Opinion
C.A. No. 1005010897.
Submitted: October 1, 2010.
Decided: October 12, 2010.
Upon Defendant's Motion to Suppress DENIED
Shawn E. Martyniak, Esquire, Department of Justice, Wilmington, DE, Attorney for the State.
Kevin J. O'Connell, Esquire, Assistant Public Defender, Office of the Public Defender, Wilmington Delaware, Attorney for Defendant.
MEMORANDUM OPINION
On June 21, 2010, defendant Dashan Perrigan was indicted for Possession of a Weapon with a Removed, Obliterated, or Altered Serial Number and Carrying a Concealed Deadly Weapon. The indictment stems from a May 14, 2010 detention and vehicle search. Wilmington Police Officers found a gun in a vehicle that defendant, immediately before his detention, had been in contact with.
On August 25, 2010, defendant filed a Motion to Suppress.
FACTUAL CONTEXT
On June 21, 2010, Officers Coleman and Bartolo of the Wilmington Police Department were patrolling Northeast Wilmington, Delaware in a police vehicle. The Officers were dispatched to the area of 24th and Claymont Streets to investigate a gun complaint. The Wilmington Police Department had received an anonymous tip that a black male was carrying a handgun. The tip described him as wearing a white tank-top and black shorts, and reported that he was standing near a blue Dodge Magnum.
The Officers arrived and observed defendant, who fit the description. Defendant was leaning into the driver's door of a blue Dodge Magnum. Defendant was reaching towards the floor of the vehicle. The Officers testified that they believed that defendant was concealing something. Shortly thereafter, defendant looked up, and noticed that the Officers were watching him. The Officers testified that defendant was startled. Subsequently, defendant walked in the general direction of the police vehicle, avoiding eye contact with the Officers.
The Officers ordered defendant to walk towards them with his hands in the air. The Officers instructed defendant to place his hands on the hood of the police vehicle while they questioned him. When asked why he was in the area, defendant responded that he did not know. The Officers pressed defendant for an explanation, and he replied that he was "hanging out." Defendant told the Officers that the Dodge Magnum belonged to his "boy," to whom he referred as "K." The Officers asked defendant why he was in contact with the Dodge Magnum. Defendant answered that he was checking to see if the doors were locked. The Officers testified that during the questioning, defendant was agitated and "searching for answers." Defendant's demeanor was evasive and delaying.
The Officers handcuffed defendant. Subsequently, the Officers opened the car door and saw a handgun protruding from underneath the vehicle's front seat. The gun was seized.
PARTIES' CONTENTIONS
Defendant moves to suppress any evidence seized following the detention, questioning, and subsequent search of the Dodge Magnum. Defendant contends that the Officers did not have reasonable articulable suspicion to stop and detain him. Defendant argues that Flonnory v. State controls.In Flonnory, the Delaware Supreme Court held that the police lacked reasonable suspicion despite an anonymous tip that provided readily observable facts and an allegation of criminal activity, because they did not observe incriminating behavior.
Id. at 858-60.
The State responds that the Officers had reasonable suspicion that defendant possessed a gun. The State cites these facts: the anonymous tip, defendant was in a high-crime area, defendant reached towards the floor of the Dodge Magnum as if he were concealing something, defendant was startled to see the Officers, defendant quickly walked away from the Dodge Magnum, and defendant avoided eye contact with the Officers. The State argues that the totality of the circumstances amounted to reasonable articulable suspicion, and therefore, the evidence should not be suppressed.
ANALYSIS
Guns in the community are of great concern to the Court. The Court expects that any complaint regarding a gun, whether anonymous or from a past-proven reliable informant, will be taken seriously. However, the police's responsibility to investigate gun complaints must be balanced with well-established Constitutional rights.The 4th Amendment to the United States Constitution and Article I, Section 6 of the Delaware Constitution protect individuals from unreasonable seizures of their persons and effects. In Terry v. Ohio, the United States Supreme Court held that a police officer may seize an individual for investigatory purposes if the detention is supported by "a reasonable and articulable suspicion of criminal activity." The Supreme Court defined the standard as the ability to "point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion." A "hunch" is not enough.
392 U.S. 1 (1968).
Id. at 21.
Id.
An anonymous tip that provides "readily observable facts cannot serve as the sole basis for conducting a stop. . . ." In Florida v. J.L., the United States Supreme Court explained that an anonymous tip must "be reliable in its assertion of illegality, not just in its tendency to identify a determinate person." Nonetheless, a tip that provides readily observable facts is incorporated into the totality of the circumstances to determine whether reasonable suspicion exists. Additionally, the reliability of an anonymous tip is strengthened by its specificity, including the particularity of readily observable facts. Therefore, while police corroboration of readily observable facts suggests that the tip is reliable, the police must observe, in addition, behavior that corroborates the underlying complaint of criminal activity.
Harris v. State, 2005 WL 2219212, *2 (Del. Super.) (citing Flonnory, 805 A.2d 854).
529 U.S. 266 (2000).
Id. at 272.
Flonnory, 805 A.2d at 858 (quoting Woody v. State, 765 A.2d 1257, 1263 (Del. Super. 2001) ("To determine whether a reasonable suspicion exists, we must "examine the totality of the circumstances surrounding the situation `as viewed through the eyes of a reasonable, trained police officer in the same circumstances, combining objective facts with such an officer's subjective interpretation of those facts.'")).
Jones v. State, 745 A.2d 856, 870 (Del. 1999) (citing Alabama v. White, 496 U.S. 325, 330-32 (1990)).
The Officers had reasonable articulable suspicion that defendant possessed a gun. While the complaint was anonymous, its reliability was strengthened by the very detailed description that matched defendant, who was leaning into the described vehicle. The tip described a black male, wearing a white tank-top and black shorts, standing near a blue Dodge Magnum.
Although, the anonymous tip, alone, did not constitute reasonable suspicion, in combination with defendant's behavior, the totality of the circumstances amounted to reasonable suspicion. Defendant reached towards the floor of the Dodge Magnum, was startled to see the Officers, paused for one to two seconds, casually stepped away from the car without looking back, closed the car door, and avoided eye contact with the Officers while quickly walking towards them. The Officers testified that all other persons present were watching the Officers, and defendant was the only person avoiding eye contact with them. This behavior is consistent with possession of a gun. Therefore, the Officers had reasonable articulable suspicion to stop and detain defendant.
See J.L., 529 U.S. 266.
These facts are distinguishable from Flonnory. In Flonnory, an anonymous caller complained that an occupant in a gray Oldsmobile Cutlass at the corner of 23rd and Lamotte Streets possessed an "illegal substance." The caller reported the vehicle's license plate number. The police arrived at the scene, and observed Flonnory and his companion, Barbour, "scrunched low" in the vehicle that the caller had identified. The police approached the occupants, and asked what they were doing. They replied that they had just "woken up." In response to further questioning, the occupants asserted that they did not have any weapons or other contraband.
Flonnory, 805 A.2d at 856.
Id.
Id.
Id.
Id.
Id.
The police detained Flonnory and Barbour and frisked them. The Delaware Supreme Court held that the police lacked reasonable suspicion to detain Flonnory, because the anonymous tip merely provided readily observable facts and was "unsupported by independent police corroboration of present or predicted future criminal activity. . . ." The anonymous tip provided readily observable facts about Flonnory and Barbour in. However, Flonnory and Barbour's "scrunching" behavior, without other factors, was not necessarily indicative of possession of an illegal substance.
Id. at 859.
In this case, the Officers observed defendant engage in behavior that was consistent with possession of a gun. Defendant appeared to put something in the Dodge, then appeared "surprised" and "startled" upon seeing the Officers, left the vehicle, and appeared to deliberately avoid eye contact with the Officers when all others in the area were watching the Officers. Upon questioning, defendant's demeanor was "nervous," "agitated," and defendant appeared to be "searching for answers."
CONCLUSION
Considering the totality of the circumstances, the Court finds that the Officers had reasonable articulable suspicion that defendant was engaging in criminal activity, which justified the stop and detention.
THEREFORE, Defendant's Motion to Suppress is hereby DENIED.
IT IS SO ORDERED.