Opinion
I.D. No. 0401018564.
Submitted: September 15, 2004.
Decided: September 29, 2004.
Upon Consideration of Motion to Suppress. DENIED.
ORDER
Before the court is a Motion to Suppress filed by William T. Deely, Esq., Assistant Public Defender. Defendant, Alfred Porter, argues that evidence seized preceding his arrest on January 25, 2004, was seized illegally and is in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution; Article I, Section 6 of the Constitution of the State of Delaware; and under Delaware law. A suppression hearing was held before this court on September 15, 2004. Following the completion of the testimony, the court is prepared to render its decision.
I.
On January 25, 2004, Officer Caserta of the Wilmington Police Department, and his partner, patrolled Jensen Drive and the Riverside Housing Projects. Officer Caserta testified that the first time he saw the Defendant he was stationed in his patrol car on Bowers Street, a known drug area in Wilmington, Delaware. Bowers Street is approximately forty feet from Jensen Drive and the Riverside Housing Projects and runs parallel to them. According to the testimony, Defendant looked at Officer Caserta and then walked in the opposite direction. At that point, there were no further observations of the Defendant. Approximately thirty minutes later, driving 15 mph northbound on Bowers Street, Officer Caserta spotted the Defendant and Devon Clark facing each other in the Riverside Housing Project courtyard engaging in what he thought to be a hand-to-hand drug transaction. Although he did not see any items exchanged, Officer Caserta stated that within five seconds, he witnessed Defendant's right hand grab Devon Clark's left hand.
During the suppression hearing, Officer Caserta testified that the Jensen Drive, Bowers Street, and the Riverside Housing project vicinity is a known drug area. Recently, the Delaware Supreme Court acknowledged that Bowers Street was considered a high drug area. See Lofland v. State, 2003 WL 22317402 *1 (Del.Supr. 2003).
Officer Caserta testified that based on his two years of experience in investigating and making approximately seventy drug arrests, thirty in the Riverside Housing Project area, this hand-to-hand movement was consistent with drug dealing. Upon seeing this, Officer Caserta and his partner got out of their vehicle. Immediately after the police got out, the Defendant fled and a foot race ensued. Officer Caserta testified that while he was chasing the Defendant, it appeared to him that the Defendant was cupping his left hand. Porter dropped two items while running. They were later identified as one small baggie of white powder that field-tested positive for heroin, and a twenty dollar bill, United States currency. The Defendant was eventually apprehended and arrested.
Defendant is charged with two counts of Possession of a Controlled Substance Within 300 Feet of a Park; two counts of Possession of a Controlled Substance Within 1000 Feet of a School; Possession of Drug Paraphernalia; Loitering; and Resisting Arrest.
16 Del. C. § 4767.
16 Del. C. § 4771.
The issue in this case is whether the illegal narcotics retrieved from the ground during Defendant's flight from the police was the product of a legal seizure. Specifically, the court focuses on whether the police had reasonable, articulable suspicion to detain Defendant before the seizure. The court finds that the police had reasonable, articulable suspicion to justify the detention. Consequently, the Defendant's Motion to Suppress is DENIED.
II.
On a Motion to Suppress evidence, the State bears the burden of proving that the search and seizure comported with federal and state constitutional rights and state statutory law. The burden of proof is "considerably less than proof by a preponderance of the evidence, and even less demanding than probable cause." In Delaware, an individual's right to be free from unlawful searches and seizures is secured by the Fourth Amendment of the United States Constitution which guarantees that individuals will be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Delaware's Constitution guarantees the individual to be "secure in their persons, houses, papers and possessions, from unreasonable searches and seizures."In Terry v. Ohio, the Supreme Court held that a detention could only be lawful where it was premised on reasonable and articulable suspicion of criminal activity. Articulable suspicion "does not deal with hard certainties, but with probabilities." Delaware has defined reasonable suspicion as "the officer's ability to `point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.'" An officer acting on a mere hunch is insufficient to satisfy the requirement on reasonable suspicion. In determining if there is reasonable suspicion, a court may look at the totality of the circumstances, coupled with "inferences and deductions that a trained officer could make which `might well elude an untrained person.'"
Terry v. Ohio, 392 U.S. 1 (1968).
Id. at 22.
United States v. Cortez, 449 U.S. 411, 418 (1981).
Coleman v. State, 562 A.2d 1171, 1174 (Del.Supr. 1989) (citing Terry, 392 U.S. at 21).
Sokolow, 490 U.S. at 7.
Jones v. State, 745 A.2d 856, 861 (Del.Supr. 1999).
Harris v. State, 806 A.2d 119, 127 (Del.Supr. 2002).
A court must assess all the factors on a case-by-case basis. In State v. R.H., there was not reasonable suspicion to support a stop where the officer testified that he never saw any money or drugs on the defendant, the defendant did not flee upon seeing the officers, nor did he witness any criminal activity by the defendant. The court held that the officer's hunch, without more, could not support a finding of reasonable suspicion and the Motion to Suppress was granted.
State v. R.H., 2001 WL 1857204 *4 (Del.Fam.Ct. 2001).
Id. Judge Coonin was not persuaded by the State's argument that R.H. was stopped in a known drug area after fleeing from the police upon their order to stop.
Where the police failed to prove how the defendant was similar to a drug courier, the Motion to Suppress was granted because of lack of reasonable suspicion. In Harris, the Supreme Court reversed the Superior Court's denial of a motion to suppress holding that the police based their reasonable suspicion on seemingly innocent acts by Harris. The court reasoned that Harris looking over his shoulder three times at the train station, coupled with leaving with another man, using a payphone, popping his head up from the backseat of a car, and looking out the rear window of a car was "simply too slender a reed to support the seizure in this case." The court acknowledged that in some instances lawful and seemingly innocent conduct would be a sufficient basis for reasonable suspicion if the police officer were prudent, experienced, and articulated "concrete reasons for such an interpretation."
Harris, 806 A.2d at 130.
Id. at 129 (citing Reid v. Georgia, 448 U.S. 438, 441 (1980).
Id. at 121 (citing Cortez, 449 U.S. at 419; Quarles, 696 A.2d at 1338).
Unlike R.H. and Harris, in Woody v. State, the high crime nature of the area; unprovoked flight upon seeing the officers approaching; and a large bulge in Woody's jacket, was sufficient to deny the Motion to Suppress. The court held that flight was a factor to consider in the totality of the circumstances because of its evasive nature. Similarly, in Jones, the court assumed that when a defendant flees before the police officer attempts to effectuate a detention, the defendant's flight can be considered in the totality of the circumstances. The court in Woody also held that detention in a high crime area, while alone insufficient for reasonable suspicion, is a factor in the analysis.
765 A.2d 1257 (Del.Supr. 2001).
Id. at 1263.
Woody, 765 A.2d at 1265 (citing Illinois v. Wardlow, 528 U.S. 119, 124 (2000)). In Wardlow, the Supreme Court held that while flight is not illegal in and of itself, it is suggestive of wrongdoing.
Jones, 745 A.2d at 861 (citing State v. Groomes, 656 A.2d 646, 653 (Conn. 1995)).
Woody, 765 A.2d at 1265 (citing Brown v. Texas, 443 U.S. 47, 52 (1979)).
A Motion to Suppress was also denied in Lofland v. State, where Wilmington Police Officer Witte stopped Lofland on Bowers Street, a well-known drug area in Wilmington. Officer Witte believed that Lofland's behavior was consistent with drug activity because he was leaning into the passenger side of a van much like a drug touter would do. The Supreme Court affirmed the Superior Court's denial on the motion holding that "[g]iven Witte's knowledge of the way drug deals were done in that neighborhood, his observation of Lofland's conduct was enough to create a reasonable and articulable suspicion that Lofland was engaged in the sale of illegal drugs."
2003 WL 22317402 (Del.Supr. 2003).
Id. at *1. Officer Witte testified that on Bower Street, near the Riverside housing project, there are drug touters. Touters go to cars and see what the driver or passenger wants. Then the touter goes to the courtyard to get drugs from the dealer, and returns back to the car on Bowers Street. Id.
Lofland, 2003 WL 22317402 at *1.
III.
The Defendant's Motion to Suppress is denied because Officer Caserta had reasonable suspicion to stop Defendant Porter based on Porter's location in a high-crime area, his unprovoked flight, and Officer Caserta's knowledge of how drug deals are done. Like the officers in R.H. who testified that they never saw any drugs, money, or criminal activity, Officer Caserta testified that he did not see any drugs or money during the hand-to-hand drug transaction, however, the court believes the facts here can be distinguished from R.H. First, Porter, unlike R.H., fled upon seeing the police. Another significant difference between R.H. and the facts present is that Officer Caserta testified that he did witness criminal activity in the alleged hand-to-hand drug transaction before seizing the drugs.Moreover, the court in Harris granted the suppression motion because the acts were seemingly innocent and no evidence was presented matching Harris' behavior to a drug courier. The court here is denying the motion because Officer Caserta's training and experience supports his contention that the hand-to-hand drug transaction was more than a mere handshake. Unlike the officers in Harris, Officer Caserta linked Porter's seemingly innocent handshake with concrete facts of how a drug deal is normally transacted. He testified that the handshake is generally very quick, like the five-second handshake here. Due to the quick nature of the transaction, it is not uncommon to not see the items exchanged.
The facts here are distinguishable from Harris because this was not a seemingly innocent handshake. A normal handshake generally consists of the same hand on each person meeting. As Officer Caserta testified, the Defendant's right hand grabbed Clark's left hand and they were facing one another. This awkward handshake tends to be more similar to drug activity than a mere friendly gesture.
Finally, like Lofland, Porter was also located on Bowers Street when the police attempted to detain him for what appeared to be a hand-to-hand drug transaction. Porter's presence in a known drug area is just one factor in this court's analysis to determine if reasonable suspicion existed. The next factor the court considers is Porter's unprovoked flight from the police upon their getting out of the patrol car. As Officer Caserta testified, he and his partner got out of their vehicle, and Porter immediately began running before they could stop him and question him. Because Porter fled before the police attempted to stop him, his flight will be considered in the totality of the circumstances.
Given that Officer Caserta has made approximately thirty arrests in or around the Riverside Housing Project, the court believes that he was acting on more than a mere hunch when he attempted to detain the defendant for the alleged hand-to-hand transaction. Officer Caserta was familiar with the way in which drug deals were transacted. Therefore, the observation of the handshake, coupled with Porter's location in a high crime area and unprovoked flight, was sufficient reasonable and articulable suspicion to stop the Defendant.
Defendant's Motion to Suppress is therefore DENIED.