Opinion
I.D. NO. 1605012984
01-20-2017
STATE OF DELAWARE v. JALEELL HAIRSTON, Defendant.
Defendant's Motion to Suppress.
GRANTED. ORDER
This is the Court's ruling on a motion to suppress filed by the Defendant as a result of his arrest on a weapons offense. The facts needed for disposition of this motion are these:
Jaleell Hairston is not currently on probation or parole. He was standing with a few other people on a street corner when a probation officer got out of an SUV equipped with emergency lights and walked onto a sidewalk to conduct an unrelated curfew check on a probationer.
Mr. Hairston left the group on the corner and began walking up the sidewalk in the direction of the probation officer. As Mr. Hairston did not testify, we are left with the probation officer's characterization of this walking movement. The probation officer called it a "bee line" and "aggressive" but he also could not describe what Mr. Hairston was wearing or what he was looking at while walking, but could recall that the two did not make eye contact. Indeed, the only salient fact alluded to in the hearing was that Mr. Hairston had his hands in his pockets.
The probation officer told Mr. Hairston to take his hands out of his pockets, a direction that Mr. Hairston either did not hear or chose to ignore, because he did not do so, but continued walking up the sidewalk with his hands in his pockets. There was no testimony of any further dialogue, movements - "furtive" or otherwise - by Mr. Hairston, or suspicions of criminal activity - "afoot" or otherwise. Nonetheless, the probation officer, concerned that Hairston may be armed and for his own safety, pushed Hairston up against a house and frisked him for weapons.
The defense moved to suppress the fruits of the frisk as tainted by an illegal "stop and frisk." Defendant raised a second issue as to whether a probation officer has the statutory or other authority to conduct a frisk of a non-probationer.
While it is sometimes lost in the crush of the many, many "stop and frisk" cases coming through the court system each year, we would do well to recall the seminal case of Terry v. Ohio and particularly its facts. Terry and Chilton were spotted by an alert police officer walking from a corner to a storefront, peering inside and back again, approximately a dozen times. The officer, believing these individuals to be preparing to rob the store, approached them to ask questions and, when the answers he received did not dissuade his belief as to their plans, he frisked them for weapons. The Supreme Court allowed the handgun found as a result into evidence against Terry, finding that the officer "had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized." The permissible scope and limitations of a "Terry" stop has generated thousands of legal opinions, hundreds in the state of Delaware alone. The State asks us to consider the Supreme Court's ruling in State v. Rollins and we will do so.
Terry v. Ohio, 392 U.S. 1, 30 (1968).
922 A.2d 379 (2007).
In Rollins, Wilmington police officers on routine patrol drove their patrol car into a residential courtyard in a high drug sales area. They saw a large group disperse and someone yelling "Five-O." They observed Rollins first put a hand in his pocket, withdraw it and then begin walking away from them. Suspecting him to be "looking for a way out," Rollins was detained by the police and patted him down for weapons, finding none. They then engaged Rollins in conversation, seeking, and obtaining, permission to search for contraband, which they then located in his pocket.
The trial court granted suppression, finding a lack of reasonable articulable suspicion to stop. The Delaware Supreme Court reversed that finding, based upon: 1) the fact that it was a high drug crime area; 2) the bystander's warning of "Five-O"; 3) Rollins' furtive hand movement in his pocket; and 4) Rollins' walking away from the officers.
Clearly, these disputes are always "case specific." There is no testimony in this record that looks like Rollins, save perhaps for hands in pockets. Indeed, Rollins itself held that the subsequent frisk of Rollins was outside the scope of a limited frisk for weapons, saying "this search for weapons is limited, and if the search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed." And so Rollins was remanded for a determination whether Rollins "voluntarily and knowingly" consented to a search of his pockets.
Rollins, 922 A.2d at 386.
The State also places primary reliance on Woody v. State. Woody is but one of many "totality of the circumstances" cases in which the Court must examine all of the facts to determine whether, taken together, they amount to a "reasonable, articulable suspicion" that criminal activity is afoot and the suspect is armed and dangerous. The totality of the circumstances in that case included an active drug investigation and a suspect fleeing upon seeing the police with a distinct bulge in his pocket. That is not this case. Notably, in surveying the law of stop and frisk, the Court cited this language from its prior opinion in Jones v. State, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion."
765 A.2d 1257 (Del. 2001).
Id. at 1262-63 (quoting State v. Jones, 745 A.2d 856, 861 (Del. 1999)).
Finally, the State directs us to Lopez-Vasquez v. State for the proposition that "activity such as 'leaving the scene upon the approach, or the sighting, of a police officer' or the 'refusal to cooperate with an officer who initiates an encounter' cannot be the sole grounds constituting reasonable articulable suspicion." Indeed. But according to the State, "If fleeing from an officer can be considered as a factor in determining the existence of reasonable articulable suspicion, then charging a police officer must also be considered a factor in that determination."
956 A.2d 1280, 1288-89 (Del. 2008).
State's Resp. to Def.'s Motion to Suppress at ¶16.
Id. --------
Well, hold on there. "Charging" is an overheated characterization not borne out by the testimony. The Defendant was not "charging" at anybody. He was walking down the street, on the sidewalk. There was no testimony that he was in any way "aggressive" save for his failure to take his hands out of his pockets.
In this case, the probation officer was not on the scene looking for illegal drug activity, as were the police in Rollins or Woody or Lopez-Vasquez. No one yelled "Five-O" or was seen cavorting with any suspect or suspicious activity. The only thing "furtive" in Mr. Hairston's behavior was not taking his hands out of his pockets when told to by the probation officer. He was walking down a sidewalk, nothing more. He did not exchange so much as a "hello" with the officer and save for the fact that he walked, down the sidewalk, in the direction of the officer with his hands in his pockets, he did nothing "suspicious."
The Court appreciates that the probation officer internalized Ms. Hairston's behavior as provocative, even suspicious enough to justify frisking him. But the evidence is that he was walking down the same, public sidewalk anyone else is entitled to walk on, minding his own business with his hands in his pockets. Unless the Court is willing to call this "reasonable articulable suspicion," any individual in the environs of a probation officer would be required to walk in a different direction - or not at all - and keep his hands out of his pockets. In Terry, the suspects were observed engaging in odd, suspicious behavior. While some deference to the experienced eyes of law enforcement is surely appropriate, the Court cannot abide by the proposition that any suspicion, no matter how fanciful, will justify a frisk for "officer safety." At some point, the exception swallows the rule and we no longer live in a free state.
Because the Court has found the stop to be "unreasonable" within the meaning of Fourth Amendment law, it is unnecessary for the Court to rule on Defendant's second argument that probation officers lack statutory authority to make an arrest of a non-probationer.
For all of the foregoing reasons, the Court will grant the Defendant's motion to suppress.
IT IS SO ORDERED.
/s/_________
Judge Charles E. Butler