Opinion
ID No. 0607008819.
Submitted: April 27, 2007.
Decided: April 30, 2007.
Upon Defendant's Motion to Suppress. GRANTED.
Brian J. Robertson, Esq. Department of Justice State Office Building, Wilmington, DE.
Robert M. Goff, Jr., Esq. Office of the Public Defender State Office Building, Wilmington, DE.
Dear Counsel:
As the Court noted at the suppression hearing, the key issue is whether the police had reasonable articulable suspicion to detain the defendant pursuant to 11 Del. C. § 1902. The relevant facts giving rise to the suppression motion are as follows. The Wilmington Police received information from a confidential source that: (1) individuals sitting on the steps of 858 Bennett Street were selling crack cocaine, (2) these individuals hide their crack cocaine supply in their buttocks, and 3) the first floor of 858 Bennett Street was vacant. Approximately five days after receiving this tip, Wilmington Police went to 858 Bennett Street. They observed two individuals sitting on the front steps. One of the individuals was the defendant. They asked the individuals for their names.
The police admitted this source was not a past proven reliable informant.
The defendant and his companion provided their names. The police patted them down. M/Cpl. Jordan felt an object stashed in the defendant's buttocks but said nothing to the defendant. The police checked the individuals' names in their computer and determined that the defendant was wanted on an active warrant. The police arrested the defendant and then seized the object M/Cpl. Jordan had felt during the pat down. It was a bag containing crack cocaine. The defendant was charged with one count of Possession with Intent to Deliver and one count of Possession of a Controlled Substance Within 1,000 Feet of a School. The defendant claims the police had no reasonable articulable suspicion to detain and question him pursuant to 11 Del. C. § 1902, and therefore, his statements and the contraband must be suppressed. According to defendant, because the police unlawfully obtained his name, the ensuing search incident to arrest on the outstanding warrant was tainted.
The police conceded during the suppression hearing that if the defendant had refused to provide his name when they asked, they could not have detained him. This admission is fatal to the State's case. Based on the officers' own testimony, it is clear that the police did not have reasonable suspicion that the defendant had committed, was committing, or was about to commit, a crime. In addition to their own admission, the record shows the police lacked the requisite reasonable articulable suspicion. First, there is no evidence that the defendant or his companion were acting suspiciously. To the contrary, the police said more than once that both individuals were very cooperative and the police admitted that they did not conduct the pat down for officer safety. Third, the tip was five days old. Fourth, the source of the tip was not a past proven reliable informant. Fifth, there was no evidence that 858 Bennett is located in a high drug crime area. And sixth, the police did not observe the defendant or his companion engage in any illegal activity. But for the police unlawfully detaining and questioning defendant, they would not have discovered his name. Had the police not known his name, they would not have discovered the outstanding warrant and the subsequent search incident to arrest would not have occurred. Based on all the evidence, the Court finds that the police lacked the requisite reasonable articulable suspicion required to lawfully detain and question defendant pursuant to 11 Del. C. § 1902. The evidence seized must be suppressed pursuant to the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 6, of the Delaware Constitution.
See State v. Dollard, 788 A.2d 1283, 1290 (Del.Super. 2001) (holding that pat-down search based solely on police officer's belief that the defendant was a drug dealer and officer's belief that drug dealers often carry guns constituted an unreasonable search and seizure).
See Jones v. State, 745 A.2d 856 (Del. 1999).
IT IS SO ORDERED.