Opinion
ID #0303007988.
Submitted: July 18, 2003.
Decided: August 5, 2003.
Upon Defendant's Motion to Suppress Evidence
DENIED
Ralph Wilkinson, Esquire Carvel State Office Building.
Josette D. Manning, Esquire Department of Justice Carvel State Office Building.
Dear Counsel:
At the suppression hearing on July 18, 2003, we learned that around 8:30 p.m., on March 11, 2003, the New Castle County Police received a telephone call from an employee at Pepi's bar about "possible drug activity outside of his bar." The caller described a 35-45 year old, six foot tall black man, wearing a plaid jacket. Officers responded promptly. As soon as officers arrived, they saw someone matching the caller's description starting to walk away. The police did not fear for their safety. They meant to stop the man in order to investigate. One of the responding police officers said to the suspect, "Come here."
At first, the man did not respond to the imperative. Instead, he continued walking away. When the police officer repeated his command twice, the man finally began to comply. Although a parked car obscured the man's lower body, the court believes that the police saw the suspect emptying small glassine bags from his pockets, and an officer heard the sound of a glass object hitting the ground. Those observations quickly precipitated the suspect's full-scale arrest, including a search of his person because, based on the officer's experience, the officer believed the bags were used to package illegal drugs. of course, the reason why the court is interested in all of this is because the search turned up contraband, which precipitated the suspect's indictment for various drug charges. And, in turn, that precipitated Defendant's motion to suppress.
At the end of the suppression hearing, the court explained why the pivotal issue concerns the validity of the initial confrontation. Once the police officer saw Defendant dropping glassine bags, and taking into consideration why he was on the scene, the officer had reason to believe that he was witnessing a crime in progress — either possession of controlled substances or possession with intent to deliver them. Accordingly, the court was not troubled by anything that the police did once they saw what they saw. The court's concern, which generated the court's request for your supplemental submissions, was whether the police officer's command that the suspect come to him, passes muster under Delaware's Constitution. The court called your attention to Jones v. State. After careful review of the transcript and your supplemental submissions, this case is not as close as I initially thought. In contrast to Jones, this case does not involve an anonymous tip; far from it.
Article I, § 6 Delaware Constitution. See also Florida v. J. L., 529 U.S. 266 (2000).
745 A.2d 856 (Del. 1999).
The court is satisfied from the record that although the officer who confronted Defendant had not had direct contact with the tipster, the police were aware that the tip came from an employee at the bar. The police were in a position to follow-up on the tip and have further contact with the tipster, if needed. The police actually knew the tipster's identity before they confronted Defendant. And, the tipster had reason to believe that the police knew who he was. In other words, in contrast to an anonymous tip, where the informer has no concern about further police contact and the police have no means of corroborating the anonymous claim, the police here not only knew who made the call, but also what probably motivated it. Thus, the police were acting on a more reliable tip than the one in Jones.
At the suppression hearing, the police officer was examined about the information the police had concerning the tip. The officer was clear that before confronting Defendant, the police knew they were acting on a tip provided by an employee at the bar who purportedly and understandably was concerned about criminal activity taking place there. That formed a reasonable basis for the police to go to the bar and investigate. When the police arrived and saw someone matching the description provided by the known tipster, they had more than an articulable reason to demand, "Come here." In other words, under the totality of the circumstances, the police had an objective justification for stopping Defendant. And as explained at the hearing and presented above, once Defendant began to respond to the command, he provided more than ample probable cause for the police to hold him, search him and arrest him.
Woods v. State, 765 A.2d 1257, 1263 (2001).
For the foregoing reasons, Defendant's Motion to Suppress evidence seized in connection with the confrontation and stop outside of Pepi's bar on March 11, 2003 is DENIED.
IT IS SO ORDERED.