Opinion
I.D. No. 9909013261.
Submitted: March 6, 2000.
Decided: March 15, 2000.
Upon Defendant's Motion to Suppress
Dade D. Werb, Esquire, Assistant Public Defender, Wilmington, Delaware, Attorney for Defendant.
Peter W. Veith, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware.
MEMORANDUM OPINION
Defendant Daniel Hicklin has filed a motion to suppress evidence seized as the result of an allegedly illegal detention and search. The issue before the Court is whether the seizure violated Defendant's rights under Article 1, § 6 of the Delaware Constitution or 11 Del. C. § 1902 or whether the legal stop became a legal arrest followed by a legal seizure when the defendant discarded contraband.
The key factual determination to be made by the Court is whether a baggie containing a white powdery substance which appeared to be contraband was found on the staircase before or after the search of a brown bag found in Defendant's pocket.
Suppression Hearing
Officer Karen E. Crowley and Officer John W. Schlosser, both with the New Castle County Police Department, testified at the suppression hearing. Their testimony is as follows.
Officer Crowley responded to a 911 hang up, thought to be a domestic dispute, at 11:55 p.m. on September 16, 1999. Shortly after she arrived at the scene, Officers schlosser and Brown arrived. When she reached the residence, which was on the third floor of an apartment building, Crowley knocked on the door for two to three minutes, after which time Defendant opened the door. The officer noted that there were another man and a woman in the apartment "wandering aimlessly." The officer asked Defendant if everything was okay, but received no response; she felt that Defendant was behaving oddly-even thought he might be hearing impaired. Defendant was wearing an oversized black puffy jacket and he had his hands in his pockets. Crowley stated that she asked the Defendant to step out into the hallway and remove his hands from his pockets. He moved to the hallway but even after repeated additional requests, did not remove his hands from his pockets. She removed Defendant's hands from his pockets, placed them on the wall, and then began a pat down search for officer safety. During the pat down she felt a bulge in the Defendant's left pocket, which she did not think was a weapon. Sometime during the pat down, Defendant dropped his left hand and threw something. Crowley did not actually see an item being thrown, but she saw a throwing motion and heard something land. She then retrieved that item from a location about five feet away. The item was a glassine baggie containing a white powdery substance, which appeared to be cocaine. The baggie had not been on the on stairway a few minutes earlier when she ascended the stairway to investigate the 911 call. After retrieving the glassine baggie, she placed the Defendant under arrest for possession of narcotics. Subsequent to that decision, she resumed her pat down of Defendant, which had now become a search incident to arrest. She removed the bulge, which turned out to be a brown paper bag, from Defendant's pocket and opened it. Inside the paper bag were 54 glassine baggies, razor blades, a blue straw, and super mannitol.
Officer Schlosser testified that he arrived on the scene at approximately the same time as Crowley. He took the stairs to the apartment, and saw no contraband on the stairs at that time. Upon arriving on the third floor, Schlosser saw Crowley and a female on the landing. There were two males in the apartment. Schlosser stated that upon entering the apartment, Defendant was near the kitchen area. He was wearing a black puffy jacket and had his hands in his pockets. Because the officers were responding to a domestic dispute, which requires separation of the parties, the Defendant was asked to step into the hallway. Schlosser testified that Defendant was acting "hinky" in the hallway; he kept trying to distance himself from the officers; he had his hands in his pockets, and kept turning away. Schlosser knew the Defendant had been in the apartment, but did not know if he was involved in the domestic dispute. After the Defendant had been asked about five times to remove his hands from his pockets, without compliance, Crowley began a pat down search of Defendant for officer safety. The Defendant repeatedly pulled away and turned towards the railing during the pat down. A brown paper bag was recovered from Defendant's pocket by Crowley; about fifteen seconds later, Defendant made a tossing movement like he was getting rid of something. The Defendant was taken into custody for resisting arrest. After Defendant was handcuffed, Crowley opened the brown bag. On the way down the stairs with Defendant, the officers saw a glassine baggie containing a white powdery substance. At that time, Crowley collected the bag as evidence.
Defendant was not charged with resisting arrest.
The key difference between the testimony of the two officers was the basis for the arrest; Crowley said it was possession of contraband, schlosser said it was resisting arrest. They also differed as to the time the glassine bag on the stairway was discovered.
Aside from the testimony of Crowley and Schlosser, the State introduced as exhibits Crowley's report, Schlosser's report, and the Affidavit of Probable Cause prepared by Crowley. These documents are consistent with Schlosser's testimony. According to Crowley's crime report,
[Defendant] made an abrupt turn towards the stairs at which time writer was able to grab Defendant's hands and place him into custody. Writer conducted a pat down search on [Defendant]. Writer located a bulge in [Defendant's] left coat pocket. The bulge was a paper bag (brown) containing a clear plastic baggie of a white powdery substance, a razor blade, a straw and 54 glassine baggies. While this subject was detained Writer observed [Defendant] make a movement as if he tossed an unknown item from his hand. At the scene writer located another clear plastic baggie of a white powdery substance approximately five feet from [Defendant]. (Emphasis added). According to Schlosser's supplement report,
Upon arrival, Off Crowley had the subjects in the domestic dispute detained, and was giving [Defendant] a patdown for weapons. Writer observed [Defendant] pull away from Crowley when she got near one of his jacket pockets. Writer also observed [Defendant] make a motion with one of his arms, like he was tossing something. Ofc Crowley recovered a brown paper bag with a white powdery substance inside same. Ofc Crowley also responded to the stair well [Defendant] was standing next to (the area of the throw). Writer witnessed Off Crowley recover another clear plastic bag of a white powdery substance. (Emphasis added).
According to the Affidavit of Probable Cause, written by Crowley,
Due to officer safety reasons, your affiant advised [Defendant] to remove his hands from his pockets. Your affiant conducted a patdown search on [Defendant]. As your affiant got to his jacket pocket, [Defendant] pulled away from your affiant. Your affiant placed [Defendant] into custody, and continued the patdown of the subject jacket pocket. Your affiant located a bulge in said pocket. The bulge was a paper bag containing a clear plastic baggie of a white powdery substance, a razor blade, a straw, and (54) glassine baggies. While [Defendant] was detained, your affiant observed [Defendant] making a tossing motion with one of his arms. At the scene, your affiant located another clear plastic baggie of a white powdery substance. This bag was located approx. 5 feet from [Defendant]. (Emphasis added).
Contentions of the Parties
Defendant asserts that the evidence should be suppressed because it is the result of an illegal detention and search under Article I, § 6 of the Delaware Constitution and 11 Del. C. § 1902. In support of this argument, the Defendant contends that the stop was illegal because the officers had no reasonable suspicion to detain him, and even if there was reasonable suspicion for the detention, the pat down search exceeded the scope authorized by Terry v. Ohio, because the officers searched a brown paper bag in defendant's pocket which they did not believe contained a weapon. Defendant relies on the recent decision of Jones v. State, which stands for the proposition that if there is no reasonable and articulable suspicion to detain an individual, any evidence seized as a result of a defendant's resisting an illegal arrest is inadmissible.The State argues that the detention and search were within the bounds of Terry. It further argues that once the glassine bag was discarded and retrieved, the seizure of the brown paper bag was legal as incident to an arrest. Additionally, the State argues that the contents of the bag are admissible under the inevitable discovery exception to the exclusionary rule. In support of this argument, the State relies on Cook v. State. Cook stands for the proposition that evidence illegally seized will not be suppressed if the evidence "would have been discovered through legitimate means in the absence of official misconduct."
Del. Supr., 374 A.2d 264 (1977).
Id. at 267-68 (citations omitted).
Factual Findings
There is a factual dispute as to whether the baggie found on the stairs was recovered before or after Officer Crowley searched the brown paper bag found in Defendant's pocket. Because of this conflict, I give greater weight to the contemporaneous reports generated by the officers. After reviewing those reports, I conclude that the baggie on the stairs was recovered after Officer Crowley searched the brown paper bag.Discussion
A determination of reasonable suspicion must be evaluated in the context of the totality of the circumstances as viewed through the eyes of a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an officer's interpretation of those facts. The totality of the circumstances here include the defendant's presence at the source of a 911 call; a female who appeared to be upset-a possible victim of criminal conduct-but who showed no signs of injury; and a defendant who behaved oddly, would not give verbal responses to inquiry and would not remove his hands from his pockets in spite of repeated requests. Under those circumstances it was reasonable for the officers to be concerned for their safety and conduct a Terry search. The Terry search revealed the bulge, but seizure of the contents of the pocket at that point was illegal since neither a weapon nor obvious contraband was apparent. Since I have concluded that the seizure occurred before the glassine bag was discovered, I find the arrest on the grounds of possession of contraband was illegal, as was the seizure of the glassine bag which was discarded after the seizure of the brown bag. The State's inevitable discovery argument fails because, had Officer Crowley not seized the brown bag, its contents would not have been discovered by any other lawful means as there was no demonstrable alternate ground for arrest. As for the glassine bag, the State has failed to meet its burden of proving that "the incriminating evidence would have been discovered through legitimate means in the absence of official misconduct." Indeed, it appears that the glassine bag was discarded when the discovery of drug paraphernalia became evident to the defendant.
"[A]n officer in the course of a pat-down may seize an object he feels through the clothes of the suspect, but only if its identity as contraband is immediately apparent." State v. Doleman, Del. Super., Cr. A. No. IK94-08-0303, Ridgely, J. (Apr. 21, 1995) (Mem. Op.) (citing Minnesota v. Dickerson, 113 S.Ct. 2130, 2137 (1993)); "During a pat down, an officer may seize an object he feels through clothes if its identity as contraband is immediately apparent." State v. Williams, Del. Super., I.D. No. 9711002456, Toliver, J. (Jan. 25, 1999) (ORDER) (citation omitted).
Cook, 374 A.2d at 267-68.
The Jones case is distinguishable from the present facts because the stop in Jones was not based on probable cause. When the defendant resisted arrest, he committed a crime, notwithstanding the unlawful stop. The Supreme Court held that fruits of the search incident to the illegal stop but legal arrest were not admissible. The situation here is different. The stop was legal, but the scope of the stop was limited to discovery of weapons, not evidence of crime. There was no probable cause to arrest the defendant when the "bulge" was removed and examined. "[T]he State may not use as evidence the fruits of a search incident to an illegal arrest."
Jones v. State, No. 115, 1998 at 13.
For the foregoing reasons, Defendant's motion to suppress is GRANTED.
IT IS SO ORDERED.