Summary
In Bloomingdale, the Court of Common Pleas allowed the Defendant to present an untimely Motion to Suppress, because the police report in issue gave the Defendant no notice of a suppression issue prior to trial.
Summary of this case from Layne v. StateOpinion
ID #: 9906013775
Submitted: August 2, 2002
Decided: October 31, 2002
Upon Defendant's Appeal from Court of Common Pleas — AFFIRMED
Allison Peters, Esquire, Wilmington, Deputy Attorney General for the State.
F. Phillip Renzulli, Esquire, Wilmington, Attorney for Appellee-Defendant-below.
ORDER
Depending on how you count them, this is either the second or third appeal from Defendant's conviction for driving under influence. In its last order of remand, this court referred to this case as a "procedural maze." Despite the remand, the case remains procedurally challenging.
The case's early history is set out in this court's July 17, 2001 order. In summary, during his closing argument at trial and in passing, Defendant challenged the probable cause for his arrest. By then, the State had lost its opportunity to make a complete factual record. The trial court, however, found Defendant guilty. Defendant then filed a motion for reargument and the first appeal. While Defendant's first appeal was pending, the parties continued to litigate in the trial court and the trial court eventually vacated its finding of guilt, suppressed the State's evidence and found Defendant not guilty. At that point, Defendant withdrew his appeal and the State filed an appeal. That precipitated a remand. On remand, the trial court re-instated Defendant's conviction and it is from that finding of guilt that Defendant now appeals. Basically, the trial court decided on remand that Defendant's suppression motion was time-barred, coming after the close of evidence.
I.
According to the arresting officer's testimony at trial on March 7, 2002:
There was a general broadcast put out on the radio about a possible drunk driver. They described an older Cadillac, it was a four-door model, maroon in color, that was, appeared to be extremely intoxicated. This vehicle was seen in the area of the Newport area, traveling in the area of James Street. . . .
The arresting officer also testified that the general broadcast included a specific license tag number. The broadcast described the operator as a "white male." On cross-examination, the arresting officer further testified that "the report said this driver is driving all over the roadway." Finally, the officer testified that he spotted Bloomingdale's vehicle almost immediately after the broadcast. He stopped Bloomingdale at once, before observing any erratic driving.
II.
In its July 17, 2001 order, this court in effect vacated the trial court's decision rendered while the case was on appeal and while the trial court lacked jurisdiction. The remand specifically provided that if the trial court held on remand that the suppression question was not time-barred, then the trial court had to give the State a formal opportunity to make a record and argue the issue fully. The remand also gave the trial court "the opportunity to revisit the stop."
In its remand, the court further explained that the trial court lost jurisdiction the moment Defendant perfected his appeal. Apparently, because this court did not expressly vacate the trial court's order issued while the case was on appeal, the trial court assumed that its jurisdictionally defective decision remained in force. On remand, the trial court therefore held:
In my original consideration of this issue, I concluded that [Court of Common Please Criminal] Rule 12(f) provided a basis for this Court to consider the motion because the narrative in the police report could not have put a reasonable person on notice of a suppression issue or Fourth Amendment violation. The Superior Court in reviewing this issue reasoned that the defendant was put on notice that a suppression question was present at the end of the State's Case-in-Chief [citation omitted]. While it is not expressly stated, it is clear that the opinion concludes that failure to raise the issue at that stage of the proceedings forecloses any consideration at a future time.
This court's July 17, 2001 order, when it addressed the timeliness of the motion to suppress, actually held:
Allowing the trial court to announce a verdict before challenging the stop smacks of Defendant's maneuvering for advantage. Nevertheless, the trial court's willingness to consider suppression after the verdict is discretionary. [citation omitted].
Even though it invites mischief, the trial court's decision was not necessarily an abuse of discretion. On remand, the Court of Common Pleas may revisit this issue, or not.
All-in-all, it appears that the trial court assumed that its analysis under Court of Common Pleas Criminal Rule 12(f) of the timeliness of the motion to suppress was rejected and the remand simply required the trial court to enter a perfunctory order finding that Defendant's motion to suppress was untimely. That result, however, was not the remand's express or implicit purpose. This court continues to question how a suppression motion based on lack of probable cause to stop Defendant's automobile will not be apparent to an effective defense attorney well before the close of the State's case-in-chief, at the latest. Moreover, this court assumes that before granting such a late motion, the trial court must give the State formal opportunity to create a record that includes all the facts on which the State relies to establish probable cause for the stop. The trial court's original holding concerning the timeliness of the suppression motion was, in its entirety:
The police report, which is cryptic at best, provides the following language of the initial observation:
"General broadcast of defendant and his vehicle put out on radio by passerby." This language is conclusory and is insufficient to put a reasonable person on notice that a suppression issue may be warranted under these facts.
In other words, Defendant was aware that the arresting officer's report failed to mention any erratic driving in the arresting officer's presence, nor any other suspicious behavior by Defendant. To the contrary, the police report put Defendant on notice that the only reason for the stop was a "general broadcast," originated by a "passerby."
Cryptic or not, the police report nonetheless raised the specter of a suppression question. Moreover, Defendant did not move to suppress as soon as the State rested. At that point, the State could have asked to reopen its case easily in order to make its record. And so, even if Defendant had been justified in not raising the question before trial, the trial court's original decision leaves open the question as to how the motion to suppress was timely, coming as it did after the verdict. But the remand recognized the trial court's discretion over the matter. This court is unfamiliar with the trial court's customary approach to untimely suppression motions. Thus, the trial court was not foreclosed from standing by its decision, if it had a reason.
III.
Although the trial court misconstrued the remand, another one is not necessary. It is apparent from the record that the State is satisfied to rely on the record created during trial, such as it is. Moreover, it now is apparent that the trial court stands by its original order. Thus, the court will assume without deciding that the trial court's original willingness under Court of Common Pleas Criminal Rule 12(f) to hear Defendant's post-trial motion to suppress was not an abuse of discretion, and the court will review the trial court's original analysis of Defendant's stop by the police. Any prejudice based on this court's approach falls on the State. The court assumes that the State made its record, that Defendant's motion to suppress was timely and that the trial court would suppress the State's evidence. Given the court's assumptions, this appeal is ripe. This case must be resolved.
IV.
Jones v. State, Florida v. J.L. and Flonnory v. State squarely stand for the proposition that the investigative stop of a citizen by the police based only on an anonymous "suspicious person" tip will not pass constitutional muster. Jones, Florida v. J.L. and Flonnory, however, are distinguishable from this case and their holdings do not control the outcome here. The nature of the tips, the nature of the defendants' activities, and the government's intrusion in Jones, Florida v. J.L. and Flonnory are different qualitatively from this case.
745 A.2d 856 (Del. 1999).
529 U.S. 266 (2000).
805 A.2d 854 (Del. 2001).
In Jones, the only thing that the anonymous tipster told a police dispatcher was that a "suspicious black male wearing a blue coat" had been loitering at a particular address. By the time the police responded, no one was there. After the police circled the block they spotted two men, one of whom was wearing a blue coat. He was four doors from the address provided by the tipster. Although the police did not personally observe any suspicious behavior, they summarily "ordered Jones to stop and remove his hands from his coat pockets." After Jones turned, walked away and refused the officers' repeated orders, the police grabbed Jones and in the ensuing scuffle, the police found drugs. When the police confronted Jones, he was minding his own business and not doing anything dangerous or suspicious.
In Florida v. J.L., an anonymous telephone tipster reported that a young man standing at a particular bus stop and wearing a plaid shirt was carrying a gun. Six minutes later, the police approached two young men at the bus stop, one of whom was wearing a plaid shirt. The young man, J.L., like Jones, was minding his own business. He too was not doing anything suspicious or dangerous. Nevertheless, the police immediately performed a Terry stop. Florida v. J.L., thus held that an anonymous tip about a person carrying a gun, without more, does not justify a police stop and frisk. The United States Supreme Court, nevertheless, left open the possibility that circumstances might exist "under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability." Florida v. J.L., therefore, leaves open the question whether the danger posed by reckless driving justifies a car stop based on a detailed, but anonymous tip.
Terry v. Ohio, 392 U.S. 1 (1968).
Florida v. J.L., 529 U.S. 266, 268 (2000).
Id. at 273.
Like Florida v. J.L., Flonnory involved an investigative stop based on an anonymous tip. In Flonnory, the anonymous tipster told a police dispatcher about someone possessing drugs at a particular address, seated in a particular car. As in Jones and Florida v. J.L., the police arrived and found someone minding his own business. Like Jones, Flonnory was sitting in a parked car doing nothing suspicious or dangerous. Based on the tip alone, the police rousted Flonnory, performed a "Terry, search of the vehicle" and found cocaine. Consistent with Jones and Florida v. J.L., the Delaware Supreme Court rejected Flonnory's stop.
Flonnory v. State, 805 A.2d 854, 855-856 (Del. 2001).
V.
The tipster in Jones provided no information about the basis for the tipster's information, much less what it was that the tipster found suspicious. The tipster in Florida v. J.L. was more specific and accurate. Nevertheless, the criminal activity reported by the tipster in Florida v. J.L., "carrying a gun," invites the question as to how the tipster has that information if the weapon is concealed. Moreover, that sort of tip not only invites the suspect's stop by the police, it leads inevitably to the suspect's being frisked. The same is true about Flonnory.
In this case, the tipster identified a specific car, which the tipster associated with a serious moving violation in progress. When Bloomingdale was stopped, he was not simply hanging out like Jones, J.L. and Flonnory. Bloomingdale was seen driving an automobile on a city street. The officer who stopped him knew from observation that Bloomingdale was doing something dangerous, driving a car. The threat posed by Bloomingdale to himself and the public, if the tip were true, was far more immediate and probable than any threat posed by Jones, J.L., or Flonnory. Furthermore, the police did not stop Bloomingdale for a less than urgent reason, such as a license and registration inspection. The police pulled Bloomingdale over for suspicion of driving while intoxicated, a life threatening event.
See generally Delaware v. Prouse, 440 U.S. 648 (1979) (rejecting a random traffic stop solely for the purpose of license and registration check).
This is not the first case since Florida v. J.L. to consider an automobile stop based on an anonymous tip about a motorist's driving. Factually, this case is quite like State v. Boyea. In Boyea, the arresting officer received a general broadcast very similar to the one received by Bloomingdale's arresting officer. In both cases, the tips specifically identified the suspect vehicles, including the automobile's location, make, color and license tag number. In Boyea, the tipster described the suspect's driving as "erratic." In this case, the tipster told the police that the suspect was "driving all over the road." The differences between Boyea and this case are inconsequential. For example, Boyea was stopped at 10:00 p.m., while Bloomingdale was stopped at 7:00 p.m.
765 A.2d 862 (Vt. 2000).
The majority of Vermont's Supreme Court in Boyea carefully analyzes the constitutionality of a motor vehicle stop based on an anonymous tip. This court will not attempt to recapitulate or better explain Boyea's reasoning. Boyea is clear and it speaks for itself. Suffice it to say that Boyea balances the "public's interest in safety against the relatively minimal intrusion imposed by a brief investigative detention. . . ." Boyea concludes that "the scale of justice in this case must favor the stop; a reasonable officer could not have pursued any other prudent course."
Id. at 868.
This court is mindful of Justice Johnson's dissent in Boyea and it also appreciates the Anglo-American "outrage over searches based on `bare suggestion' or `surmises,' on `deceitful tattle tale' or a `bare false assertion.'" This court, however, views the dissenter in Boyea's reliance on pre-colonial precedent as histrionic. The founders may have been outraged by deceitful tattletales, but 18th century technology posed the threat of runaway carriages and muzzle-loaded firearms. The mortal threat to innocent people and their loved ones presented by drunks operating 4000 pound automobiles is palpably greater than the risk of inconvenience caused by tattletales, deceitful or otherwise.
Id. at 882.
This case involves a Cadillac moving over a public street, under the control of an operator licensed by the state. While motorists are not at the mercy of police officers' "unbridled discretion," drivers can be stopped and briefly bothered if a police officer has reasonable articulable suspicion. The risk that an innocent motorist will be stopped by the police because of a mistake, a prank, or a grudge is real. Malicious complaints, however, are crimes and they seem to be rare.
Delaware v. Prouse, 440 U.S. 648, 663 (1979).
In summary, the court agrees with Boyea's rationale and the cases on which it relies for the proposition that the inconvenience posed to innocent motorists stopped on the basis of innocent mistakes or even criminal intent is outweighed by the much greater threat posed by drunk drivers. This weighing also takes into account the nature of the stopped motorist's conduct — driving, and the nature of the intrusion — a traffic stop.
In short, when Bloomingdale was stopped, the arresting officer was acting on reasonable articulable suspicion. The source of that suspicion was an anonymous telephone tip accurately describing Bloomingdale's car in detail, its location and the nature of Bloomingdale's alleged driving. The tip and the officer's personal observations were enough, even if the arresting officer did not observe erratic driving. By the time the officer saw Bloomingdale cross the center line, or worse, it would have been too late. Forcing the officer to wait would be unreasonable or, as Boyea puts it, imprudent.
VI.
For the foregoing reasons, the January 24, 2002 decision of the Court of Common Pleas is AFFIRMED. The judgment of conviction stands.
IT IS SO ORDERED.