Opinion
ID No. 0404006632.
Submitted: February 17, 2005.
Decided: June 30, 2005.
Upon Defendant's Motion to Suppress — DENIED; Verdict After Bench Trial — GUILTY.
Cari Ann Van Dyke, Esquire, Deputy Attorney General.
James Brendan O'Neill, Esquire, Assistant Public Defender.
Dear Counsel:
Defendant was indicted for carrying a concealed deadly weapon and possession of a deadly weapon by a person prohibited. The case centers on a "butterfly knife," with a blade approximately five inches long, seized from Defendant on April 8, 2004. The weapon was concealed on Defendant's person and there is no room for reasonable doubt that Defendant knew he possessed the knife and that he is a prohibited person.
Defendant filed a motion to suppress, which the court took under advisement, after an evidentiary hearing on September 1, 2004. Just before trial in December 2004, the court denied the motion without elaboration. In turn, Defendant agreed to a bench trial. Obviously, the case turns on the suppression motion's outcome. With the knife in evidence, Defendant's guilt is clear. Therefore, this decision focuses on the rationale for denying Defendant's motion to suppress.
I.
Detective Feeney, a member of the Newark Police Department's Special Investigations Unit, investigates drug-related crimes. Detective Feeney has extensive training for his work. On April 8, 2004, Feeney was conducting surveillance, in plainclothes and in an unmarked car, in the parking lot of the Howard Johnson's Motel on Route 896.
The area being watched was somewhat enclosed or secluded from the rest of the motel's guests and parking lot traffic. Thus, the area was public, but out of the way. The police were there because the area was well known to the police as a place where drug activity was a problem. Apparently, the motel's location on the outskirts of Newark, near I-95, made the place attractive to drug dealers and their customers, as well as legitimate business people and tourists.
Around 8:20 p.m., Feeney and his partner, Det. Van Campen, noticed a man walk out of the motel. Feeney testified that the man appeared to be waiting for someone. As it happened, a car occupied by three men arrived and approached the waiting man. One passenger, wearing a puffy coat and who turned out to be Mr. Lum, left the vehicle. Feeney saw Lum and the waiting man converse briefly. Then, Feeney saw money quickly change hands. Lum immediately returned to the car, which drove away. The man who originally seemed to be waiting went back inside the motel. Based on his eyewitness observations coupled with his training and experience, Feeney strongly suspected that he had witnessed a hand-to-hand drug transaction.
Continuing his investigation, Feeney contacted Van Campen and called for a marked police car as back up. Feeney, in his unmarked car, then followed the car in which Lum was riding. As the car was about to turn onto the ramp for I-95, Feeney decided he could not wait for back-up. He pulled Lum's car over and approached it. Feeney explained to the driver that Feeney was a police officer investigating drug activity. He asked Lum to step out of the car. Lum complied and Feeney frisked him. It is disputed whether Lum consented to the frisk. Feeney testified that Lum consented. Although Lum mostly agreed with Feeney's testimony, Lum testified that he did not consent.
Lum also offered a plausible, harmless explanation for what the police saw. Basically, it involved Lum's giving money to a friend from high school for a party he expected later at the motel. For present purposes, it does not matter whether Lum's story is true. As discussed below, the suppression motion's outcome turns on whether Feeney's observations justified his suspicions.
In any event, Feeney discovered the knife as he frisked Lum. This led to Lum's arrest for carrying a concealed deadly weapon. Later, the authorities discovered Lum's criminal record, which generated the indictment's second count. Meanwhile, no drugs were found in the car, on Lum, or on any of the car's other occupants. Lum, however, was carrying $2,200. Lum also explained harmlessly why he was carrying so much cash. Again, the explanation and, for that matter, the cash are beside the point. It is the officer's pre-stop observation's and suspicions that are under scrutiny.
II.
To keep its analysis clear, the court begins by mentioning what this case does not concern. First, this case does not concern the legal standards surrounding a car stop. When the police stopped Lum, he was in a car. But that was incidental to the reason why the police infringed on his rights. The police were unconcerned about the car's mechanical condition and the way it was being driven. They stopped the car because they suspected its occupants were involved in a crime. Besides, technically, Lum, who merely was a passenger in the car, does not have standing to challenge the car's stop.
See Whren v. United States, 517 U.S. 806, 810 (1996); Caldwell v. State, 780 A.2 d 1037, 1046 (Del. 2001); Delaware v. Prouse, 440 U.S. 648, 653 (1979).
Rakas v. Illinois, 439 U.S. 128 (1978), cited in Jarvis v. State, 600 A.2d 38, 41 n. 1 (Del. 1991).
This case also does not involve a tip, anonymous or otherwise. Nor does this case involve any sort of "profiling." The police acted on their own suspicions, based on their direct observations. They stopped the car in order to investigate specific, criminal activity they thought they had just seen — a drug deal in a motel parking lot involving one of the car's occupants.
See Downs v. State, 570 A.2d 1142, 1145 (Del. 1990), cf. Jones v. State, 745 A.2d 851, 861 (Del. 1999).
See Quarles v. State, 696 A.2d 133 4, 1338 (Del. 19 97), cf. Harris v. State, 806 A.2d 119, 126 (Del. 2002).
Finally, the case does not turn on whether Lum consented to the frisk. As discussed next, the question is whether the police were justified in stopping Lum — seizing his person — in the first place. If the police acted unreasonably when they first confronted Lum, the "fruits" of that unreasonable conduct must be suppressed. On the other hand, if the police acted reasonably when they ordered Lum out of the car, the ensuing frisk is easily justified for the officers' safety. Either way, it does not matter whether Lum consented to being frisked.
Wong Sun v. United States, 371 U.S. 471, 484 (1963); State v. Cooley, 457 A.2d 352, 356 (Del. 1983).
III.
The police infringed on Lum's rights by keeping him from going on his way, ordering him to step out of the car in which he was riding and subjecting him to a pat down search for concealed weapons. In other words, this is a "stop-and-frisk" case. The fountainhead for "stop-and-frisk" law is Terry v. Ohio. According to Terry, and the legions of cases following it since 1969, "police have the authority to forcibly stop and detain a person if the police have `a reasonable suspicion' of criminal activity on the part of that person." "`Reasonable suspicion' has been defined as the officer's ability to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion."
392 U.S. 1 (1968).
Coleman v. State, 562 A .2d 1171, 1174 (Del. 19 89), citing Terry, 392 U.S. at 22.
Id., quoting Terry, 392 U.S. at 21.
Over the years, Delaware's Supreme Court has refined the standard for deciding what does and does not amount to reasonable articulable suspicion justifying a " Terry stop." Now, Delaware courts must:
consider the totality of the circumstances as viewed through the eyes of a reasonable, trained police officer . . . combining objective facts with such an officer's subjective interpretation of those facts.
Backus v. State, 845 A.2d 515, 517 (Del. 2004), quoting Jones v. State, 745 A.2d 851, 861 (Del. 1999).
To decide this case, the court hardly needs to look beyond Terry, itself. Terry concerned a prosecution for carrying a concealed weapon, which the police discovered during a brief detention and pat down. At the hearing on the motion to suppress in Terry, Cleveland Police Detective Martin McFadden testified that while patrolling in plain clothes in downtown Cleveland at 2:30 p.m., he noticed two men, Chilton and Terry, standing on a street corner. Officer McFadden had never seen the two men before, and he was unable to say precisely what first drew his eye to them. He testified, however, that he had been a police officer and a detective for many years, and he had been patrolling the area for decades. He explained that he had developed routine surveillance habits and that he would "stand and watch people or walk and watch people at many intervals of the day."
Id. at 5-7.
Officer McFadden further testified that after seeing Chilton and Terry casually and repeatedly walk past a store window, he began to suspect they were "casing a job, a stick-up," and that he considered it his duty to investigate. He added that he feared "they may have a gun." Thus, Officer McFadden followed Chilton and Terry. The more Officer McFadden saw, the more thoroughly suspicious he became. Eventually, Officer McFadden approached the men, identified himself as a police officer, and asked for their names. When the men "mumbled something" in response to his questioning, Officer McFadden grabbed Terry and patted down his clothing. This pat down resulted in a concealed handgun's discovery.
Id. at 6-7.
Terry's holding turns less on the stop and more on the frisk. According to Terry:
[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. . . . [Officer McFadden] had observed Terry . . . go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.
Id. at 22-23.
The larger Constitutional concern for Terry was the frisk. In Terry's words,
The crux of this case, . . . is not the propriety of Officer McFadden's taking steps to investigate[Terry's] suspicious behavior, but rather, whether there was justification for McFadden's invasion of Terry's personal security by searching him for weapons in the course of that investigation.
Id. at 23.
Ultimately, Terry concluded that "Officer McFadden had reasonable grounds to believe that [Terry] was armed and dangerous." Thus, Terry held that McFadden was allowed to frisk Terry for weapons.
Id. at 30.
In many important ways, Terry's facts are similar to this case's. Similar to Officer McFadden's suspicions about Terry, Feeney's suspicions were raised by behavior that could have been innocent. But, just as Officer McFadden's experience made him suspicious about what he saw, Feeney's extensive training and experience made him suspicious about the casual and possibly innocent behavior in the motel parking lot. Based on his experience and what he personally observed, Feeney decided to investigate. As Feeney watched the events in the parking lot unfold, Feeney became suspicious that Lum was involved in specific, criminal activity. That led to Feeney's stopping the car and frisking Lum for Feeney's safety.
The two, potentially meaningful differences between Terry and this case are: Feeney saw what he suspected was an actual crime in progress, while Officer McFadden only suspected Terry of "casing a job, a stick-up." And, Feeney had to stop a car in order to speak with Lum, while McFadden merely detained Terry where he stood. So, compared to what happened in Terry, the stop here was slightly more intrusive, but there was a stronger basis it. On balance, there is no substantial reason to distinguish Terry here.
Terry's applicability is clearly established through Jarvis v. State. In Jarvis, the police staked-out Philadelphia, Pennsylvania's notorious Aramingo Avenue, a place that had generated eighty-five arrests for surveillance officers from nearby Delaware. The surveillance team saw Jarvis arrive in a car showing a Delaware license plate, which parked in a "deserted area." Jarvis and her three companions were met by someone on the street, who escorted them into a house "in which they stayed for no more than ten minutes." Then, Jarvis and her companions got back into their car and drove to Delaware. The police stopped them just after they crossed the border. The police ordered everyone out of the car and patted down the occupants for weapons. Jarvis was arrested when the pat downs found drugs on one of Jarvis's companions.
Jarvis, 600 A .2d at 41 . See also Downs, 570 A.2d at 1143 (police, acting on anonymous tips, allowed to order defendant to step out of parked car under Terry, where tips supported reasonable suspicion.)
Id. at 41-42.
Like this case, Jarvis involved acts that were "subject to a variety of innocent explanations." And like this case, Jarvis carefully examined Terry. Jarvis concluded that the police officers' suspicions were "based on their observations, their experience and inferences drawn from both. This clearly was more than a hunch. This was a reasonable suspicion based on articulable facts and rational inferences." Thus, the stop-and-frisk in Jarvis was an acceptable Terry stop.
Id. at 41-42.
Id. at 42.
In some ways, the police had less to go on here than in Jarvis. The motel parking lot was not nearly as bad as Aramingo Avenue. The Newark police did not rack up a string of eighty-five drug arrests at the motel. Nevertheless, the Newark police were concerned about known drug activity in the motel's parking lot and they actually saw Lum do a quick, hand-to-hand transaction in a somewhat secluded place there, after dark. The most suspicious thing noticed by the police in Jarvis, besides the area it was in, was the way the car was parked.
IV.
In summary, it appears that the Newark Police were acting on more than a hunch when they stopped Lum. They had watched him enter a semi-secluded area known for drug activity, after dark. They saw him conduct a brief rendevous, during which a hand-to-hand transfer took place. Although what the police saw might have been innocent, to an experienced drug investigator who actually witnessed the events those things could have appeared to be a drug deal. Therefore, the police had a reasonable articulable suspicion that justified their stopping Lum to investigate. Moreover, taking their suspicions about Lum as a possible drug dealer and the circumstances surrounding the nighttime, roadside stop into account, the police were justified in frisking Lum for weapons.
V.
For the foregoing reasons, Defendant's Motion to Suppress is DENIED. And, the court finds Defendant GUILTY , as charged.