Summary
holding seizure reasonable based on officer's "objective, reasonable and articulable suspicion . . . defendant was in apparent peril, distress or need of assistance"
Summary of this case from Ullom v. MillerOpinion
No. 0204013482
Submitted: November 25, 2002
Decided: February 26, 2003
Upon Consideration of an Appeal by the State From Decision of the Court of Common Pleas REVERSED and REMANDED
Joseph Giordano, Esq., Dover, Delaware. Attorney for the State.
Paul S. Swierzbinski, Esq., Dover, Delaware. Attorney for the Defendant.
OPINION
This is an appeal by the State from an order of the Court of Common Pleas which dismissed the information in that court. The defendant was charged with driving under the influence of alcohol in violation of 21 Del. C. § 4177. The issue is whether the arresting officer unlawfully seized the defendant, Ronald A. Enos, in violation of his rights under Article I, § 6 of the Delaware Constitution or the Fourth Amendment to the United States Constitution. The officer did so, the Court of Common Pleas ruled, when the officer, while on routine patrol in the early morning hours of April 12, 2002, approached and contacted Mr. Enos after observing that he was asleep or unconscious in the driver's seat of his vehicle, which was parked on the shoulder of the road with the motor running and the headlights on. I find that the seizure of the defendant's person which occurred in this case was reasonable and that no constitutional violation occurred. The Court of Common Pleas' order of dismissal will be reversed and the case remanded for trial in that court.
FACTS
At approximately 1:00 am in the morning, Corporal Charles Sawchenko, a Delaware State Police officer, observed a Chevy Blazer parked on the shoulder of U.S. Rt. 13 near Canterbury. The officer had driven along that stretch of highway about 15 or 20 minutes earlier, and the vehicle had not been there. The vehicle's engine was running, and its lights and right turn signal were on. The officer stopped next to the vehicle in the right lane of U.S. Route 13 to see if it was occupied or not. When asked to state exactly why he stopped next to the vehicle, he responded as follows:
Well, it was what we call a 33A, disabled vehicle. Cars just stopping on the shoulder of the road, we are obligated to check them out to see if they're okay, if they're broken down or have a flat tire. And that was my initial response, to see if someone was in there and okay.
Partial Trial Transcript at 16, State v. Enos, Cr. A. No. 0204013482, Trader, J. (August 6, 2002).
When the officer stopped next to the vehicle, he saw that the driver's window was down and the defendant was in the driver's seat with his head lying on the door at the base of and partly outside the open window. The officer testified that he didn't know whether "this person was passed out, sick, what they were doing." The officer flicked on his siren momentarily to see if he could arouse the driver. The driver's head didn't move. The officer was not sure whether he turned his emergency flashers on before he sounded his siren:
Id. at 9.
I can't recall for sure, but usually when I stop in the middle of the roadway I put on at least my flashers so people know that I'm stopped. It's just so natural to do that, I don't remember all the time when I do that.
Id. at 9.
The officer testified that he then "backed up behind the vehicle, put on my lights and went up to the passenger door to contact the driver." He attempted to arouse the defendant by talking to him in a loud voice and banging on the door. The officer detected a strong odor of alcohol emanating from the defendant. His efforts to arouse Mr. Enos were finally successful. When the defendant woke up, he "seemed real foggy, hazy and then he passed right back out again." The officer was able to wake him up a second time, but he passed right out again. This went on three or four times. After a second officer arrived to assist, they were able to get Mr. Enos out of his car, but he was "very stumbling" and "walked very slowly." It became obvious to the officers that the defendant was extremely inebriated.
Id. at 9.
Id. at 10.
Id. at 11.
The defendant moved to suppress the evidence before trial. The Court of Common Pleas judge deferred the motion until conclusion of the State's case in chief. The motion was then granted and the case dismissed.
The State is entitled to appeal under 10 Del. C. § 9902(a).
STANDARD OF REVIEW
When addressing appeals from the Court of Common Pleas, this Court sits as an intermediate appellate court. As such, its function is the same as that of the Supreme Court. The court's role is to "correct errors of law and to review the factual findings of the court below to determine if they are sufficiently supported by the record and are the product of an orderly and logical deductive process." If substantial evidence exists for a finding of fact, this Court must accept that ruling, as it must not make its own factual conclusions, weigh evidence, or make credibility determinations. "In reaching its conclusions, the Superior Court may make findings of fact that contradict those of the trial judge only when the record below indicates the trial judge's findings are `clearly wrong' and this Court `is convinced that a mistake has been made which, in justice, must be corrected.'"On a motion to suppress evidence acquired during a warrant-less search or seizure, the burden is upon the State.
Hunter v. State, 783 A.2d 558, 560 (Del. 2001); see Vale v. Louisiana, 399 U.S. 30, 34 (1970); McAllister v. State, 807 A.2d 1119, 112 3 (Del. 2002); Mason v. State, 534 A.2d 242, 248 (Del. 1987); State v. Caliph, 2002 WL 338075, at *2 (Del.Super. 2002).
DISCUSSION
The Court of Common Pleas ruled that the officer seized the defendant by pulling up beside him, putting on his lights and sounding his siren. The court then reasoned that since no violation of law occurred in his presence, the officer had no legal justification for the stop. In reaching its conclusion, the court relied upon the case of State v. Roberts, which was also an appeal by the State to this Court from a decision of the Court of Common Pleas. In that case, a state trooper on routine patrol at 1:30 a.m. noticed a vehicle parked on the shoulder of the road with its motor running and lights on. It had not been there several moments earlier. The officer pulled up behind the vehicle to offer any needed assistance and turned on her emergency flashers. When she walked up to the vehicle, she began to suspect that the driver was under the influence of alcohol. The driver was subsequently charged with D.U.I. This Court upheld the decision of the Court of Common Pleas that a seizure occurred when the officer turned on her emergency flashers, and that since she had no reasonable and articulable suspicion at that time that the defendant had violated any law, the evidence acquired after she turned on her flashers must be suppressed.The record supports the Court of Common Pleas' determination that in this case, as in Roberts, a seizure occurred when the officer pulled up beside the defendant's vehicle, put on his lights and sounded his siren. A seizure occurs under Article I, § 6 of the Delaware Constitution when a "reasonable person would have believed he or she was not free to ignore the police presence." Although a decision whether a seizure has occurred depends upon all the circumstances, a number of Delaware cases have held that a seizure occurs when a police cruiser pulls up to a vehicle and activates its emergency flashers. In this case the officer testified at trial that the defendant was detained when he pulled up beside the defendant's vehicle:
Flonnory v. State, 805 A.2d 854, 857 (Del. 2001); Dorsey v. State, 761 A.2d 807, 822 (Del. 2000); Jones v. State, 745 A.2d 856, 869 (Del. 1999); Quarles v. State, 696 A.2d 1334, 1336 (Del. 1997).
State v. Clay, 2002 Del. Super. LEXIS 306, at *5 (Del.Super. 2002); State v. Caliph, 2002 Del. Super. LEXIS 259, at *5 (Del.Super. 2002); State v. Cannon, 1997 Del. Super. LEXIS 468, at *7 (Del.Super. 1997).
The Court: Overruled. Was the defendant detained when you stopped behind his vehicle?
The Witness: Yes. Yes.
The Court: All right.
The Witness: He was detained because he was obviously passed out and wasn't responding.
The Court: Well, when you came up beside the vehicle was the vehicle stopped then?
The Witness: Yes, sir.
The Court: Okay.
Transcript at 18 — 19.
The State contends, however, that the initial seizure of the defendant was reasonable even though the officer did not have a reasonable and articulable suspicion that the defendant was engaged in criminal activity. It contends that the seizure was justified under the "community caretaker doctrine." Under this concept, an officer who has an objective, reasonable and articulable suspicion that a citizen is in apparent peril, distress or need of assistance may stop and investigate for the purpose of assisting the person.
The phrase, "community caretaker," is derived from the case of Cady v. Dombrowski, 413 U.S. 433 (1973), in which it first appears.
State v. Lovegren, 51 P.3d 471, 475-76 (Mont. 2002).
The defendant contends, in response, that under the Delaware Supreme Court cases of Jones v. State and Flonnory v. State, a police officer may seize a citizen on less than probable cause only where the officer has a reasonable and articulable suspicion of criminal activity. Since the State's contention would purport to allow a police officer to seize a citizen without a reasonable and articulable suspicion that the citizen is involved in criminal activity, the defendant argues, under Jones and Flonnory it cannot be the law in Delaware.
A "community caretaker doctrine" has been recognized in one form or another in most jurisdictions which have had occasion to address the issue. It proceeds on the common sense belief that when an officer comes upon a person who appears to be in apparent peril, distress or need of assistance, the officer should stop, investigate, and offer any assistance that might be needed. In some cases, courts have reasoned that police contact with a person apparently in need of assistance is not a seizure. In others, courts have concluded that police contact with a citizen under such circumstances is a seizure, but have upheld the seizure because it was reasonable.
Id.; Marsh v. State, 838 P.2d 819 (Alaska Ct.App. 1992); Crauthers v. State, 727 P.2d 9 (Alaska Ct.App. 1986); Thompson v. State, 797 S.W.2d 450 (Ark. 1990); People v. Murray, 560 N.E.2d 309 (Ill. 1990); State v. Moore, 609 N.W.2d 502 (Iowa 2000); State v. Vistuba, 840 P.2d 511 (Kan. 1992), rev'd on other grounds by State v. Field, 847 P.2d 1280 (Kan. 1992); Kozak v. Comm'r of Public Safety, 359 N.W.2d 625 (Minn.Ct.App. 198 4); Borowicz v. North Dakota Dept. of Transp., 529 N.W.2d 186 (N.D. 1995); State v. Reinhart, 617 N.W.2d 842 (S.D. 2000).
Matter of Clayton, 748 P.2d 401 (Idaho 1988); State v. Pinkham, 565 A.2d 318 (Me. 1989); State v. Martinez, 615 A.2d 279 (N.J.Super. 1992); State v. Marcello, 599 A.2d 357 (Vt. 1991); Commonwealth v. Waters, 456 S.E.2d 527 (Va.App. 1995); see also 3 Wayne R. LeFave, Search and Seizure § 7.4(f) (3d ed. 1996) ("If the police find a person unconscious or disoriented and incoherent in a vehicle (or find such a person elsewhere and connect him with a nearby vehicle), it is reasonable for them to enter the vehicle for the purpose of giving aid to the person in distress and of finding information bearing upon the cause of his condition.").
Jones and Flonnory, the two cases primarily relied upon by the defendant, both involved situations where the police received an anonymous tip that a suspect was engaged in illegal or suspicious activity and went to and detained the suspect specifically for the purpose of investigating the tip. In both cases, the Delaware Supreme Court held that a person can be detained only when the police have a reasonable and articulable suspicion of criminal activity. It determined that the police did not have a reasonable and articulable suspicion of criminal activity in either of those cases. No contention was made in either case that the police were performing any community caretaker function and the facts in both cases clearly did not support any such contention. The governmental interest involved in those cases was the discovery of criminal activity. In this case a different but equally valid governmental interest is involved — assisting a motorist who appears to be in apparent peril, distress or need of assistance. Since the community caretaker concept was not in issue in either Jones or Flonnory, I am not persuaded that they require affirmance of the Court of Common Pleas' decision in this case.
The seizure in this case was based not only on the defendant's vehicle being parked on the shoulder of the road as described, but on the officer's observation that the defendant's head was hanging partially out of the open window. What the officer saw created an objective, reasonable and articulable suspicion on his part that the defendant was in apparent peril, distress or need of assistance. The officer had no way of knowing whether the defendant was asleep, unconscious because of some physical distress, or dead. It was reasonable and proper for the officer to then back up on the shoulder and walk up to the defendant's vehicle for the limited purpose of finding out whether assistance was, in fact, needed and, if so, offering assistance. In fact, it was his duty to investigate the defendant's condition. When the officer did walk up to the defendant's vehicle, he quickly acquired a reasonable and articulable suspicion that the defendant was D.U.I. For these reasons, the officer's seizure of the defendant was reasonable and the motion to suppress evidence should have been denied.
The defendant contends that the Court of Common Pleas judge made the following finding of fact which rules out the theory that the officer was acting as a "community caretaker": "it's not really credible to believe that he's stopping to help the person. He suspected something, perhaps even a D.U.I., but he had no basis to make the stop." This comment from the trial judge is a speculation on what was going on in the officer's mind. The objective fact is that when the officer pulled up next to the defendant and saw his head learning against the base of the open window, he didn't know what was wrong with him. Unexpressed, subjective thoughts which might go on in an officer's mind are not relevant.
Transcript at 47.
State v. Karg, 2001 Del. Super. LEXIS 186, at *4-5 (Del.Super. 2001).
The order of the Court of Common Pleas is reversed and the case is remanded for further proceedings consistent with this opinion.
IT IS SO ORDERED.