Opinion
I.D. 0010010287
Date Submitted: June 1, 2001
Date Decided: June 20, 2001
Upon Consideration of Defendant's Motion to Suppress Evidence. GRANTED.
James A. Rambo, Esquire, Deputy Attorney General, Attorney for the State of Delaware.
Joseph A. Hurley, Esquire, Attorney for the Defendant.
MEMORANDUM OPINION I. INTRODUCTION
Defendant, Robert D. Porter ("Porter" or "Defendant"), was arrested on October 17, 2000, and subsequently indicted by the Grand Jury on one count of Trafficking in Marijuana, one count of Possession with Intent to Deliver a Non-Narcotic Schedule I Controlled Substance (marijuana), one count of Maintaining a Vehicle for Keeping Controlled Substances, and one count of Possession of Drug Paraphernalia. Porter has moved to suppress all evidence seized from his person and his vehicle prior to his arrest on the grounds that the evidence was seized in violation of the Fourth Amendment of the United States Constitution, Article I, § 6 of the Delaware Constitution, and Delaware statutory law. Specifically, Porter contends that police officers searched his person without probable cause or reasonable suspicion that he was dangerous or had committed a crime and, with the fruits of that unlawful search (a car key), unlawfully searched his vehicle without a warrant and without probable cause. The search of Porter's vehicle yielded approximately fifteen (15) pounds of marijuana.
For the reasons that follow, the Court concludes that Porter was searched without probable cause or reasonable suspicion that he had committed a crime in violation of his fights as protected by the United States and Delaware Constitutions. Accordingly, the Motion to Suppress must be GRANTED.
II. FACTS
On October 17, 2000, at approximately 1:30 a.m., Corporal Wendel and Trooper Fanning of the Delaware State Police heard a radio dispatch from Corporal Nottingham, also of the Delaware State Police, who was located at the Christiana Hospital. Cpl. Nottingham had transported a suspect to the emergency room for treatment and, while there, noticed a white male enter the emergency room covered in blood. Because he was occupied with the suspect under his charge, Cpl. Nottingham requested the assistance of another officer to investigate the circumstances surrounding the injuries sustained by the emergency department's new arrival. Both Cpl. Wendel and Trooper Fanning, who were in separate units, indicated they would assist in the investigation.
Trooper Fanning was the first officer to arrive at the hospital. He noticed the white male, later identified as Porter, seated in an open area (perhaps a hallway) behind the reception desk. A nurse was treating Porter's wounds. Porter was not acting out or otherwise behaving inappropriately. On the contrary, he was quiet and cooperative. He showed no visible signs of intoxication. Porter's wounds appeared to be lacerations on his chest, arms and hands. Trooper Fanning approached Porter and began to question him. Porter was not responsive. He told Trooper Fanning that his name was "Robert"; he would not provide a last name. He refused to give his address or telephone number. With respect to his injuries, Porter would say only that he was "jumped" at a Denny's restaurant near Route 273; he would not give a description of the attackers or a more detailed explanation of what happened to him.
When asked to rate Porter's level of cooperation from 1 to 10 (1 being most cooperative), Trooper Fanning acknowledged that Porter's behavior justified a 1. It is not surprising, then, that neither the nurses nor any member of the hospital's staff ever requested the officers' assistance at any time after Porter arrived in the ER.
Based on his assessment of the situation, Trooper Fanning called for "back up" and was advised that Cpl. Wendell was en route. In the meantime, Trooper Fanning asked Porter to accompany him into a small waiting area designated by the hospital for police use ("the police room"). Porter complied. Although not communicated to Porter, Trooper Fanning's purpose was to conduct a "pat down" search of Porter for weapons. He moved Porter to the police room so the search could be conducted in a location removed from patients and hospital staff.
Cpl. Wendell entered the police room during the course of Trooper Fanning's "pat down" of Porter. At this point, Porter asked the officers if he was under arrest and, when told that he was not, Porter advised the officers that he was leaving and began to head for the door. Trooper Fanning and Cpl. Wendel "did not allow him to leave." According to Trooper Fanning, Porter then placed his hands in his pockets and ignored Trooper Fanning's command to remove them. In response, Trooper Fanning and Cpl. Wendel together "took Porter down" (i.e., placed him on the ground) in order to complete the search and to restrain him.
How Porter was prevented by the officers from leaving the police room at this point of the process is not clear to the Court.
The Court's factual recitation is based solely on the testimony of Trooper Fanning and Cpl. Wendel at the suppression hearing. After the hearing, defense counsel moved for leave to submit the police report of Cpl. Wendel or to reopen the hearing to present additional testimony from Cpl. Wendel. Defense counsel indicated that the motion was intended to allow the Court to consider a specific reference in the report which purportedly reflected Cpl. Wendel's thought process in the moments before he searched Porter's vehicle. The State did not respond to the motion. Accordingly, the Court ordered that Cpl. Wendel's report would be received into evidence but declined to reconvene the hearing. The Court notes that Cpl. Wendel's report contradicts Trooper Fanning's account of the events leading up to the "pat down" search of Porter. Specifically, Cpl. Wendel states that Porter was "taken down" after he refused Trooper Fanning's commands and then came towards Cpl. Wendel in an aggressive manner possibly attempting to go for a weapon. Lest there be any confusion later, the Court has not considered Cpl. Wendel's report for any reason other than the purpose proffered in defendant's Motion to Permit the Filing of a Defense Exhibit. Specifically, the Court has not considered the contradictions between Cpl. Wendel's report and the testimony offered at the hearing for any reason, including the assessment of the credibility of any witness. To do otherwise, in the Court's view, would impermissibly sandbag the State which, in all likelihood, declined to respond to the defendant's motion to submit an additional exhibit because it didn't believe the matter identified in the motion was sufficiently probative of any issue before the Court to merit a response.
Porter apparently began to bleed profusely from his arms and legs during the struggle. His pants became saturated with blood. Accordingly, the officers directed a nurse to cut Porter's pants off his body with scissors. Cpl. Wendel then searched the pants and found car keys, in excess of $900 in currency, and a can of mace.
According to Trooper Fanning, the purpose of the "take down" of Porter was twofold: (1) Porter was attempting to leave the hospital when he was clearly in need of medical attention; and (2) the officers needed to get Porter's hands out of his pockets for officer safety. The proffered rationale of the subsequent search of defendant's pants was a search for weapons. The bases for the officers' suspicion that Porter may be carrying a weapon were: (1) Porter's inability to provide an address or telephone number and his general appearance suggested that he may be homeless, in which case he would likely be carrying a weapon because homeless people, in the officers' experience, often carry weapons; (2) considering the nature and location of his wounds, Porter may have attempted suicide with a knife or other sharp instrument; or (3) Porter possibly had been in a fight and may have injured the other participant.
The scars from Porter's wounds were observed by the Court during the suppression hearing. There were no scars around the wrist. The more serious wounds appeared (by scarring) to be located primarily on the right forearm just below the elbow. Porter is right handed.
At some point after their arrival at the hospital the officers learned that Porter had been driven to the hospital in his own vehicle by a friend. Cpl. Wendel questioned the friend and learned that Porter had arrived on his friend's doorstep covered in blood requesting a ride to the hospital. Porter explained to his friend that he had been "jumped" and was injured during the attack. Porter's friend explained that he had driven Porter to the hospital in Porter's car because he did not want to get blood in his own car. He reported that Porter's car was already covered in blood when they left for the hospital.
Based on everything he had learned during the investigation, Cpl. Wendel believed that Porter's vehicle should be treated as a "crime scene." The significance of this designation was not made entirely clear during the hearing. Apparently, from Cpl. Wendel's perspective, he needed to expand his investigation beyond the confines of the hospital and direct his focus to the now expanded scene of the "crime." And, again, the "crime" at this point of the investigation was either an attempted suicide or an assault committed by Porter.
Cpl. Wendel went in search of Porter's vehicle directed by the information he had received from Porter's friend regarding the make and model of the vehicle and its location in the parking lot. He quickly found the vehicle and immediately noticed blood stains on its exterior. He shined his light inside the car and saw more blood throughout the passenger compartment. Using the key he had seized from Porter, he entered the vehicle and immediately detected the odor of marijuana. He searched the vehicle for a weapon. During this search he noticed for the first time what he believed to be marijuana in plain view on the floor of the back seat. He also noticed an unopened duffle bag on the floor next to the marijuana, opened it in search of a weapon and found more marijuana. He then obtained a warrant to search the trunk of the vehicle where more marijuana was found. In the meantime, Porter was arrested for possession of marijuana.
III. DISCUSSION
A. The Parties' Contentions
Porter argues that the officers unlawfully detained and then unlawfully searched him in the "police room" at the hospital. Specifically, he contends that the the officers lacked probable cause or even a reasonable suspicion that he was armed and dangerous or that he had committed a crime. The justification(s) for the search proffered by the officers, according to Porter, are pretexts and fail to support the detention or search when subjected to appropriate judicial scrutiny. Moreover, Porter contends that even if the Court sanctions the detention and "pat down" search, the subsequent warrantless search of his vehicle in the absence of exigent circumstances offends basic constitutional protections.
The State contends that the defendant's evasive answers to the officers' questions, along with his appearance and unexplained injuries, gave rise to a reasonable suspicion that the defendant had either committed a crime or posed a threat to himself or the officers. Accordingly, the detention and pat down search in the police room was appropriate. In view of the exigent circumstances which existed, the officers could then conduct a warrantless search of Porter's vehicle. Even if the Court rejects this argument, however, the State contends that the marijuana would have been seized eventually even without the assistance of Porter's car keys because Cpl. Wendel was within his authority to have Porter's vehicle towed as evidence at which time it would have been searched and its contents inventoried.
B. Standard of Review
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.Porter has argued that the evidence seized from his person and vehicle should be suppressed because such evidence is the product of an unlawful detention and search of his person and an unlawful warrantless search of his vehicle without exigent circumstances. It is his burden to establish that he is entitled to relief.
State v. Huntley, Del. Super., I.D. No. 9810003443, 2000 Del. Super. LEXIS 110, Babiarz, J. (Feb. 18, 2000) (Mem. Op.) (citations omitted).
State v. Bien-Aime Smalls, Del. Super., Cr. A. No. IK92-08-326, 1993 Del. Super. LEXIS 132, Toliver, J. (March 17, 1993) (Mem. Op.) (citations omitted).
C. The Initial Detention and Pat Down Search
1. The Detention
To justify a limited investigatory detention, an officer must possess "a reasonable and articulable suspicion of criminal activity." This is to say that the officer must be able to "`point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.'" "A determination of reasonable suspicion must be evaluated in the context of the totality of the circumstances as viewed 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." The detention must be based on more than a mere hunch. "Only after satisfying the requirements of §§ 1902-1903 [may the officer] conduct a pat down search of [the suspect].
Terry v. Ohio, 392 U.S. 1, 21 (1968). See also Jones v. State, Del. Supr., 745 A.2d 856, 861 (1999) (quoting Terry); 11 Del. C. § 1902, 1903 (codifying the Terry standard for the investigatory stops and "pat down" searches).
Coleman v. State, Del. Supr., 562 A.2d 1171, 1174 (1989) (quoting Terry, 392 U.S. at 21).
Jones, 745 A.2d at 861.
Id. at 868.
Caldwell v. State, Del. Supr., 770 A.2d 522, 533 (2001) (noting that lawful detention is a predicate to a lawful pat down search). See also Woody v. State, Del. Supr., 765 A.2d 1257, 1263 (2001)("An illegal stop cannot be justified by circumstances that arise after its initiation").
In Delaware, a suspect is deemed to be detained when "the police officer's actions" would cause "a reasonable person [to believe that] he or she was not free to ignore the police presence." And it has been held that directing a defendant to remove his hands from his pockets and confronting him when he refuses to do so is tantamount to a detention since the suspect under such circumstances cannot ignore the police presence. It is clear, then, that Porter was detained prior to the search of his person and the subsequent search of his pants by Trooper Fanning. One might even suggest that the proposition of detention in this case is self evident in that Porter's refusal to heed the officers' commands immediately resulted in a physical disabling and then restraint of Porter by the officers. Such "police presence" is difficult to "ignore."
Jones, 745 A.2d at 863.
Id.
The inquiry turns, then, to whether the officers possessed a reasonable basis to suspect that Porter "had committed, was committing, or was about to commit a crime" at the time they directed Porter to remove his hands from his pockets after escorting him to the police room. The Court is hard pressed to discern from the record any basis for suspicion, much less a reasonable basis. Porter had arrived at the hospital's emergency department with obvious injuries. The hospital is where he should have been under the circumstances. Thus, it cannot be said that Porter's presence at the hospital (as contrasted, for instance, to presence in a known area of drug activity) gave rise to any suspicion of contemplated or completed criminal activity.
Hicks v. State, Del. Supr., 631 A.2d 6, 9 (1993) (citations omitted).
No member of the hospital's staff had requested police assistance and there was no reason for them to do so. Trooper Fanning candidly acknowledged during his testimony that at the time he observed Porter before requesting that he move to the police room, Porter was as cooperative as he could have been (according to Trooper Fanning's own scale of measurement). Thus, Porter's behavior while at the hospital did not give to rise to a suspicion of criminal activity.
Both officers pointed to Porter's evasive answers to their questions as a ground for suspicion. Yet, clearly, Porter's refusal to answer questions posed to him by a police officer "cannot form the basis for reasonable suspicion."
Woody, 765 A.2d at 1265 (citing Florida v. Royer, 460 U.S. 491, 497-98 (1983)).
Trooper Fanning also pointed to Porter's general appearance and his conclusion that he may be homeless as a basis for suspecting that he may armed and dangerous. This proffered justification misses the mark, constitutionally speaking, for two reasons. First, Trooper Fanning has placed the cart before the horse. His experience with respect to homeless people often being armed with weapons could not provide him with a basis reasonably to suspect that Porter had committed or was about to commit a crime. If anything, his perception of Porter's dangerousness would provide a basis to conduct a pat down search, but only after he had a legal basis to detain him in the first instance. Moreover, Trooper Fanning's generalized perception of homeless people, while perhaps accurate, is not the sort of particular, suspect-specific assessment of the risk to safety mandated by both the United States and Delaware Constitutions before an officer may proceed with a pat down search.
Caldwell, 770 A.2d at 532-3 3 (pat down search is justified only after a lawful detention has occurred).
Id. at 531 ("A pat down search may not rest on a "generalized suspicion' alone") (citation omitted). See also State v. Dollard, Del. Super., I.D. No. 0004006790, Slights, J. (Jan. 11, 2001) (Mem. Op. at 11-13) (reviewing Delaware and federal precedent supporting the notion that an officer must determine that a suspect is dangerous based on specific, objective criteria before proceeding with a Terry search for weapons).
The officers' stated concern for Porter's safety, and particularly their concern that Porter may have attempted suicide, under the circumstances, was no basis to detain him. Even if Porter had suicidal ideations, the hospital has trained staff to address such issues (e.g. psychiatric crisis nurses). Indeed, if Porter was suicidal, short of being in a psychiatric hospital, it is difficult to imagine a setting where he would be more protected from himself than a hospital emergency department staffed with professionals trained to detect and address such situations. Moreover, a reasonable suspicion must be based upon more than a hunch. After listening to the testimony describing Porter's injuries and his demeanor while in the hospital, and visualizing the scars left by the wounds, the Court concludes that Porter's injuries were not of a nature that would prompt a reasonable concern that Porter may harm himself.
To conclude the analysis on this issue, the Court notes that a case cited by the State provides prehaps the best distinction between a case, such as this, where a benign encounter with a patient in an emergency room does not give rise to a reasonable suspicion, and one where the police confront a known suspect of criminal activity in a hospital setting and appropriately detain and search him for weapons. Specifically, the State cites Pinkney v. Keane to support the proposition that the officers here had formed a reasonable suspicion of Porter's criminal activity prior to detaining him. In Pinkney, officers were dispatched to canvass local hospitals for a suspect involved in a shoot out with a store clerk during a robbery. Signs of blood at the scene of the crime suggested that the suspect had been shot. The suspect was in an automobile accident while fleeing from the robbery, and the other driver involved in the accident was able to provide a description of him to police. The police were armed with this information when they confronted Pinkney at a hospital emergency room located near the scene of the robbery. Pinkney matched the description of the suspect provided by the witness and was seeking treatment for a gunshot wound. The officers rejected Pinkney's vague explanation that he had been mugged and proceeded to search him and his vehicle for a weapon and, ultimately, for evidence linking him to the robbery. The Second Circuit upheld both the search of person and vehicle as lawful.
920 F.2d 1090 (2d Cir. 1990).
The Court will not expend ink and paper to distinguish Pinkney from this case point-by-point. It is vastly different and the significance of the differences is obvious. There the police had a reasonable basis (if not probable cause) to suspect Pinkney had just committed a robbery; here the police had nothing but a gut instinct of unspecified criminal activity. The Court does not mean to suggest that gut instinct in police work is not important or worthy of respect from the judiciary — it is both. Nevertheless, more is needed to justify an investigatory detention of a suspect.
Caldwell, 770 A.2d at 533.
Having exhausted the justifications for the detention proffered by the officers to no avail, and having failed to identify any other possible reason why the officers reasonably could have suspected that Porter had committed or was about to commit a crime at the time they detained him, the Court cannot countenance the detention of Porter and, ipso jure, cannot countenance the subsequent pat down search either. Nevertheless, even assuming arguendo that the detention of Porter was lawful, Porter has sustained his burden of establishing that the pat down search exceeded constitutional boundaries.
2. The Pat Down Search
An officer's decision to conduct a pat down search for weapons is justified when "a reasonably prudent man in the circumstances would be warranted in the that of others was in danger." Stated differently, the search must be founded upon a reasonable suspicion that the suspect is "presently armed and dangerous." And "[a]lthough we give due deference to an officer's experience and knowledge, the facts which form the basis of the reasonable suspicion must be `capable of measurement against an objective standard.'"
Robertson v. State, Del. Supr., 596 A.2d 1345, 1352 (1991) (citation omitted).
Hicks v. State, Del. Supr., 631 A.2d 6, 9 (1993).
Id. at 1350-51 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).
Porter gave the officers no reasonable basis to suspect that he was a threat to their safety or the safety of others. His demeanor was calm. The officers knew nothing of him prior to meeting him in the hospital. He did not make any threatening gestures towards the officers at any time. According to both officers, Porter's only gesture — placing his hands in his pockets — occurred after the decision to conduct a pat down search was made by the officers and communicated to Porter. It cannot, therefore, be considered in the totality of the circumstances justifying the search. On this record, the Court cannot conclude that the officers were warranted in a belief that their safety or the safety of others was in danger.
Jones, 745 A.2d at 863 ("the reasonableness of the [officer's] suspicion must rest on the facts known to him at the time he [initiated the search]").
Moreover, the Court must question whether the search of Porter's pants after they were forcibly removed from his body was reasonable or necessary under the circumstances to discover a weapon. "The rationale for a Terry search is solely predicated on a determination whether a suspect is armed." Once the pants were removed from Porter, leaving him exposed and clearly without a weapon, one could certainly conclude that this suspect was no longer armed (if he ever had been armed). The continued search of the pants, under these circumstances, is questionable at best.
Hicks, 631 A.2d at 10.
In this regard, the Court notes that the officers did not testify that they continued their search upon detecting on the outside of the garment that a weapon or contraband was likely within one of the pockets. Accordingly, the "plain touch" doctrine is not implicated here. Cf Mosely v. State, Del. Supr., No. 451, 1998, Veasey, C.J. (Feb. 29, 2000)(ORDER) (explaining the so-called "plain touch doctrine" which allows officers to continue a pat down search when the existence of contraband or weapons is "immediately apparent from plain touch or sight").
The Court has determined that the detention and subsequent pat down search of Porter does not pass muster under the United States and Delaware Constitutions and Delaware statutory law. Accordingly, evidence yielded during the subsequent search of Porter's vehicle which was facilitated by the use of the key unlawfully seized from Porter is the "fruit" of an unlawful search and seizure and must be suppressed. Even assuming, however, that the search of Porter and seizure of the car keys were lawful, the Court still concludes that the warrantless search of Porter's vehicle was not.
Wong Sun v. United States, 371 U.S. 471 (1963).
D. The Warrantless Search of the Vehicle
The State has argued that the search of Porter's vehicle was necessitated by exigent circumstances. What these circumstances were exactly, or how they arose, has not been made entirely clear to the Court. Cpl. Wendel explained the search of the vehicle as a search for weapons. Nothing found in the search of Porter himself would suggest that a weapon would be found in his vehicle, and the investigation of the "crime", such as it was, had likewise revealed no evidence that Porter had committed a crime of violence. When the search occurred, Porter was inside the hospital, without his pants, receiving treatment for injuries (now exacerbated by the police "take down") under the watchful eye of Trooper Fanning. It is against this backdrop that the Court will consider the issue sub judice.
"Generally, warrantless searches are presumed invalid." "There are few exceptions." "One [such] exception . . . to the search warrant requirement is the doctrine of exigent circumstances." Exigent circumstances include a need to prevent imminent grave harm to a person or imminent destruction of evidence. The exigent circumstance, by definition, must present an immediate risk. Otherwise, with time permitting, the officer must secure a search warrant.
Caldwell, 770 A.2d at 531.
Mason v. State, Del. Supr., 534 A.2d 242, 248 (1987) (citation omitted).
Williams v. State, Del. Supr., 331 A.2d 380, 382 (1975).
Mason, 534 A.2d at 250.
The totality of the circumstances confronting Cpl. Wendel prior to his search of Porter's vehicle were not exigent. Turning first to the contention that a warrantless search was necessitated by concern that Porter may remove a weapon from his vehicle, the facts suggest otherwise. Setting aside the lack of evidence to suggest that Porter had a weapon, it is clear in any event that Porter was not going anywhere. Besides the fact that he had no pants, he was undergoing treatment for injuries and being watched (if not detained) by Trooper Fanning. Cpl. Wendel had plenty of time to count the money he had seized from Porter after the pat down search and to ask him about it. He also had plenty of time to present what evidence he could muster to make a case for probable cause before a neutral and detached Magistrate.
If Cpl. Wendel's concern was that a person injured in a confrontation with Porter may be confined in Porter's vehicle, several factors demonstrate that the concern was not founded. First, Cpl. Wendel had received absolutely no indication that Porter may be confined in Porter's vehicle,
Finally, the Court is compelled to note that the State's ekigent circumstances argument is offered with little grace. The only exigent circumstance that could have existed would arise if Porter had thrown an injured or deceased body in his trunk. His friend would not have seen the body and Cpl. Wendel could not observe it through a window. Yet the only warrant obtained by the officers that night — with the benefit of the evidence unlawfully seized from Porter and the vehicle's passenger compartment — was a warrant authorizing a search of the vehicle's trunk. That search warrant was directed to evidence of contraband, not dead or injured bodies.
The warrantless search of Porter's vehicle was not justified by exigent circumstances. Consequently, the search violated the United States and Delaware Constitutions and Delaware statutory law.
11 Del. C. § 2301, 2322.
IV. CONCLUSION
When this case is viewed not through the lens of hindsight, where the eventual seizure of marijuana distorts the picture, but instead through the lens of what could have been, the conduct of the officers here takes on a new complexion. Indeed, if it had turned out that Porter did not have a substantial quantity of marijuana stored in his vehicle, one must question what application would be facing the Court here and who would be prosecuting it. A patient walks into an emergency department injured and seeking treatment. He behaves absolutely appropriately. In the midst of receiving treatment for his injuries he is confronted by a police officer who begins to question him. He tells the officer he was attacked. In light of what he has gone through, however, he decides that he does not wish to have a lengthy discussion with the police. Perhaps he just wants to put the mater behind him. The police persist and, ultimately, frustrated by his lack of cooperation, force him to the ground, forcibly remove his pants from his body, search him and then search his vehicle. All without any objective evidence that he has done anything wrong. All on an officer's hunch. The fact that the officers' hunch was correct on this day, and the end result productive of evidence of a crime, does not excuse the means. Hindsight is not the appropriate perspective from which to consider police conduct. It must be viewed from the perspective of what officers knew as the events unfold. And from this perspective, the conduct in this case is, at least, constitutionally infirm.The Court has concluded that the detention of Porter was not justified by a reasonable suspicion that he had committed a crime. The subsequent pat down search of his person and clothing was not supported by a reasonable suspicion that he was armed and dangerous. The warantless search of Porter's vehicle was not justified by exigent circumstances. For all these reasons, the Motion to Suppress must be GRANTED. All evidence seized from Porter's perosn and vehicle is suppressed.
IT IS SO ORDERED.