Opinion
I.D. No. 0711021047.
Submitted: May 30, 2008.
Decided: June 11, 2008.
ON DEFENDANT'S MOTION TO SUPPRESS DENIED
John Barber, Esquire, Office of the Attorney General, Wilmington, Delaware, Attorney for the State.
Robert M. Goff, Jr., Esquire, Office of the Public Defender, Wilmington, Delaware, Attorney for Defendant.
Introduction
Before the Court is the Motion to Suppress filed by Defendant Andrew Feliciano ("Feliciano"). After conducting a hearing, the Court concludes that the anonymous tip upon which Officer William Cullen ("Cullen") relied to form reasonable suspicion was sufficiently reliable to support a traffic stop. Therefore, suppression of the evidence obtained by Cullen after obtaining valid consent is not warranted. For the reasons set forth more fully hereafter, Defendant's Motion to Suppress is denied.
Statement of Facts
On November 18, 2007 at 11:45 p.m., the Delaware River and Bay Authority ("DRBA") Police received a call from the New Jersey State Police relaying an anonymous tip about a driver who had waved a handgun at another driver near Exit Two of the New Jersey Turnpike, about fourteen miles from the Delaware Memorial Bridge. The caller reported that the driver brandishing the firearm was driving a gray Ford pickup truck with Maryland license tag number 90T3323 south on the New Jersey Turnpike. The tip did not indicate when the driver waving the gun was seen in relation to the receipt of the tip.
Officer Cullen testified that, upon further investigation, the New Jersey State Police denied any knowledge of receiving the anonymous tip. He also testified that the tip was received via a regular telephone rather than through a radio dispatch communication with New Jersey authorities. As a result, he could not say with any certainty that the call was actually received from the New Jersey State Police.
At 12:07 a.m., Officer William Cullen of the DRBA police observed a gray Ford pickup truck with Maryland license tag number 90T3323 driving south on I-295 near the Delaware Memorial Bridge. After confirming the information with DRBA, Cullen followed the truck over the bridge and stopped it just after the toll plaza on the Delaware side. The driver of the vehicle pulled over without incident.
Officer Cullen testified that he was able to match six of the seven digits on the tag.
After other officers arrived, Cullen approached the vehicle. At some point, Cullen ordered the driver, Andrew Feliciano, from the vehicle and patted him down for weapons. No weapons were found on Feliciano's person. Upon further inspection of the vehicle, Cullen did not see anything resembling a weapon.
Feliciano and Cullen dispute what occurred once Feliciano stopped his vehicle. According to Cullen, Cullen approached the truck and ordered Feliciano to place his hands out the window. Feliciano then briefly reached back inside the truck and returned his hands to the window. At that point, Cullen ordered Feliciano from the truck. In contrast, Feliciano claims that Cullen approached the truck with his gun drawn at him, flung open the driver side truck door, and ordered Feliciano from the vehicle. The Court notes that whether the Court chooses to accept Cullen's version or Feliciano's version is irrelevant to the issue of whether Cullen could legally stop Feliciano's vehicle in the first instance.
The officer then informed Feliciano that he stopped him because of a report that the driver of a gray Ford pickup truck with matching tags had waved a handgun at another driver. Cullen then asked Feliciano if there were any weapons inside the truck. Feliciano responded that there were none.
Cullen then asked for permission to search the truck. Feliciano consented to the search. Cullen searched the passenger side of the vehicle, checked the seat area, and then inspected the center console. Underneath the console, Cullen observed what appeared to be the handle of a weapon. Upon removing the object, he observed a clear plastic glove with several clear plastic bags containing an off-white chunky substance, blue glassine envelopes, and a rolled white washcloth with a weapon handle protruding. Cullen unrolled the washcloth and found a small silver .22 caliber revolver with one round in the firing chamber. The small plastic bags contained a small chunky substance resembling crack cocaine, and the blue envelopes contained a light brown powder resembling heroin. Field tests later confirmed that the substances were crack cocaine and heroin, respectively. In total, police recovered twenty bags of suspected heroin totaling 5.5 grams and forty-one bags of suspected crack cocaine totaling 6.5 grams.
The Court notes that Feliciano testified at the suppression hearing that he never gave consent. On cross-examination, he suggested instead that he did not recall giving consent to search his truck. After hearing the testimony from Cullen and Feliciano, the Court ruled from the bench that Feliciano did give consent to the officers to search his vehicle. As a result, the sole issue for the Court to address is whether the officer had a reasonable articulable suspicion to stop Feliciano in the first instance.
Feliciano was subsequently arrested and charged with three counts of Possession with Intent to Deliver Heroin and Cocaine, one count of Maintaining a Vehicle for Keeping Controlled Substances, one count of Trafficking Heroin, one count of Carrying a Concealed Deadly Weapon, and one count of Possession of a Firearm During the Commission of a Felony.
Parties' Contentions
Feliciano relies on Jones v. State in support of his argument that the anonymous tip, without more, was insufficient to give Officer Cullen reasonable articulable suspicion to stop him because there is no evidence that the tip was reliable. In response, the State submits that the anonymous tip was sufficiently reliable to permit Officer Cullen to stop Feliciano as the Delaware Supreme Court ruled in Bloomingdale v. State. Feliciano attempts to distinguish Bloomingdale by suggesting that the stop of his vehicle was an investigatory stop for weapons that involved a greater intrusion into Feliciano's privacy than a stop for erratic driving, which was the subject of the stop in Bloomingdale. Feliciano also suggests that the inability of Cullen to confirm that the tip was received from the New Jersey State Police, and the twenty-two minute lapse of time between the call and the stop, renders the tip unreliable.
745 A.2d 856 (Del. 1999).
842 A.2d 1212 (Del. 2004).
Discussion
Both the Fourth Amendment of the United States Constitution and Article I, Section 6 of the Delaware Constitution secure an individual's right to be free from unreasonable search and seizure. The United States Supreme Court has held that a law enforcement officer can briefly seize an individual for investigatory purposes if he has a reasonable and articulable suspicion that criminal activity may be afoot. The officer's suspicion must be supported by adequate information of sufficient quality establishing that a crime has occurred, is occurring, or is about to occur. Whether an anonymous tip is sufficient to establish reasonable suspicion depends on the quality and quantity of information when viewed under the totality of the circumstances. The key factor in assessing the quality of the information is its reliability.
See Del. Const. art. I, § 6; U.S. CONST. amend. IV.
Terry v. Ohio, 392 U.S. 1, 30 (1968).
Bloomingdale v. State, 842 A.2d 1212, 1217 (Del. 2004).
Id. (citing United States v. Wheat, 278 F.3d 722, 726 (8th Cir. 2001)).
Id.
Other courts have addressed whether an anonymous tip is sufficiently reliable to establish reasonable suspicion to support an investigatory stop. In Florida v. J.L., the United States Supreme Court held that an anonymous tip that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun" was not sufficiently reliable to establish probable cause. The Court held that an anonymous tip must also describe some type of observable illegality rather than merely describing readily observable factors of an individual. The Court also rejected the argument that the danger posed by firearms should permit a reduced standard for a tip's reliability.
529 U.S. 266 (2000).
J.L., 529 U.S. at 268.
Id. at 272.
Id. at 272-73.
Our Supreme Court adopted the rationale of Florida v. J.L in Jones v. State. There, the Delaware Supreme Court held that an anonymous telephone complaint in which the tipster reported that a suspicious looking individual was standing in front of a house in a high drug area for some time did not establish reasonable suspicion to stop him. The Court noted that the complainant's subjective belief that the individual was suspicious, without more, could not establish a reasonable and articulable suspicion to support a stop. The Court further noted that the officer did not observe anything supporting those facts, and there was no incriminating information alleged by the tipster. As a result, the stop was invalid, and the evidence recovered from the individual was suppressed.
745 A.2d 856 (Del. 1999).
Jones, 745 A.2d at 870.
Id. at 869-70.
In contrast, the Delaware Supreme Court held in Bloomingdale v. State that an anonymous tip containing specific details of a vehicle, its location, and the driver's illegal actions was sufficiently reliable to establish reasonable suspicion. In that case, an officer stopped Bloomingdale's vehicle after receiving a general broadcast that a vehicle was driving "all over the roadway." The broadcast also identified the vehicle, its license tag, its color, and its location. Within a few seconds of the broadcast, the officer observed the car and confirmed the make, model, color, and tags of the vehicle described. He did not, however, observe any erratic driving. The Officer then stopped Bloomingdale, smelled alcohol on his breath, and arrested him for driving under the influence.
842 A.2d 1212 (Del. 2004).
Bloomingdale, 842 A.2d at 1213.
Although the officer did not observe the erratic driving, the Supreme Court held that the tip in Bloomingdale was sufficiently reliable to allow the officer to stop the driver. The Court noted the distinction between an anonymous allegation that an individual possessed an illegal concealed item and that of erratic driving:
Id. at 1219.
We find that an anonymous report of contemporaneously-observed erratic driving does not suffer from the same lack of indicia of reliability. . . . A tip reporting erratic driving is more reliable than one reporting a concealed, possessory offense because the offense is carried out in public and may be observed by any passerby. Unlike a concealed crime, a tipster reporting erratic driving requires no inside information or special basis of knowledge for her conclusion that criminal activity is occurring. . . . We agree that a tip about readily observable evidence of criminal activity, such as erratic driving, is inherently more reliable than a tip about concealed criminal activity. Because the basis of the tipster's knowledge is apparent where the criminal activity is readily observable to other motorists or pedestrians, its reliability is increased.
Id. at 1219-20 (citations and footnotes omitted).
The Court also concluded that the proximity in time between the reporting of erratic driving and the officer's subsequent stop supported the tip's reliability:
Tips reporting erratic driving also may be more reliable because they usually will be made close in time to when the tipster observes the potential criminal activity. "[I]n our common law contemporaneous accounts of situations have long been regarded as especially credible. . . ." This favorable treatment of such contemporaneous accounts does not require that the witness be identified. It is unlikely that the tipster reporting Bloomingdale's erratic driving would have had time to fabricate the unsafe driving element of the report given the short time available to contact the police and report the location of the moving vehicle. The contemporaneity of the report should permit the police officer to assess the truthfulness of the lone unverified element of the tip (that the car was being driven erratically). . . . An officer therefore should be permitted to give greater credence to an anonymous report of unsafe driving when it is supported by: (a) the precise description of the vehicle; and (b) the officer's corroboration of the descriptive features of the vehicle and the location of its travel in close temporal proximity to when the report was made.
Id. at 1220-21 (footnotes omitted).
Finally, the Court determined that the potential harm posed by an erratic driver outweighed the intrusion on the driver's liberty interest:
Finally, when deciding whether an anonymous tip of erratic driving provided reasonable suspicion to stop a vehicle, courts should balance the government's interest in responding immediately to reports of unsafe driving against the comparatively modest intrusion on individual liberty that a traffic stop entails. An erratic driver poses a potentially imminent threat of harm to the public. Unlike cases involving possessory offenses where courts have rejected dangerousness exceptions to the reliability requirement, police officers confronted with an erratic driver have limited options for investigating the tip, short of stopping the vehicle. If the officer must follow the vehicle to corroborate the allegation of erratic driving, the officer risks observing the vehicle actually cause an accident. Investigation of a different charge not involving a moving vehicle, however, could be accomplished by less invasive means, such as initiating a consensual encounter or quiet observation, and without creating such a high risk of imminent harm.
Id. at 1221(citations omitted).
As a result, the Delaware Supreme Court concluded that the anonymous tip was sufficient to establish reasonable suspicion to support a stop of the vehicle.
The Court concludes that the anonymous tip in this case was sufficiently reliable to establish a reasonable articulable suspicion of criminal activity supporting the traffic stop. The tipster in this case was able to observe a driver's criminal activity and reported details, such as the truck's color, tags, and direction of travel, that permitted Cullen to locate the driver's vehicle accurately. Thus, this case is strikingly akin to Bloomingdale, where the anonymous tipster observed illegality related to a car (erratic driving) and reported precise details of the vehicle. Jones, on the other hand, only addressed a tipster's report of a suspicious looking individual, without any observations of illegality. As noted by the Supreme Court in Bloomingdale, an officer is permitted to rely on an anonymous report of unsafe driving, even where the officer does not personally observe any illegality, if that tip is supported by: "(a) the precise description of the vehicle; and (b) the officer's corroboration of the descriptive features of the vehicle and the location of its travel in close temporal proximity to when the report was made." Just as in Bloomingdale, Officer Cullen confirmed the vehicle's precise description, its color, its license tag, and its location of travel in close temporal proximity to the original dispatch report. Thus, even though Cullen did not observe the driver of the truck waving a gun, his corroboration of every other aspect of the tip is sufficient to establish reasonable suspicion to support a stop.
Bloomingdale, 842 A.2d at 1220-21 (footnotes omitted).
Id. at 1220-21 (footnotes omitted).
Although Cullen did not observe the truck until nearly twenty-two minutes after he received the dispatch, the Court is not persuaded that the short lapse of time eliminates contemporaneity. In the Court's view, the twenty-two minute lapse of time between the vehicle's first reported location at Exit Two of the New Jersey Turnpike and Cullen's first sighting of Feliciano's truck near the Delaware Memorial Bridge is reasonable considering that the tip was first relayed to Cullen when the gray truck was nearly fourteen miles from Cullen. Moreover, it is undisputed that it had been raining that night. Because of the distance that Feliciano needed to travel in order to reach the Delaware Memorial Bridge from Exit Two of the New Jersey Turnpike and the weather conditions, the lapse of time actually supports the conclusion that the tipster was addressing Feliciano's vehicle.
Moreover, the tip in this case is reliable because the person reporting the tip does not require any inside information to recognize a driver's waving of a handgun. Unlike Jones, in which the anonymous tipster was reporting a concealed firearm that was not observable, the tipster in this case could readily observe a driver waving a handgun at another driver on the highway. As explained by the Supreme Court in Bloomingdale, a tip about readily observable criminal activity is inherently more reliable than one describing concealed criminal activity.
Bloomingdale, 842 A.2d at 1220 ("Because the basis of the tipster's knowledge is apparent where the criminal activity is readily observable to other motorists or pedestrians,. . . its reliability is increased.") (footnote omitted).
Further supporting the tip's reliability is the fact that it is unlikely that the tip was made maliciously or with false information. Because a tipster has a short period of time to report the accurate location of a moving vehicle, the tipster is likely on the road himself observing a dangerous situation. Reporting illegal activity observed in a moving vehicle "would at least require knowledge that the person is driving a specific vehicle, at a particular time, and in a discrete area." Confirmation of the tip by police also requires close proximity in location and time. In this case, the tipster had to be in the same location to observe the vehicle and its direction of travel. Similarly, to corroborate the description in the tip, Cullen had to be near the truck in time and location. Thus, the likelihood that the tip was false or malicious is significantly reduced.
Id.
Id.
Id.
Id.
Although Feliciano contends that the police intrusion is "immeasurably greater" in this case than in Bloomingdale, because the officers pulled him over at gunpoint, the risk posed by a driver waving a gun on a highway is immeasurably greater than the risk posed by an erratic driver. From a safety standpoint, an officer has few options for investigating the tip short of stopping the vehicle. Moreover, if Cullen had to follow the truck to see if a gun was actually being waved, he would have done nothing to eliminate the risk of harm to the public. Feliciano also posed a far greater risk than an erratic driver because a driver suspected of brandishing a firearm remains a threat to the officers and the public even after his vehicle is stopped. Because investigation of the waving of a gun in a moving vehicle could not be accomplished by less invasive means, such as initiating a consensual encounter or quiet observation, the intrusion on Feliciano's liberty was modest compared to the risk posed by a driver brandishing a firearm on the highway. As a result, the government's interest in preventing imminent harm from a driver who is waving a handgun substantially outweighs the modest intrusion on the driver's liberty interest.
Docket 16 (Def.'s Opening Br. in Support of Def.'s Mot. to Suppress), at 6.
Bloomingdale, 842 A.2d at 1221.
Id.
The Court further notes that Cullen appropriately ordered Feliciano from the vehicle to frisk him before questioning him because he reasonably believed that the driver might be armed, a threat that was not posed by a potentially intoxicated driver. See Terry v. Ohio, 392 U.S. 1, 26 (1968) (permitting an officer to make a reasonable search for weapons for his protection "where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime").
Bloomingdale, 842 A.2d at 1221.
Feliciano also seizes on the fact that Cullen was unable to confirm the origin of the tip. That fact alone is not dispositive, however. The tip in Bloomingdale was received via a general broadcast — the same type of broadcast that occurred in this case. Moreover, the Bloomingdale Court did not require that the anonymous tip be received from the police. All that is required is a report of observed illegal conduct and sufficient information to identify the particular vehicle:
To support reasonable suspicion for a Terry stop, anonymous tips normally should provide sufficient information, such as an accurate description of the vehicle, its license tag number, its location and direction of travel, or other details, to enable the officer to be certain she has identified the correct vehicle. In addition, if the time period between the receipt of the tip and the officer's location of the vehicle is brief, the information's reliability is enhanced. The tip also must provide sufficient information to support the inference that the informant has actually witnessed a traffic violation that warrants an immediate stop.
The broadcast described the make, model, color of the vehicle, the license tag number, and the driver's race and travel route. Notably, it did not identify the source of the information. Id. at 1213.
Id. at 1222.
In this case, Officer Cullen received a general broadcast that described illegality by a driver, the color of the driver's truck, its tags, and the direction in which the truck was driving. By describing a report of a driver waving a firearm, the tip provided sufficient information to support an inference that the anonymous tipster observed a crime warranting a traffic stop. After twenty-two minutes, Officer Cullen observed the gray truck, confirmed its details, and stopped it on the Delaware side of the Delaware Memorial Bridge. The tip was therefore sufficiently reliable to permit Officer Cullen to form a reasonable and articulable suspicion of criminal activity to support a traffic stop. Feliciano's subsequent consent to a search of his vehicle was thus not tainted.
See Florida v. Royer, 460 U.S. 491, 501 (1983) ("[I]f the events in this case amounted to no more than a permissible police encounter in a public place or a justifiable Terry-type detention, [Defendant's] consent, if voluntary, would have been effective to legalize the search of his two suitcases.")*