Opinion
No. 9909021149.
Date Submitted: March 9, 2000.
Date Decided: April 25, 2000.
Cr. Action No. S99-01-011, Possession of Cocaine S99-01-0012, Possession of Drug Praphernalia S99-01-0013, Lighted Lamps Required.
Martin J. Cosgrove, Jr., Esquire, Department of Justice, Georgetown, Delaware, Attorney for the State of Delaware.
Edward C. Gill, Esquire, Georgetown, Delaware, Attorney for Defendant.
MEMORANDUM OPINION
MOTION TO SUPPRESS — GRANTED
This 25th day of April, 2000, upon consideration of the Defendant's Motion to Suppress and the arguments by Counsel at the hearing held thereon, it appears that:
1. Defendant, Alvin Drummond ("defendant" or "Drummond") is charged with Possession of Cocaine, Possession of Drug Paraphernalia, and a violation of the Motor Vehicle Code, 21 Del. C. § 4331 (a), failure to use headlamps when required.
2. At the suppression hearing, two Georgetown Police Officers testified for the State of Delaware ("the State"). They were the arresting officer, Officer Feaster ("officer" or "Feaster"). and Corporal Trescka ("Corporal" or "Trescka"). The defendant also testified.
3. The sequence of events concerning the arrest of the defendant was in conflict. The officers testimony did not completely coincide. Further, the defendant's version of events was different. Credibility determinations and differences about the traffic stop and search are resolved below.
4. After 7:00 p.m. on September 23, 1999, Feaster was near the intersection of North Front Street and Edward Street in Georgetown. He stopped to talk with a Mr. Stamford. Upon leaving, Feaster noticed the defendant driving toward him. While Drummond's parking lights were on his headlights were not. Feaster unsuccessfully attempted to get Drummond's attention to turn on his lights by f1ashing the cruiser's headlights. Feaster then made a U-turn, activated his emergency lights and stopped behind Drummond's vehicle.
5. Feaster asked for license, registration, and proof of insurance. Drummond produced these items from his wallet and glove compartment. The officer did not intend to ticket the defendant, and he had no concern for his safety. The defendant was smiling and very friendly. Feaster had recently spoken with Drummond in Georgetown before the 23rd and knew about his criminal record. Feaster returned his vehicle to examine the documents. Although in order, as he knew defendant, he called headquarters. He spoke, on an unrecorded town radio line, to Trescka, who, upon hearing the defendant's name, told the officer, "10-39." This code means "Approach with Caution."
6. Feaster testified that when he heard that code, he recalled the criminal background. But, as indicated above, the Court finds that this record was known at the time of the stop. Feaster knew Drummond from a past encounter, and Georgetown is a small community. Although not intending to cite Drummond, Feaster ordered him out of the car. They spoke about the stop.
7. Thereafter, Trescka and another patrolman arrived. Feaster questioned the defendant behind the car. He asked if the vehicle had any drugs or weapons. He twice requested permission for a vehicle search. The defendant declined, stating the police had searched the car recently and asserted his Fourth Amendment right to refuse. The defendant became somewhat animated in his speech and body movements. These were not threatening gestures. Drummond was still friendly, but nervous.
8. Feaster then searched the vehicle, ostensibly to find hidden weapons. In the center compartment, $200 was found; underneath a plastic bag and several small nodules of cocaine was observed. Nothing was removed from the vehicle. Defendant was arrested for the drug offense and placed in the patrol car. Feaster conducted another search, without result, and then removed the drugs. The money was not confiscated. Feaster wrote the traffic citation after Drummond was booked later that night.
9. The defendant argues that the vehicle search violated his rights against unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Art. I, § 6 of the Delaware Constitution. Initially, the State contended that the search was permissible as one incident to a traffic arrest, authorized under 21 Del. C. § 701. At closing, however, the prosecution claimed that the officer had reasonable suspicion to fear for his safety, thereby justifying a protective sweep.
10. As Marousek v. Voshell, Del. Super., C.A. No. 90A-JN-10, Ridgely, J. (Dec. 17, 1990), explains:
Except for roadblock . . . type stops that do not involve the unconstrained exercise of discretion by peace officers, the Fourth Amendment requires that a police officer have at least an articulable and reasonable suspicion that the operator of a vehicle is unlicensed, that the vehicle is unregistered, or that the vehicle or an occupant is otherwise subject to seizure for a violation of law before a vehicle is stopped on a public roadway. [Citations omitted.]
Further, a traffic violation such as "speeding, illegal U-turns, and swerving between the lanes of traffic" constitutes probable cause for a stop. Eskridge v. Voshell, Del. Supr., 593 A.2d 598 (1991). Title 21 Del. C. § 701 of the Delaware Code permits an officer, after observing a vehicle code violation, to make an arrest instead of issuing a citation. See State v. Walker, Del. Super., Nos. IK90-08-0001, IK90-08-0002, Steele, J. (March 19, 1991). A search incident to a lawful arrest would be proper. United States v. Robinson, 414 U.S. 218 (1973); Traylor v. State, Del. Supr., 458 A.2d 1170 (1983). On the other hand, when a person is not arrested but only given a ticket, a custodial search is unreasonable and forbidden. Knowles v. Iowa, 119 S.Ct. 484 (1998).
11. Without doubt, probable cause existed for the initial seizure. The stop happened after sunset, and headlights are required. 21 Del. C. § 4331 (a). Feaster appropriately stopped Drummond and requested typical driving information. The defendant could be asked to leave the vehicle for this purpose. Pennsylvania v. Mimms, 434 U.S. 106 (1997) ( per curiam).
12. Drummond was not arrested for the traffic violation under § 701. Feaster admitted only warnings for this type of offense would be given. Even following the "10-39" alert, he intended nothing more than a warning. The ticket was written much later, and, as Feaster recognized, it was done to attempt to justify the search.
The Court questioned the officer on this issue, which resulted in the following exchanges:
WITNESS. . . . to show just cause for the traffic stop on that date. I decided to make the traffic arrests as opposed to a traffic warning after the contraband had been located.
COURT: So you are telling me that after the contraband was located, you decided to establish just cause and issue him a ticket for the traffic stop?
WITNESS: Yes, Your Honor.
13. Since Drummond was not arrested before the drugs were discovered, the situation cannot be analyzed as a search incident to arrest. Knowles, supra. The State conceded this point at closing (as it had to).
14. Was the search a valid protective sweep? For an officer to conduct a "pat-down" or protective sweep, articulable suspicion must exist that the detained person has committed or is about to commit a crime. Moreover, the officer must possess a reasonable suspicion that the person is armed and presents a threat to the officer's or another's safety. Terry v. Ohio, 392 U.S. 1 (1968): Robertson v. State, Del Supr., 596 A.2d 1345 (1991): Downs v. State, Del. Supr., 570 A.2d 1142 (1990). A protective search of the area within the immediate control of the occupant of a car is permitted upon reasonable suspicion that a driver or passenger is armed. Michigan v. Long, 463 U.S. 1032 (1983). Additionally, once detained persons are outside a vehicle, the concern for safety is not restricted to the time everyone is outside, but also "as of the time when they may have been permitted to return to the automobile." State v. Wausnock, Del. Supr., 303 A.2d 636, 637 (1973).
15. Reasonable suspicion is measured objectively. Delaware v. Prouse, 440 U.S. 648, 654 (1979). While police experiences are important, they comprise only part of the factors that the Court assesses, viewing the totality of the circumstances as perceived by a reasonable officer. United States v. Cortez, 449 U.S. 411 (1981); Robertson, supra; Jones v. State, Del. Supr., __ A.2d No. 115, 1998, Veasey, C.J. (Dec. 16, 1999). Cause for an officer's invasive conduct must be based on specific and articulable facts raised by the officer as well as all reasonable inferences flowing from those facts. Terryat 88; Downs at 1145.
16. Certain aspects of the encounter indicate a protective sweep. The officer received a "10-39" alert, and the defendant appeared nervous, but not in a threatening way. On the other hand, reasonable suspicion did not objectively exist to show Drummond was armed and presently dangerous under all the circumstances.
17. An investigative detention, including a traffic stop, must last no longer than reasonably necessary to satisfy the reason for the stop. Hicks v. State. Del. Supr. 631 A.2d (1993). Here, a routine traffic stop was unduly prolonged by Feaster's hunch of drug involvement, manifested by his questions about drugs after investigation of the traffic infraction was completed. Drummond's driving information was satisfactory. While officer safety is both a "legitimate and weighty" concern during a traffic stop [ Maryland v. Wilson, 519 U.S. 408 (1997)], "The threat to officer safety from issuing a traffic citation . . . is a good deal less than in the case of a custodial arrest." Knowles at 487. In this context, and considering that in spite of the "10-39" only a traffic warning was ever intended, the officer's stated safety concern is not persuasive. Friendliness cannot be a basis for a reasonable suspicion of danger. This subjective rationale would give authorities unfettered discretion to search that is limitless, and, therefore, unreasonable. The United States and Delaware Supreme Courts have quickly' protected citizens against broad exercises of governmental power that impinge upon guaranteed rights. See Prouseat 654: Jones at 8.
18. Other factors dispel the idea that the officer reasonably feared for his safety. Drummond was asked twice for permission to search, and the requests were refused. A driver's right to refuse consent falls within constitutional protections against unreasonable searches. The exercise of that right can not be penalized by making the refusal part of the foundation for a search, as occurred here. See Karnes v. Skrutski. 3rd Cir., 62 F.3d 485, 495-6 (1995). Further, the officer discussed his training and mentioned safety to try to convince Drummond to permit a search. One reasonably and actually suspecting danger may act immediately without first obtaining consent. Two additional police officers were present. With this background, the sweep was an excuse for a drug search, discussed infra.
19. The police knew of the weakness of the search. When asked why the ticket was given after the drug arrest, Feaster acknowledged that it was done to uphold the search. Although the stop happened at "dusk" without defendant's headlights operating, unusual steps were taken thereafter to support an otherwise routine violation. In this regard, information was sought about the time of sunset last January.
20. Furthermore, the defendant was outside a drug area. Reasonable and articulable suspicion may not be founded on "a defendant's presence in a particular neighborhood at a particular time of day" without any independent evidence that the defendant was engaged in any harmful conduct. Jones at 11. Finally, there was no testimony about a traditional "pat-down." If genuine safety issues existed, the defendant would have been frisked and handcuffed beforehand.
21. The State contends that Feaster is credible, and all his explanations must be accepted. His testimony about the ticket is credible. Like any witness, however, part of the evidence may be disbelieved. In this regard, what the officer felt was "wrong" in motivating the sweep was his hunch about hidden drugs. not weapons. Moreover, he had stopped defendant earlier. Georgetown is a small community, and he knew about Drummond's record at the time of the initial stop.
22. The State offered several Delaware cases for consideration. The conclusions in these controversies are usually' driven by particular circumstances rather than by recognized legal principles, and these cases present different facts.
23. The issue sub judice is not like that in Buckingham v. State. Del. Supr., 482 A.2d 327 (1984), where the police conducted a Terry stop and protective sweep of a vehicle. There, the officer encountered an apparently "stalled" car, phony attempts to start it, a man running from a shopping center toward it, and surrendering after seeing the police. A contemporaneous report of a robbery and shooting in the shopping center was received. There, ample suspicion existed to support a pat-down and weapons sweep. Here, the "10-39" message following the traffic stop is not like the report in Buckingham. No violent act or other criminal offense had taken place. It is not a blanket search authorization, rather only a warning to take action as required by other circumstances.
24. Nor is this the case presented in State v. Banner, Del. Super., Cr. A. No. IN-97-09-1241, Herlihy, J. (May 30, 1989). There, the police were alerted by radio to a "suspicious" person sitting in a van in a known drug area in the middle of the night. The officers were given a description of the person and van and were advised that he was selling drugs. The police asked the man to step out, patted him down and quickly swept the vehicle. Considering drugs and weapons may be linked, the search was justified along with other circumstances. The United States Supreme Court recently clarified this subject by holding that bare-boned suspicion about narcotics would not automatically support a weapons search. See, Florida v. J.L., 529 U.S. ___, 120 S.Ct. 1375, 1380 (2000). Here, the officer only handled an early evening equipment problem. No informant's report was received, nor was there reasonable ground to suspect the defendant of any other offense.
25. Protective sweeps are necessary in appropriate cases. Under the totality of the circumstances of this search, however, reasonable suspicion of danger, objectively reviewed, did not exist.
26. Considering the foregoing, the Motion to Suppress is GRANTED.
IT IS SO ORDERED.
Mr. Joseph S. Paczkowski Sussex Correctional Institution P.O. Box 500 Georgetown, DE 19947 April 13, 2000
RE: State v. Paczkowski, Def. ID# 9904922327
Dear Mr. Paczkowski:
Pending before the Court in the above-captioned matter are a motion and two requests. First is the motion of Joseph S. Paczkowski ("defendant") filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). Also pending is a request, in a letter from defendant dated March 16, 2000, that defendant be allowed to "have my say in front of you with Karl Haller." Finally, there is pending another request, in a letter from defendant dated March 19, 2000, that the Court issue orders to the Delaware State Police, Sussex Correctional Institution, the Public Defender's Office, and a school nurse to produce numerous documents. Defendant desires the documents in order to prove his innocence.
I. Rule 61 Motion and Request for a Hearing
I first will address the Rule 61 motion and the request for a hearing on the motion. In connection with this motion, the Court has considered defendant's submissions, a letter from trial counsel, a letter from the Deputy Attorney General assigned to this case, the file in this case, and the transcript of defendant's Robinson plea which he entered on August 19, 1999. The Court considers it unnecessary to conduct a hearing in this matter; consequently, defendant's request for a hearing is denied. This constitutes my decision on the pending Rule 61 motion.
This label references a plea taken in accordance with Robinson v. State, Del. Supr., 291 A.2d 279 (1972).
FACTS
On August 19, 1999, defendant entered a Robinson plea to the charge of unlawful sexual intercourse in the third degree, a lesser-included offense of the charge of unlawful sexual intercourse in the first degree.
I detail below what occurred during the taking of the plea.
Defendant was placed under oath. He affirmed that he had read and signed the Truth in Sentencing Guilty Plea Form ("Guilty Plea Form") as well as the Plea Agreement Form and that the information contained therein was true and accurate.
He confirmed orally that he understood what was occurring. He represented in the Guilty Plea Form and under oath that he was not under the influence of alcohol, drugs or medication which would impair his ability to understand the proceedings.
He affirmed in the Guilty Plea Form that he was satisfied with his lawyer's representation of him and that his lawyer had fully advised him of his rights and of his plea. During the plea colloquy, the following exchange took place:
THE COURT: Have you had sufficient time to go over your case with the Public Defender . . .?
THE DEFENDANT: Yes, sir.
THE COURT: Sir, are you satisfied with the legal representation that you have received?
THE DEFENDANT: Yes, sir.
THE COURT: No complaints?
THE DEFENDANT: No, sir.
The Court explained to defendant what a Robinson plea was and what the effect of one was, and defendant confirmed he understood. The sentence which defendant was facing, which included a two year period of minimum mandatory incarceration, was explained to him, and defendant stated that he understood. Significant to the pending motion is the condition of the plea agreement that defendant have no contact with Crystalynn Paczkowski, the victim in this matter. This condition was contained in the Plea Agreement Form which defendant signed and which he acknowledged he read. Defendant's understanding of this condition was further verified orally with defendant during the taking of the plea as is evidenced by the colloquy appearing on pages 5-6 of the Transcript of the August 19, 1999 proceedings (hereinafter referred to as "8/19/99 Tr. at ___"):
THE COURT: Do you understand that you are to have no contact with Crystalynn —
THE DEFENDANT: Yes.
THE COURT: — Paczkowski? Who is she to you?
THE DEFENDANT: She my niece.
THE COURT: You understand that no contact means exactly that?
THE DEFENDANT: Yes, Your Honor, I do.
THE COURT: That means that you can't call her on the telephone; you can't send her flowers; you can't send her cards. If you are in McDonald's and she comes in, you have to leave. That is by way of example. You cannot go through other people to contact her. You cannot have a friend call her or do any of those things, as well. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: No driving by her house and no walking on or getting near her property. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
Later, the following exchange occurred:
THE COURT: By entering the Robinson plea and being sentenced as if it were a guilty plea — I am going to ask the prosecutor to establish a factual basis for the plea when we are done — you understand that you are incriminating yourself. You are a citizen and nobody can force you to do this. Is that what you want to do?
THE DEFENDANT: Yes. I want to spare Crystalynn any more than what she has already been through. [Emphasis added.]
THE COURT: You are making a choice. Is it a voluntary choice?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You are doing this of your own free will?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Nobody is forcing you or threatening you or coercing you?
THE DEFENDANT: No, Your Honor.
8/19/99 Tr. at 7-8.
Later in the proceedings, after defendant confirmed that he understood all of the rights he was giving up, the following exchange took place:
THE COURT: You understand that when you walk out of here, you are going to be stuck with this sentence?
THE DEFENDANT: Yes, for the rest of my life.
THE COURT: You are stuck with it.
THE DEFENDANT: Yes, sir. It is very hard for me to swallow, but I got to do it for Crystalynn because I love her that much. [Emphasis added.]
8/19/99 Tr. at 11.
The defendant, before sentencing, expressed his wishes that the victim receive "counseling for what has taken place here." 8/19/99 Tr. at 13.
In the pending Rule 61 motion, defendant makes the following allegations. First, his counsel was ineffective for failing to subpoena for trial five people whom defendant had told trial counsel to subpoena and for failing to interview the victim's teachers. In addition, he maintains these omissions coerced him into entering the plea. Defendant also asserts that the Court erred in denying defendant his request that he be allowed to question witnesses along with trial counsel. Finally, defendant maintains that he did not know that a condition of the sentence precluded him from having contact with the victim.
DISCUSSION
Defendant seeks to withdraw his Robinson plea pursuant to Rule 61, in accordance with Superior Court Criminal Rule 32(d). Defendant's assertions are procedurally barred except to the extent that they allege coercion, ineffective assistance of counsel, and lack of knowledge of the terms of the plea agreement. See In re: Motion for Postconviction Relief for Eloise Slater, Del. Super., Cr. A. Nos. 90-08-0677, 0678, 0679, 0680 R-1, Graves, J. (March 11, 1993).
A Robinson "plea is for all purposes a guilty plea." Johnson v. State. Del. Supr., 560 A.2d 490 (1989).
By entering into the plea, defendant waived any right to assert the Court erred by denying him the right to ask questions of witnesses.Davis v. State, Del. Supr., No. 157, 1992 Walsh, J. (December 7, 1992); Simon v. State, Del. Supr., 612 A.2d 159 (1992). This ground fails procedurally.
I now turn to the grounds which are not procedurally barred.
I first address defendant's contention that he did not know that he was to have no contact with the victim. I consider this to be an allegation that he entered the plea without knowing the terms thereof. A review of the transcript of the plea colloquy as well as the plea agreement makes clear that defendant was well-aware of the no contact condition. Defendant, in his motion, clearly misrepresents the facts. This ground fails.
Defendant's final arguments are that trial counsel's failure to subpoena five people and to interview the victim's teachers constituted ineffective assistance of counsel and also resulted in coercing defendant into taking the Robinson plea.
In connection with the ineffective assistance of counsel claim, I turn to State v. Gattis, Del. Super., Cr.A. Nos. IN90-05-1017 to to 1019, Barron, J. (December 28, 1995) at 7-9, aff'd.
Del. Supr., 637 A.2d 1174 (1997), for the standard to apply to such a claim:
This type of claim is normally not subject to the procedural default rule, in part because the Delaware Supreme Court will not hear such a claim for the first time on direct appeal, and therefore as a practical matter the first opportunity to raise this issue is in a collateral attack such as the Rule 61 motion for postconviction relief. [Citations omitted.] For this reason, many defendants allege ineffective assistance of trial counsel in order to overcome the procedural default.
However, this path creates confusion for the defendant if he does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. For example, the United States Supreme Court has stated that
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth amendment itself requires that responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance.' Ineffective assistance of counsel, then, is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 487 (1986) (emphasis added). A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby' meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two-part analysis enunciated in Strickland v. Washington. 466 U.S. 668 (1984) and adopted by the Delaware Supreme Court in Albury v. State, Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant to show first that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Strickland at 687. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional errors the outcome of the proceedings would have been different, that is, actual prejudice. Id. at 694. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal. [Citations omitted.]
Generally, the claim for ineffective assistance fails unless both prongs of the test have been established. Strickland at 687. However, the showing of prejudice is so central to this claim that the Strickland Court stated that"[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697. In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone.
Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation." Strickland at 689.
In this case, I will assume, without deciding, that trial counsel was ineffective. However, defendant has failed to show, to a reasonable degree of probability, that but for counsel's unprofessional errors, he would not have entered the Robinson plea.
Instead, the record is clear that defendant's reason for entering the plea was his concern for the victim. Furthermore, the record of the plea colloquy makes clear that defendant voluntarily entered into the plea, was well aware he would not be going to trial, understood the sentence he was facing, and was satisfied with trial counsel's representation in the matter. Absent clear and convincing evidence to the contrary, he is bound by these statements. Hickman v. State, Del. Supr., No. 298, 1994, Veasey, C.J. (October 11, 1994) at 3; Wright v. State, Del. Supr., No. 284, 1992, Moore, J. (September 24, 1992) at 2; Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (February 20, 1992) at 3; Fullman v. State, Del. Supr., No. 268, 1988, Christie, C.J. (February 22, 1989) at 4-5.
Based upon the record which clearly establishes that defendant entered the plea in order to spare the victim the pain of a trial, that he knowingly and voluntarily entered the plea, that he was not coerced into entering the plea and that he was satisfied with his counsel, I find that there is no reasonable probability that trial counsel's failure to subpoena and interview various witnesses was the reason for defendant's entering the plea and that defendant was not coerced into entering into the plea. Consequently, defendant is not entitled to withdraw his Robinson plea.
For the foregoing reasons, defendant's Rule 61 motion is denied.
II. Request for Court Orders
Defendant, by his letter dated March 19, 2000, has requested the Court issue orders to the Delaware State Police, Sussex Correctional Institution, the Public Defender's Office, and a school nurse instructing them to produce numerous documents which he allegedly can use to prove his innocence. Defendant knowingly and voluntarily entered into a valid Robinson plea. The decision on the Rule 61 motion prohibits defendant from withdrawing the plea. Defendant has been sentenced on this matter, and he will serve his sentence. Defendant is not going to go to trial; consequently, he is not entitled to information which will allegedly prove his innocence. In light of the foregoing, the requests for the various orders are denied.
CONCLUSION
For the foregoing reasons, defendant's request for a hearing on, as well as the Rule 61 motion itself, are denied and his requests in his letter dated March 19, 2000 that the Court issue various orders also are denied.
IT IS SO ORDERED.
Very truly yours, _________________________ Richard F. Stokes, Judge
cc: Prothonotary's Office Karl Haller, Esquire Melanie Withers, Esquire