6 of the Delaware Constitution, protect Delawareans from unreasonable searches

and seizures. "No person shall search any person, house, building conveyance, place,

or other thing without the consent of the owner (or occupant, if any) unless such

search is authorized by and made pursuant to statute or the Constitution of the United

States."19

A search warrant may be issued upon a showing of probable cause.20 "An

affidavit in support of a search warrant must, within the four corners of the affidavit,

set forth facts adequate for a judicial officer to form a reasonable belief that an

offense has been committed and the property to be seized will be found in a particular

place."21 In determining whether probable cause exists, the Court applies a totality

of the circumstances test.22

Unlike an arrest warrant, a search warrant is not directed at a person, but rather

at the particular place where police have probable cause to believe that evidence is

located. Probable cause to search depends upon the existence of a logical nexus

19
11 Del. C. § 2301.
20
LeGrande v. State, 947 A.2d 1103, 1107 (Del. 2008)
21
Id.
22
Id. See also Sisson v. State, 903 A.2d 288 (Del. 2006).
13
between the items sought and the place to be searched. In other words, probable

cause to believe that a suspect has committed a crime will support an arrest, but not

necessarily a search warrant for the suspect's home. Rather, the factual showing

necessary to establish probable cause to search a residence is two-fold: first, there

must be probable cause that a crime was committed, and second, there must be

probable cause to believe that evidence of such crime can be found at the

residence."23

At first blush, anticipatory search warrants may sound like a recipe for a

violation of the Delaware or Federal Constitutions. Indeed, the only reported

Delaware case on anticipatory search warrants states:

I agree with the State's contention that the police are not required
to obtain a search warrant in anticipation of events that may or
may not take place. The police could not be sure that the
defendants would appear on January 25, 1991. A warrant
obtained under the circumstances would have been anticipatory
in nature. In United States v. Nixon, 918 F.2d 895 (11th
Cir.1990), the Court held that anticipatory search warrants are
appropriate only where the contraband is on a “sure course” to a
known destination, such as through the mail. Id. at 903 n. 6. See
also United States v. Hale, 784 F.2d 1465 (9th Cir.1986). Such
was not the case here.24

23
State v. Cannon, 2007 WL 1849022 at *4 (Del. Super. June 27, 2007).
24
State v. DePasquale, 1991 WL 138429 at *3 (Del. Super. July 18, 1991).
14
Such is the case here. The police obtained an anticipatory warrant in

connection with the controlled delivery of a box containing sham drugs, substituted

for 1.1 pounds of methamphetamine which were from an illegitimate address in

California, which the postal inspectors had intercepted. Two telephone calls were

made to the post office about the package from a telephone number which Defendant

identified as his own. The package was equipped with three sensors: a light sensor,

a motion sensor, and a “trip wire” sensor which would indicate when the package

was opened. The anticipatory search warrant contained two conditions precedent to

the entry and search of the premises: (1) a notice from the detection device that the

box had been opened while on the premises, whether inside the residence or outside

on the curtilage (the shed); or (2) the box remained inside or outside the premises

for more than 30 minutes, whether opened or unopened.

The package was addressed to Defendant and delivered to Defendant’s home

address in Laurel, Delaware by a police officer dressed as a post office employee.

Defendant was not at home. The package sat outside for 31 minutes, whereupon the

police executed the warrant, entered the premises, and conducted a search. The box

was never opened, but police observed Defendant’s mother push the box inside the

house with her foot, which activated the motion sensor. The police found other

controlled substances, drug paraphernalia, and currency at the residence.

15
The seminal case on anticipatory search warrants is United States v. Grubbs.25

Despite a plethora of earlier anticipatory search warrant cases at the U.S. District

Court and U.S. Circuit Court levels, in Grubbs the U.S. Supreme Court for the first

time held categorically that anticipatory search warrants do not contravene the

Fourth Amendment. In reversing the Ninth Circuit, Justice Scalia, writing for the

majority, stated:

If the government were to execute an anticipatory warrant
before the triggering condition occurred, there would be
no reason to believe the item described in the warrant
could be found at the searched location; by definition, the
triggering condition which establishes probable cause has
not yet been satisfied when the warrant is issued.26

Anticipatory warrants are, therefore, no different in
principle from ordinary warrants. They require the
magistrate to determine (1) that it is now probable that (2)
contraband, evidence of a crime, or a fugitive will be on
the described premises (3) when the warrant is executed.
It should be noted, however, that where the anticipatory
warrant places a condition (other than the mere passage of
time) upon its execution, the first of these determinations
goes not merely to what will probably be found if the
condition is met. (If that were the extent of the probability
determination, an anticipatory warrant could be issued for
every house in the country, authorizing search and seizure
if contraband should be delivered—though for any single
location there is no likelihood that contraband will be
delivered.) Rather, the probability determination for a
conditioned anticipatory warrant looks also to the
likelihood that the condition will occur, and thus that a

25
547 U.S. 90 (2006).
26
Id. at 94.
16
proper object of a seizure will be on the described
premises. In other words, for a conditioned anticipatory
warrant to comply with the Fourth Amendment's
requirement of probable cause, the pre-requisites of
probability must be satisfied. It must be true not only that
if the triggering condition occurs “there is a fair
probability that contraband or evidence of a crime will be
found in a particular place,” but also that there is a
probable cause to believe the trigger condition will occur.
The supporting affidavit must provide the magistrate with
sufficient information to evaluate both aspects of the
probable-cause determination.27

As stated above, an anticipatory search warrant is a search warrant conditioned on a

trigger event or events occurring after the issuance of the warrant. In one type of

anticipatory search warrant, the trigger event establishes probable cause for the

execution of the search warrant. In another type of anticipatory search warrant, there

is already probable cause, and the trigger event simply authorizes execution of the

search warrant. In a third, hybrid type of anticipatory search warrant, the trigger

event does both: provides probable cause for the search and authorizes execution of

the warrant. In my view, we have the third type of anticipatory search warrant here.

The delivery of the package provided the probable cause for the crime of Attempted

Drug Dealing (by receiving methamphetamine via the mail) and, after the passage

of time, provided the trigger for execution of the warrant. Moreover, the four corners

27
Id. at 96-97 (internal citations omitted).
17
of the warrant also established probable cause that other drugs and evidence of other

crimes (Drug Possession, Possession of Drug Paraphernalia, etc.) would be found

on the premises. The probable cause includes, inter alia, the four drug purchases and

Defendant telling the confidential informant he considered moving the drugs to a

shed. While the Affidavit does not state where the drug transactions occurred, the

comment about moving drugs to the shed, coupled with a package addressed to

Defendant’s residence, and Defendant’s calling several times to inquire about the

package, all provide ample probable cause that Defendant was engaging in illegal

drug trade at his residence.

Defendant argues that, in an anticipatory search warrant, the police are

unconstitutionally given far more latitude than a neutral magistrate in determining

when to execute a warrant. For example, where there is no prior history of possible

criminal drug activity on the premises, the neutral magistrate’s probable cause

analysis is effectively ceded to the police. But that is not the case here. There was

ample information about prior criminal drug activity involving Defendant and the

confidential informant had provided reliable information about the delivery of drugs

via U.S. mail to the residence and its curtilage (the shed on the property).

In my view, under a Grubbs analysis, the Affidavit supporting the anticipatory

search warrant provided the magistrate with sufficient information to evaluate both

18
aspects of the probable cause determination: there was probable cause that (1) the

trigger condition (delivery of the package) would occur, and (2) contraband or

evidence of a crime would be found at Defendant’s residence.

Conclusion

I find that Defendant has not met its burden in challenging the validity of the

anticipatory search warrant. I further find that the State has met its burden in

establishing the occurrence of the triggering conditions precedent of the anticipatory

search warrant, for the reasons discussed above.

The Motion is DENIED.

IT IS SO ORDERED.

/s/ Craig A. Karsnitz
Criag A. Karsnitz

cc: Prothonotary

19