You are a paralegal at the Delaware firm of Hurley & Getemoff, where your boss, Eugene Getemoff, Esquire practices constitutional and criminal law. Mr. Getemoff represents the defendant, Mark Levy, in a criminal matter.

On the morning of November 1, 2021, Mr. Levy, a graduate student, was at work when the fire company and police were summoned to his apartment building in Wilmington because a few tenants reported smelling and seeing smoke on the 5th floor. The firemen and a police officer, smelling a faint odor of smoke, gained entry into four of the tenant's apartments on the 5th floor, including our client's apartment, after they requested that a women in the leasing office of the apartment building unlock the doors so they could search for the source of the odor. Two firemen and a policeman entered Mr. Levy's apartment and searched for the source of the odor, but determined that it was not coming from Mr. Levy's apartment.

As the firemen and policeman were leaving Mr. Levy's apartment, the policeman came to a sudden halt when he saw a small blue plastic bag which appeared to him to be consistent with drugs on the coffee table in the living room near the entrance. From the outside, the officer could see that the bag contained a white powdery substance. Alongside the bag was a flat mirror, and a rolled up dollar bill. The policeman, highly suspecting that it was narcotics, immediately confiscated the bag, the rolled up bill, and the mirror, while the firemen continued searching for the source of the smoke and odor in another apartment. Ten minutes later, the cause of the smoky odor was determined by the fire company to be a fog machine which was left on from a Halloween party the night before in one of the other 5th floor apartments, which was searched after our clients' apartment.

After testing of the substance inside the bag and on the bill proved to be cocaine, Mr. Levy was later arrested and charged with one count of felony drug possession and one count of paraphernalia possession. The police conducted no further searches of Mr. Levy's apartment.

Mr. Getemoff wants you to determine whether the search of Mr. Levy's apartment, and the seizure of the drugs and paraphernalia, was an unlawful warrantless search and seizure under the Fourth Amendment (4^th) of the U.S. Constitution and Delaware law. The State prosecutor is arguing that the policeman and firemen were legally inside of our client's apartment because "emergency or exigent circumstances" existed which required a protective sweep, and that the items seized were illegal contraband in "plain view".

Using the attached list of primary authorities, and any secondary authority research you conduct (secondary authority not to be cited) write a legal memorandum examining whether or not this was an unlawful search and seizure, and whether our client would be successful on a motion to suppress the evidence (drugs and drug paraphernalia) found by the officer.

These are some of the Authorities that can be cited and if used more authorities please include the citation

1. The Fourth Amendment to the U.S. Constitution (U.S. Const. amend IV)
2. Del. Code Ann. tit. 11, 2301 (2011)
3. Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942 (1978)
4. Arizona v. Hicks, 480 U.S. 321, 107 S. Ct. 1149 (1987)
5. Horton v. California, 496 U.S. 128, 110 S. Ct. 2301 (1990)
6. Caniglia v. Strom, ____ U.S. ____, 141 S. Ct. 1596 (2021)
7. Guererri v.Delaware, 922 A.2d 403 (Del. 2007)
8. 8.Blake v. Delaware, 954 A.2d 315 (Del. 2008)