Opinion
ID No. 0401001600.
Submitted: June 17, 2004.
Decided: July 26, 2004.
MEMORANDUM ORDER
On this 26th day of July 2004, upon consideration of Defendant's Motion to Suppress, it appears to the court that:
1. William Hudson ("Hudson") has filed a Motion to Suppress pursuant to Superior Court Criminal Rule 41(f). For the reasons set forth below, Hudson's Motion is DENIED.
2. Hudson is charged with Robbery Second Degree, allegedly from an incident at the Red Roof Inn on January 4, 2004. The initial case review was held February 17, 2004. Final case review was held March 8, 2004 and trial was set for June 15, 2004. On April 16, 2004, trial was set for April 27, 2004.
3. On April 27, 2004, Hudson's counsel sent e-mail to the court requesting a hearing on issues relating to a possible motion to suppress based upon information she had just received from the prosecutor. On April 28, 2004, an evidentiary hearing was held, based on the fact the 911 tapes weren't turned over to Hudson. On May 4, 2004, Hudson formally filed a Motion to Suppress.
Hudson's counsel indicated she had just received the "911 tapes" that were the subject of a motion to compel. The "911 tapes" included copies of the recordings of the initial 911 call and police dispatch calls from the night in question.
4. Superior Court Rules of Criminal Procedure and the Court's Case Management Plan require motions to be filed within ten days of the initial case review. The court may hear motions filed after this time if there are "exceptional circumstances."
Pennewell v. State, 822 A.2d 397 (table), 2003 WL 2008197 at **1 (Del.).
Barnett v. State, 691 A.2d 614, 616 (Del. 1997).
5. The court reserved decision on whether there were exceptional circumstances in the present case to support the untimely filing of the Motion to Suppress and allowed the hearing to proceed on the merits of the motion. At the hearing, there was testimony from the various officers who responded to the initial 911 call on the night in question. Trooper Sutton was the first to respond to the scene. He took an updated description from the victim. Corporal Fox arrived at the scene shortly thereafter. Corporal Fox testified she stopped the taxi in which Hudson was riding a short time later, near the location of the robbery, based on the description of the suspect she received from Trooper Sutton.
6. At a meeting in chambers after the hearing, the court indicated the issue of the timeliness of the filing remained active. The court advised defense counsel to address what constituted the exceptional circumstances necessary to warrant consideration of the untimely Motion to Suppress.
Id.
7. Defense counsel filed a response June 1, 2004. The State filed a reply June 17, 2004. The court finds defense counsel's response goes to the merits of Hudson's claim and did not provide any facts to support a finding of exceptional circumstances. Counsel merely reiterated her allegations concerning the discrepancies between the description of the suspect on the 911 tapes and the defendant.
8. The court has reviewed the transcript of the hearing and finds the 911 tape was not introduced into evidence until the very end, almost as an afterthought. The court finds Corporal Fox had reasonable, articulable suspicion to stop Hudson based on the description from Trooper Sutton, not the 911 tapes. The court finds the 911 tape is, therefore, not relevant to the issue of reasonable, articulable suspicion. The court concludes, therefore, that because the 911 tape is not relevant, the underlying reasoning that its late production amounted to exceptional circumstances for the untimely filing of the motion to suppress is no longer valid. The court finds Hudson's counsel has failed to provide any evidence of any other exceptional circumstances to support the untimely filing.
9. The court finds Hudson's Motion to Suppress, therefore, to be procedurally barred. The court will, therefore, not address the merits of the claim.
10. Hudson's Motion to Suppress is DENIED.