State v. Harris ( 2016 )

``IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) ID. No. 1602006736
)
ANTOINE HARRIS, )
)
Defendant. )
Submitted: July 22, 2016
Decided: July 25, 2016
On Defendant Antoine Harris‟s Motion to Suppress. DENIED.
ORDER
Michael B. DegliObizzi, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
Andrew J. Meyer, Esquire, Assistant Public Defender, Wilmington, Delaware,
Attorney for Defendant Antoine Harris.
SCOTT, J.
Introduction
Before the Court is Defendant Antoine Harris‟s (“Defendant”) Motion to
Suppress. Therein, Defendant challenges the validity of police action, which
resulted in evidence and charges against Defendant, as having violated his right
against unreasonable searches and seizures of his person guaranteed under the
Fourth, Fifth, and Fourteenth Amendments to the United States Constitution,
Sections 6 and 7 of Article I of the Delaware Constitution, and Delaware law. The
Court has reviewed and considered the Parties‟ written submissions, as well as the
evidence provided and arguments made by the Parties at the suppression hearing.1
For the following reasons, Defendant‟s Motion to Suppress is DENIED.
Findings of Fact2
On February 10, 2016, Officers Richard Verna (“Ofr. Verna”) and Dvon
Stallings (“Ofr. Stallings”) of the Wilmington Police Department (“WPD”)
(collectively, the “Officers”) were conducting routine patrol in a marked police
vehicle on the northside of the City of Wilmington, when they observed Defendant
emerge from a convenience store located at the corner of 29th and Washington
Streets and begin walking up the street. At that time, Ofr. Verna had been working
1
Defendant filed his Motion to Suppress on June 22, 2016. The State filed its response on July
20, 2016. The suppression hearing was held on July 22, 2016.
2
Unless otherwise noted, the findings of facts were made from the testimony of Ofr. Verna and
Ofr. Stallings, which was provided at the suppression hearing.
1
for the WPD for approximately 6 years, and Ofr. Stallings had been working for
the WPD for just over one year.
Prior to the day in question, Ofr. Verna had responded to a department flyer
seeking assistance in the identification of two suspects in an unrelated shooting
that occurred in the same area on January 26, 2016, where he was shown the
convenience store‟s surveillance video of the incident and was able to identify one
of the two shooters from prior experiences. Regarding the video, Ofr. Verna
testified that it was of high quality, providing a clear picture of two African
American suspects firing guns, and that the unidentified gunman was of average
build and wore a maroon hoodie.
As a result, Ofr. Verna testified that, when he got a good look of Defendant
on February 10th in the daytime, he believed that he recognized Defendant as the
second shooter from the video, because Defendant fit the description being a black
male of similar build and wearing a maroon hoodie. The Officers, thus, decided to
try and identify Defendant through what they termed a “casual” or “soft
encounter,” meaning that Defendant could have left at any time. Upon circling the
block, the Officers, who were in full uniform, observed Defendant walking
eastbound on 30th Street, whereupon Oft. Verna parked the patrol vehicle
approximately one car length away. Ofr. Stallings exited the vehicle alone, walked
2
toward Defendant without putting his hands near his gun or taser, and asked
Defendant, “Hey, can I talk to you for a minute?”
Both Officers testified that, in response, Defendant immediately grabbed the
front of his waistband and ran. Ofr. Verna remained in the patrolcar and informed
dispatch that his partner was in pursuit of a suspect who was possibly in possession
of a firearm, because based on his training and experience Defendant‟s actions
were consistent with the characteristics of an armed gunman. Ofr. Stallings
pursued Defendant on foot approximately five to eight feet behind, and testified
that he observed Defendant running with his right hand tugging at his waistband in
what appeared to be an attempt to retrieve or conceal a firearm based on his
training and experience. He further testified that in his training and experience
when a suspect flees in this manner, they are likely trying to hide something or
have something on them. Ofr. Stallings testified that he maintained a clear line of
sight of Defendant as he followed him down an alley to the right, but that he lost
sight of Defendant for approximately two to three seconds when he made another
right turn behind the houses. When Ofr. Stallings turned the corner, he saw
Defendant stopped behind a tree and testified that Defendant looked at him and
then started running again, but that this time Defendant‟s arms were free and no
longer grabbing at his waistband.
3
Ofr. Stallings eventually apprehended Defendant and identified him as
Antoine Harris. A search of Defendant‟s person revealed that he was in possession
of money and heroin, and a search of the alley revealed a firearm.
Parties’ Contentions
Defendant argues that he was seized when Ofr. Stallings approached him
and initiated conversation, because the officer‟s actions constituted a show of
authority, which made him feel that he was not free to leave. Defendant also
argues that this seizure was illegal, because Officers lacked sufficient reasonable
suspicion at this time to stop him, when nothing they observed suggested that
Defendant had committed, was committing, or was about to commit a crime.
Therefore, any evidence obtained as a result of the unlawful stop should be
suppressed as fruit of the poisonous tree.
The State argues that there was no seizure when the Officers approached
Defendant and Ofr. Stalling asked, “Hey, can I talk to you for a minute,” because
the attempted interaction was merely a consensual encounter. Alternatively, at that
time, the Officers had reasonable and articulable suspicion to perform an
investigatory stop of Defendant pursuant to 11 Del. C. § 1902, based on Ofr.
Verna‟s belief that the individual he saw on Washington Street was the
unidentified suspect from the video of the January shooting incident. Further, any
mistake of fact by Ofr. Verna regarding the actual identity of Defendant does not
4
negate the Officers‟ reasonable suspicion. The State also argues that Defendant‟s
eventual flight from the attempted consensual encounter on West 30th Street is
properly considered in determining the Officers‟ reasonable suspicion supporting
Defendant‟s ultimate arrest.
Standard
On a motion to suppress evidence seized during a warrantless search, the
State bears the burden of establishing that the challenged search or seizure did not
violate the rights guaranteed a defendant by the United States Constitution, the
Delaware Constitution, and Delaware statutory law.3 The burden of proof on a
motion to suppress is proof by a preponderance of the evidence.4
Discussion
An individual‟s right to be free from unlawful governmental searches and
seizures in Delaware is secured by two independent sources.5 The Fourth
Amendment of the United States Constitution guarantees “the right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures . . . .”6 Likewise, Article I, Section 6 of the Delaware
Constitution guarantees that “[t]he people shall be secure in their persons, houses,
3
Hunter v. State, 783 A.2d 558, 560-61 (Del. 2001).
4
State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010) (citing State v. Bien-
Aime & Smalls, 1993 WL 138719, at *3 (Del. Super. Mar. 17, 1993).
5
This right has been codified by title 11, chapter 23 of the Delaware Code. 11 Del. C. § 2301 et
seq.
6
U.S. Const. amend. IV. The Fourteenth Amendment makes the Fourth Amendment applicable
to the states. See Mapp v. Ohio, 367 U.S. 643, 655 (1961).
5
papers and possessions, from unreasonable searches and seizures . . . .”7 Searches
and seizures are presumptively unreasonable, unless they are authorized by
warrants or fall under a recognized exception to the warrant requirement.8
In Terry v. Ohio, the United States Supreme Court held that a police officer
may conduct a brief, investigatory detention of an individual based on the officer‟s
reasonable and articulable suspicion that criminal activity is afoot.9 In similar
fashion, Delaware‟s Detention Statute allows a police officer to detain an
individual for investigatory purposes if the detention is supported by “reasonable
ground” to suspect that the individual “is committing, has committed or is about to
commit a crime.”10 The term “reasonable ground,” as used in 11 Del. C. § 1902(a),
has the same meaning as “reasonable and articulable suspicion” as defined by
Terry.11
Where it is shown that there has been a violation of a defendant‟s right to be
free from illegal searches and seizures, the exclusionary rule acts as the remedy.12
The rule requires that any evidence recovered or derived from an illegal search and
7
Del. Const. art. I, § 6.
8
Mason v. State, 534 A.2d 242, 248 (Del. 1987).
9
392 U.S. 1, 30 (1968).
10
11 Del. C. § 1902(a).
11
Jones v. State, 745 A.2d 856, 861 (Del. 1999).
12
Id. at 872.
6
seizure must be excluded from evidence, in the absence of an independent source
for or a situation allowing for the inevitably discovery of the evidence.13
A. The Initial Encounter
It is well settled that, where police officers have reasonable suspicion of
criminal activity on the part of a person, they have the authority to stop and detain
that person.14 Generally, a seizure occurs when an “officer, by means of physical
force or show of authority, has in some way restrained the liberty” of the
individual, because “not all personal intercourse between policemen and citizens
involves „seizures‟ of persons.”15 However, in Jones v State, the Delaware
Supreme Court held that, because the search and seizure language in Article I, § 6
of the Delaware Constitution provides greater protections to individuals than its
federal counterpart, determining whether a seizure occurred under the Delaware
Constitution “requires focusing upon the police officer‟s actions to determine
whether a reasonable person would have believe he or she was not free to ignore
the police presence.”16 Applying this rule to the facts before it, the Jones Court
found that, where the police officer exited his vehicle, approached the defendant,
13
Id. (citations omitted).
14
Terry, 392 U.S. at 22.
15
Id. at 19 n.16.
16
745 A.2d at 869.
7
and ordered him to stop and remove his hands from his coat pockets, the police
officer engaged in conduct constituting a seizure of the defendant.17
Over the next 20 years, the Delaware Supreme Court continued to refine its
analysis of whether a police officer‟s interaction with an individual amounts to a
seizure or merely constitutes a “consensual encounter.” In Ross v. State, the Court
held that “the presence of uniformed police officers following a walking pedestrian
and requesting to speak with him, without doing more, does not constitute a seizure
under Article I, § 6 of the Delaware Constitution.”18 In Ross, the police officers
slowly drove alongside the defendant, who appeared to notice them and turned to
walk away, and then stopped their car, got out, and began requesting an interview,
asking repeatedly, “Can we talk to you?” as they followed the defendant.19 The
Court held that the lower court had properly concluded that this police conduct did
not amount to a seizure.20 Similarly, in Williams v. State, the Supreme Court found
that, where the officer observed the defendant walking on a highway median,
parked his patrol car ten feet behind him, activated his strobe light, and merely
approached him to ask if he needed a ride, under the totality of the circumstances
the interaction was merely a consensual encounter and not a seizure.21 Finally, in
17
Id. at 859, 869.
18
925 A.2d 489, 494 (Del. 2007).
19
Id. at 491.
20
Id. at 494.
21
962 A.2d 210, 213, 215-16 (Del. 2008) (“During a consensual encounter, a person has no
obligation to answer the officer‟s inquiry and is free to go about his business.”).
8
Harris v. State, the Supreme Court found that the defendant was not seized while
sitting in his vehicle parked behind a bar, when the officer stopped and exited his
patrol car approximately ten feet behind him, approached the defendant, and asked
him, first, if everything was alright and then other general questions.22
In the instant matter, the facts and circumstances are more similar to Ross,
Williams, and Harris, where no seizures occurred, than to Jones, because the
testimony shows that Defendant was merely posed a question and was not ordered
or commanded to do anything. Furthermore, the testimony clearly shows that the
encounter sub judice pales in comparison to the level of intrusion occasioned by
the casual encounters in Ross, Williams, and Harris, because, here, only one of the
two Officers actually exited the vehicle and approached Defendant, this Officer
merely asked Defendant one time if he could talk to him, and no other officers
even approached Defendant. The record is simply devoid of any evidence that Ofr.
Stallings ordered Defendant to do anything, that any officers surrounded
Defendant, prevented him from leaving, or made any other show of force that
would cause a reasonable person to believe he or she was not free to ignore their
presence. As this Court has previously explained, “[w]hile there is an inherent
aura of authority in any . . . encounter with uniformed police officers, this factor
alone does not elevate the encounter to a seizure.”23 Therefore, after considering
22
12 A.3d 1154 (Del. 2011) (TABLE), 2011 WL 252945, at *1.
23
State v. Baker, 2011 WL 2535792, at *6 (Del. Super. June 20, 2011).
9
the Officers‟ conduct toward Defendant under the totality of the circumstances, the
interaction constituted a consensual encounter, if one could even call it that based
on the scant interaction between the Officers and Defendant before he fled, and not
a seizure.24
B. Reasonable Suspicion to Stop Defendant
Delaware courts define reasonable suspicion as an officer‟s ability to point
to specific and articulable facts which, combined with all rational inferences,
reasonably warrant the intrusion.25 Therefore, even assuming, arguendo, that
Defendant was seized when the Officers approached him and said, “Hey, can I talk
to you for a minute,” under the totality of the circumstances, the Officers had
reasonable suspicion to stop Defendant, based on Ofr. Verna‟s belief that
Defendant was the second shooter in the surveillance video of the January shooting
case, the similar location, and the Officers‟ combined belief that Defendant was
trying to evade them.
24
See Curtis v. State, 15 A.2d 216 (Del. 2011) (TABLE), 2011 WL 825827, at *2 (“In this case,
the mere presence of [the officer in a police vest] for a fraction of a second—or even a few
seconds—would not cause a reasonable person in [the defendant‟s] position to believe he could
not ignore the police presence.”); Woody v. State, 765 A.2d 1257, 1264 (Del. 2001) (finding no
encounter where the defendant fled almost immediately upon seeing one of the officers
approaching and before any of the officers attempted to effectuate a detention); see also State v.
Roy, 2011 WL 917416, at *4 (Del. Super. Mar. 17, 2011) (finding the defendant was seized
when the officer said to him, “[c]ome here, Carl”).
25
Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989).
10
In weighing the evidence, the court “defers to the experience and training of
law enforcement officers.”26 A determination of reasonable suspicion must be
evaluated 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 an officer‟s subjective interpretation of those
facts.27 Lastly, “[r]easonable suspicion is a less demanding standard compared to
probable cause and only requires a showing considerably less than preponderance
of the evidence.”28
In Jones, the Supreme Court found that the officer lacked a reasonable and
articulable suspicion to stop the defendant, because he primarily relied on the
anonymous 911 complaint merely reporting that a suspicious black male wearing a
blue coat had allegedly been standing in front of a particular address.29 The Court
found the fact that Defendant‟s location and general physical description were
similar to the individual described in the uncorroborated 911 complaint and the
fact that the events took place at night in a high crime/drug area did not constitute
reasonable and articulable suspicion sufficient to justify the officer‟s stop of the
defendant.30
26
Woody, 765 A.2d at 1262.
27
Id. at 1263(citing Jones, 745 A.2d at 860).
28
Id. at 1262 (citing Illinois v. Wardlow, 528 U.S. 119, 123 (2000)).
29
Jones, 745 A.2d at 858, 869-70.
30
Id. at 871-72.
11
The facts of the instant case are distinguishable from the outset, because the
Officers were not acting on the basis of an unreliable anonymous tip, 911 or
otherwise. Rather, Ofr. Verna testified that he personally viewed a surveillance
video in connection with the investigation of an unrelated crime, where he saw an
individual who resembled Defendant illegally shooting a gun. In deference to Ofr.
Verna‟s testimony regarding the circumstances of the surveillance video and his
ability to recall the second shooter‟s appearance, which appeared to be credible,
the Court believes that Ofr. Verna reasonably suspected that Defendant was
involved in the January shooting when he saw him on February 10, 2016.
Therefore, Ofr. Verna had reasonable and articulable suspicion to believe
Defendant had committed a crime.31
Conclusion
For the foregoing reasons, Defendant‟s Motion to Suppress is hereby
DENIED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.
cc: Prothonotary
31
See id. at 871 (“Reasonable and articulable suspicion cannot be based on a 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.”).
12