Opinion
DEF. I.D. 0204001110
Date Submitted: September 27, 2002
Date Decided: November 15, 2002
Martin O'Connor, Deputy Attorney General, Attorney for the State of Delaware.
Michael W. Modica, Esquire, Attorney for the Defendant.
I. INTRODUCTION
The Court addresses the legality of an unfortunate police encounter which has left a man blind in one eye. The defendant, Jackie Brooks ("Mr. Brooks"), alleges that he was the victim of an unprovoked assault by Officer Deshawn Price ("Officer Price"), a four-year veteran of the New Castle County Police. The assault allegedly occurred during the course of an unfounded police contact which escalated from an initial investigatory detention, to an attempted arrest, to a violent exchange on the lawn of one of Mr. Brooks' close family friends. Mr. Brooks has been charged with multiple criminal offenses arising from this incident including resisting arrest, menacing and various traffic offenses. He also has been charged with drug-related offenses (Possession of Marijuana With Intent to Deliver and Maintaining a Vehicle for Keeping Controlled Substances) after a search of his vehicle revealed several individually packaged baggies of marijuana. Mr. Brooks has moved to suppress this evidence on the ground that it was seized unlawfully in violation of the United States and Delaware Constitutions and Delaware statutory law.
The motion presents the following issues: (1) did Officer Price have reasonable ground to suspect that Mr. Brooks had committed a crime such that his initial stop of Mr. Brooks was lawful; (2) did Officer Price have a legal basis to detain Mr. Brooks;
(3) did Officer Price have a legal basis to attempt to effect an arrest of Mr. Brooks; and (4) did Officer Price and his colleagues have a legal basis to search Mr. Brooks' vehicle?
For the reasons that follow, the motion to suppress is GRANTED. While Officer Price lawfully stopped and lawfully attempted to detain Mr. Brooks, he had no lawful basis to enter and search Mr. Brooks' vehicle. The search was not supported by probable cause, was not incident to arrest and was not justified by Mr. Brooks' purported abandonment of the vehicle.
II. FACTS
On the afternoon of February 25, 2002, while on routine patrol, Officer Price entered the Rosegate subdivision, an area known to Officer Price to be "an open-air drug market," and almost immediately observed what he believed to be a hand-to-hand drug transaction between a pedestrian and the operator of a 1993 Buick sedan. Specifically, Officer Price observed an unidentified black male leaning into the vehicle making movements with his hands consistent with giving and then receiving something from the operator of the vehicle. The pedestrian regularly surveyed the area during the encounter as if to look out for police detection. When the pedestrian observed Officer Price's marked police cruiser, he immediately took flight down an alleyway and out of sight.
Officer Price followed the Buick for a short distance. As Officer Price followed, the Buick abruptly stopped and backed into the driveway of the home located at 94 Rose Lane. Officer Price stopped his vehicle at the end of the driveway and approached the operator of the Buick who, by this time, had exited the vehicle and was standing next to it.
The events that followed were the subject of conflicting testimony. According to Officer Price, he approached the operator of the vehicle and asked for identification. When the operator refused to state his name or provide identification, Officer Price then attempted to detain him for further investigation. He searched the man and detected what he believed to be a wad of currency in his pants pocket. He then attempted to place handcuffs on the man but the man pushed him aside and began to flee. Officer Price gave chase and quickly caught him. As Officer Price grabbed the man's shoulder, the man turned and looked as if he was about to throw a punch. Officer Price responded with a "defensive blow" with his right hand. Unfortunately, he was holding his handcuffs in that hand when he struck the man and the blow caused extensive injuries to the man's left eye.
The operator later was identified to be Mr. Brooks. According to Officer Price, however, during the events in question, he had no idea who was operating the vehicle and did not discover the operator's identity until weeks later.
The man continued to run after Officer Price struck him. By this time, a crowd had gathered in the area. Officer Price felt that his safety was threatened and determined not to chase the suspect. Instead, he returned to his vehicle, called for back up, and began a search of the neighborhood from his vehicle. When he ran a check on the vehicle's tag, he learned that the vehicle was registered to Lois Reed at 100 Rose Lane, approximately three houses away from where his encounter with the suspect had occurred. When backup arrived, Officer Price went to 100 Rose Lane and spoke with an elderly woman who lived there. She denied any knowledge of Ms. Reed's whereabouts or of the man's identity.
Eventually, Officer Price returned to 94 Rose Lane to speak with the residents there and to search the vehicle. According to Officer Price, he received no cooperation from the residents of 94 Rose Lane; they denied knowledge of the vehicle or the identity of its operator. A K-9 unit was called to the scene to assist in the search of the vehicle. There were no positive "hits" on the outside of the vehicle so the K-9 went inside. Once there, the dog "alerted" under the driver's seat where the police located a rubber glove containing several baggies of marijuana.
Two witnesses contradicted Officer Price's testimony. The first, Alexander Davis, acknowledged that he was the man Officer Price observed engaging in a transaction with the operator of the Buick. According to Mr. Davis, however, he was simply shaking Mr. Brooks' hand and saying hello. There was no drug transaction. Mr. Davis ran when he saw Officer Price because he knew he was wanted on an outstanding capias. Several minutes later, Mr. Davis watched from a distance as Officer Price approached Mr. Brooks. He observed Officer Price direct Mr. Brooks to place his hands behind his head, pull out his handcuffs, and then strike Mr. Brooks in the face with the handcuffs in his closed fist. According to Mr. Davis, there was no provocation: Mr. Brooks did not raise a hand towards Officer Price; he did not try to run; he did nothing but comply with the officer's direction.
Devon Reed, Mr. Brooks' fifteen year old nephew, testified that he observed the entire encounter between Officer Price and Mr, Brooks. He also alleges that Officer Price was unprovoked when he struck Mr. Brooks. Mr. Reed observed Officer Price direct Mr. Brooks to place his hands on the Buick and Mr. Brooks complied. When Mr. Brooks turned his head and began to question Officer Price about his actions, Officer Price struck Mr. Brooks with his handcuffs wrapped around his fist.
The owner of 94 Rose Lane, Lisa Reed, testified that she arrived home shortly after the encounter on her lawn. Her son, Devon Reed, was crying. He explained that his uncle "had just been beaten up by the police." Several minutes later, the police returned to her residence looking for Mr. Brooks. He was not there. She could not recall whether the police asked her if Mr. Brooks had permission to leave his car in her driveway. If she had been asked, she would have advised the officers that the vehicle could remain in her driveway until its owner, Lois Reed (her sister), could retrieve it.
Although most of the facts were disputed, there are certain salient facts which are uncontroverted: (1) no one consented to the search of the vehicle Mr. Brooks had been driving; (2) the K-9 did not alert on the outside of the vehicle — the first alert occurred after the police entered the vehicle; and (3) aside from Officer Price's observations, the police had no other information to suggest that evidence of a crime may be located within the vehicle.
III. DISCUSSION
A. Standard of Review
On a Motion to Suppress, the State bears the burden of establishing that the challenged search or seizure comported with the rights guaranteed to Mr. Brooks by the United States Constitution, the Delaware Constitution, and Delaware statutory law. The burden of proof on a motion to suppress is proof by a preponderance of the evidence.
Hunter v. State, 783 A.2d 558, 560-61 (Del. 2001).
State v. Bien-Aime, Del. Super., Cr. A. No. 1K92-08-326, Toliver, J. (March 17, 1993) (Mem. Op.) (citations omitted).
B. Officer Price Lawfully Stopped and Detained Mr. Brooks
The Court determined at the conclusion of the evidentiary hearing that Officer Brooks' direct observation of what he believed to be a hand-to-hand drug transaction in an area known to him to be an open-air drug market provided him with a reasonable ground to conclude that Mr. Brooks had committed a crime. Officer Price's observation of the apparent transaction was augmented by his observation of Mr. Davis' flight upon observing the oncoming police cruiser.
See Jones v. State, 745 A.2d 856, 861 (Del. 1999) ("reasonable articulable suspicion has been defined as 'an officer's ability to point to specific facts which, if taken together with rational inferences from those facts, reasonably warrant the intrusion'"). See also Cummings v. State, 765 A.2d 945, 949 (Del. 2001) ("flight from the police [while alone insufficient] may be an element in the formation of reasonable suspicion") (citing Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000)).
The Court also has concluded that Officer Price was authorized to detain Mr. Brooks after Mr. Brooks refused to provide his license and vehicle information on request or otherwise identify himself. And, to the extent Mr. Brooks resisted Officer Price's efforts to detain him, Officer Price would be justified in using force to effect the detention. Moreover, if Mr. Brooks resisted the detention, Officer Price would have probable cause to arrest him for resisting arrest.
See DEL. CODE ANN. tit. 11, § 1902(b)("Any person so questioned who fails to give identification or explain the person's actions to the satisfaction of the officer may be detained and further questioned and investigated"); Buckingham v. State, 482 A.2d 327, 332 (Del. 1984) (minimal intrusion of investigatory detention justified when suspect fails adequately to identify himself).
See Cannon v. State, 168 A.2d 108, 110 (Del. 1961).
See DEL. CODE ANN. tit. 11, § 1257(2001) ("a person is guilty of resisting arrest when the person intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention of the person or another person or intentionally flees from a peace officer who is effecting an arrest") (emphasis supplied).
Before the Court moves to the next step of the analysis, it must first determine whether it is necessary to address the conflicting testimony regarding the physical altercation between Officer Price and Mr. Brooks. In this regard, the Court is mindful that its resolution of this factual controversy may have issue preclusion or claim preclusion effect in the pending (or soon to be pending) civil trial, and perhaps in certain aspects of the pending criminal trial. As an aside, the Court must observe that the idea of the Court making factual findings here which could be binding upon trial-level fact finders is not appealing. When deciding a suppression issue, the Court should be careful not to decide more than is presented for decision by the defendant's motion. Here, there is no need to decide whether Officer Price was justified in striking Mr. Brooks. The Court has concluded that the stop and attempted detention were lawful. As discussed below, the search of the Brooks vehicle was not. Whether Officer Price struck a defensive or offensive blow is of no moment to the Court's decision.
The Court was advised that Mr. Brooks may pursue a civil claim against Officer Price arising from the serious injury to his eye. The burden of proof at the suppression hearing and at the civil trial would be the same (preponderance of the evidence). It is possible, therefore, that factual findings here could be binding upon the fact-finder in the civil trial.
C. The Search of the Vehicle Was Not Lawfully Executed
The State has offered three bases for the search of the vehicle: (1) the search was supported by probable cause; (2) the search was incident to a lawful arrest; (3) the search was lawful because Mr. Brooks had abandoned his expectation of privacy in the vehicle. The Court already rejected the State's first two arguments at the conclusion of the evidentiary hearing. For clarity's sake, however, the Court will restate its rulings here, seriatim, and then will address the abandonment argument.
1. The Search Was Not Supported By Probable Cause
Probable cause cannot be measured by precise standards. Rather, to conduct a well-directed search for probable cause, the Court must review the totality of the circumstances against the backdrop of the "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." "A finding of probable cause does not require the police to uncover information sufficient to prove a suspect's guilt beyond a reasonable doubt or even to prove that guilt is more likely than not." The totality of the circumstances need only suggest "a fair probability that the defendant has committed a crime" and/or that evidence of the crime will be found in the area to be searched.
See State v. Maxwell, 624 A.2d 926, 928 (Del. 1993).
Id. at 930.
Id.
Probable cause was lacking here. Officer Price observed what he believed to be a hand-to-hand drug transaction involving the operator of the Buick. Yet he candidly acknowledged that he was too far away from the vehicle to see exactly what was transpiring. Thus, he was unable to bolster his reasonable suspicion of illegal activity. And nothing occurred thereafter to supplement Officer Price's fund of knowledge. The positive K-9 alert inside the vehicle came too late. Once the officers entered the vehicle, they could not rely upon information they discovered thereafter to justify the entry and search. While a positive K-9 alert, coupled with other information, can support a finding of probable cause which will justify entry into a vehicle, the K-9 must alert on the outside of the vehicle if the result is to be considered in the probable cause mix.
See Florida v. J.L., 529 U.S. 266, 271 (2000) ("The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search"); Woody v. State, 765 A.2d 1257, 1263 (Del. 2001) ("An illegal stop (or search) cannot be justified by circumstances that arise following its initiation") (citation omitted).
See, e.g., State v. Colon, 2001 Del. Super. LEXIS 508, at *19-20 (Del.Super.) (and cases cited therein at n. 41) (positive K-9 alert on exterior of vehicle, along with other factors, provided officers with probable cause to enter and search vehicle).
Officer Price's reasonable suspicion of criminal activity justified the initial stop and attempted investigatory detention of Brooks; it is not enough to justify the search of Brooks' vehicle.
2. The Search Was Not Incident To Arrest
The record clearly reveals that Mr. Brooks was not in close proximity to his vehicle at the time of the search. Yet this fact alone is not fatal to the State's argument that the search of the vehicle was incident to a lawful arrest. The Court recently has concluded that the "bright line" rule articulated in New York v. Belton did not incorporate a spacial proximity requirement in its prescribed analysis of the propriety of vehicle searches incident to arrest. Thus, the fact that Brooks was no longer with his vehicle when the police entered it would not necessarily invalidate a Belton search.
453 U.S. 454 (1981).
Id. at *18.
Id.
Several other factors, however, indicate that Belton is not applicable here. First, Mr. Brooks had not been placed under arrest at the time of the search. Second, and equally dispositive, the search of Mr. Brooks' vehicle occurred by all accounts at least 20 minutes (if not longer) after Mr. Brooks had exited the vehicle. While Belton may have done away with the notion of spacial proximity, the notion of temporal proximity is still at the core of the "bright line" rule. The time that passed during the violent exchange, followed by the house-to-house search for Mr. Brooks, clearly indicates that the search of the vehicle was not a "contemporary incident" to any arrest that may have been effected. Belton does not apply.
Id. at *18-20. See also Belton, 453 U.S. at 460(search must be effected as a "contemporaneous incident" to arrest of a "recent occupant" of the vehicle).
Id.
3. Mr. Brooks Did Not Abandon The Vehicle
The State's final argument in opposition to Mr. Brooks' suppression application is that Mr. Brooks abandoned his vehicle and his expectation of privacy in it when he fled from Officer Price. Mr. Brooks responds that he fled from Officer Price because he was assaulted by Officer Price. He contends that abandonment cannot occur under these circumstances.
The concept of abandonment, in the search and seizure context, focuses on whether the defendant has forfeited or relinquished his expectation of privacy in the dwelling, vehicle or item to be searched. Stated differently, the Court must determine whether Mr. Brooks possessed a "reasonable expectation of privacy" in the vehicle at the time it was searched. And when conducting this inquiry, the Court is obliged "to examine all of the surrounding circumstances."
See Vick v. State, 1985 Del. LEXIS 563, at *2 (Del.Supr.) (the issue of abandonment implicates an objective inquiry into whether "the person intended to give up his ownership of the property").
See Katz v. United States, 389 U.S. 347 (1967). See also State v. Dixon, 2001 Del. Super. LEXIS 66, at *16-17 (Del.Super.) (applying Katz in the abandonment context).
South Dakota v. Anderson, 548 N.W.2d 40, 44 (S.D. 1996).
There certainly are instances when a defendant may abandon his interest in property by leaving it behind as he flees from police. As Professor LaFave explains: "Courts have . . . found cars to be abandoned when it appeared that the operator of the vehicle left the car behind in an effort to avoid apprehension by the police." Professor LaFave notes a distinction between cases where the suspect had been chased in his vehicle for some distance by the police before "abandoning" his vehicle, and those where the suspect was occupying a parked vehicle at the time the police contact was initiated. In the latter instance — a scenario more analogous to the facts sub judice — courts have found abandonment when the suspect fled from police and left a vehicle in a public place, or left the vehicle unlocked with the keys in the ignition. Under these circumstances, the courts conclude that the suspect demonstrated an intent to relinquish his expectation of privacy in the vehicle such that a Fourth Amendment analysis was no longer required.
1 LAFAVE, SEARCH AND SEIZURE § 2.5(a) (3d Ed. 1996).
Id.
See, e.g., United States v. Barlow, 17 F.3d 85, 88 (5th Cir. 1994) (vehicle left on a public road); United States v. D'Avanzo, 443 F.2d 1224 (2d Cir. 1971) (same); Barrow v. State, 494 So.2d 834 (Ala.Cr.App. 1986) (vehicle left in motel parking lot).
See, e.g., People v. Washington, 413 N.E.2d 170, 177 (Ill.App. 1980) (car left on public street unlocked and with keys in ignition).
See Barlow, 17 F.3d at 88; United States v. Walton, 538 F.2d 1348, 1354 (8th Cir. 1986).
Mr. Brooks has argued that he cannot be deemed to have abandoned his vehicle when, in fact, he fled the scene only to avoid a further beating at the hands of Officer Price. According to Mr. Brooks, where the police have prompted the defendant to flee by engaging in unlawful conduct, a voluntary relinquishment of the expectation of privacy cannot occur.
See Commonwealth v. Lynch, 773 A.2d 1240, 1243 ( Pa. Super. 2001) (unlawful chase cannot give rise to abandonment); State v. Abdullah, 730 A.2d 1074, 1078 (R.I. 1999) ("voluntary abandonment exists only where law enforcement officers commit no initial improper or unlawful act which taints the subsequent seizure"); State v. Oquendo, 613 A.2d 1300, 1311-12 (Conn. 1992) (police cannot unlawfully provoke flight and then claim abandonment).
While Mr. Brooks has offered a correct statement of the law, he invites a factual determination that the Court need not make to resolve the issue. Even if Mr. Brooks fled from Officer Price to avoid apprehension, the Court cannot conclude that by leaving a vehicle secured in the driveway of his friend, three doors down from its registered address, he demonstrated an intent to abandon his expectation of privacy with respect to the vehicle. There is no evidence to suggest that Mr. Brooks was fleeing from Officer Price at the time he parked his vehicle. By all accounts, Mr. Brooks exited the vehicle calmly, secured it and waited for Officer Price to approach him.
Moreover, the vehicle was not parked on a public roadway or in an unauthorized location. Indeed, the preponderance of the evidence indicates that Mr. Brooks was a frequent and welcomed visitor at 94 Rose Lane. According to Officer Price, he learned early on in his investigation that the Buick was registered to 100 Rose Lane — three doors down from its parked location. The vehicle was left unattended for no more than a few hours at the time the search commenced. Under these circumstances, the Court cannot conclude that Mr. Brooks abandoned his expectation of privacy in the vehicle.
The Court may consider information discovered after-the-fact to determine whether the defendant demonstrated an intent to abandon. See United States v. Winchester, 916 F.2d 601, 604 (11th Cir. 1990).
See California v. Carney, 471 U.S. 386, 390 (1985) (absent waiver, the owner or permissive user of a motor vehicle has a reasonable expectation of privacy in the passenger compartment of the vehicle). See also State v. Flanders, 546 N.W.2d 221, 223-24 (Iowa App. 1996) (no abandonment when suspect fled from police after parking the vehicle he was borrowing in his father's driveway).
IV. CONCLUSION
Based on the foregoing, defendant's motion to suppress is GRANTED. The fruits of the vehicle search are hereby suppressed.
IT IS SO ORDERED.