Opinion
No. 234, 2003.
Submitted: September 16, 2003.
Decided: January 6, 2004.
Superior Court of the State of Delaware, in and for Kent County, Cr.A. No. IK02-06-0475 through 0478, Cr. I.D. #0205005760.
Before VEASEY, Chief Justice, HOLLAND and JACOBS, Justices.
ORDER
This 6th day of January 2004, it appears to the Court that:
1) Following a jury trial in the Superior Court, the defendant-appellant, Jermaine Tingle, was convicted of the offenses of Possession of Cocaine, Maintaining a Vehicle for its Possession, and Possession of Marijuana. Tingle was sentenced, inter alia, to three years imprisonment at Level V for the Possession of Cocaine offense. For Maintaining a Vehicle, Tingle was sentenced to three years suspended after completion of Level V Key program and completion of Level IV Crest for the balance at Level III Crest aftercare. For Possession of Marijuana, Tingle was sentenced to six months imprisonment at Level V suspended for Level III Crest aftercare.
2) The only issue raised by Tingle on appeal is that the Superior Court erroneously denied his pretrial motion to suppress evidence. We have concluded that the Superior Court's decision was correct. Therefore, the judgments of conviction must be affirmed.
3) There is no significant dispute about the facts. The parties disagree, however, about the legal implications that follow from those facts.
4) The record reflects that during the early morning hours of May 8, 2002, three City of Dover police officers, Anthony Digirolomo, Derek Lawson and Randy Robbins, were conducting surveillance at the Liberty Court Apartments in the City of Dover. The policemen were in a wooded area between the nursing home and the Liberty Court parking lot. The policeman had been advised about a gun complaint concerning a domestic dispute that involved an occupant of a red Pontiac Sunfire automobile with a specific license plate number. When a red Pontiac Sunfire with that license number was seen entering the Liberty Court parking lot, the police officers drove to the apartment parking lot.
5) As the police drove into the Liberty Court parking lot, they observed the red Pontiac backing into a parking space. Officer Digirolomo, the driver of the police car, shined the vehicle's spotlight on the male driver of the Pontiac. The Pontiac driver's side door then opened and the driver, Jermaine T. Tingle, attempted to exit the vehicle but became tangled in his seatbelt. After freeing himself from the seatbelt, Tingle got out of the car and began to run away.
6) The three police officers stopped and handcuffed Tingle. According to the police officers, while being subdued, Tingle "continued to yell and not cooperate." Tingle also attempted to reach down to his right front pants pocket while being handcuffed by the police officers.
7) Once Tingle was handcuffed, Officer Digirolomo did a pat down search of the suspect. When Office Digirolomo patted down Tingle's pocket area, he felt a plastic bag containing several hard small objects that he suspected were crack cocaine. After the plastic bag was removed from Tingle's pocket, Office Digirolomo confirmed his suspicion that the bag contained twenty-seven individually wrapped $20 pieces of crack cocaine.
8) An inventory search of the Pontiac revealed a 0.65 gram bag of marijuana under the driver's seat. The total weight of the twenty-seven bags of crack cocaine was later determined to be 2.81 grams. The crack cocaine seized from Tingle's pocket and the marijuana seized from the automobile were the subject of Tingle's pretrial motion to suppress.
Superior Court Decision
9) Immediately prior to trial, a Superior Court judge conducted a suppression hearing concerning the crack cocaine found in Tingle's pocket and the bag of marijuana found under the driver's seat of Tingle's leased red Pontiac Sunfire automobile. Tingle did not testify at the evidence suppression hearing. The trial judge denied the defense motion to suppress the evidence and ruled:
This is my ruling. I'm denying the application to suppress the evidence.
I think that if you look at what the officers knew and when they knew it and the overall circumstances that was, No. 1, reasonable for the officers to approach that vehicle, they had a complaint, an incident complaint, concerning the vehicle and a gun being used by an individual or being displayed by an individual from that vehicle. And, therefore, it was reasonable for them to approach.
That is, they didn't single out that vehicle. They had a reason. Specifically, it was more than just, you know, a black man on a corner with a blue jacket selling drugs. They had a specific tag number. I think that they then checked that tag number. There is a certain amount of the investigation leading them to a reasonable officer saying we should check this out.
Again, they have a complaint about a gun, incident with a gun, have a vehicle. They don't have any names or anything of that nature. They have a black male.
They approach the vehicle. At that time, your client attempts to flee the vehicle. He's trying to get away from the vehicle so quickly that he doesn't get his seat belt done. He gets hung up in his seat belt. I think it's reasonable for articulable suspicion for them to think there is some criminality potential afoot that justifies a Terry stop and justifies a 1902 stop under Title 11.
The compliance with 1902 do not cure. You are right. You argue that, but I don't think that is any fault of the officers. They ask the individual to stop. He doesn't stop. He struggles with them. When they get up with him in the antics in order to accomplish the stop, they can use reasonable force to do so. There's nothing that sounds like they used excessive force. They then had — again, we are talking about a complaint concerning a firearm.
I think it's reasonable for the officer to check for a firearm, especially, when somebody is reaching for something. They do a pat-down. They find what the officer says he immediately recognizes as contraband He believes to be cocaine.
The Minnesota case that you site [sic] there was not an officer who immediately recognized the lump as cocaine, but only after manipulating the contents. You have no manipulation testimony from him. You were seeking that. He testified he put his hand on it. he felt the plastic bag, what appeared to be a plastic bag and rocks inside, and from his experience, he immediately believed it was cocaine. And, therefore, they seized that.
I think, under all of those circumstances, that this was not a picking somebody out and just grabbing them. I think the complaint that they had concerning the vehicle, the tag number, specific description of the vehicle, and a black male exhibiting a weapon from that gave them grounds to reasonably explore.
After the motion to suppress was denied, the case proceeded to trial that same afternoon. The following day, the jury found Tingle guilty of three drug offenses.
10) The record reflects that the trial judge determined the police officers had reasonable articulable suspicion for the investigatory stop of Tingle in the Liberty Court Apartments parking lot. In reaching this conclusion, the trial judge noted that it was reasonable for the police to approach Tingle's leased red Pontiac Sunfire automobile because ". . . they had a complaint, an incident complaint, concerning the vehicle and a gun being used by an individual or displayed by an individual from that vehicle." These factual findings by the Superior Court judge are supported by the suppression hearing testimony of the two Dover police officers, Anthony Digirolomo and Derek Lawson.
11) Officer Digirolomo testified that before the police began their surveillance of the Liberty Court parking lot that evening, they were aware of a domestic incident report that an occupant of a red Pontiac Sunfire had displayed a firearm at that same location. According to Officer Lawson, the police also knew that the individual who displayed the handgun was a black male and the police had a specific automobile tag number which Lawson was able to verify when Tingle drove by. On cross-examination at the suppression hearing, Officer Lawson testified that Corporal Richardson was the police officer who had given them the information about a black male having gun and occupying a red Sunfire with a specific license number.
12) After the Dover Police officers sighted the red Pontiac Sunfire automobile, they drove to the Liberty Court Apartments parking lot where they observed the automobile backing into a parking space. When the police illuminated the interior of the Pontiac, they observed the driver's side door open and the driver fled from the automobile.
13) A brief struggle ensued between the police officers and Tingle when he attempted to run from the automobile. In order to keep Tingle from fleeing, Digirolomo and Officer Randy Robbins handcuffed Tingle's hands behind his back. Once Tingle was handcuffed, the police conducted a protective pat down for purposes of officer protection.
See Woody v. State, 765 A.2d 1257, 1266 (Del. 2001); see also Terry v. Ohio, 392 U.S. 1, 27, 30-31 (1968); Adams v. Williams, 407 U.S. 143, 145-46 (1972).
14) A pat down for weapons was appropriate under the circumstances of this case, since the prior information the police officers had was that a firearm had been displayed by an occupant of that same vehicle earlier in the evening. It was during this pat down of Tingle's right pants pocket that Officer Digirolomo felt what appeared to be a plastic bag with rocks inside.
15) Based on his prior experience and training as a drug enforcement officer, Officer Digirolomo believed that the objected he detected in Tingle's pocket was packaged crack cocaine. There was no indication that Officer Digirolomo manipulated the contents of the plastic bag in any fashion. His testimony at the evidence suppression hearing was that he was immediately aware of the probable contents of the plastic bag.
16) This Court has held, "[i]f, during the course of a pat down, the officer feels something he or she reasonably believes to be contraband or a weapon, the officer may go into the suspect's pocket where the suspicious item is located." The Superior Court properly ruled that once Officer Digirolomo did the pat down and realized that the plastic bag in Tingle's pocket contained crack cocaine, the officer was legally entitled to remove the contraband Accordingly, the Superior Court correctly denied Tingle's motion to suppress the twenty-seven individually wrapped $20 pieces of crack cocaine that were removed from Tingle's pocket.
Woody v. State, 765 A.2d at 1266 (citing Minnesota v. Dickerson, 508 U.S. 366 (1993)).
Id.
17) After Officer Digirolomo detected what he reasonably believed to be crack cocaine, a warrantless arrest of Tingle for commission of a felony was permissible. Officer Lawson was then entitled to search the automobile Tingle had been driving as a search incident to that arrest. Since that search revealed a bag of marijuana under the driver's seat, the Superior Court properly ruled that contraband was also admissible as evidence at Tingle's jury trial.
See Del. Code Ann. tit. 11 Del. C. § 1904(b)(1); Woody v. State, 765 A.2d at 1266; Quarles v. State, 696 A.2d 1334, 1337 (Del. 1997); Coleman v. State, 562 A.2d 1171, 1177 (Del. 1989).
See Jarvis v. State, 600 A.2d 38, 42 (Del. 1991); Traylor v. State, 458 A.2d 1170, 1173-74 (Del. 1983); Handy v. State, 268 A.2d 865, 866 (Del. 1970); see also United States v. Edwards, 415 U.S. 800, 802 (1974).
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgments of the Superior Court are affirmed.