Opinion
I.D. No. 0504004647.
December 8, 2005.
ORDER
UPON REVIEW of Defendant's Motion to Suppress physical evidence, and an evidentiary hearing thereon, the following are the Court's rulings.
Defendant has filed a Motion to Suppress any and all physical evidence associated with the April 7, 2005, arrest of Defendant. Primarily, the basis for that assertion is the claim that the stopping of the automobile, in which Defendant was seated in the rear driver's side seat, was improper in that it was performed without reasonable articulable suspicion that Defendant had committed a criminal offense. Were that the case, it would follow, any property seized would be inadmissible as poison fruit.
The testimony at the December 6, 2006, provided by Cpl. Hake, however, demonstrates that the stop was Constitutionally proper. A summary of that testimony follows.
During the night time hours of late April 6, 2005, or early April 7, 2005, the Delaware State Police were in contact with a confidential informant regarding a potential illegal drug transaction. This informant had proven to be a reliable source of accurate information in the past. At the suppression hearing, counsel for Defendant elicited from Cpl. Hake that this informant had a criminal history, which, though not particularly extensive, included theft and burglary convictions. On that basis, the defendant argued that information from that source was, in effect, per se not sufficient to support probable cause. In response, Cpl. Hake referred to the condition of circumstances in the drug enforcement field whereby, frequently, the most trustworthy information on criminal activity comes, in fact, from individuals whose social credentials are less than impeccable.
In any event, the informant provided intelligence that an individual named something that sounded like "Terrence" would arrive at the parking lot of the Milford Wendy's, on U.S. Route 113 in a short period of time; that he would be traveling in a Chrysler Cirrus; that he would be African-American; and that he would be there to complete a cocaine transaction. At approximately 12:45 a.m. on April 7, 2005, members of the State Police Governor's Task Force (GTF) arrived at the said location, with the informant in one of the vehicles. A vehicle then arrived. It was a Chrysler Cirrus. It drove into the Wendy's parking lot, and parked. At that time, the parking lot was otherwise essentially empty, because Wendy's was closed for restaurant use (though the drive through window may still have been functioning).
The informant on the scene confirmed that the Chrsyler Cirrus then parking was the very vehicle he anticipated to be carrying Defendant and illegal drugs for sale.
Defendant points out that no motor vehicle violation or observed in-car illegal activity existed. While such circumstances, or something of the like, may well be critical to justify probable cause for a stop in situations where mere suspicion of drug trade exists, that is not the present case. Here the State had very real "reasonable articulable suspicion" that a crime was in the process of being committed justifying the officers to bring about the stopping (or, more accurately, the detaining after the voluntary stop). In this case, the testimony demonstrates the precise nature of the anticipated transaction; the exact description of the vehicle to be involved; the general description of the transacting occupant; and the place of the expected transaction; all of which information was delivered to GTF before any encounter with the vehicle, and all confirmed in some detail by the events that transpired leading to the voluntary parking of Defendant's vehicle. Pursuant to State v. Dollard, Del. Super., 788 A2d 1283 (2001), the fact pattern of which is strikingly similar relative to the stop, this stop was proper. Thus, the physical evidence will not be precluded from admission on the basis of its being poisoned fruit from an improper stop. Defendant's Motion is DENIED on that basis.
This brings the consideration to the seizure of the physical evidence, which is of three types: a) a pocket knife; b) a bag containing cocaine found outside the vehicle; c) empty bags and bags containing cocaine found on the floor of said Chrysler Cirrus at a place "where Defendant's feet would have been" when he was still inside the vehicle.
As to the knife, it was evidently found in the packet of a jacket owned by Defendant, but being worn at the time by the vehicle driver. Neither the information provided by the informant nor any aggressive or suggestive or threatening actions by any vehicle occupant suggested any presence of a weapon.
Following, if it was applicable, Dallard, supra, again, the pat-down revealing the presence of that knife would not be valid.
However, in this case the knife-revealing pat-down was not of Defendant. Rather, it was of the vehicle's driver, Tonia Bowe. She could have raised that issue in any prosecution of her. Indeed, she had raised the issue in her own Motion to Suppress, filed prior to her entering a guilty plea. The pat-down, which revealed the knife, then, effected the privacy rights of Ms. Bowe, and not those of Defendant. As described in Rakas v. Illinois, U.S. Supr. 439 U.S. 128, 58 L. Ed. 2nd 387 (1978), a passenger in an auto has standing to challenge a search only when his own rights are violated; the Court rejecting any "target of prosecution" theory.
Further, as noted in Rawlings v. Kentucky, U.S. Supr., 448 U.S. 98, 65 L. Ed. 2nd 633 (1980), ownership of goods seized does not provide standing, even if the jacket holding the knife, as opposed to the knife itself, is accepted as Defendant's property. Rather, the legitimate expectation of privacy is the test. There is none with the knife's being carried by another occupant of the automobile.
Next, we come to the bag of cocaine found on the ground by GTF, evidently having issued from the person of Defendant, during the time of a pat-down of him. Certainly, as the bag laid on the ground outside of the automobile, it was in plain view. See, for instance, United States v. Lee, U.S. Supr., 274 U.S. 559, 7 L. Ed. 1202 (1927).
A twist exists here, though. The "plain view" was possibly created by, or as a consequence of, the pat-down of Defendant. Had the pat-down been justified, this issue would have no consequence. However, again following Dallard, since there was no basis to support that pat-down, in the first instance, the pat-down itself was not justifiable, because of the absence of any indication from the informant or by circumstances at the scene suggesting the presence of any weapons.
In this case, though, at this point, the admission of the bag found on the ground outside will not be suppressed, because no detail relative to how the baggie got on the ground exist. The Defendant may, if he chooses, conduct a voir dire examination, out of the puresence of the jury, to inquire as to whether the bag's ending up on the ground was from, for instance, the Defendant's casting it there in an effort to separate himself from int; or, on the other hand, from the activity of the pat-down. In the event of the latter factual finding, counsel should be prepared to discuss the legal ramifications, with supporting authority.
Finally, there is the issue of the bags (three unused-presumably as drug paraphernalia; two containing cocaine) found on the backseat floor of the automobile. As indicated, a valid stop of the vehicle based on probable cause occurred. The reasonable expectation, on the part of anyone, to privacy as it pertains to an automobile is greatly reduced (from, for example, a home), or course. Keep in mind that the Fourth Amendment is, by its own terms, limited to persons, houses, papers (none of which automobiles are) and effects (the area of some question). Indeed, the suspicion that automobiles are removed entirely from the Fourth Amendment considerations on the basis that, as a matter of law, no expectation of privacy existed with automobiles, was sufficiently strong for Justice Powell to comment in a concurring opinion that a majority of the Court had not yet reached that point. South Dakota v. Opperman, U.S. Supr., 428 U.S. 364, 49 L. Ed. 2d 1000 (1976). Be that as it may, a vehicle, at the time and place of the arrest of its occupants, where probable cause exists that criminal activity is in progress or effectively contemplated, may be searched.
In the instant case, this evidence located on the automobile floor may well have been in plain view, anyway. That has not been developed one way or the other to this point (and, again, may be pursued by either the State or the defense in a voir dire proceeding, if so chosen). Even if the bags are not considered to have been in plain view, though, an officer who has effected a valid stop may conduct a warrantless search of an automobile, if he has probable cause to believe that it contains contraband or evidence. U.S. v. Ross, U.S. Supr., 456 U.S. 798 (1982) andCarroll v. U.S, U.S. Supr., 267 U.S. 132 (1925).
The State and the defense may address this further, if either believes that additional factual or legal determination would alter this position. At this point, and with the circumstances presently developed on this issue, the Motion to preclude the "in auto bags" is DENIED.