Opinion
ID: 0007020249
Submitted: February 2, 2001.
Decided: February 15, 2001.
Upon Consideration of Defendant's Motion to Suppress. GRANTED IN PART AND DENIED IN PART.
Joelle Wright, Deputy Attorney General, 820 N. French Street, Wilmington, Delaware, 19801. Attorney for the State.
Eugene J. Maurer, Jr., Esquire, 1201-A King Street, Wilmington, Delaware, 19801. Attorney for the Defendant.
MEMORANDUM OPINION
I. INTRODUCTION
Defendant, Ronald G. Dixon ("Dixon"), was arrested on June 26, 2000, and subsequently charged with various narcotics and weapons offenses. Dixon has moved to suppress all evidence seized from him prior to his arrest on the grounds that he was detained and questioned unlawfully by the police and thereafter his person and property were searched unlawfully. He also argues that the police justified their subsequent application for a warrant to search his vehicle by proffering to the issuing Magistrate the fruits of the initial unlawful pre-arrest search of his person and property. Accordingly, Dixon argues that all evidence seized during both pre- and post-arrest searches must be suppressed.
Dixon raises two arguments in support of his motion: (1) police officers stopped, detained and ultimately searched him without probable cause or reasonable suspicion that he had committed a criminal offense; and (2) the police lacked any lawful basis to conclude that he had abandoned his expectation of privacy in a laundry basket which, when searched by police, yielded a substantial quantity of packaged cocaine. For the reasons that follow, the Court concludes that the police could not have formed a reasonable suspicion that Dixon was engaged in criminal activity at the time they detained and searched him and that both the detention and search of his person, therefore, were unlawful under the Fourth Amendment to the United States Constitution, Article I, § 6 of the Delaware Constitution, and Delaware Statutory law, 11 Del. C. § 1902. Nevertheless, the Court concludes that Dixon had abandoned his expectation of privacy in the laundry basket at the time it was searched by the police and, therefore, the search of the laundry basket and the subsequent post-arrest searches of Dixon's person and vehicle were lawful.
II. FACTS
On July 26, 2000, at approximately 3:00 p.m., Officers Silver and Bozeman of the Wilmington Police Department received a radio dispatch regarding a domestic dispute at 812 North Adams Street, Apartment 3, in Wilmington, Delaware. The officers were advised that the male participant in the dispute was armed with a gun. The dispatch did not, however, describe either participant, nor did it provide any information regarding the source of the complaint.
As the officers approached Adams Street from Eighth Street, they observed a black male exiting the apartment building at 812 Adams Street carrying a laundry basket and walking towards a Blue Pontiac Grand Am which was parked in front of the building. According to the officers, the black male (later identified as Dixon) noticed their police cruiser and immediately placed the laundry basket on the ground next to the Grand Am. He then began to walk away from the laundry basket, away from the apartment building and, of course, away from the officers. The officers found this to be particularly peculiar behavior because it was raining heavily and the now exposed laundry basket appeared to contain clothing and other items.
The officers exited their vehicle and proceeded directly to the front entrance of the apartment building. Once there, Officer Bozeman either called out for Dixon to return to the entrance of the apartment or directed other officers who had arrived on the scene to escort Dixon back to Bozeman. In either event, the testimony is clear that both Officers Silver and Bozeman intended to question Dixon about the domestic dispute. It is also clear that, aside from Dixon's unusual behavior upon first observing the officer's vehicle, neither Officer Silver nor Officer Bozeman had any reason to believe that Dixon was involved in criminal activity at the time they requested or directed Dixon to return to their location.
Officer Silver testified that Officer Bozeman simply called out for Dixon to return to the entrance of the apartment building and Dixon complied. Officer Bozeman testified that two other officers were directed to confront Dixon and escort him back to where he and Officer Silver were located.
When Dixon arrived at the front entrance of the apartment building, he immediately was searched by Officer Bozeman "for officer safety." The search yielded a small scale in Dixon's back pants pocket. Officer Bozeman replaced the scale in Dixon's pocket because, at the time, he was aware of no crime to which the scale could be linked. Officer Silver then directed another officer to retrieve the laundry basket. Still positioned next to the Grand Am, the laundry basket was anywhere from 25 to 50 feet away from where Officers Silver and Bozeman were standing with Dixon. Officer Kent retrieved the laundry basket and placed it on the ground next to Officer Bozeman who, at the time, was located approximately 5 feet away from Dixon. When questioned, Dixon denied any interest in the laundry basket. Officer Bozeman then searched the laundry basket purportedly out of concern that a gun may be hidden within its contents. The search of the laundry basket yielded what appeared to be a shaving kit which, when opened, yielded in excess of 100 grams of cocaine. No weapon was found.
In the meantime, the female participant in the domestic dispute, Regina Pinkston, arrived on the scene and confirmed she had been involved in a heated argument with Dixon. She denied that Dixon had brandished a weapon (much less a gun) during the argument. Another female witness did relate to the officers that she overheard Pinkston yell: "don't shoot me."
The record is not at all clear as to exactly when Ms. Pinkston arrived on the scene. Specifically, Officers Silver and Bozeman do not agree on whether she arrived before or after Dixon was searched by Officer Bozeman, or whether she was or was not present for the search of the laundry basket. Officer Bozeman recalls that Ms. Pinkston was waiting for the officers upon their arrival at the scene; Officer Silver recalls that Ms. Pinkston did not arrive until after Dixon was arrested. The Court is satisfied that Officer Silver's recollection is more credible simply because he was in a better position to observe Ms. Pinkston's arrival on the scene. As the officers approached the apartment building, Officer Bozeman was focused on getting Dixon to return for questioning. It was Officer Bozeman who either summoned Dixon or directed other officers to retrieve him. It does not appear that Officer Silver was involved in this process and, accordingly, it is more likely that he was able to observe what was happening in and around the front entrance of the apartment building from where Ms. Pinkston ultimately emerged. Because the Court is unable to conclude that Ms. Pinkston implicated Dixon in the domestic dispute prior to the detention of Dixon or search of the laundry basket, the Court will not consider Ms. Pinkston's statements when determining whether the pre-arrest conduct of the police passes constitutional muster.
Dixon was arrested immediately after the search of the laundry basket. The scale was seized from his back pocket along with a large sum of cash. The officers then inquired about the Pontiac Grand Am. Dixon denied any interest in the vehicle even though he was in possession of keys to the vehicle. He would not consent to a search of the vehicle. The officers then obtained a search warrant for the vehicle, the application for which relied heavily upon the fact that cocaine was seized from Dixon's laundry basket. A search of the vehicle revealed a gun, more drugs, and more drug paraphernalia.
III. DISCUSSION
On a motion to suppress, the defendant bears the burden of establishing that the challenged search or seizure violated the rights guaranteed him by the United States Constitution, the Delaware Constitution, or Delaware statutory law. The burden of proof is proof by a preponderance of the evidence. Dixon has argued that the evidence seized from his person, property and vehicle should be suppressed because such evidence is the product of an illegal detention and search. 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. (May 23, 2000) (Mem. Op.) (citations omitted).
State v. Bien-Aime Smalls, Del.Super., Cr. A. No. IK92-08-0326, 1993 Del.Super. LEXIS 132, Toliver, J. (March 17, 1993) (Mem. Op.) (citations omitted).
A. The Initial Detention and Search
Dixon contends that Officers Silver and Bozeman had no legally justifiable basis to direct him to return to their location. He argues that the officers' conduct in this regard — either summoning him themselves or directing other officers to escort him back to the entrance of the apartment where Officers Silver and Bozeman were waiting — constituted a detention which required as its basis a reasonable articulable suspicion that Dixon had just committed or was about to commit a crime. Dixon contends that the officers could not have formed a reasonable articulable suspicion that he had committed a crime when they first observed him walking away from the Pontiac Grand Am on Adams Street and that the detention of him at that time, therefore, was constitutionally invalid. Because the officers confirmed that Dixon was disavowing any interest in the laundry basket through questioning which occurred after an unlawful detention, Dixon posits that the State cannot be heard to argue that he had abandoned his interest in the laundry basket such that the search of the basket would not be subject to constitutional scrutiny.
11 Del. C. § 1902(a); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Jones v. State, Del.Supr., 745 A.2d 856, 861 (1999); Hicks v. State, Del.Supr., 631 A.2d 6 (1993) (citation omitted).
The State apparently does not contest that Officers Silver and Bozeman detained Dixon upon observing him walk away from his parked vehicle and their marked police cruiser. The State argues, however, that the detention was lawful under the "totality of the circumstances." Accordingly, the State contends that the questioning of Dixon was proper, and the subsequent search of the laundry basket also was proper based upon Dixon's abandonment of his interest in the basket and its contents.
See State v. Dollard, Del.Super., I.D. No. 0004006790, Slights, J. (Jan. 11, 2001) (Mem. Op.) ("In evaluating the officer's conduct, the Court must consider the `totality of the circumstances.'")
The State's supplemental letter memorandum in opposition to the motion indicates that Dixon does not contest the lawfulness of the initial detention. The Court is not certain from where the State draws this conclusion. In any event, Dixon's response to the State's letter memorandum demonstrates clearly that a constitutional challenge of the initial detention is the cornerstone of his argument.
The Court agrees that the officers' initial contact with Dixon was a "detention." 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." Whether the Court believes that the officers simply summoned Dixon to their location (Officer Silver's recollection) or ordered other officers to escort Dixon to their location (Officer Bozeman's recollection), there can be no doubt that Dixon "was not free to ignore" Officers Silver's and Bozeman's presence. Accordingly, there can be no doubt that Dixon was detained by Officers Silver and Bozeman prior to any questioning with respect to the laundry basket.
Jones, 745 A.2d at 863.
Id.
Having concluded that Dixon was detained, the Court must determine whether the detention was supported by a reasonable articulable suspicion that Dixon had just committed or was about to commit a crime. Under the totality of the circumstances presented here, Dixon has carried his burden of proving that Officers Silver and Bozeman lacked any basis to detain and question him prior to the search of the laundry basket. In this regard, Jones is instructive. There the Supreme Court determined that the detention of the defendant, under circumstances less benign than those sub judice, could not withstand constitutional scrutiny. New Castle County Police officers stopped Jones after receiving an anonymous tip that a black male wearing a blue jacket was acting suspiciously in a neighborhood known by police to be frequented by drug dealers. Jones, indeed, was a black male wearing a blue coat located very near where the anonymous caller said he would be located. He was not, however, acting suspiciously. The Court concluded that the anonymous tip was insufficient to create reasonable suspicion without some evidence to corroborate it.
11 Del. C. § 1902(a). See also Jones, 745 A.2d at 861 ("reasonable ground to suspect . . ." as used in § 1902(a) has the same meaning as "reasonable articulable suspicion" as used in Terry v. Ohio and its progeny); Cummings v. State, Del.Supr., No. 428, 1999, slip op. at 5-6, Walsh, J. (Jan. 4, 2001) (Mem. Op.) (same).
Jones, 745 A.2d at 870.
Unlike the officers in Jones, Officers Silver and Bozeman had not been given any description of the participants in the reported domestic altercation. It is not surprising, then, that Officer Silver candidly acknowledged that he didn't know whether or not Dixon had been involved in the domestic dispute at the time Dixon was summoned back to his and Officer Bozeman's location. The only "suspicious" activity which either officer had observed up to that point was Dixon's sudden "about face" upon observing the marked police cruiser. As our Supreme Court very recently observed, however:
[W]hile flight from the police may be an element in the formation of reasonable suspicion, See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000), merely leaving the scene upon the approach, or the sighting, of a police officer is not, in itself and standing alone, suspicious conduct. A citizen is not required to remain in a fixed location merely upon approach of a police officer.
Cummings, supra, slip op. at 7-8.
Dixon was free to walk away from the police when he observed Officers Silver's and Bozeman's police cruiser. Absent something more to link Dixon to criminal activity, however, the officers were not free to detain him. Accordingly, statements made by Dixon during the pre-arrest detention, including his denial of any interest in the laundry basket, must be suppressed.
Having concluded that the detention of Dixon was not lawful, the Court need not address the question of whether the search of the laundry basket was justified by Officer Bozeman's stated concern for "officer safety." The Court candidly must express its disappointment that the question has not been called. The fact that the police themselves carried the basket from 25-50 feet away from the suspect and placed it within his reach, only then to search the basket, would have made the inquiry under Terry v. Ohio an interesting one indeed.
B. Dixon's Abandonment of the Laundry Basket
The parties agree that if the Court concludes Dixon abandoned his interest in the laundry basket at the time it was searched by police, Dixon would lack a reasonable expectation of privacy in the basket and the search, therefore, would be lawful even if not predicated upon a reasonable concern for officer safety or probable cause. Accordingly, the Court must determine whether Dixon had abandoned his interest in the laundry basket at the time it was searched by Officer Bozeman. In doing so, the Court cannot, and will not, consider Dixon's pre-arrest statements to police regarding the laundry basket as the Court has already determined that such statements must be suppressed.
See Vick v. State, Del.Supr.., 504 A.2d 573, 1985 Del. LEXIS 563 at *2, Walsh, J. (Dec. 20, 1985) (ORDER) ("A warrantless search of abandoned property, even without probable cause, is not prohibited by the Fourth Amendment").
When determining whether property has been abandoned in the context of search and seizure analysis, the Court must administer an objective test: did "the words and acts of [Dixon] show relinquishment of privacy. . . ." Stated differently, did Dixon possess a "reasonable expectation of privacy" in the laundry basket at the time it was searched? As explained below, the Court concludes that Dixon relinquished his expectation of privacy in the laundry basket when, under the circumstances present at the time, he placed it on the ground adjacent to a public street and began to walk away from it. In this regard, the Court finds the reasoning of United States v. Thomas to be particularly persuasive.
Id. (noting that the objective inquiry was appropriate "rather than whether the person intended to give up his ownership of the property") (citation omitted). See also United States v. Colbert, 5th Cir., 474 F.2d 174, 176 (1973) (defendant's intent with respect to abandonment may be inferred from "words spoken, acts done and other objective facts").
See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed 2d 576 (1967)
D.C. Cir., 864 F.2d 843 (1989).
In Thomas, three police officers entered the courtyard of an apartment complex and observed a group of individuals gathered on the stairway entrance to one of the apartment buildings. One of the individuals was in possession of a "gym bag." Upon observing the officers, the individuals hurriedly entered the building. The officers followed. Once inside the building, one of the officers observed the individual with the gym bag place it on the ground in a hallway and then walk away from it. The officers then confronted the individuals and ordered them out of the building. One of the officers retrieved the gym bag, searched it, and found weapons and narcotics inside. The individual who had been in possession of the bag moved to suppress the evidence seized from the bag on the ground that the search violated the Fourth Amendment. The trial court denied the motion and, after conviction, the defendant appealed.
Id. at 845.
The court held that the defendant had abandoned the gym bag when he placed it on the ground in a common area of an apartment building and then walked away from it. In doing so, the Court acknowledged "that there are many instances where the mere act of setting down a bag would not constitute abandonment." This observation, of course, states the obvious and nothing in the Court's holding today should be construed as a blanket rule that an individual automatically relinquishes his expectation of privacy with respect to an object the moment he places it on the ground. Thomas objectively analyzed all of the facts presented to conclude that an abandonment had occurred. The court recognized that, by its nature, the analysis is fact specific and not susceptible to mimeographed interpretations. Defendant's effort clearly to distance himself from the gym bag while attempting to evade police convinced the court that abandonment had occurred.
Id. at 846.
Id.
Id.
Id.
For his part, Dixon did more than simply place the laundry basket on the ground. Like the defendant in Thomas, Dixon reacted to his sighting of the police by placing the laundry basket on the ground in a public place (in the midst of a heavy rain). And, significantly, like the defendant in Thomas, he also clearly attempted to disassociate himself from the basket by walking away from it and leaving it unattended. This conduct on his part demonstrated his intent to abandon the laundry basket, at least in the constitutional sense. The search of the laundry basket, therefore, is not subject to scrutiny under either the Delaware or United States Constitutions or Delaware statutory law. Accordingly, the search was lawful as executed.
See City of St. Paul v. Vaughn, Minn.Supr., 237 N.W.2d 365, 371 (1975) (distinguishing abandonment "in the property-law sense and abandonment in the constitutional sense" by observing that the analysis for property law purposes focuses on whether the individual may reclaim possession of the allegedly abandoned property itself while the analysis for search and seizure purposes focuses on whether the defendant abandoned his expectation of privacy in the property).
See Hanna v. State, Del.Supr., 591 A.2d 158 (1991) (adopting the Katz "expectation of privacy" analysis in determining whether a search violated the Delaware Constitution or Delaware statutes); State v. Rossitto, Del.Super., Cr. A. No. IN86-04-0332, 1988 Del.Super. LEXIS 352, Martin, J., at *6 (Sept. 9, 1988) (same) (citing Rakas v. Illinois, 439 U.S. 128 (1978)).
The Court's holding today appears to be in line with the prevailing view on this issue. See, e.g. United States v. Landry, 8th Cir., 154 F.3d 897 (1998) (where defendant took an object from his coat pocket and placed it near a garbage dumpster and then walked to a pay phone 50 feet away, defendant had "objectively relinquished his expectation of privacy in the bag *** whether [he] intended to retrieve the bag, leave the bag for another person, or abandon the bag"); United States v. Ramos, D.C. Cir., 960 F.2d 1065 (1992) (despite defendant's claim that upon observing officers he merely "stowed" a plastic bag in crevice between seats on a bus before taking his seat in the next row, bag was abandoned because hiding place was not private and passengers could move freely throughout the bus); Spriggs v. United States, D.C.App., 618 A.2d 701 (1992) (where defendant placed a key case on a curb next to a fence post and then walked away, after which case was immediately retrieved and searched by a police officer, case had been abandoned because "any passerby could have picked it up . . .").
Because the officers had lawfully searched the laundry basket and had discovered its contraband at the time they arrested Dixon, the arrest and search incident to arrest were also lawful. Likewise, the search warrant was issued appropriately based upon the application which referenced the fruits of the lawful pre- and post-arrest searches of Dixon.
See Robertson v. State, Del.Supr., 596 A.2d 1345, 1353 (1991).
Id.
IV. CONCLUSION
The motion to suppress is GRANTED in part and DENIED in part. Officers Silver and Bozeman lacked a reasonable articulable suspicion that Dixon had committed or was about to commit a crime at the time they detained him. Thus, any statements he made after the detention but before his arrest must be suppressed. The search of the laundry basket was not subject to constitutional or statutory scrutiny because Dixon had abandoned his expectation of privacy in the basket at the time the search occurred. The search was lawful and the fruits of that search legitimately were used as bases to arrest Dixon and to apply for a search warrant for Dixon's vehicle. Accordingly, the evidence seized from the laundry basket, from Dixon post-arrest, and from Dixon's vehicle will not be suppressed.IT IS SO ORDERED.