Opinion
I.D. No. 1009013097.
Submitted: May 24, 2011.
Decided: June 20, 2011.
On Defendant's Motion to Suppress. DENIED.
Michael J. Hendee, Esquire, Deputy Attorney General, Wilmington, Delaware, Attorney for the State.
Jennifer-Kate Aaronson, Esquire Aaronson Collins, LLC, Wilmington, Delaware, Attorney for Defendant.
Dear Counsel:
INTRODUCTION
In this case, Defendant Arthur Baker's ("Defendant") Motion to Suppress arises from a September 15, 2010 encounter with the Wilmington Police; during this encounter, the police discovered marijuana and a firearm in Defendant's vehicle, and Defendant was consequently charged with Possession of Marijuana and Possession of a Firearm by a Person Prohibited. According to the responding officers, the initial police contact with Defendant and his parked vehicle was not a traffic stop, but rather, a welfare check on the vehicle's passenger, conducted pursuant to the police community caretaking role. However, during the course of Defendant's interaction the police, it was revealed that Defendant's insurance card was expired, and a bottle of whiskey was in the vehicle's cup holder. Defendant was then arrested, and subsequent searches of the vehicle yielded marijuana and a handgun.
At bottom, the viability of Defendant's motion turns on the point at which he was "seized" for purposes of the Fourth Amendment of the United States Constitution and Article I, Section 6 of the Delaware Constitution; the State has asserted that the instant police contact did not become a seizure until the police learned of Defendant's expired insurance card. Thus, given the conceded lack of reasonable articulable suspicion or probable cause up to that point, the crucial inquiry is whether Defendant felt free to ignore the police presence and leave at the time he was asked for his driver's license, vehicle registration, and insurance card, but nonetheless proffered his expired insurance card voluntarily, as part of a consensual encounter with the police.
Upon review of the facts, the law, and the parties' submissions, this Court concludes that Defendant produced his insurance card voluntarily, in the course of a consensual encounter with the police. It follows that the expired insurance card provided a sufficient basis for the consequential seizure of Defendant and the resulting search of Defendant's vehicle. Accordingly, Defendant's Motion to Suppress is DENIED.
Having found that Defendant was not seized at the time he produced his insurance card, the Court need not reach the issue of whether the community caretaker doctrine exception to constitutional seizure requirements applies. Under the community caretaker doctrine, a seizure will be permissible, even in the absence of reasonable suspicion, if the State can demonstrate: 1) "specific, articulable facts" that would lead an experienced officer to suspect that a citizen is in apparent peril; 2) the officer took appropriate action to mitigate the peril; and 3) once the need for assistance or peril has been mitigated, the community caretaking function ceased. See Williams v. State, 962 A.2d 210, 219 (Del. 2008). Though the State argues that Officer DeFelice's conduct during this encounter was motivated by community caretaking concerns, such a determination is not necessary because Officer DeFelice could have initiated the instant questioning in the absence of any suspicion, or even on a "hunch." See infra note 43.
Likewise, having found that Defendant was not seized at the time he produced his insurance card, the Court need not address Defendant's contention that the stop was "pretextual;" the production of an expired insurance card perforce provided grounds for a reasonable belief that Defendant was committing or about to commit a traffic offense. See infra notes 55-56.
FACTS AND PROCEDURAL HISTORY
On September 15, 2010, at 12:47 a.m., Wilmington police officers Michael A. DeFelice and Drummond were patrolling in the area of the 700 block of E. 8th Street. While patrolling, the officers noticed a black Chevrolet Trailblazer parked on 8th Street with its parking lights on and a passenger in the front seat who appeared to be unconscious. Without using emergency lights, or sirens, the officers parallel parked behind the vehicle. As the officers walked toward the vehicle they noticed it was running. Officer DeFelice approached the driver's side window, and Officer Drummond approached the passenger's, at this point they were immediately approached by Defendant. Defendant informed the officers that the car was his, and that he had parked to stop and speak with a friend; Defendant then entered the driver's seat of the vehicle. The officers informed Defendant that they were not conducting a stop, but were checking on the welfare of the passenger, Che'ron Shepeard.Officer DeFelice requested that Defendant provide his license, registration and insurance documentation, and Defendant obliged. At the suppression hearing, on cross-examination, Officer DeFelice emphatically testified that Defendant was not ordered or commanded to provide any information or documentation:
State's Resp. to Def's Mot. to Suppress at 3.
Q. Well, [Defendant] at the time that he's asked to give you his license, registration, and insurance is not free to just drive off at that point, is he?
A. Certainly, he was. . . .
* * *
Q. When you asked the defendant to provide his documents, how did you ask?
A. Well, like I said, I take a very amicable approach as long as people are being amicable with me, especially in the absence of anything solid to stop the vehicle for or the occupants. I explained to him in that kind of situation, as I would normally, that it's my way of, essentially-there's officer safety always, because any situation can turn into another situation, but also jut getting to know your people in your district, essentially if I'm familiar with this individual, he's saying that he has legitimate reasons to be in the area, he's willing to show me a sign of good faith by providing these documentations, even though he doesn't have to, that helps me develop more of a rapport with this individual. . . .
Officer DeFelice testified that as he approached the car to retrieve the documents, he noticed the insurance was expired, a partially empty bottle of Whiskey in the front console, and that the passenger was drifting in and out of consciousness. After Defendant was unable to provide proof of current insurance, Officer DeFelice called in to WILCOM and reclassified the incident as a traffic stop and gave both occupants their Miranda warnings.
Def's Supplemental Mot. to Suppress at 3; See also Tr. At 24-25 (Officer DeFelice testified that the passenger "appeared to be going in and out of consciousness" and he was concerned).
State's Supplemental Resp. to Def.'s Mot. to Suppress at 3.
Officer DeFelice continued to gather information from Defendant, who said that he had come from Southbridge, where he lived, and that he had parked to speak with someone that he knew; he also indicated that he had recently visited with friends on Bennett Street and drank whiskey with these friends approximately 20 minutes prior. Defendant explained that his passenger was intoxicated and had requested a ride home. Officer DeFelice asked if he could search the vehicle, Defendant declined, stating that the officers would need to obtain a warrant to search his vehicle. While Officer DeFelice and Defendant were talking, Officer Drummond ran the identification provided by both Defendant and the passenger and found numerous "flags" on each of their records, including two outstanding capiases for the passenger; when Officer Drummond informed Officer DeFelice of these findings, Officer DeFelice immediately requested back up. Defendant then consented to a request to step out of the car for a pat down, which produced nothing.
Tr. at 71.
Id. at 87-88; but see id. at 103 (When asked whether he had been drinking that night, Che'ron Shepeard responded: "I don't drink.").
Id. at 88.
See State's Supplemental Resp. to Def.'s Mot. to Suppress at 4 (these "flags" included, inter alia: "may be armed," "convicted drug offender," and "convicted felony.").
Id.
Def's Supplemental Mot. to Suppress at 4.
Once Defendant was out of the car, the officers were able to approach the passenger. Officer DeFelice approached the car from the driver's side as Officer Drummond removed the passenger. As Officer DeFelice leaned into the driver's side window, he observed what looked like a portion of a pistol protruding from a small, cloth bag on the floor behind the passenger's seat. Officer DeFelice secured the weapon and both Defendant and the passenger were then handcuffed and secured in patrol cars. A subsequent inventory search of the vehicle discovered marijuana under the driver's seat.
Id.
State's Supplemental Resp. to Def.'s Mot. to Suppress at 5.
Def's Supplemental Mot. to Suppress at 4.
Id.
Id.; State's Supplemental Resp. to Def.'s Mot. to Suppress at 5.
CONTENTIONS OF THE PARTIES
Defendant contends that, at the time he produced his insurance card, he was illegally seized without a warrant because the police did not have reasonable suspicion of criminal activity to require him to produce an insurance card. Defendant argues that this was not a consensual encounter because the totality of the officers' actions would lead a reasonable person to believe that he was not free to ignore the police presence; thus this was an illegal warrantless seizure. According to Defendant, the community caretaker exception to warrantless seizure under the community caretaker doctrine does not apply.Defendant argues that the officers did not initially stop to check on the passenger. Additionally, Defendant contends that once he explained that he was driving Shepeard home, any arguable community caretaking function had ended.
Id.
Id.
Defendant further contends that even if the community caretaker exception applied, the evidence should nonetheless be suppressed because the stop was pretextual and in violation of the Delaware Constitution. To this end, Defendant asserts that the State cannot demonstrate a reasonable suspicion to seize the Defendant. Finally the Defendant contends that the search of the Chevy Trailblazer was warrantless, and given Defendant's refusal to consent to such a search, the evidence found by the officers when they entered the vehicle must be suppressed.
Id. at 11 ("Article I, § 6 of the Delaware Constitution has afforded the citizens of this State greater protection from unreasonable searches and seizures than the Fourth Amendment to the United States Constitution[.]") (citation omitted).
Id. at 13.
Id. at 14
The State responds that "Officers DeFelice and Drummond approached the Trailblazer out of concern for Shepeard[.]" The State asserts that, because the officers did not block Defendant's car or use sirens, and explained to Defendant that they were only checking on the passenger, the initial encounter was not a seizure. The State further contends that, even if the officers' actions had been a seizure, such a seizure would be justified under the community caretaker exception. Once Officer DeFelice observed the expired insurance card, the State argues the officers had a reasonable articulable suspicion to initiate a traffic stop and seize Defendant.
State's Supplemental Response to Defendant's Mot. to Suppress at 9.
Id. at 8-9.
Id. at 9.
Id.
STANDARD OF REVIEW
An individual's right to be free from unreasonable search and seizure is protected by both the Fourth Amendment to the United States Constitution and Article I, Section 6 of the Delaware Constitution. Given these constitutional protections, a warrantless seizure is presumed unreasonable, though such presumption may be rebutted if an exception to the warrant requirement applies. However, the threshold inquiry is whether and, if so, when, a seizure has occurred; if an individual is not "seized," then neither the Fourth Amendment nor Article I, Section 6 is implicated.Under the circumstances of this case, the Delaware Constitution has been interpreted to provide greater protection to individuals than the Fourth Amendment; in Jones v. State, the Supreme Court of Delaware held that determining "when a seizure has occurred underArticle I, § 6 of the Delaware Constitution requires focusing upon the police officer's actions to determine when a reasonable person would have believed he or she was not free to ignore the police presence." An otherwise consensual encounter becomes a seizure only when "the totality of the circumstances demonstrates that the police officer's actions would cause a reasonable person to believe he was not free to ignore the police presence."
Jones, 745 A.2d at 869. In so holding, the Supreme Court of Delaware expressly rejected the Supreme Court of the United States' holding in California v. Hodari D., 499 U.S. 621 (1991), to the extent that Hodari D. held that a Fourth Amendment "seizure" does not occur until the police officer uses force, or the defendant submits to the authority of the officer. Id. at 863-64 ("The State relies on Hodari D. for the proposition that seizure does not occur until the officer uses physical force or the defendant submits to the authority of the officer. . . . Hodari D. is not consistent with our view of when a person is "seized" within the meaning ofArticle I, § 6 of the Delaware Constitution in that Hodari D. would allow a police officer lacking reasonable suspicion to create that suspicion through an unjustified attempted detention."); see also Flonnory v. State, 805 A.2d 854, 856 (Del. 2001) ("We have held that the Delaware Constitution provides a greater protection for the individual than the United States Constitution in the determination of whether a seizure by the State has occurred.") (citation omitted).
Williams v. State, 962 A.2d 210, 215 (Del. 2008) (citations omitted).
Although the determination of when a seizure occurred is inherently fact specific, and the totality of each case's circumstances will always be unique, the Supreme Court of Delaware has articulated illustrative parameters. In Woody v. State, the Supreme Court noted that approaching an individual with the stated purpose of questioning him or her is an "entirely permissible act" that does not constitute a seizure; the individual "may walk away from an officer who initiates an encounter and refusal to cooperate with the officer cannot be the sole grounds constituting reasonable suspicion." Put differently, "law enforcement officers are permitted to initiate contact with citizens on the street for the purpose of asking questions," and "[s]uch a consensual encounter does not amount to a seizure. . . ." Indeed, the police may initiate such consensual questioning based on a "hunch" while nonetheless not seizing the individual for constitutional purposes.
Woody, 765 A.2d at 1264.
Lopez-Vazquez v. State, 956 A.2d 1280, 1286 n. 5 (Del. 2008) (quoting Woody, 765 A.2d at 1263 n. 3)).
See Quarles v. State, 696 A.2d 1334, 1337 n. 1 (Del. 1997) ("Similarly, a seizure does not occur simply because police approach an individual and ask a few questions based on a hunch.") (citation omitted).
Also, although limited to the Fourth Amendment analysis, one prominent authority provides an illustrative listing of hypothetical scenarios that do and do not constitute a seizure:
The critical factor is whether the policeman, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens. . . .Under this approach, an officer has not made a seizure if, for example, he interrogated "in a conversational manner," "did not order the defendant" to do something or "demand that he" do it, did not ask questions which were "overbearing or harassing in nature," and did not "make any threats or draw a weapon." As for "an officer's asking for identification," such action "alone does not amount to a seizure under the Fourth Amendment." A request for consent to search does not convert a consensual encounter into a seizure "as long as the police do not convey a message that compliance with their request is required," and the same is true of a request that the suspect remove his hands from his pockets. Even physical contact is acceptable if it is consensual, "a normal means of attracting a person's attention" or obviously serves some nonseizure purpose. And a seizure does not occur merely because the officer has for some understandable reason requested that the encounter be moved to a different yet nonintimidating location. On the other hand, an encounter becomes a seizure if the officer engages in conduct which a reasonable man would view as threatening or offensive even if performed by another private citizen. This would include such tactics as pursuing a person who has attempted to terminate the contact by departing, continuing to interrogate a person who has clearly expressed a desire not to cooperate, renewing an encounter with a person who earlier responded fully to police inquiries, calling to such a person to halt, holding a person's identification papers or other property, conducting a consensual search of the person in an "authoritative manner," bringing a drug-sniffing dog toward the person or his property, intercepting a phone call for the suspect, blocking the path of the suspect, physically grabbing and moving the suspect, drawing a weapon, and encircling the suspect by many officers, in addition to the more obvious ones. "Terry leaves no doubt that a pat-down search is a seizure," but it does not follow that in a consensual encounter with multiple suspects that a frisk of one is a seizure of all, although in some circumstances at least the arrest of one of the group will manifest to the others that they are not free to leave.
Wayne R. LaFave, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT, 4 SEARCH SEIZURE § 9.4 (4th ed.) (citations omitted).
Significantly, an individual pedestrian is not seized simply because uniformed police follow him or her and attempt to ask questions. In Ross v. State, the police received an anonymous tip that a male wearing gray pants was dealing drugs in a specified area of Wilmington; when the responding officers saw an individual wearing gray pants, they pulled their vehicle alongside this individual. In turn, this individual began to walk away from the officers at an "unhurried pace;" the officers exited their vehicle and immediately began asking: "Can we talk to you?" The individual ignored these requests and continued to walk away from the officers though the officers followed, "all the while asking [the defendant] to speak with them." When the police observed the defendant attempt to pass something to another individual, they suspected that he was trying to pass off illegal drugs; accordingly, the defendant was ordered to stop. After subduing the defendant, the police recovered cocaine on the ground, near the defendant's hand. The Supreme Court of Delaware affirmed this Court's denial of the defendant's motion to suppress:
925 A.2d 489, 490 (Del. 2007).
Id.
Id.
Id.
Id.
We hold that the presence of uniformed police officers following a walking pedestrian and requesting to speak with him, without doing anything more, does not constitute a seizure under Article I, § 6 of the Delaware Constitution. The Superior Court properly concluded that [the defendant] was not seized until he was ordered to stop and restrained by the police.
Id. at 494. But see id. at 494-95 ("The rationale of Jones applies here: by the officers' continued questioning and slow pursuit, any reasonable person would have believed that the police had communicated that Ross was not free to walk away. Indeed, the police did not let Ross ignore them. . . .I read Jones to require a focus on what a reasonable person would believe the police intent to be, not what the police testify it to be in a later hearing.") (Steele, C.J., dissenting). On the other hand, when the defendant, a pedestrian, is being followed by two officers on foot while a third officer drives a marked police car against the flow of traffic and onto the sidewalk near the defendant, a seizure has occurred. Quarles v. State, 696 A.2d at 1337 ("As [the two officers followed the defendant on foot], [the third officer] drove his marked police car east on Second Street, against the flow of traffic, pulled his vehicle halfway up on to the sidewalk, and stopped just west of where [the defendant] was standing. At this point, [the defendant] found himself positioned between [the police vehicle] and [the two officers]. When approached by the three officers under these conditions, [the defendant's] stopping was an act of submission to a show of authority by the police.").
The Supreme Court of Delaware has very recently held that an individual is not "seized" when a police officer parks approximately ten feet away from the defendant's parked vehicle, walks towards the defendant's vehicle, and begins asking general questions. In Harris v. State, the defendant was parked behind a bar; after the officer approached the defendant and asked general questions, the officer detected a strong odor of alcohol, and the defendant initially did not comply with the officer's requests for identification; the defendant was then ordered out of the vehicle and instructed to place his hands on the patrol car. The defendant then attempted to flee, but he was apprehended; as he was being apprehended, he dropped a handgun, while resulted in his conviction of, inter alia, Possession of a Firearm by a Person Prohibited. The Supreme Court affirmed this Court's denial of the defendant's motion to suppress, holding:
Harris v. State, 12 A.3d 1154, *1 (Del. 2011).
Id.
Id.
After [the officer] parked his patrol car, [the defendant] could have driven away. Instead, he sat in his car and opened the door to put his puppy on the ground. [The officer] walked over to [the defendant] and asked how he was doing. [The officer] did not order [the defendant] out of the car or otherwise exercise any authority over [the defendant] until after [the officer] smelled alcohol on [the defendant's] breath and noticed [the defendant's] bloodshot eyes and slurred speech. At that point, [the officer] had a reasonable articulable suspicion that [the defendant] had committed or was about to commit the crime of driving under the influence of alcohol.
Id. See also Robertson, 596 A.2d at 1351 ("It is well established that certain police questioning of individuals in parked automobiles does not constitute a Fourth Amendment seizure.") (citations omitted).
Thus, the determination of when an individual is seized is very context specific and dependent on numerous circumstantial factors, such as the demeanor and positioning of the police officers and the overall dynamics of the encounter.
DISCUSSION
Under the standards imposed by Article I, Section 6 of the Delaware Constitution, this Court concludes that Defendant was not seized until Officer DeFelice observed that his insurance card had expired and then reclassified the encounter as a stop. Thus, at, but not before, the point at which Defendant became the subject of a traffic stop, reasonable suspicion of criminal activity was required. Given that the "[v]iolation of traffic laws constitutes reasonable suspicion," it follows that Defendant's expired insurance card created a reasonable suspicion that Defendant was violating, or about to violate, 21 Del. C. § 2118(a), which requires that motor vehicles be properly insured as a prerequisite to their lawful operation.
See, e.g., Caldwell v. State, 780 A.2d 1037, 1045 (Del. 2001) ("Under the Fourth Amendment, a traffic stop is a seizure of a vehicle and its occupants by the State. A stop is subject to constitutional limitations.") (citations omitted).
See Howard v. State, 931 A.2d 437, *2 (Del. 2007) (citation omitted).
"No owner of a motor vehicle required to be registered in this State, other than a self-insurer pursuant to § 2904 of this title, shall operate or authorize any other person to operate such vehicle unless the owner has insurance on such motor vehicle providing the following minimum insurance coverage. . . ."
In this case, the police observed what appeared to be an unconscious passenger in the front seat of Defendant's parked vehicle and accordingly parked directly behind Defendant's vehicle to "see what the situation was about; " Officer DeFelice approached the driver's side, and Officer Drummond approached the passenger's side. Even by Defendant's description of the encounter, the verbal exchange between Officer DeFelice and Defendant began in a "polite and non-hostile manner," and Defendant voluntarily informed the officers that he had parked his vehicle in order to stop and speak to his friend. At the suppression hearing, Officer DeFelice testified that the vehicle's engine appeared to be running, and that Defendant informed him that he had just come from Bennett Street, where he had visited with friends and consumed whiskey for approximately 20 minutes. Officer DeFelice testified that he did not find Defendant's responses to be suspicious.
Tr. at 15-16. Officer DeFelice testified that he initially classified this incident as an "occupied suspicious motor vehicle" because, at that point, he did not believe that a violation had been committed and was not making a traffic stop, but there was not an applicable code for conducting a welfare check on a vehicle's occupants. Id. at 42.
See Def.'s Supplemental Mot. to Suppress Evidence at 2.
Id.
Tr. at 17, 51.
Id. at 28.
Id. at 55. However, Officer DeFelice testified that he was suspicious at Defendant's immediate response to the officers' arrival. Id. at 56 ("What I found suspicious was that he, as he approached me and initiated conversation with me, that he indicated that people were watching his car and that they had alerted him that we had just parked behind it. Now, that strikes me as odd. . . .to actually have somebody that is going to give that sort of immediate response time, that, literally, a matter of less than a minute, perhaps, of I parked behind the car, not even noticeably, like I said: no lights, no sirens, nothing that would even overtly draw attention, just looking like essentially any other car parallel parking behind another.").
At this point, Officer DeFelice requested that Defendant produce his driver's license, vehicle registration, and, importantly for the seizure issue in this case, his insurance card. Notably, this request was made before the officers attempted to attend to the seemingly unconscious passenger; Officer DeFelice testified that the request was made at that time because Defendant had become "center of [his] immediate attention." According to his testimony, Officer DeFelice advised Defendant that the production of such documents was voluntary, that no violations were suspected at that point, but that he nonetheless wanted to see if "everything was in-line, and that [Defendant] had proper insurance," so that he would not have to "bother [Defendant] in the future." Indeed, on cross-examination, Officer DeFelice was asked if Defendant was free to leave at the time he was asked to produce this documentation, and Officer DeFelice unequivocally responded: "Certainly, he was." Nonetheless, Defendant obliged Officer DeFelice's request and provided his documentation, including his expired insurance card, and the instant traffic stop ensued.
Id. at 60.
Id. at 98. The Court notes that, frequently during his testimony, Officer DeFelice couched his statements in legal terminology, apparently in an effort to convey that he was cognizant of the nuances of constitutional law with respect to a valid stop, even to the extent of contemporaneously analyzing potential constitutional vulnerabilities and advising his partner of any extant constitutional concerns. See, e.g., id. at 58-59 ("I made sure, like I said earlier in my testimony that before we approached this situation when you're dealing with anything that's about consensual encounters or in the area of reasonable suspicion, you have to be incredibly careful about those situations, even minor things, minor details, as far as standing in front of a doorway perhaps might be just enough to ruin your case . . . So, I made sure to express to [Officer Drummond] that I wanted him-essentially, I would be the one that would be talking to these individuals, unless somebody went out of their way to approach him, and that generally I wanted him to stay more to the rear of the vehicle and that I would take the lead on the incident."); Id. at 76 ("I even made sure to point out before [the point at which the documentation was requested], to my partner, that unless we have some sort of solid probable cause, this is all a very consensual encounter."); Id. at 83 ("You have to have a reason for why you transition from one point to the next to the next. Though I've heard before that you can just automatically order people out of the car, that's not my approach. I know from experience that that is a big weakness. So, if I'm going to have him step out of the car, I have to have a reason to make him step out of that car. If I have none, then, well, that could hurt or completely sink my case."). On cross-examination, Officer DeFelice further asserted that the instant request for documentation was simply part of an effort to "get[] to know people in [his] district" and Defendant's compliance would be construed as a sign of Defendant's "good faith," even though Defendant did not have to oblige. Id. at 96 (Q. "When you asked the defendant to provide his documents, how did you ask?" A. "Well, like I said, I take a very amicable approach as long as people are being amicable with me, especially in the absence of anything solid to stop the vehicle for or the occupants. I explained to him in that kind of situation, as I would normally, that it's my way of essentially-there's officer safety always, because any situation can turn into another situation, but also just getting to know your people in your district, essentially if I'm familiar with this individual, he's saying that he has legitimate reasons to be in the area, he's willing to show me a sign of good faith by providing these documentations, even though he doesn't have to, that helps me develop more of a rapport with this individual. And in the future, I probably won't bother this person if everything appears to be legitimate. And actually, that's been the case with the other defendant. I've noticed him several times in that area now since this incident.").
Id. at 76.
Under these circumstances, the Court finds that Defendant was not seized at the time Officer DeFelice requested his license, registration, and insurance card. This case is squarely within those encounters defined as "consensual" in Ross and Harris, supra. If the police may follow a patently uncooperative individual and "all the while ask[] [the defendant] to speak with them," or park a police vehicle ten feet away from an individual's parked vehicle, walk towards the individual's vehicle, and ask general questions without "seizing" the individual for constitutional purposes, then surely the police may amicably interact with an individual encountered while checking the welfare of an apparently unconscious passenger and ask that individual general questions, including requests for identification and insurance documentation, without seizing the individual. Although Defendant obliged Officer DeFelice's requests, "it is equally true [that Defendant had] no obligation to answer the officer's inquiry and may go about his [] business." While there is an inherent aura of authority in any such encounter with uniformed police officers, this factor alone does not elevate the encounter to a seizure; rather, as one authority has observed, the "key is that the police authority not be exercised so that it unambiguously goes beyond simply seeking to take advantage of `the moral and instinctive pressures to cooperate' shared by the general citizenry." The totality of these circumstances does not suggest that a reasonable person would have felt that he or she was "not free to ignore the police presence."
Ross, 925 A.2d at 490.
Harris, 12 A.3d at *1.
Woody, 765 A.2d at 1263 n. 3.
Wayne R. LaFave, Jerold H. Israel, Nancy J. King, Orin S. Kerr, CRIMINAL PROCEDURE, 2 CRIM. PROC. § 3.8(c) (3d ed.) (citations omitted); see also id. ("This limitation explains why vehicle stops are generally viewed as seizures while pedestrian encounters typically are not, a distinction which might otherwise be criticized on the ground that `it would be anomalous to guarantee the automobile driver greater freedom of movement than that afforded the pedestrian.'") (citations omitted). Notably, some commentators have suggested that the authority inherent in a police officer's approach and presence belies the conclusion that reasonable individuals actually feel free to terminate allegedly consensual police encounters. See, e.g., Edwin J. Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J. CRIM. L. CRIMINOLOGY 437, 481 (1988) ("Police are told they cannot `seize' an individual without reasonable suspicion, but the standard for when a seizure occurs — when a reasonable person would not feel free to walk away — is applied in an artificial fashion that permits police to go beyond the point at which a reasonable person in fact would no longer feel free to walk away. In virtually every case, that point is when the officer approaches the individual and initiates the encounter."); David K. Kessler, Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard, 99 J. CRIM. L. CRIMINOLOGY 51, 82 (2009) ("It is not clear why the [Supreme] Court has used the seizure standard in a way that does not reflect reality. One possibility is that the Court is unaware of how people actually feel when they interact with police officers. Several articles have noted that the Court seems out of touch with the reality of how people feel about police encounters.") (citations omitted).
Williams, 962 A.2d at 215.
Defendant's reliance on Flonnory v. State is misplaced. In Flonnory, the Supreme Court of Delaware held that the encircling of a vehicle on three sides by police officers was a seizure under Article I, Section 6. However, the conduct of Officers DeFelice and Drummond in this case is distinguishable from the conduct of the officers in Flonnory; in Flonnory, the officers were responding to an anonymous tip that the defendants' vehicle contained an illegal substance and, when the responding officers approached the defendants' vehicle, "two of the officers positioned themselves at the driver and passenger doors of the vehicle respectively, while the third [officer] stood at the rear." In concluding that the defendants were seized as of the time the officers approached the vehicle, the Supreme Court made it clear that its determination was based on the unique facts of that encounter:
805 A.2d 854 (Del. 2001).
Id. at 857-58
Id. at 856.
In the case before us, there is uncontested evidence that three police officers approached the Oldsmobile in which [the defendants were] sitting and that they took up positions on three sides of the vehicle. A reasonable person in [the defendants'] situation could only have believed that the conduct of the officers communicated to them that they were not at liberty to go about their business. Thus, at the moment that the officers approached in this manner, they had detained the individuals in the car, which constituted a seizure of the occupants' persons under Article I, Section 6 of the Delaware Constitution.
Id. at 858 (emphasis added).
The Supreme Court's explanation that the "manner" of the officers' approach governed the analysis confirms that the determination of whether and when a seizure has occurred is fact-sensitive and context specific. Here, Officer DeFelice and Officer Drummond approached the driver's side and passenger side of the vehicle, respectively; there was no officer flanking the rear of the vehicle, and Defendant's passenger testified that that the patrol car was parked approximately two car lengths behind their vehicle. Moreover, the tenor of the encounter in Flonnory is very different than the instant encounter; in Flonnory, the officer "tapped on the driver's window" and asked what the defendants were doing, whereas in this case, Defendant concedes that he himself approached the officers and initiated communication in a "polite and non-hostile manner." Likewise, the officers in Flonnory bluntly questioned the defendants as to whether they possessed weapons or contraband at the very outset of the encounter, while Officer DeFelice testified that he made it clear to Defendant that he did not have any suspicions that Defendant had committed any violations, and that any communication or cooperation on Defendant's part was voluntary.
Tr. at 103 ("[T]hen they pulled up on the corner, the same right-hand side, behind the vehicle, like-probably, like, two cars away parked on the corner.").
Flonnory, 805 A.2d at 856.
Def.'s Supplemental Mot. to Suppress at 2.
Flonnory, 805 A.2d at 856.
Tr. at 98. Indeed, those Delaware cases which have found that Defendant was seized at the operative point in the encounter generally contain a fact pattern in which the police issue unequivocal commands or directives to the defendant to stop and answer questions or carry out instructions, rather than a mere conversational encounter. See, e.g., Hall v. State, 981 A.2d 1106, 1111 (Del. 2009) ("In this case, [the defendant] was `seized' when [the officer] parked his car behind the [defendant's vehicle] and blocked it in, then approached the car and ordered [the defendant] `to get his hands out from behind his back.'") (citation omitted); State v. Iverson, 2011 WL 1205242, *4 (Del. Super. Ct. 2011) ("In this case, [the officer] candidly acknowledged that when he first approached [the defendant] and commanded him to stop he intended to conduct an investigation of [the defendant] to determine if he was involved in the earlier shooting. [The officer] also made it clear that he did not ask [the defendant] to stop but rather commanded him to stop so that he could be questioned. . . . Given these facts, the Court is satisfied that [the defendant] "was not free to ignore [the officer's] presence" after this initial encounter (although he certainly went ahead to do so).") (citation omitted).
Officer DeFelice's description of his request for Defendant's documentation as a wholly innocuous, "amicable" exchange predicated solely on "getting to know" the people in his patrol district and providing an opportunity for Defendant to display his "good faith by providing these documentations" may not fully comport with the common-sense intuition about the likely dynamics of such an encounter at 12:47 a.m. in a known "high crime, high drug area." Nonetheless, Defendant has not refuted the fact that, just as in Harris, supra, after the officers parked their patrol car, he could have declined to interact with them and continued about his business. Likewise, there is no evidence that the officers issued any orders or commands to Defendant prior to the production of his insurance card. In short, there is no evidence that, at the time Defendant produced his insurance card, the encounter was consisted of anything more than Officer DeFelice's "entirely permissible act" of approaching Defendant for the purpose of asking questions. Consequently, at that point in time, the encounter was consensual, and Defendant was not seized for purposes of the Fourth Amendment or Article I, Section 6 of the Delaware Constitution.
See supra note 10; State's Supplemental Response to Defendant's Mot. to Suppress at 9 ("On September 15, 2010, at approximately 12:47 AM, Officers DeFelice and Drummond of the Wilmington Police Department [] were patrolling in the area of the 700 block of E. 8th Street. This area is known as a high-crime, high drug area.").
Harris, 12 A.3d at *1 ("After [the officer] parked his patrol car, [the defendant] could have driven away. Instead, he sat in his car and opened the door to put his puppy on the ground. [The officer] walked over to [the defendant] and asked how he was doing. [The officer] did not order [the defendant] out of the car or otherwise exercise any authority over [the defendant] until after [the officer] smelled alcohol on [the defendant's] breath and noticed [the defendant's] bloodshot eyes and slurred speech."). Of course, had Defendant attempted to continue about his business but was impeded by the officers words or conduct, thereby creating the reasonable belief that he was "not free to ignore the police presence," Defendant would have been seized at that point. See supra note 39. In this case, Defendant made no such attempts; indeed, Officer DeFelice testified to the contrary. See Tr. at 22-23 ("And I noted that he didn't really attempt to leave the area in any way. He basically got into the car, sat there. He didn't try to turn on the headlights or put on his seat belt, or even attempt to end the conversation. He engaged me by rolling down the window. He didn't attempt to drive off or even reach for the transmission to try and pull it out of park into drive or reverse. None of the basic signs that would indicate to me that he's even trying to leave or end our conversation."). Consequently, Defendant was not seized at the time he produced his documentation. Compare Ross, 925 A.2d at 494 (holding that the defendant was not seized at the point when police officers followed him on foot and persistently attempted to initiate questioning as the defendant walked away from the officers) and Iverson, 2011 WL at *4 (holding that the defendant was seized when the officer "commanded" him to stop so that he could be questioned).
See supra notes 64-65 and accompanying text.
Woody, 765 A.2d at 1264.
See supra notes 38, 42.
As described by Defendant, Officer DeFelice observed the instant firearm "protruding from a small, unsecured cloth bag on the floorboard leaning against the rear of the front passenger seat immediately behind Shepeard." This occurred while Officer DeFelice was in a position that he was legally entitled to be when he observed the firearm: he was attempting to secure Shepeard, who was also the subject of two capiases. The police may seize contraband in plain view if: "(1) the officer is lawfully in a position to observe the contraband, (2) the item's evidentiary value is immediately apparent, and (3) the officer has a lawful right of access to the item." As stated, Officer DeFelice was lawfully in the vehicle as part of his efforts to both secure Shepeard and assist the semi-conscious Shepeard out of the vehicle, the evidentiary value of a handgun is immediately apparent when the weapon is contained in the car of an individual who is known to be a convicted felon, and Officer DeFelice lawfully gained access to the weapon.
Def.'s Supplemental Mot. to Suppress at 4.
Hardin v. State, 844 A.2d 982, 985 (Del. 2004) (citations omitted).
See id. at 987 (holding that the police officer had a lawful right of access to crack cocaine observed in plain view in the defendant's vehicle's sun visor) (citing Texas v. Brown, 460 U.S. 730 (1983)).
Alternatively and independently, Officer DeFelice's discovery of this firearm occurred during the course of a valid search incident to arrest; though Arizona v. Gant has limited the applicability of a search incident to arrest, the Gant Court expressly stated that the police may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." Here, Shepeard was an unsecured arrestee who was not merely within "reaching distance" of the passenger compartment, but was actually seated in the passenger compartment at the time the officers were securing him for arrest. Thus, items seized during a search incident to Shepeard's arrest are admissible.
129 S.Ct. 1710, 1719 (2009).
Similarly, the marijuana under the driver's seat was discovered during a subsequent inventory search of the vehicle. The inventory search is "a well-defined exception to the warrant requirement, and thus does not violate the United States Constitution." Consequently, the discovery and seizure of the instant marijuana was proper.
Taylor v. State, 822 A.2d 1052, 1055 (Del. 2003) (citations omitted); Lively v. State, 427 A.2d 882 (Del. 1981) (Accord).