State v. Murray , 213 A.3d 571 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, §
§ No. 414, 2018
Plaintiff Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ I.D. No. 1710007866 (N)
ANDRE MURRAY, §
§
Defendant Below, §
Appellee. §
Submitted: April 24, 2019
Decided: July 10, 2019
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Martin B. O’Connor, Esquire (argued), Deputy Attorney General, Wilmington,
Delaware, for Appellant, State of Delaware.
Nicole M. Walker, Esquire (argued), Assistant Public Defender, Wilmington,
Delaware, for Appellee, Andre Murray.
VAUGHN, Justice, for the Majority:
I. INTRODUCTION
This is an appeal by the State from a Superior Court order that granted Andre
Murray’s motion to suppress evidence in a criminal proceeding. In the late evening
hours of October 13, 2017, Wilmington Police Officer Matthew Rosaio was on
patrol with other officers when he observed two men walking on a nearby sidewalk.
One of the men, Murray, was walking with his right arm canted and pinned against
the right side of his body, specifically the right front portion of his body. The other
man, Lenwood Murray-Stokes, was walking normally. The manner in which
Murray was walking made Officer Rosaio suspicious that Murray was carrying a
concealed firearm in his waistband on his right side. After watching Murray for
about 20 seconds, during which Murray continued to walk in that same manner,
Officer Rosaio approached the two men. Murray then began positioning himself
behind Murray-Stokes, turning and blading his right side away from the officer.
This furthered the officer’s suspicion that Murray possessed a firearm. The officer
began drawing his weapon and instructed Murray to show his hands. Murray
appeared to reach for his waistband area. The officer then pointed his weapon at
Murray and instructed him to not reach for his waistband and to get on the ground.
Murray complied. The officer then asked Murray whether he had anything in his
2
possession. Murray replied that he had a firearm in his waistband. The officer
located the firearm in Murray’s waistband on his right side and seized it.
Murray was charged with Carrying a Concealed Deadly Weapon, Possession
of a Firearm by a Person Prohibited, and Possession of Ammunition by a Person
Prohibited. He filed a motion to suppress the discovery of the firearm from use as
evidence at trial, arguing that the officer did not have a reasonable, articulable
suspicion that Murray had committed or was about to engage in any illegal activity
to justify detaining him or probable cause to arrest him. The Superior Court agreed
and granted the motion to suppress. For the reasons that follow, we conclude that
the officer performed a legitimate Terry stop1 and therefore the motion should have
been denied.
II. FACTS AND PROCEDURAL HISTORY
The factual record consists of the unrebutted testimony of Officer Rosaio, the
sole witness at the suppression hearing. He testified that on October 13, 2017, at
approximately 11:00 p.m., he and three other officers were “conducting proactive
mobile patrol” in Wilmington.2 They were traveling northbound on South Franklin
Street in an unmarked vehicle when they stopped at a stop sign at the corner of South
Franklin and Chestnut Street—a neighborhood described by Officer Rosaio as a
1
Terry v. Ohio, 392 U.S. 1 (1968).
2
App. to Appellant’s Opening Br. at A28, A25-28.
3
“well-known high crime, high drug area,” where he has made numerous gun- and
drug-related arrests.3
While stopped at the stop sign, Officer Rosaio saw two men, later determined
to be Andre Murray and Lenwood Murray-Stokes, walking on the sidewalk along
South Franklin towards their vehicle. Officer Rosaio observed Murray swinging
his left arm naturally while holding his right arm close to his body, behavior which
he explained was consistent with an armed individual. He “noticed right away . . .
that Mr. Murray was walking with his right arm canted and pinned against the right
side of his body, specifically the right front portion of his body, which is one of the
telltale signs of . . . somebody who is armed with a handgun.”4 This is a sign that
someone is armed, he explained, because “[s]ubjects will often carry firearms in their
waistband unsecured by any type of holster and in a way that they can control that
firearm and adjust it, if need be, as they are walking so it doesn’t fall down through
their pants or so it doesn’t reveal itself to the public.”5
3
Id. at A28.
4
Id. at A31.
5
Id. at A31-32. This Court has encountered the concept of “canting” before. In Lum v. State,
Officer Rosaio described canting as “when a subject either instinctively or nervously adjusts a
firearm in their waistband, and their arm goes up and holds it tight against the body. It’s almost
like a 90-degree motion you make with your arm.” 193 A.3d 733, 2018 WL 4039898, at *1 n.2
(Del. Aug. 22, 2018) (Table) (alterations and omissions omitted) (quoting Suppression Hearing
Tr.).
4
Officer Rosaio continued to watch him for “about 20 seconds” as the two men
continued walking toward the officers’ vehicle. 6 As they got closer, Murray
appeared to notice the officers and took a “stutter step, where he kind of stopped in
his tracks.”7 Continuing to walk forward at a slower pace, “he looked forward and
then scanned and looked back.”8 Then Officer Rosaio, who was wearing a vest
with “[p]olice” marked across it “in large white bold letters,”9 exited the vehicle,
“at which point Mr. Murray stopped and began positioning himself behind Lenwood
Murray-Stokes.”10 At the same time, Murray began “turning and blading” the right
side of his body, the side that he had his arm pinned against, away from Officer
Rosaio. 11 Officer Rosaio testified that, from his training and experience, the
“turning and blading” movement is a characteristic of someone “who’s placing the
side that the gun [is] on in a position where the police or the public can’t see it.” 12
It was an “unnatural movement” according to Officer Rosaio.13
By then confident that Murray had a handgun on his right side, Officer Rosaio
began drawing his service firearm and ordered him to stop and show his hands. At
6
App. to Appellant’s Opening Br. at A33.
7
Id. at A34.
8
Id. at A34-35.
9
Id. at A44.
10
Id. at A36.
11
Id.
12
Id.
13
Id.
5
that point, Murray “began reaching for the lower . . . waistband area.” 14 In
response, Officer Rosaio raised his service revolver, pointed it in Murray’s direction,
and said, “[d]on’t reach for your waistband. Get on the ground.” 15 Murray
complied and got on the ground. When asked if he had anything on him, Murray
replied, saying “I have a handgun in my waistband.”16 Officer Rosaio then rolled
him to his left side, revealing that a handgun was located on the “front right portion
of his waistband.”17 Officer Rosaio secured the handgun and placed Murray under
arrest.
Officer Rosaio also testified that he has received training on characteristics of
armed gunmen at the Wilmington Police Academy and at sessions hosted by the
Federal Bureau of Alcohol, Tobacco, Firearms and Explosives and the U.S.
Department of Justice. These characteristics include “things that people display
when they are attempting to conceal firearms from the police and from the public.”18
He also explained that for about the last four years he has taught elements of
characteristics of armed gunmen in police academies.
14
Id. at A37.
15
Id. at A37-38.
16
Id. at A38.
17
Id.
18
Id. at A27.
6
Following the hearing, the Superior Court granted the motion in a written
opinion, which noted several reasons for its decision. First, the court found that
although at some point the encounter was a Terry stop, once Officer Rosaio drew his
firearm “an arrest was effectuated,” thus requiring there to have been probable cause
to believe that Murray was committing a crime.19 Notwithstanding this finding,
and perhaps given the way the parties’ presented their arguments, the court’s
analysis was not clearly tied to either the reasonable, articulable suspicion standard
for a Terry stop or the probable cause standard for an arrest.20
The court then discussed, and dismissed, the State’s argument that the court
should give deference to the officer’s training and experience to determine whether
the objective facts, paired with the officer’s subjective interpretation of those facts,
justified the intrusion. According to the court, the Stated relied “almost exclusively
on two objective facts: 1) the defendant’s swinging of one arm while holding the
other close to his side and 2) his ‘blading’ or moving his body sideways when he
and his walking partner stopped.” 21 Although the court noted the other factors
referenced by Officer Rosaio—“the high crime neighborhood, the apparent ‘stutter
step’ and his ‘looking around’ as the officer was getting out of the car”—it dismissed
19
State v. Murray, 2018 WL 1611268, at *1 (Del. Super. Apr. 2, 2018).
20
E.g., id. at *3 (“The handgun seized as a result of the stop/arrest of the defendant will be
suppressed.” (emphasis added)).
21
Id. at *2.
7
these as “essentially chaff, thrown off by the essential facts that the officer advises
his training and experience teach that the defendant was carrying a concealed
weapon.”22 In support of its rejection of Officer Rosaio’s testimony, the court cited
a number of hypothetical innocent explanations for why someone might walk with
one arm held close to the body.
In addition, while the court noted that the rules of evidence do not apply to
preliminary questions of fact governing admissibility, it determined that “the ‘armed
gunman’ testimony in which we are asked to have faith is certainly not a ‘lay
opinion’ under D.R.E. 701 as it is professed to be based on ‘scientific, technical, or
other specialized knowledge’ and therefore, it is within the scope of D.R.E. 702.”23
“In order to qualify for admissibility under Rule 702,” the court continued, “such
testimony would necessarily be ‘based on sufficient facts or data’ and ‘the product
of reliable principles and methods’ that have been ‘reliably applied’ to the facts.”24
Concluding that “[n]one of these criteria have been met here,” the court explained
that although “the officer had some sort of ‘training,’ it cannot be said to have
qualified as ‘science’—junk or otherwise. On this record, the Court cannot assign
it the weight it was obviously accorded by the officer on the night in question.”25
22
Id.
23
Id. at *3.
24
Id. (quoting D.R.E. 702).
25
Id.
8
Following the court’s grant of Murray’s motion to suppress, the State moved
for reargument, requesting that the court reconsider its ruling. In denying the
State’s motion, the court expanded on its earlier remarks, but its ultimate conclusion
remained unchanged.26 Although the court reiterated that the seizure of Murray
was an arrest governed by the probable cause standard, 27 its analysis included
references to both the probable cause standard and the lesser reasonable articulable
suspicion standard required for an investigatory stop.28
The State argues on appeal that the Superior Court erred by finding that
Murray’s arrest without probable cause occurred when Officer Rosaio drew his
firearm, before he located the firearm in Murray’s waistband. Under the State’s
theory, Murray’s detention was a Terry stop that did not become an arrest until after
the firearm was found. The State also argues that under a Terry-stop analysis, the
officer had a reasonable articulable suspicion that Murray was carrying a concealed
deadly weapon. Murray opposes both arguments and argues that the Superior
Court’s reasoning and result were correct.
26
See State v. Murray, 2018 WL 3629150, at *1 (Del. Super. July 26, 2018).
27
Id. (“[T]he question was—and we suppose, remains—was there probable cause to point a gun
at the suspect, order him to the ground, and take him into custody?”).
28
See id. at *2-4.
9
III. DISCUSSION
“We review the grant or denial of a motion to suppress for an abuse of
discretion.”29 Although “this Court will defer to the factual findings of a Superior
Court judge unless those findings are clearly erroneous,” 30 “[e]mbedded legal
conclusions are reviewed ‘de novo for errors in formulating or applying legal
precepts.’” 31 Accordingly, we review de novo whether the police possessed
reasonable, articulable suspicion to stop a person.32
We will first address the State’s argument that the Superior Court erred by
finding that an arrest lacking probable cause occurred before Murray’s firearm was
found in his waistband. Second, we will address whether the stop was justified
under the appropriate standard.
A.
There is a difference between an arrest and a Terry stop. “An arrest occurs
when a reasonable person in the suspect’s position would have understood the
situation to constitute a restraint on freedom of movement of the degree which the
law associates with formal arrest.”33 By contrast, a Terry stop or seizure occurs
29
Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del. 2008).
30
State v. Rollins, 922 A.2d 379, 382 (Del. 2007).
31
Flowers v. State, 195 A.3d 18, 23 (Del. 2018) (quoting Lopez-Vazquez, 956 A.2d at 1285).
32
Rollins, 922 A.2d at 382.
33
Sornberger v. City of Knoxville, 434 F.3d 1006, 1017 (7th Cir. 2006) (internal quotation marks
omitted).
10
when “under all of the circumstances surrounding the encounter, the police conduct
would have communicated to a reasonable person that he/she was not free to
terminate the encounter with the officers.” 34 For example, the United States
Supreme Court has found that the line between a Terry stop and an arrest is crossed
when the police “forcibly remove a person from his home or other place in which he
is entitled to be and transport him to the police station, where he is detained, although
briefly, for investigative purposes.”35
The Superior Court’s ruling on arrest versus Terry stop is as follows:
To be sure, there was perhaps a moment, as the officer was
exiting his vehicle and before he drew his service revolver,
where this was a “Terry” stop, requiring reasonable
articulable suspicion that criminal activity is afoot and the
subject is armed and dangerous. But upon seeing the
defendant turn his body, and before any “real” contact was
made, the officer candidly testified that he was convinced
the defendant was indeed armed and may be reaching for
his pistol and thus, an arrest was effectuated which, as we
all know, must be preceded by probable cause to believe a
crime is being committed and the suspect committed it.36
34
Quarles v. State, 696 A.2d 1334, 1336-37 (Del. 1997) (en banc) (citing Florida v. Bostick, 501
U.S. 429, 439 (1991)). This Court expressly refused to adopt the stricter test, created in California
v. Hodari D., 499 U.S. 621, 626 (1991), for determining when a Fourth Amendment seizure has
begun. See Jones v. State, 745 A.2d 856, 863-64 (Del. 1999) (en banc) (“Hodari D. is not
consistent with our view of when a person is ‘seized’ within the meaning of Article 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.”); id. at 869 (holding that
whether “a seizure has occurred under Article 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”).
35
Hayes v. Florida, 470 U.S. 811, 816 (1985).
36
Murray, 2018 WL 1611268, at *1 (footnote omitted) (citing Terry, 392 U.S. at 30).
11
Our view is that an arrest did not occur until after the officer found the weapon
in Murray’s waistband. The officer testified that after Murray bladed his body, he
was confident that Murray possessed a firearm, but that confidence remained a
suspicion until Murray admitted he had a firearm, after which the officer
immediately found the firearm on his person. It was only then that Officer Rosaio
placed Murray into custody and an arrest occurred, at which point there was clear
probable cause to believe that a crime was being committed—carrying a concealed
deadly weapon.
In addition, Officer Rosaio’s actions in drawing his weapon and forcing
Murray to the ground at gunpoint did not convert the encounter into an arrest.
Although “[a]n unreasonably intrusive stop may constitute a de facto arrest requiring
probable cause,” a “Terry stop does not turn into a full arrest merely because the
officers use handcuffs and force the suspect to lie down to prevent flight, so long as
the police conduct is reasonable.” 37 “During a Terry stop, officers may take
measures that are reasonably necessary to protect themselves and maintain the status
quo.” 38 Specifically, an officer is empowered “to take necessary measures to
37
Flowers, 195 A.3d at 25 (internal quotation marks omitted).
38
Id. at 28 (quoting United States v. Goode, 309 F. App’x 651, 654 (3d Cir. 2009)); see also
United States v. Hensley, 469 U.S. 221, 235 (1985) (“When the Covington officers stopped
Hensley, they were authorized to take such steps as were reasonably necessary to protect their
personal safety and to maintain the status quo during the course of the stop.”).
12
determine whether [an individual] is in fact carrying a weapon and to neutralize the
threat of physical harm” when the officer “is justified in believing that the individual
whose suspicious behavior he is investigating at close range is armed and presently
dangerous.”39
Although Officer Rosario began drawing his weapon after Murray engaged in
a blading movement, he testified that it was only after he saw what appeared to be
Murray reaching for his waistband that he pointed his weapon at Murray and told
him to get on the ground. These were reasonable defensive measures that the
officer took for his own safety under the circumstances.40
Because Officer Rosaio was engaged in a Terry stop at the time he discovered
the gun, the gun was lawfully seized provided the stop was supported by a
reasonable, articulable suspicion that Murray was engaged in criminal activity,
specifically, carrying a concealed deadly weapon.41
B.
The police may “‘restrain an individual for a short period of time’ to
investigate where officers have ‘reasonable articulable suspicion that the suspect has
39
Terry, 392 U.S. at 24; see also Flowers, 195 A.3d at 28.
40
See Flowers, 195 A.3d at 28-29 (“Generally, a show of force, including the use of drawn
weapons, does not render an investigative stop unreasonable if the police determine that it is
reasonably necessary to protect themselves and maintain the status quo. . . . Similarly, forcing a
detainee to lie down to prevent flight might be justified under the circumstances.” (internal
quotation marks omitted)).
41
See, e.g., id. at 23-24 (citing Terry, 392 U.S. at 30-31).
13
committed or is about to commit a crime.’” 42 Although reasonable, articulable
suspicion requires less than probable cause and “considerably less than
preponderance of the evidence,”43 the officer “must be able to point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion.” 44 “[A] vague hunch or feeling that the
defendant ‘looked suspicious’ will not do.” 45 “A determination that reasonable
suspicion exists, however, need not rule out the possibility of innocent conduct.”46
To determine whether reasonable suspicion exists, courts “must examine the totality
of the circumstances surrounding the situation ‘as viewed through the eyes of a
reasonable, trained police officer in the same or similar circumstances, combining
objective facts with such an officer’s subjective interpretation of those facts.’”47
“In determining whether there was reasonable suspicion to justify a detention, the
court defers to the experience and training of law enforcement officers.”48
Officer Rosaio was able to point to specific and articulable facts giving rise to
his suspicion that Murray was carrying a concealed deadly weapon. These facts
42
Id. at 24 (quoting Quarles, 696 A.2d at 1337).
43
Woody v. State, 765 A.2d 1257, 1263 (Del. 2001) (en banc) (quoting Illinois v. Wardlow, 528
U.S. 119, 123 (2000)).
44
Terry, 392 U.S. at 21.
45
Robertson v. State, 596 A.2d 1345, 1350 (Del. 1991) (quoting Brown v. Texas, 443 U.S. 47, 52
(1979)).
46
United States v. Arvizu, 534 U.S. 266, 277 (2002) (citing Wardlow, 528 U.S. at 125).
47
Woody, 765 A.2d at 1263 (quoting Jones, 745 A.2d at 861).
48
Flowers, 195 A.3d at 27 (quoting Woody, 765 A.2d at 1262).
14
included the high crime area, stutter-stepping, the unnatural canting and blading that
the officer described as well as Murray scanning the area and looking back upon
seeing the officer. A fair reading of the officer’s testimony creates an inference
that the occurrence of unusual canting and blading movements has risen to such a
level that these movements are discussed in officer training as being indicators that
a person is carrying a concealed weapon. The officer reasonably explained the
process by which he combined the objective facts he observed with his subjective
interpretation of those facts, based upon his training and experience, to arrive at a
reasonable and articulable suspicion that Murray was carrying a concealed deadly
weapon. Indeed, the fact that Officer Rosaio honed in on Murray and not his
companion—who was, by Officer Rosaio’s account, walking normally at the same
time of night in the same high crime area—lends further support to Officer Rosaio’s
reasonable suspicion that Murray had a weapon. In other words, Officer Rosaio
did not simply stop two people walking late at night in a high crime area
indiscriminately; instead, he focused his attention specifically on one of them who
engaged in behavior that was indicative of the possession of a deadly weapon.
We think the Superior Court failed to give due deference to the training and
experience of the police officer. The court described the officer’s suspicion as a
15
hunch and “bereft of any scientific support.” 49 It also asked a number of
unanswered questions:
What percentage of armed gunmen walk swinging one
arm but not the other? What percentage of citizens who
walk swinging one arm but not the other are armed
gunmen? How, if at all, do these percentages change
based upon the time of day or the fact that it is a high crime
neighborhood? Similarly, in a police encounter with a
citizen, what percentage of the citizens turn their bodies
away from the policeman? And of those that do, what
percentage are hiding something? And of those that are
hiding something, what percentage of them are hiding
firearms?50
In addition, the court stated, or at least suggested, that the officer’s testimony was
not admissible under Delaware Rule of Evidence 702 because it was not “based on
sufficient facts or data” or “the product of reliable principles and methods.” 51
When an officer testifies about something he has learned through his police training
or through his police experience, however, a court cannot expect the testimony to be
supported by a statistical analysis or a scientific study where there is no evidence
that such an analysis or study exists. 52 “[T]he determination of reasonable
suspicion must be based on commonsense judgments and inferences about human
49
Murray, 2018 WL 1611268, at *3.
50
Id.
51
Id. (quoting D.R.E. 702).
52
See Wardlow, 528 U.S. at 124-25 (“In reviewing the propriety of an officer’s conduct, courts
do not have available empirical studies dealing with inferences drawn from suspicious behavior,
and we cannot reasonably demand scientific certainty from judges or law enforcement officers
where none exists.”).
16
behavior,”53 and such a determination “need not rule out the possibility of innocent
conduct.”54
Our good friend in dissent contends that an officer who sees someone
engaging in furtive, odd behavior indicative of carrying a weapon cannot make a
stop unless the officer has a reasonable suspicion that the person does not have a
license to carry. But, of course, if a person has a legal right to carry a concealed
weapon, that person has no need to act like someone in possession of illegal
contraband. If police officers are to help protect the public from gun violence, they
must be able to make reasonable inferences from unusual, awkward behavior
uncharacteristic of people who have a legal right to possess a gun.55
IV. CONCLUSION
For the foregoing reasons, the judgment of the Superior Court is reversed, and
the case is remanded to the Superior Court for further proceedings consistent with
this opinion.
53
Id. at 125 (citing United States v. Cortez, 449 U.S. 411, 418 (1981)).
54
Arvizu, 534 U.S. at 277 (citing Wardlow, 528 U.S. at 125).
55
It has long been the law in Delaware that “[t]he burden is upon the defendant to establish that
he had a license to carry a concealed deadly weapon.” Lively v. State, 427 A.2d 882, 884 (Del.
1981) (quoting Modesto v. State, 258 A.2d 287, 288 (Del. Super. 1969)); see also State v. Sockum,
99 A. 833 (Del. Ct. Gen. Sess. 1917). Establishing that a person does not have a license to carry
a concealed deadly weapon, therefore, is not an element of the offense that must be proved beyond
a reasonable doubt by the prosecution. Lively, 427 A.2d at 844. Because the lack of a license is
not an element of the offense, the presence or absence of a license need not, and should not, be
considered in determining whether there was reasonable, articulable suspicion to stop the suspect.
17
TRAYNOR, Justice, dissenting:
This case requires us to balance the rights of our citizens to be “secure in their
persons . . . against unreasonable searches and seizures” 56 against the difficult
burden we entrust to law enforcement officers to keep those same citizens safe on
our streets. As part of that balancing, our constitutional law tolerates certain
warrantless seizures that are less intrusive than full-fledged arrests on a lower level
of suspicion than we require for an arrest. Thus, an investigative detention requires
the detaining officer to have a reasonable articulable suspicion that the person
stopped is, or is about to be, engaged in criminal activity,57 while a full-fledged
arrest must be supported by probable cause. Here, I agree with the Majority that
Rosaio, in the first instance—that is, when he first approached Murray—was in the
process of detaining him for investigatory purposes and therefore the detention at
issue is subject to the reasonable-articulable-suspicion standard. But because
Rosaio’s basis for detaining Murray did not, in my view, rise to the level of
reasonable articulable suspicion that Murray was subject to seizure for violating the
law, I would affirm the Superior Court’s order suppressing the evidence Rosaio
seized as a direct result of his encounter with Murray. Therefore, I respectfully
dissent.
56
U.S. CONST. amend. IV.
57
Terry v. Ohio, 392 U.S. 1, 22 (1968).
18
I disagree with the Majority in two respects. First, I do not believe that on
this record the trial judge was required to defer absolutely to Rosaio’s testimony
merely because he purported to ground it upon his “training and experience.”
Second, I question the constitutionality of Rosaio’s seizure of Murray based on his
suspicion that Murray was carrying a concealed weapon absent a legitimate
suspicion that Murray was doing so unlawfully.
After hearing all that Rosaio had to say about his training in the “the
characteristics of an armed gunman” 58 as it applied to the facts of this case, the
Superior Court found his testimony wanting. This constituted, in the Majority’s
view, a “fail[ure] to give due deference to the training and experience of the police
officer.”59 To be sure, we have recognized that, in this field, “we give due deference
to an officer’s experience and knowledge.” 60 But where, as here, the officer’s
testimony is vague and fails to inspire confidence, I cannot say that the Superior
Court’s failure to give the officer’s testimony as much weight as the Majority would
give was an abuse of discretion.
To expand on this last point, there was scant evidence in the record about the
extent and reliability of the training upon which Rosaio claims to have relied when
he formed the belief that Murray unlawfully possessed a firearm. When asked at
58
A26.
59
Majority Op. at 14.
60
Robertson v. State, 596 A.2d 1345, 1350–51 (Del. 1991).
19
the suppression hearing about what he learned during his “training on the
characteristics of an armed gunman,” Rosaio replied:
I mean, everything. There’s several characteristics
involving people’s behavior and the geographical
locations that they are in. I mean, a lot of it is
observations, and there are elements that -- certain things
that people display when they are attempting to conceal
firearms from the police and from the public. They’re
just things that we’re aware of and that we can use as a
tool.61
The Superior Court was skeptical of Rosaio’s testimony, 62 and the Majority
holds that the Superior Court’s skepticism constituted error. According to the
Majority, the Superior Court should have deferred to Rosaio and, in any case, should
not have demanded that Rosaio’s testimony “be supported by a statistical analysis
or a scientific study where there is no evidence that such an analysis or study
exists.”63 But I do not read the Superior Court’s decision as hinging upon the
absence of such analyses or studies. Rather, taken as a whole, the ruling below
appears to be the product of the trial judge’s legitimate testing of the prosecution’s
assertion “that the Courts are required to simply ‘trust’ the training and experience
of a police officer to make findings as to the appropriate balance between individual
61
A27.
62
During the argument that followed Rosaio’s suppression hearing testimony, the Superior Court
remarked that it “didn’t hear much about the training, except [that] he’s trained.” A51.
63
Majority Op. at 15.
20
liberties and legitimate law enforcement.”64 In my view, it was appropriate for the
Superior Court to push back against this notion and within its discretion to conclude,
based upon the totality of the circumstances, that Rosaio was not in fact acting upon
reasonable articulable suspicion but rather only upon a mere hunch.
Rosaio also offered that his training and experience enabled him to use
Murray’s turning away from him as Rosaio exited his vehicle to infer Murray’s
possession of a concealed gun because Murray’s turn shows that he was “someone
who’s placing the side that the gun was on in a position where the police or the public
can’t see it.” 65 But this assumes that the turning away is designed to conceal
something and that the thing must have been an unlawfully concealed firearm or
another illicit item. In order to escape this fallacy, Rosaio should have—but did
not—offer testimony showing why turning away is solely or at least substantially
linked to illegal activity, such as unlawful concealed weapon possession, as opposed
to lawful activity.
It is also significant that Murray was free to leave until Rosaio detained him.
In light of that fact, the trial court’s skeptical reaction to Rosaio’s reliance on
Murray’s turning away from him was fully justified. As the Court of Appeals of
64
State v. Murray, 2018 WL 1611268, at *2 (Del. Super. Apr. 2, 2018). This comment appears
to be in response to the prosecutor’s argument that “in situations such as this, all the Court does is
defer to the police officer.” A52.
65
A36.
21
Wisconsin, when confronted with similar testimony, pondered:
[H]ow does a person walk away from another as [the
Defendant] had the right to do without turning his or her
body to some degree? Calling a movement that would
accompany any walking away “blading” adds nothing to
the calculus but a false patina of objectivity.66
Likewise, Rosaio’s description of how Murray’s arms were positioned in
relation to his body—the so-called “canting” motion—and the “stutter step” Murray
took does little to persuade me that Murray had done anything to arouse a reasonable
suspicion that would justify his detention. As the Majority points out, Murray was
“walking late at night in a high crime area”67 as Rosaio and his companions observed
him from their unmarked lights-on Chevrolet Tahoe full-size sport utility vehicle.
It does not strike me as inherently suspicious that anyone, including Murray, might
react cautiously or defensively in such a situation.68
I also part with the Majority’s conclusion that Murray’s detention was
justified because “Officer Rosaio was able to point to specific and articulable facts
giving rise to his suspicion that Murray was carrying a concealed deadly weapon.”69
Because Terry stops are permissible only upon suspicion of criminal activity,
66
State v. Pugh, 826 N.W.2d 418, 424 (Wisc. App. 2012).
67
Majority Op. at 14.
68
See City of Cambridge, Basic Street Safety Tips (“If the person following you is in a car, turn
and walk in the opposite direction.”), available at
https://web.archive.org/web/20170211070557/http://www2.cambridgema.gov/CityOfCambridge
_Content/documents/street%20saftety.pdf.
69
Majority Op. at 13.
22
implicit in this part of the Majority’s analysis is the premise that carrying a concealed
deadly weapon is forbidden by our criminal code and therefore constitutes “criminal
activity,” the reasonable suspicion of which justifies an investigative detention.
But carrying a concealed deadly weapon is not in and of itself against the law.
The Delaware statute that prohibits carrying a concealed deadly weapon, 11 Del. C.
§ 1442, provides that:
A person is guilty of carrying a concealed deadly weapon
when the person carries concealed a deadly weapon upon
or about the person without a license to do so as provided
by § 1441 of this title.
As I read this statute, the absence of a license is an element of the offense that the
State would be required to prove beyond a reasonable doubt in a prosecution under
§ 1442. It follows then that a police officer’s suspicion that a citizen is unlawfully
carrying a concealed deadly weapon would depend in part on the officer’s ability to
articulate the reason or reasons why he believed that the citizen was unlicensed.
A very recent Pennsylvania Supreme Court opinion is instructive on this
point. In Commonwealth v. Hicks, 70 the court rejected the notion that a police
officer may infer criminal activity merely from an individual’s possession of a
concealed firearm in public. As the Hicks court wrote:
We find no justification for the notion that a police officer
may infer criminal activity merely from an individual’s
70
---A.3d---, 2019 WL 2305953 (Pa. May 31, 2019); see also United States v. Ubiles, 224 F.3d
213, 218 (3d Cir. 2000), as amended (Sept. 28, 2000).
23
possession of a concealed firearm in public. . . . Although
the carrying of a concealed firearm is unlawful for a
person statutorily prohibited from firearm ownership or
for a person not licensed to do so, there is no way to
ascertain an individual’s licensing status, or status as a
prohibited person, merely by his outward appearance.
As a matter of law and common sense, a police officer
observing an unknown individual can no more identify
whether that individual has a license in his wallet than
discern whether he is a criminal. Unless a police officer
has prior knowledge that a specific individual is not
permitted to carry a concealed firearm, and absent
articulable facts supporting reasonable suspicion that a
firearm is being used or intended to be used in a criminal
manner, there simply is no justification for the conclusion
that the mere possession of a firearm, where it lawfully
may be carried, is alone suggestive of criminal activity.71
Admittedly, my objection based on the Pennsylvania Supreme Court’s
reasoning in Hicks is problematic; after all, Murray did not make this argument in
the trial court or before us. Besides that, contrary to my understanding that the
absence of a license is an element of our carrying-a-concealed-deadly-weapon
statute, we held in Upshur v. State that licensure is not an element but rather an
affirmative defense.72 But if I am correct—and I dissent only because I humbly
71
Hicks, 2019 WL 2305953, at *14 (internal footnotes and citations omitted) (emphasis added).
72
Upshur v. State, 420 A.2d 165, 169 (Del. 1980); see also Lively v. State, 427 A.2d 882, 884
(Del. 1981). The cases cited by the Majority that place the burden of proving licensure on the
defendant trace their lineage back to the trial court’s opinion in State v. Sockum, 99 A. 833 (Del.
Ct. Gen. Sess. 1917). But Sockum was decided prior to the enactment of the modern Delaware
Criminal Code, which abolished common law crimes. 11 Del. C. § 202. Moreover, the Sockum
opinion does not even attempt to articulate a rationale for its holding. For these reasons, I am not
satisfied that Sockum and its progeny should govern our interpretation of 11 Del. C. § 1442.
24
believe that I am—Murray’s failure to raise the issue should not stop us from
vindicating his Fourth Amendment rights.73
And I respectfully suggest that we should reconsider Upshur. Upshur
involved, among other things, a prosecution for carrying a concealed deadly weapon
of 11 Del. C. § 1442. On appeal, Upshur argued that the State had failed to meet
its burden of proof that he did not have a license to carry the concealed weapon. In
a one-sentence ruling, we rejected Upshur’s claim, stating that he had “ignore[d] the
clear import of 11 Del. C. § 305, which places the burden of proving that he was
legally entitled to carry to deadly weapon (by virtue of a license) on the defendant.”74
11 Del. C. § 305 provides that:
[w]hen this Criminal Code or another statute specifically
exempts a person or activity from the scope of its
application and the defendant contends that the defendant
is legally entitled to be exempted thereby, the burden is on
the defendant to prove, as an affirmative defense, facts
necessary to bring the defendant within the exemption.
But § 1442’s licensure requirement is not an “exemption” within the meaning of
§ 305.75 This conclusion is supported by the 1973 Commentary to the Delaware
73
As Hicks itself notes, some courts have analyzed the question of whether suspicion of mere
possession of a concealed weapon will justify a Terry stop with reference to whether licensure
serves as an affirmative defense, in which case a Terry stop is deemed lawful. Hicks, 2019 WL
2305953, at *13.
74
Upshur, 420 A.2d at 169.
75
Cf. Delaware v. Prouse, 440 U.S. 648 (1979) (holding that that “except in those situations in
which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an
automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure
25
Criminal Code, which contains an appendix (Appendix E) that lists the statutory
exemptions referred to in § 305. 11 Del. C. § 1442 is not on the list of exemptions,
and, moreover, is dissimilar in phrasing to the exemptions that are listed. 76 Put
simply, licensure should not be considered an affirmative defense to a charge of
carrying a concealed deadly weapon; rather, its lack should be considered an element
of the offense.
For all these reasons, I would affirm the judgment of the Superior Court.
for violation of law, stopping an automobile and detaining the driver in order to check his driver's
license and the registration of the automobile are unreasonable under the Fourth Amendment”);
21 Del. C. § 2701(a) (“No person shall drive a motor vehicle on a public street or highway of this
State without first having been licensed . . . .”); 24 Del. C. § 1766(a) (criminalizing practicing
medicine without a license).
76
Compare 11 Del. C. § 1442 to 11 Del. C. §§ 1321, 1325, 1335(6), 1403, 1408, 1444, and 1445.
See also 11 Del. C. § 780B(b) (exemption for doctors and officers who have sexual contact with a
person in custody where the doctor or officer was acting in the course of their duties); 11 Del. C.
§ 910 (exemption for debt adjustments incurred incidentally to the practice of law); 11 Del. C.
§ 1327 (exemption to Maintaining a Dangerous Animal for law enforcement and licensed private
security agencies); 11 Del. C. § 1405(b) (exemptions to Possessing a Gambling Device).
26