Opinion
I.D. No. 0101013511
November 27, 2001
Upon defendant's motion to suppress.
Granted.
ORDER
This 27th day of November 2001, upon consideration of Defendant's Motion to Suppress and the memoranda submitted by counsel, it appears that:
(1) On January 18, 2001, Defendant, Lamar Irons, was arrested and charged with Trafficking In Cocaine, Possession With Intent To Deliver a Narcotic Schedule II Controlled Substance, Possession With Intent to Deliver a Non-narcotic Schedule I Controlled Substance, and two counts of Possession of a Controlled Substance Within 300 feet of a Park or Recreation Area. Defendant was indicted by the Grand Jury on those charges on February 12, 2001.
(2) Defendant has filed a Motion to Suppress, asking that the Court suppress all items seized and all statements taken from him. The Court held a hearing to consider Defendant's motion on August 6, 2001. At the conclusion of the hearing, the Court directed counsel to submit written memoranda on certain issues that had been raised during the hearing.
(3) Defendant submits four arguments in support of his motion. First, he argues that he was stopped and detained without probable cause or reasonable suspicion to believe that he had committed, was committing, or was about to commit a criminal offense. Second, defendant argues that, as a result of his illegal seizure, any evidence seized from his person or during the warrantless search of the curtilage of his home must be suppressed. Third, he argues that he was arrested without probable cause. Finally, defendant argues that any statements made after his arrest must be suppressed since such statements constitute "fruits of the poisonous tree" as a direct consequence of Defendant's illegal arrest.
(4) The pertinent facts surrounding defendant's arrest were established at the suppression hearing through the testimony of Patrolman Eric C. Godwin and Corporal Chad Dougherty, both of the Wilmington Police Department. On the evening of January 17, 2001, the Wilmington Police Department conducted a surveillance operation in the vicinity of the 1600 block of West Fourth Street, in the City of Wilmington, in response to an anonymous call. The caller indicated that a "suspicious person" would enter a residence at 1624 Fourth Street upon observation of a police car. The caller did not provided his name, nor did he give the name or a description of the "suspicious person."
Upon receiving this information, Officer Dougherty, along with Officer W. Gearhart, proceeded to the 400 block of North DuPont Street, in the City of Wilmington, where they parked. While positioned across the street from the 1624 West Fourth Street address the anonymous caller provided, the officers observed an individual standing in front of 1628 West Fourth Street. The officers thereupon requested Officer Godwin to drive his marked police car westbound on Fourth Street, toward the individual, so that they could observe his actions. As Officer Godwin approached, the individual was observed by Officers Dougherty and Gearhart to enter an alleyway between 1628 and 1630 West Fourth Street, open a gate, and then walk or run into the alleyway.
At the hearing, Officer Dougherty testified that he observed Defendant "flagging down a vehicle" and run into the alleyway on two separate occasions before the police approached him. This testimony is inconsistent with the contemporaneously drafted police reports and affidavit of probable cause. The Court hereby gives greater weight to the contemporaneously drafted reports and affidavit, and concludes that Defendant only entered the alleyway once. See State v. Hicklin, Del. Super., 2000 Del. Super. LEXIS 234 (Mar. 15, 2000).
The Court notes that there is a discrepancy as to whether the defendant "walked" or "ran" into the alleyway. Officer Gearhart's Supplemental Report #1, dated January 18, 2001, indicates that the defendant reacted to the marked police vehicle by "immediately running into the alleyway." Officer Dougherty testified that the defendant appeared to run into the alleyway. The Initial Crime Report and Affidavit of Probable Cause, both prepared by Officer Godwin, indicate that the Defendant was observed "to enter the alleyway." At the Preliminary Hearing, Officer Godwin testified that he observed Defendant walk into the alleyway. Specifically, he stated:
Q. Okay. Well, do you have information that the other two units, either on foot or in car, watched him engage in any activity that would be indicia of drug activity?
A. Other than going into the alleyway when he saw me, no.
Q. Okay. So what we have is Mr. Irons walked into an alley way that was immediately adjacent to his residence, is that correct?
A. Be safe to say.
Preliminary Hearing Transcript at 10 (emphasis added).
Officers Gearhart and Dougherty then approached Defendant and stopped him as he was leaving the alleyway. Defendant was taken into custody and escorted to the front of 1628 West Fourth Street, where Officer Godwin held him. Officer Dougherty then opened the gate to the alleyway, entered the alley, and performed a search therein. One large plastic bag containing three chunks of an off-white substance (which later field-tested positive for crack cocaine) was discovered in the bricks in the wall of the alleyway. While Defendant was detained by Officer Godwin, Officer Gearhart entered the alleyway and seized a separate baggie containing the same off-white chunky substance (which again field-tested positive for crack cocaine) from the ground, approximately five feet away from the area where the first plastic bag was located. The officers then placed the Defendant in handcuffs.
Upon being presented with the plastic bags containing the off-white chunky substance, the Defendant voluntarily admitted that the bags belonged to him. Officer Godwin then conducted a pat down search of Defendant prior to placing him into the police car. The officer located nine small ziplock baggies, each containing a green plantlike substance (which later field-tested positive for marijuana), in the Defendant's inside left coat pocket.
Officer Godwin transported the Defendant to the police station, whereupon another search of Defendant's person revealed a razor blade located inside the Defendant's hat. The Defendant was then given his Miranda rights. After acknowledging that he understood his rights, Defendant confirmed that the chunky white substance located within the alleyway, as well as the nine ziplock baggies of green plantlike substance, belonged to him.
(5) On a motion to suppress, the State bears the burden of establishing that the challenged search or seizure comported with Defendant's constitutional rights. The burden of proof on a motion to suppress is "proof by a preponderance of the evidence."
Hunter v. State, Del. Super. No. 279, 2000, Steele, J. (Aug. 22, 2001) (Mem. Op. at 5-6).
Matos, 2001 Del. Super. LEXIS 410 at *7 (quoting State v. Bien-Aime, Del. Super., Cr. A. No. 1k-92-08-326, Toliver, J. (Mar. 17, 1993(Mem. Op.) (citations omitted)).
(6) Defendant argues that the evidence seized should be suppressed because they are the result of an illegal stop and detention under the Fourth Amendment of the United States Constitution and Article I, § 6 of the Delaware Constitution. In support of this argument, the Defendant contends that the officers had no reasonable articulable suspicion to detain him. Further, Defendant submits that the testimony of Officer Dougherty was inconsistent with the information contained in the police reports.
In Delaware, the appropriate inquiry is whether the officer had a "reasonable ground" to "seize" the defendant. 11 Del. C. at 1902(a); Jones v. State, Del. Supr., 745 A.2d 856, 861, 869 (1999).
(7) The United States Supreme Court held in Terry v. Ohio, that "a police officer may seize an individual for an investigatory purpose of limited scope and duration only when that detention is supported by `a reasonable and articulable suspicion of criminal activity.'" In the case of Jones v. State, while recognizing that 11 Del. C. § 1902(a) establishes the same standard of reasonableness as required by Terry, the Delaware Supreme Court extended the scope of the right by holding that the Delaware Constitution provides a broader protection against "seizure" of a suspect than that provided by the United States Constitution. In so holding, the Delaware Supreme Court concluded that the appropriate inquiry to determine if a suspect was "seized" by the police is whether "the police officer's actions" would cause "a reasonable person [to believe that] he or she was not free to ignore the police presence." The detention must be based on more than a mere hunch.
Flonnory v. State, Del. Supr., No. 513, 2000, Steele, J., at 9 (Nov. 5, 2001) (citing Terry, 392 U.S. at 21).
Jones, 745 A.2d at 868.
(8) This Court must decide whether, and at what point, a reasonable person would have believed that he or she was not free to ignore a police presence. In this instance, the officers' initial contact with Defendant was a "detention." The evidence is uncontroverted that Officers Dougherty and Gearhart approached the Defendant as he was leaving the alleyway between 1628 and 1630 West Fourth Street and then handed him over to Officer Godwin to "hold" while they searched the alleyway. A reasonable person in Defendant's position could not have believed from the conduct of the officers that he was at liberty to leave. Thus, at the moment the officers approached the Defendant in this manner, they constituted a seizure of Defendant under Article I, Section 6 of the Delaware Constitution.
Jones, 745 A.2d at 867; Quarles v. State, 696 A.2d 1334, 1336 (1997).
See Flonnory, No. 513, 2000 at 7.
See Id.
(9) Having determined that the actions of the police constituted a seizure of Defendant's person, the Court must next determine whether the officers possessed the reasonable and articulable suspicion necessary to conduct an investigatory stop under both the Fourth Amendment of the United States Constitution and Article I, Section 6 of the Delaware Constitution. The determination of reasonable suspicion is made "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 officer's subjective interpretation of those facts." In the present case, the totality of the circumstances fails to suggest the presence of the reasonable and articulable suspicion required for a police intrusion.
Woody v. State, Del. Supr., 765 A.2d 1257, 1263 (2001) (quoting Jones, 745 A.2d at 861).
In Jones, the Supreme Court determined that the detention of the defendant, under circumstances less benign than those in the instant case, could not withstand constitutional scrutiny. There, 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.
Jones, 745 A.2d at 870.
In the more recent case of State v. Dixon, where the defendant was stopped, detained, and searched in response to a domestic disturbance call to the police, this Court held that the indicia of suspicion was missing. The officers in Dixon had not been given any description of the participants in the reported domestic altercation. Moreover, the only "suspicious" activity observed by either officer was a sudden "about face" by Dixon when he observed the marked police cruiser. The Dixon court quoted the Delaware Supreme Court's ruling in Cummings v. State:
Del. Super., 2001 Del. Super. LEXIS 66, Slights, J. (Feb. 15, 2001).
765 A.2d 945, 949 (2001).
While flight from the police may be an element in the formation of reasonable suspicion (citation omitted), 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.
2001 Del. Super. LEXIS 66 at *13.
Similarly, in Flonnory v. State, the police responded to an anonymous tip from a caller alleging that an occupant of a gray automobile, at the corner of a specific street, possessed an "illegal substance." The caller described the vehicle and gave the police the license tag number. When the police arrived, the vehicle matched both the color and license number given by the anonymous tipster. The police also observed an individual "scrunched low" in the front seat of the vehicle, as the caller had described. The Delaware Supreme Court held that "the simple confirmation of readily observable facts does not enhance the reliability of an anonymous tip to the level required for a finding of reasonable suspicion."
No. 13, 2000, Steele, J.
Flonnory, No. 513, 2000 at 9.
In the instant case, the circumstances, which are far less compelling than those in Flonnory, consist of an anonymous call indicating that an individual would run into the residence at 1624 West Fourth Street upon observation of a police car. Although Office Dougherty testified that the area was a known drug area, neither Officer Dougherty nor Officer Gearhart testified that they had first observed any criminal activity. The officers simply observed defendant run into an alleyway upon observation of a police car. The Jones decision teaches that these facts alone are not sufficient to suggest criminal activity. Furthermore, the location into which Defendant ran was 1628 West Fourth Street, not 1624 West Fourth Street as indicated by the caller. Moreover, Defendant ran into an alleyway, not the house, as the caller had indicated. The totality of these circumstances fails to suggest the presence of reasonable articulable suspicion sufficient to justify stopping the defendant.
Even where the neighborhood is a known drug area, Jones provides that a "[r]easonable and articulable suspicion cannot be based on the defendant's presence in a particular neighborhood at a particular time of day with no independent evidence that the defendant has committed, is committing or is about to commit a crime." 745 A.2d at 871.
Jones, 745 A.2d at 871 ("The fact that [a] Patrolman found Jones wearing a blue coat near [the address provided by the anonymous tipster], by itself, indicated nothing to suggest any criminal activity.").
(10) The defendant further submits that the officer's search of the alleyway after he was detained was unreasonable since the area was protected as being within the curtilage of his home. While the Court agrees that the alleyway was within the curtilage of his home, it is unnecessary to dwell on the merits of the search itself. The Court's holding that the detention in this case was unauthorized invalidates any further police contact, and any evidence seized as a result must be suppressed. In the absence of a showing that the police had an independent source for the evidence, or that its discovery would have been inevitable, the search of the evidence is "fatally tainted."
See Cummings, 765 A.2d at 949; see Jones, 745 A.2d 856.
For the foregoing reasons, Defendant's Motion to Suppress is hereby GRANTED.
IT IS SO ORDERED.