Opinion
C.A. No. 0005015342
Submitted: October 1, 2001.
Decided: November 27, 2001.
Upon Defendant's Motion to Suppress Evidence. GRANTED. I.D. No. 0005015342. Cr.A. No. 1K00-10-0349 thru 0351.
Kenneth M. Haltom, Esquire, Assistant Deputy Attorney General, attorneys for the State of Delaware.
Paul S. Swierzbinski, Esquire, Assistant Public Defender, attorneys for the Defendant.
ORDER Facts
1. From testimony and arguments presented at the suppression hearing, conducted by this Court on October 1, 2001, the facts appear as follows. The Defendant herein is charged with possession with intent to deliver a narcotic and with resisting arrest. The events giving rise to these charges occurred at approximately 3:30 p.m. on October 9, 2000.
According to the testimony of the arresting officer, the City of Dover Police Department received a report of fighting between two females in the area of Division Street and Governors Avenue, in Dover. The officer stated that New Street and Governors is commonly known as a drag area. The testifying officer was dispatched, and responded to the scene within approximately a minute or two.
The defendant did not testify or offer any witnesses.
Testimony showed that a bare-bones "complaint" was received. The officer did not know who called it in, and did not know if the complainant saw anything or not. With no further follow-up, the Court will consider this an anonymous tip.
When the officer arrived at the scene, he observed two females and two males walking in a group. He did not observe fighting or other current criminal behavior. One woman was pulling her top back down, or straightening her shirt. In the officer's opinion, the two women matched the description given by the dispatcher of the women fighting.
Note that at the preliminary hearing the officer testified that the dispatcher reported two women fighting, one without a shirt on. This makes the fact that one woman was pulling her top down, more suspicious than if she were just straightening it, and is indicative of reasonable articulable suspicion that the women had just committed a crime (the reported fight).
When the four individuals observed the uniformed officer's arrival, they looked at the marked car, turned, and ran into an alley. The officer testified that the description of the two women, in addition to the fact that they all ran when he pulled up, "firmed up" for him that these "would be the two women" reported fighting.
The officer testified that he felt he had arrived at a crime scene and he had no idea why the women and males ran. He stated that "in [his] experience, when people run, there's generally a reason they run." He felt "he had plenty of reasons to chase them, not knowing what was going on," because "[a]t that point there could have been somebody laying on the street behind the car that [he] didn't see." He said that he "wasn't there long enough to know exactly what happened, which is why [he] told them to stop, so [the four] were under the obligation for [him] to stop them to investigate a crime."
Due to traffic, the officer could not get out of his car to follow them; therefore, he yelled to the four to stop, but they kept running. Since they did not stop, the officer continued to drive up to Fulton Street, made a left turn and went west in the direction he thought they were heading. At that point, in under a minute, he saw the same two females and two males coming out of the alley at Fulton Street.
Once again, when they saw his car they started running away. A second time he yelled for them to stop. The two women stopped, but the officer did not ask them any questions. Because the two males continued to run, the officer told the women to stay there while he continued to chase after the two men. (The officer ran after the defendant because the defendant was closer than the other male. The second male was stopped by another officer.)
The police officer saw the defendant reaching into his jacket pocket while defendant was running. It looked like the defendant was trying to pull something out. The officer then saw the defendant throw a white baggie-like object over a fence. This item was later retrieved and turned out to be a clear plastic baggie containing white crack cocaine.
After the officer began to chase the two males, the women left the scene. The officer did not recall if the women were questioned. The women were not arrested, and the officer did not believe that the police "had any confirmed fight" as a result of their investigation that day.
Positions of the Parties
2. Defendant moves to suppress all evidence obtained as a result of the events of October 9, 2000, including the crack cocaine, for the reason that the arresting officer did not have reasonable articulable suspicion to arrest him. Defendant argues that the crack cocaine was obtained by an illegal search and seizure under the Federal and State constitutions, as well as under 11 Del. C. § 1902 (Delaware's detention statute); therefore, the evidence is not admissible under the exclusionary rule.
3. The State argues that, under the facts set forth above, the officer had reasonable and articulable suspicion to seize, lawfully, the defendant as well as the crack cocaine, which is now admissible in this case.
Constitutional Protections
4. In Delaware, two primary sources protect citizens against unreasonable searches and seizures by the government, the Fourth Amendment to the United States Constitution, and Article I, § 6 of the Delaware Constitution. Defendant invokes both Federal and State constitutional protections. This Court will consider the Delaware constitutional standards for police investigatory and detention stops first because, in this area, the Delaware constitution provides greater protection to its citizens than the Federal Constitution.
See Jones v. State, Del. Supr., 745 A.2d 856 (1999) (interpreting United States and Delaware constitutions to construe search and seizure rules under each).
Jones at 863; see also, Dorsey v. State, Del. Supr., 767 A.2d 807, 814 (2000) (finding that "Delaware's citizens enjoy more rights, more constitutional protections, than the Federal Constitution extends to them" regarding unreasonable governmental search and seizures).
Investigatory Stops
5. The Delaware constitutional standards for lawful detentions and stops have been codified by 11 Del. C. § 1902. This provision provides, in pertinent part:
(a) A peace officer may stop any person abroad, or in a public place who the officer has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand the person's name, address, business abroad and destination.
(b) Any person so questioned who fails to give identification or explain the person's actions to the satisfaction of the officer may be detained and further questioned and investigated.
11 Del. C. § 1902 (emphasis added).
6. A stop or seizure has occurred under Article I, § 6 of the Delaware Constitution, and under 11 Del. C. § 1902, "when a reasonable person would have believed he or she was not free to ignore the police presence." The focus is on police action and how a reasonable person would view it. Use of force to the defendant's person is not required to effectuate a stop under § 1902. Nor, does a stop require submission by the defendant to a show of police authority. Police assertions of authority, which have been found to be "stops" include simple police requests to pedestrians to approach the police car, regardless of whether the pedestrians obeyed.
Jones at 869; State v. C.J.M., Del. Fam., No. C N 0003014155, 2000 WL 33200949 at *2, Chapman, J. (Dec. 22, 2000) (emphasis added).
Jones at 867.
Id. (differentiating the requirements of a "seizure" under the Fourth Amendment to the Federal Constitution versus the Delaware Constitution).
Id. at 866-68; State V. C.J.M., 2000 WL 33200949 at *2 (finding defendant not free to ignore police presence when officer asked him to approach patrol car and remove hands from pockets).
"The question of when a [stop] has occurred is perhaps the most critical issue," because "the stop must be justified at its inception by reasonable suspicion of criminal activity as defined in Terry v. Ohio." If a stop is not based upon reasonable and articulable suspicion, anything recovered as a result is inadmissible at trial.
Jones at 861.
Caldwell v. State, Del. Supr., ___ A.2d ___, 2001 WL 1078869 at *3, Veasey, C.J. (Sept. 13, 2001) (emphasis added).
Dorsey v. State, Del. Supr., 761 A.2d 807, 821 (2000).
Reasonable and Articulable Suspicion
7. "'[R]easonable ground' as used in Section 1902(a) has the same meaning as reasonable and articulable suspicion." This standard for police seizures was determined by the United States Supreme Court in Terry v. Ohio and is required for an officer to stop an individual for investigation. The Delaware Supreme Court has stated that an officer has reasonable and articulable suspicion to support a detention when he or she can ""point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[s] th[e] intrusion." The Court must analyze a police officer's determination of reasonable and articulable suspicion under the "totality of the circumstances" evaluated "through the eyes of a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an officer's subjective interpretation of those facts."Where there is simply "an anonymous tip that provides the police with no predictive information that they may use to assess the reliability and knowledge of an informant [such] is insufficient to raise reasonable suspicion." For example, where the police observed the defendants exactly as described by an anonymous tip, which provided that the defendants were in "a gray automobile at the corner of 23rd and Lamotte Streets in Wilmington [and] possessed an "illegal substance,' . . . and were "scrunched low," then "the police lacked the necessary indicia of reliability that would suggest that the caller had inside knowledge of illegal conduct sufficient to provide the police with the reasonable suspicion required before detaining the suspect." The arresting officer's conduct must be supported by facts uncovered before the stop.
Flonnory v. State, Del. Supr., ___ A.2d ___, No. 513, 2000, Steele, J. (Nov. 5, 2001) at 9.
Id. at 3.
Id at 10.
Analysis
8. "On a motion to suppress, the defendant bears the burden of establishing that the challenged search or seizure was unlawful. The burden of proof is proof by a preponderance of the evidence."
State v. Porter, Del. Super., 2001 WL 755931 at *4, Slights, J. (June 20, 2001) (Mem. Op.) (citations omitted).
Applying the test for when a stop occurs, a reasonable person would have believed he was not free to ignore the police presence in this case when the officer first yelled to the four pedestrians to stop running (regardless of the fact that the four ignored him). Before that time, it is more likely than not that a reasonable person would have felt free to ignore the officer's presence as he was simply driving by in his patrol car.
At the suppression hearing, the defense argued that the seizure occurred in this case once the police officer made the determination in his own mind that a stop would be made ("once he said to himself that a stop would be made"). See Tr. at 95. That is not the test, however, as to when a stop occurs. As stated above, a stop occurs when a reasonable person would have believed he or she was not free to ignore the police presence. Jones, 745 A.2d 862.
At the time of the stop here, the totality of the circumstances show: (1) there was a complaint of two women fighting; (2) the area of the reported fight is commonly known as a drug area; (3) the officer arrived at the scene shortly after the complaint and observed two females walking with two males; (4) one woman was pulling her shirt down, matching the description of the women who were committing the fight; (5) when the four individuals observed the uniformed officer in a marked car, they turned and ran into an alley; (6) the description of the two women, in addition to the fact that they all ran when he pulled up, "firmed up" for him that these "would be the two women" reported fighting; (7) the officer felt he had arrived at a crime scene and he had no idea why the women and males ran, and felt he needed to investigate; (8) the officer's experience suggested to him that "when people run, there's generally a reason they run;" (9) he felt "he had plenty of reasons to chase them, not knowing what was going on," because "[a]t that point there could have been somebody laying on the street behind the car that he didn't see."
It is unlikely that these circumstances rise to the level of reasonable and articulable suspicion so as to warrant the intrusion here, looking "through the eyes of a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an officer's subjective interpretation of those facts."
Jones at 861.
Delaware courts have found reasonable and articulable suspicion on ostensibly less circumstances. In State v. Hicklin, for example, two officers responded to a 911 call for domestic abuse. Upon arrival at the scene they found: (1) an upset female with no apparent injuries, but the officers considered her a possible victim of crime; (2) a defendant present at the source of the 911 call; and (3) a defendant who behaved oddly (i.e. would not give verbal responses or remove hands from pockets). These circumstances were found to give rise to reasonable and articulable suspicion so as to seize the defendant and conduct a Terry pat-down search. (The arrest was later found to be illegal, however, because the drugs found during the pat-down search were not discoverable under the plain-feel doctrine.)
Del. Super., I.D. No. 9909013261, 2000 WL 970713, Del Pesco, J. (Mar. 15, 2000) (Mem. Op.).
In Woody v. State, only three factors were cited to support a detention under 11 Del. C. § 1902. These were: (1) the high crime area which had been under police surveillance; (2) the defendant's flight upon seeing an officer approaching; and (3) the officer's testimony that there was a large bulge in the defendant's jacket that the defendant was holding while running. The officer thought the bulge was a weapon or drugs (i.e. evidence of crime).
Del. Supr., 765 A.2d 1257 (2001).
On the other hand, in the case of Jones v. State, reasonable articulable suspicion of criminal activity was not found where police did not have independent observations of the defendant engaging in criminal activity. In Jones, before the defendant was stopped the police had: (1) an anonymous tip stating "there was a "suspicious black male wearing a blue coat' in a particular vicinity"; and (2) defendant was in a known drug zone. The Delaware Supreme Court held that these two, alone, were not enough to stop a person abroad, in a public place under Delaware law.
Jones, 745 A.2d 856, 858 (refusing to consider the defendant's flight as a factor to support reasonable articulable suspicion where the flight occurred after the stop, and could not be considered as a factor giving rise to the detention).
Here, the officer had no more than simply a report on two women fighting. He had reasonable suspicion that a crime had just occurred, with respect to the women, because of the complaint and his observations as to the disheveled appearance of the clothing of a woman at the scene.
As to the men, the intrusion here was not warranted looking "through the eyes of a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an officer's subjective interpretation of those facts." In the instant case, a reasonable, trained officer could believe that his own observations (of a disheveled woman) confirmed that the fact that the women had been fighting. The fact that the police officer saw the four run when he pulled up, may have reasonably "firmed up" for him that these "would be the two women" reported. Moreover, in the instant case the officer made independent observations that one of the women in the group that ran was pulling her shirt down confirming the complaint of two women fighting, one without a shirt on.
Jones at 861; Flonnory at 8.
Under the facts of this case, there was no observable illegal activity which could be reasonably observed by a trained police officer to warrant the intrusion of a stop of the Defendant. There were no readily observable facts sufficient to enhance the reliability of the anonymous tip to the level required for a finding of reasonable suspicion under the Flonnory standard. There was no observable illegal activity of the two men. The tip was based on the location and observation of two females in the area of Division Street and Governor's Ave., and gave no information about the two men. The fact that one of the women was pulling down her shirt which might indicate fighting points to no observable and suspicious conduct of the two men.
For the foregoing reasons the stop was not justified here and the defendant's motion to suppress evidence is granted.
IT IS SO ORDERED.