Flowers v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
RON FLOWERS §
§ No. 52, 2018
Defendant-Below, §
Appellant, § Court Below:
§ Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE §
§ I.D. No. 1706006410 (N)
Plaintiff-Below, §
Appellee. §
Submitted: September 26, 2018
Decided: September 27, 2018
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Bernard J. O’Donnell, Esquire, Office of the Public Defender, Wilmington, Delaware for
the Appellant.
Andrew Vella, Esquire, Department of Justice, Wilmington, Delaware, for Appellee.
VALIHURA, Justice:
This appeal asks us to decide whether the Superior Court abused its discretion in
denying Ron Flowers’ motion to suppress. In a bench ruling, the trial court determined
that Flowers’ actions, when viewed through the eyes of a trained police officer, gave rise
to a reasonable, articulable suspicion that Flowers was concealing a firearm. Thus, the trial
court found his seizure constitutional. We AFFIRM the decision of the trial court.
I.
Ron Flowers and his co-defendant, Tariq Mariney, were indicted on charges of Drug
Dealing, Aggravated Possession of Cocaine, Possession of a Firearm During the
Commission of a Felony (“PFDCF”), Carrying a Concealed Deadly Weapon (“CCDW”),
two counts each of Possession of a Firearm By a Person Prohibited (“PFBPP”) and
Possession or Control of Ammunition By a Person Prohibited (“PABPP”), Receiving a
Stolen Firearm, and Conspiracy Second Degree.1 Flowers moved to suppress evidence
before trial.2 In a bench ruling, the Superior Court denied his motion.
Following a two-day trial, a jury convicted Flowers of two counts of PFBPP as well
as the CCDW charge.3 Flowers was sentenced to five years of incarceration followed by
descending levels of supervision.
1
Indictment (July 10, 2017), at A006–10 [hereinafter Indictment].
2
Suppression Hearing Transcript (Nov. 17, 2017), at A028–41 [hereinafter Suppression Hearing
Transcript].
3
Ex. B to Flowers’ Opening Br. [hereinafter Sentence Order]. Before trial, the State entered a
nolle prosequi on the drug-related charges and the conspiracy charge. Id. The trial court granted
Flowers’ motion for acquittal on the Receiving a Stolen Firearm charge. Appendix to Flowers’
Opening Br. at A003.
2
On the night of June 9, 2017, Wilmington Police Detective Alexis Schupp received
a tip and reported to Sergeant Michael Gifford that there was a subject at Seventh and West
Streets wearing a Phillies shirt, a Phillies hat, and tan shorts who was armed with a gun in
his waistband. Sergeant Gifford relayed the tip to members of Wilmington Police Disrupt
Squad.4 The intersection of Seventh and West is a high-crime area.
Around 11 p.m., Corporal Thomas Lynch responded to the call and arrived at the
area in a patrol car. He saw two men standing next to a car parked on West Street. The
two men were talking to the occupants of the car. One of the two men, Tariq Mariney,
matched the description of the subject provided in the tip. The other man, Flowers, was
standing next to Mariney.
Mariney stepped back from the parked car as Lynch and other officers approached
it. Lynch had a clear line of sight to Flowers. Flowers “turned his body and grabbed an
object that was protruding from his waistband.”5 The object appeared to be rectangular
and was “kind of tucked under [Flowers’] shirt,” and Flowers had his fingers wrapped
around the object.6 Relying on his training and experience, Lynch believed that Flowers’
actions were consistent with someone attempting to conceal a firearm.
4
According to the trial court, “Operation Disrupt” is a Wilmington Police Department program
designed to “curb the use and possession of deadly weapons, particularly firearms in high crime
areas . . . .” Id. at A039; see also id. at A030. Officers involved in Operation Disrupt typically are
deployed in high crime areas during the hours of 2:00 p.m. until 1:00 a.m. because those are
generally the hours when crimes are committed. Id. at A030. Officers in that unit undertake
specialized training to identify armed subjects. Id.
5
Id. at A033.
6
Id.
3
After observing Flowers’ actions, Lynch ordered Flowers and Mariney to the
ground. Another officer conducted a pat-down of Flowers and discovered a firearm.
On appeal, Flowers contends that the trial court abused its discretion in finding that
the police had reasonable, articulable suspicion to seize (or “stop”) him in violation of the
Fourth Amendment. He claims that this finding is erroneous since the court improperly
considered the officer’s reliance on a tip from an unknown source. Flowers also argues
that his detention went beyond a Terry stop and frisk when Lynch ordered him to the
ground. He contends that his detention turned into an arrest which requires probable cause.
Finally, he argues that the circumstances, viewed in their totality, do not support a finding
of probable cause.
II.
This Court reviews the denial of a motion to suppress for an abuse of discretion. 7
Embedded legal conclusions are reviewed “de novo for errors in formulating or applying
legal precepts.”8 When we are reviewing the denial of a motion to suppress evidence based
on an allegedly illegal stop and seizure, “we conduct a de novo review to determine whether
the totality of the circumstances, in light of the trial judge’s factual findings, support a
reasonable and articulable suspicion for the stop.”9
7
Stafford v. State, 59 A.3d 1223, 1227 (Del. 2012) (citing Lopez-Vazquez v. State, 956 A.2d 1280,
1284 (Del. 2008)).
8
Lopez-Vazquez, 956 A.2d at 1285 (citations omitted).
9
Id. (citing State v. Rollins, 922 A.2d 379, 382 (Del. 2007)).
4
III.
Flowers’ main argument on appeal is that the seizure of him and subsequent pat-
down, resulting in the police finding a firearm on his person, was not justified by the
requisite reasonable, articulable suspicion that he was armed, and that it was substantially
more intrusive than a frisk for weapons ordinarily deemed permissible in such
circumstances.
We first set the framework for the analysis. “The United States and Delaware
Constitutions protect the right of persons to be secure from ‘unreasonable searches and
seizures.’”10 “Generally, ‘[s]earches and seizures are per se unreasonable, in the absence
of exigent circumstances, unless authorized by a warrant supported by probable cause.’”11
However, in certain circumstances, more limited searches and seizures are found
reasonable absent a warrant and when based on less than probable cause: when officers
have reasonable, articulable suspicion that a suspect is armed and engaged in criminal
activity.12 Under such circumstances, officers may conduct what has become known as a
Terry stop-and-frisk.
In Terry v. Ohio,13 the United States Supreme Court held as follows:
[W]here a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may be armed and
10
Flonnory v. State, 109 A.3d 1060, 1063 (Del. 2015) (citing U.S. Const. amend. IV; Del. Const.
art. I, § 6). Flowers does not assert any argument based upon the Delaware Constitution.
11
Id. (quoting Scott v. State, 672 A.2d 550, 552 (Del. 1996)).
12
Miller v. State, 25 A.3d 768, 771 (Del. 2011) (citing 11 Del. C. § 1902; Terry v. Ohio, 392
U.S. 1 (1968)).
13
392 U.S. 1 (1968).
5
presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to dispel his reasonable
fear for his own or others’ safety, he is entitled for the protection of himself
and others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be
used to assault him. Such a search is a reasonable search under the Fourth
Amendment, and any weapons seized may properly be introduced in
evidence against the person from whom they were taken.14
The State of Delaware has adopted this holding, and Section 1902 of Title 11
governs such “investigative” or Terry stops in this State.15 Section 1902 provides:
(a) A peace officer may stop any person abroad, or in a public place, who the
officer has reasonable ground to suspect is committing, has committed or is
about to commit a crime, and may demand the person’s name, address,
business abroad and destination.
(b) Any person so questioned who fails to give identification or explain the
person’s actions to the satisfaction of the officer may be detained and further
questioned and investigated.
(c) The total period of detention provided for by this section shall not exceed
2 hours. The detention is not an arrest and shall not be recorded as an arrest
in any official record. At the end of the detention the person so detained shall
be released or be arrested and charged with a crime.16
In Terry, the United States Supreme Court made clear that the Terry stop-and-frisk
still involves a “seizure” and “search” within the meaning of the Constitution.17
14
Terry, 392 U.S. at 30–31.
15
Hicks v. State, 631 A.2d 6, 9 (Del. 1993).
16
11 Del. C. § 1902.
17
Terry, 392 U.S. at 16 (“There is some suggestion in the use of such terms as ‘stop’ and ‘frisk’
that such police conduct is outside the purview of the Fourth Amendment because neither action
rises to the level of a ‘search’ or ‘seizure’ within the meaning of the Constitution. We emphatically
reject this notion. It is quite plain that the Fourth Amendment governs ‘seizures’ of the person
which do not eventuate in a trip to the station house and prosecution for crime—‘arrests’ in
traditional terminology.”).
6
A person is “seized” when, “in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave.”18 “Two
categories of police-citizen encounters which constitute seizures under the Fourth
Amendment have been recognized.”19 First, police may “restrain an individual for a short
period of time” to investigate where officers have “reasonable articulable suspicion that
the suspect has committed or is about to commit a crime.”20 It requires less than probable
cause. This form of seizure is the Terry “stop,” or investigative stop.21 For simplicity, we
refer to such a seizure as a “stop” in this opinion. Second, the police seize a person when
they make an arrest, which requires “probable cause that the suspect has committed a
crime.”22
18
Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (quoting United States v. Mendenhall, 446
U.S. 544, 554 (1980) (opinion of Stewart, J.)); see also Curtis v. State, 15 A.3d 216, 2011 WL
825827, at *2 (Del. Mar. 9, 2011) (Table) (“To determine when a seizure has occurred under article
I, Section 6 of the Delaware Constitution, we ‘focus[] 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.’” (alteration in original) (quoting Jones v. State, 745 A.2d 856, 869 (Del. 1999))).
19
Quarles v. State, 696 A.2d 1334, 1337 (Del. 1997); see also Robertson v. State, 596 A.2d 1345,
1350 (Del. 1991) (“For each encounter between a private citizen and a law enforcement agent, the
degree of suspicion required varies with the nature of the seizure. As the stop becomes more
invasive, the articulable facts which form the basis of the stop must edge towards probable cause
from reasonable suspicion.” (citation omitted)).
20
Quarles, 696 A.2d at 1337 (citing United States v. Hernandez, 854 F.2d 295, 297 (8th Cir.
1988)).
21
See, e.g., State v. Blackshear, 2014 WL 1371797, at *2 (Del. Super. Ct. Apr. 7, 2014). See also
Terry, 392 U.S. at 31 (Harlan, J., concurring) (“A police officer’s right to make an on-the-street
‘stop’ and an accompanying ‘frisk’ for weapons is of course bounded by the protections afforded
by the Fourth and Fourteenth Amendments. The Court holds, and I agree, that while the right does
not depend upon possession by the officer of a valid warrant, nor upon the existence of probable
cause, such activities must be reasonable under the circumstances as the officer credibly relates
them in court.”).
22
Quarles, 696 A.2d at 1337. See also Jarvis v. State, 600 A.2d 38, 42 (Del. 1991) (“While
reasonable suspicion will support a limited search and seizure, it does not justify an arrest. Only
7
The line between a “stop” and an “arrest” is important because an arrest requires
probable cause—more than reasonable, articulable suspicion—in order to be reasonable.
A few principles help draw the line. “A stop or detention constitutes a seizure of the person,
but, in terms of duration and scope, it is a much more limited intrusion than an arrest.”23
A Terry stop must be limited, justified at its inception, and “reasonably related in scope to
the circumstances which justified the interference in the first place.”24 An unreasonably
intrusive stop may constitute a de facto arrest requiring probable cause.25 Indeed,
“[a]lthough an investigatory stop is not an arrest . . . , it may ripen into an arrest if the
duration of the stop or the amount of force used in the situation is ‘unreasonable.’”26 But
probable cause provides the police the authority to intrude into an individual’s privacy to that
extent.” (citing 11 Del. C. § 1904(b)(1); Thompson v. State, 539 A.2d 1052 (Del. 1988))).
23
Woody v. State, 765 A.2d 1257, 1262 (Del. 2001).
24
Hiibel v. Sixth Jud. Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177, 185 (2004) (quoting United
States v. Sharpe, 470 U.S. 675, 682 (1985)); see also Holden v. State, 23 A.3d 843, 847 (Del. 2011)
(“The scope and duration of the detention must be reasonably related to the initial justification for
the traffic stop.” (citing Caldwell v. State, 780 A.2d 1037, 1046 (Del. 2001))); Hicks, 631 A.2d at
12 (“[T]he police must resolve their suspicions in the most expedient manner by diligently
pursuing the means of investigation in the least intrusive manner possible.” (citation omitted)).
25
See Darling v. State, 768 A.2d 463, 465 (Del. 2001) (“We have concluded under the unique
circumstances of this case, that the police conduct in carrying out a plan to surround Darling at
gunpoint and order him to the ground was more than a seizure but, in fact, constituted an arrest
under both the United States Constitution and the Delaware Constitution.” (citing Jones, 745 A.2d
856; Quarles, 696 A.2d 1334)). See also Sharpe, 470 U.S. at 685 (acknowledging “difficult line-
drawing problems in distinguishing an investigative stop from a de facto arrest” and observing
that, “[o]bviously, if an investigative stop continues indefinitely, at some point it can no longer be
justified as an investigative stop”); United States v. Goode, 309 Fed. App’x 651, 653 (3d Cir. 2009)
(“In determining whether a Terry stop has escalated into an arrest, we assess ‘the reasonableness
of the intrusion . . . , balancing the need of law enforcement officials against the burden on the
affected citizens and considering the relation of the policeman’s actions to his reason for stopping
the suspect.’” (quoting Baker v. Monroe Twp., 50 F.3d 1186, 1192 (3d Cir. 1995))).
26
Wiers v. Barnes, 925 F. Supp. 1079, 1087 (D. Del. 1996) (citing Terry, 392 U.S. 1; Sharpe, 470
U.S. at 682–88).
8
“[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.”27 The form of “search” deemed “reasonable” under such circumstances is
also a limited one: a “frisk” or pat down to find weapons.28
With this basic framework in mind, we turn to Flowers’ argument that his stop and
being ordered to the ground by the officers was not based on reasonable, articulable
suspicion, that it exceeded mere detention, and that “[a] seizure of this scope is
substantially more intrusive than an ordinary Terry frisk for weapons.”29 We disagree with
each of his contentions.
“Determining whether an officer had reasonable and articulable suspicion to
conduct a stop requires a threshold finding of when the stop actually took place.” 30
Although this point was not specifically briefed below, both Flowers 31 and the State
assumed that he was seized after the officers observed him “blading his body and grasping
his waistband.”32
27
United States v. Jones, 973 F.2d 928, 931 (D.C. Cir. 1992) (citing United States v. Laing, 889
F.2d 281, 285 (D.C. Cir. 1989)).
28
See Terry, 392 U.S. at 26 (1968) (“[I]t must be limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or others nearby, and may
realistically be characterized as something less than a ‘full’ search, even though it remains a serious
intrusion.”).
29
Flowers’ Opening Br. at 8.
30
Lopez-Vazquez, 956 A.2d at 1286; see also Terry, 392 U.S. at 21–22 (the court must consider
only “the facts available to the officer at the moment of the seizure or the search”).
31
Flowers’ Motion to Suppress (Sept. 12, 2017), at A011–15 [hereinafter Motion to Suppress].
32
Id. at A13 (“When [police] arrived, they noticed a different subject [Flowers], in a white t-shirt
blading his body and grasping his waistband. Based upon that, they seized that individual and
9
The Superior Court determined that the officers had reasonable articulable suspicion
to detain Flowers after observing Flowers’ behavior. The relevant parts of the trial court’s
bench ruling where it found “reasonable, articulable suspicion” are as follows:
According to Corporal Lynch’s testimony, the defendant turned around. He
saw the defendant turn his body to I guess what’s call [sic] in a term of art,
blading his body, which was to show the narrower side of the body from side
body to the other side of the body. And it seemed to Detective Lynch that he
saw a rectangular object under clothing on the right side of the defendant’s
body in his waistband.
Those actions, according to Corporal Lynch, were consistent in his mind with
a person attempting to conceal a weapon, hence, the crime of carrying a
concealed deadly weapon under Delaware law.
He came to this conclusion in part because of his observations of the normal
human being, but also in part of his training in weapons detection and
criminal suspect’s behavior that was part of his law enforcement training.
So he then exited his vehicle. And he directed, I believe his testimony, all
four individuals to the ground, Tarik [sic] Marini and Ron Flowers, and two
individuals who were a little further around. And the police officer testified
that, Corporal Lynch did, he believed it was very possible that the defendant,
in fact, had a gun.
Now, the key question I think or a key question is whether or not the officer
was authorized by law to order the defendant to the ground. But I think he
was permitted under the circumstances then to order the defendant to the
ground. Terry and its progeny speak of forceable [sic] detentions. A
detention can be just as forceable [sic] if somebody is given a pat-down while
they are standing up. Yeah, it’s a bit more of an intrusion of a person’s liberty
to be ordered to lie down, that’s for sure. But it’s a paramount consideration
for officer safety to make the individual less likely to be able to inflict harm
on a police officer or anyone else.
I think it’s correct, as [defense counsel] argued, that the original tip that had
come in, which was to say that the person with the red Phillies shirt and hat
and tan pants was the one who had the gun. And that proved not to be the
searched him.”).
10
case. The officer didn’t know that at the time. He wasn’t close enough. But
I think that’s part of the quantum of suspicion that Officer Lynch fairly
possessed in order to assess in this very fast breaking situation means to frisk
the defendant, to do a pat-down for officer safety with the defendant on the
ground rather than standing up.
...
So the bottom line in my thinking is that the officer had reasonable articulable
suspicion to pat down the defendant, including the forceable requirement of
him - - of defendant being forced to the ground.
...
I might mention also that the officer testified to this, I believe, that as he
turned away from the officer, the defendant’s shirt became tight to the body
on the right side, and I think he said this, and he placed his right hand over
the object. So I think there was more than enough reasonable articulable
suspicion to have allowed the pat-down of the defendant in the manner
done.33
In Bryant v. State,34 this Court stated that “reasonable articulable suspicion” is
demonstrated by “an officer’s ability to point to specific and articulable facts which, taken
together with rational inference from those facts, reasonably warrant the intrusion.”35
Further, “[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
33
Suppression Hearing Transcript, supra note 2, at A040–41.
34
Bryant v. State, 156 A.3d 696, 2017 WL 568345, at *1 n.1 (Del. 2017) (Table) (citing Jones,
745 A.2d at 861). See generally United States v. Cortez, 449 U.S. 411, 417–418 (1981).
35
Bryant, 2017 WL 568345, at *1 n.1 (quoting Jones, 745 A.2d at 861); see also Terry, 392 U.S.
at 21 (“[I]n justifying the particular intrusion the police officer must be able to point to specific
and articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.”).
11
officer’s subjective interpretation of those facts.”36 “In determining whether there was
reasonable suspicion to justify a detention, the court defers to the experience and training
of law enforcement officers.”37
In this case, Corporal Lynch testified that he had made many arrests based upon the
“blading” movement and had received training in the police academy and from courses on
street crime as to how to recognize the characteristics of an armed person. Lynch ordered
Flowers to the ground because he believed Flowers was armed after seeing Flowers grab a
rectangular object protruding from Flowers’ waistband. The trial court had also noted that
the location of Flowers’ stop was in a high-crime area and it occurred late at night. Based
upon this record, the evidence supports a finding of reasonable and articulable suspicion.
Nor did the trial court err in concluding that there were grounds not just for the stop,
but also for forcing Flowers to the ground and frisking him. “During a Terry stop, officers
may take measures that are reasonably necessary to protect themselves and maintain the
status quo.”38 A police officer is empowered to “take necessary measures to 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
36
Bryant, 2017 WL 568345, at *1 n.1 (quoting Jones, 745 A.2d at 861).
37
Woody v. State, 765 A.2d, at 1262 (citations omitted).
38
Goode, 309 F. App’x at 654 (3d Cir. 2009) (citing United States v. Hensley, 469 U.S. 221, 235
(1985)); see also Dunaway v. New York, 442 U.S. 200, 208–09 (1979) (“Terry for the first time
recognized an exception to the requirement that Fourth Amendment seizures of persons must be
based on probable cause,” and noting that Terry “involved a brief, on-the-spot stop on the street
and a frisk for weapons, a situation that did not fit comfortably within the traditional concept of an
‘arrest.’”).
12
behavior he is investigating at close range is armed and presently dangerous to the officer
or to others.”39
During an investigative stop, officers may, under appropriate circumstances, search
the detainee to determine whether he is armed.40 An officer may conduct such a search for
weapons if “he has reason to believe that he is dealing with an armed and dangerous
individual, regardless of whether he has probable cause to arrest the individual for a
crime.”41 The search must be strictly circumscribed by the exigencies that justify its
initiation.42
39
Terry, 392 U.S. at 24. See also Adams v. Williams, 407 U.S. 143 (1972) (holding that a tip from
a known informant was sufficiently reliable to justify a frisk for weapons on the basis of reasonable
suspicion); Pennsylvania v. Mimms, 434 U.S. 106, 111–12 (1977) (finding an order to exit car a
permissible ‘de minimis’ intrusion after car is lawfully detained after traffic violations; frisk for
weapons was justified based upon “bulge” observed in jacket).
40
Terry, 392 U.S. at 27.
41
Id.
42
LaFave notes a number of circumstances that some courts have deemed sufficient to justify a
protective search including the following:
. . . a characteristic bulge in the suspect’s clothing; observation of an object in the
pocket which might be a weapon; an otherwise inexplicable sudden movement
toward a pocket or other place where a weapon could be concealed; movement
under a jacket or shirt “consistent with the adjustment of a concealed firearm”; an
otherwise inexplicable failure to remove a hand from a pocket; awkward
movements manifesting an apparent effort to conceal something under his jacket;
backing away by the suspect under circumstances suggesting he was moving back
to give himself time and space to draw a weapon; awareness that the suspect had
previously been engaged in serious criminal conduct (but not more ambiguous
“record” information); awareness that the suspect had previously been armed;
awareness of recent erratic and aggressive conduct by the suspect; discovery of a
weapon in the suspect’s possession; discovery that the suspect is wearing a bullet
proof vest as to which he makes evasive denials; and awareness of circumstances
which might prompt the suspect to take defensive action because of a
misunderstanding of the officer’s authority or purpose, as well as other
“characteristics of an armed gunman.”
13
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.”43 However, “the use of guns and
handcuffs during an investigatory stop must be justified, and [courts] are required to look
‘at the intrusiveness of all aspects of the incident in the aggregate.’”44 Similarly, forcing a
detainee to lie down to prevent flight might be justified under the circumstances.45 Factors
courts apply in determining whether a show of force is justified include “the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.”46 The United States Supreme Court has cautioned that “[t]he calculus of
4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 9.6(a) (5th
ed. 2012).
43
Goode, 309 Fed. App’x at 654 (citing Hensley, 469 U.S. at 235).
44
United States v. Coker, 223 Fed. App’x 136, 141 (3d Cir. 2007) (quoting Baker, 50 F.3d at
1193).
45
See, e.g., Laing, 889 F.2d at 285 (D.C. Cir. 1989) (citing United States v. Taylor, 716 F.2d
701, 708-09 (9th Cir. 1983)).
46
Graham v. Connor, 490 U.S. 386, 396 (1989). See also United States v. Ocampo, 890 F.2d
1363, 1369 (7th Cir. 1989) (factors courts apply in determining whether a show of force is justified
include “[t]he nature of the crime under investigation, the degree of suspicion, the location of the
stop, the time of day[,] and the reaction of the suspect to the approach of the police” (citations
omitted)); Perea, 986 F.2d 633, 645 (2d Cir. 1993) (“In assessing whether the degree of restraint
was ‘too intrusive to be classified as an investigative detention,’ we have considered in general the
amount of force used by police, the need for such force, and the extent to which the individual’s
freedom of movement was restrained, and in particular such factors as the number of agents
involved, whether the target of the stop was suspected of being armed, the duration of the stop,
and the physical treatment of the suspect, including whether or not handcuffs were used.” (citations
omitted)); United States v. Jones, 759 F.2d 633, 639, 640 n.8 (8th Cir. 1985) (considering “the
number of officers and police cars involved, the nature of the crime and whether there is reason to
believe the suspect might be armed, the strength of the officers’ articulable, objective suspicions,
the erratic behavior of or suspicious movements by the persons under observation . . . the need for
immediate action by the officers and lack of opportunity for them to have made the stop in less
14
reasonableness must embody allowance for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation.”47
Examples of situations in which courts have found a show of force reasonable
include instances where a suspect failed to comply with an officer’s command to show his
hands,48 where a reliable informant advised the police that a suspect was armed,49 or where
the police had reasonable suspicion that a suspect was armed and dangerous due to the
nature of the offense under investigation.50 Here, the trial court properly found that the
threatening circumstances.”).
47
Graham, 490 U.S. at 396-97; cf. Sharpe, 470 U.S. at 685 (“Much as a ‘bright line’ rule would
be desirable, in evaluating whether an investigative detention is unreasonable, common sense and
ordinary human experience must govern over rigid criteria.”).
48
See, e.g., United States v. Fields, 449 Fed. App’x 146, 147–49 (3d Cir. 2011) (holding that the
use of physical force, including a Taser, during a Terry stop was “reasonable under the objective
reasonableness standard” where the suspect “did not yield to the show of authority and created an
environment where the [o]fficers felt threatened” by refusing to show his hands (citing Graham,
490 U.S. at 388)); see also United States v. Prince, 157 F. Supp. 2d 316, 325 (D. Del. 2001)
(holding that “the use of handcuffs and the placing of [a suspect] in the police car were reasonably
necessary to assure officer safety and maintain the status quo” where the suspect had been evasive
and “was emotional and upset,” and the only officer available to supervise the suspect had to turn
her back on the suspect in order to move about the scene).
49
See, e.g., United States v. Johnson, 592 F.3d 442, 452–53 (3d Cir. 2010) (concluding that
officers reasonably drew their weapons when approaching a taxi matching the description of a
suspect’s vehicle, reasoning that the officers acted on a reliable tip that the occupants of the taxi
were armed and dangerous, and their conduct was limited to that which was “reasonably necessary
to protect their personal safety and to maintain the status quo during the course of the stop”);
United States v. Grant, 256 F. Supp. 2d 236, 246 (D. Del. 2003) (concluding that surrounding the
suspects’ vehicle and approaching with weapons drawn was reasonable where an informant had
told police that the suspects had a loaded gun in the front seat).
50
See, e.g., Buckingham v. State, 482 A.2d 327, 332 (Del. 1984) (holding that an “initial detention
was a lawful, limited intrusion reasonably justified under the circumstances” where an officer
ordered three suspects to exit a vehicle at gunpoint after the officer learned from two “reliable
sources” that an armed robbery had just occurred at a nearby supermarket and one of the passengers
had just run to the vehicle from the supermarket); Virgin Islands v. Blyden, 437 Fed. App’x 127,
15
evidence supported the frisk of Flowers and forcing him to the ground because Lynch had
reasonable, articulable suspicion that Flowers was armed and dangerous.
On appeal, Flowers seeks to raise what the State claims is a new argument. Flowers
argues that the trial court improperly considered the officers’ reliance on a tip from an
unknown source in determining that the police possessed reasonable, articulable suspicion
to detain him. At the suppression hearing, Gifford testified that Schupp relayed a tip that
he had received from an informant describing a man with a gun at Seventh and West
Street.51 Gifford did not know whether the informant was known or an anonymous tipster.
The State, in its response to Flowers’ motion,52 argued that the tipster was “a past-proven
confidential source” who stated that “a black male wearing a Phillies hat, Phillies shirt, and
tan shorts was armed with a black handgun in his waistband.”53 But Flowers now seeks to
de-emphasize evidence regarding Corporal Lynch’s observations by contending that
Flowers’ movements “played little, if any part” in the decision to search him. 54 Instead,
Flowers argues that information derived from an unknown source does not warrant seizure
129 (3d Cir. 2011) (concluding that “officers were acting appropriately when they stopped [a
suspect] with guns drawn and immediately handcuffed him, as he was fleeing a shooting and was
likely armed”); United States v. Coker, 223 Fed. App’x 136, 140 (3d Cir. 2007) (concluding that
jumping on the hood of a vehicle and ordering the suspects to exit the vehicle at gunpoint was
“reasonable to protect the safety of all of the officers at the scene” where officers suspected that
the occupants had participated in an attempted kidnapping and shooting and were armed and
dangerous).
51
Suppression Hearing Transcript, supra note 2, at A030–31.
52
State’s Response to Defendant’s Motion to Suppress (Nov. 3, 2017), at A017–25 [hereinafter
State’s Response].
53
Id. at A018, A025.
54
Flowers’ Opening Br. at 9.
16
and deprivation of liberty. The State contends that this argument was not raised below and
was waived. We agree.
But, even assuming the argument had been sufficiently presented below, we reject
it. The evidence supports the trial court’s conclusion that the officers did not stop Flowers
until after they had independent, ample corroboration of Flowers’ suspicious behavior as
the officers testified. When he arrived at the scene, Corporal Lynch saw Flowers reach for
something in his waistband and wrap his fingers around a rectangular object. Also,
Corporal Lynch saw Flowers “blade” his body away from the advancing officers. At that
point, the officers possessed reasonable, articulable suspicion to detain Flowers, force him
to the ground, and pat him down. And, although the Superior Court referred to the tip in
setting forth the facts, the trial court relied primarily on Corporal Lynch’s testimony as the
“critical phase of the facts.” In closing arguments, the State acknowledged that the tip
prompted the officers to go to that location, but once the officers arrived there, they
observed Flowers’ conduct which justified the detention and pat down. Moreover, the
officers had made other gun arrests that Friday night in Wilmington just blocks from that
location. The area was known as a high crime area. These are all factors properly
considered in the reasonable suspicion analysis.55
55
See, e.g., Rollins, 922 A.2d at 385 (following United States Supreme Court precedent in
observing that, “[w]hile obviously insufficient by itself to amount to reasonable suspicion, the ‘fact
that the stop occurred in a high crime area is among the relevant contextual considerations in a
Terry analysis.’” (citations omitted)); Woody v. State, 765 A.2d at 1265.
17
This conclusion is consistent with the United States District Court for the District
of Delaware’s holding in United States v. Coleman.56 In Coleman, officers on patrol in
Wilmington received a dispatch over the radio calling for units to respond to the area of
West Third Street and North Clayton Street regarding an armed subject. The radio dispatch
was based upon an anonymous tip that a black male wearing a black t-shirt and a New York
Yankees baseball cap had a firearm. One officer observed an individual sitting on the front
porch of a home about 75 feet from the intersection of Third and Clayton Streets.
Two officers approached Coleman who was sitting on the front porch railing. He
matched the description provided in the radio dispatch. Unlike other people in the vicinity
who stood up and inquired as to what was going on, Coleman remained seated on the railing
“with his body ‘bladed away’ from the officers.”57 Coleman’s hands were pulled toward
his abdomen as if he were grabbing or holding an object against his stomach and attempting
to conceal it. He did not speak to the officers but continued to look at them with “an empty,
blank stare on his face.”58 One officer stated that Coleman’s behavior was “not normal.”59
The officer became concerned that Coleman was armed. He ordered Coleman, in a
loud, forceful tone of voice, to show his hands, drawing his Taser at one point. The officers
put away the Taser, walked up to the porch and told Coleman to get on the ground and
56
2009 WL 395218 (D. Del. Feb. 17, 2009), aff’d, 383 Fed. Appx. 180 (3d Cir. 2010).
57
Id. at *2.
58
Id.
59
Id.
18
grabbed his arm. When handcuffing him and helping him stand up, Coleman’s t-shirt
revealed a firearm in his waistband.
Coleman contended that he was unlawfully seized in violation of his Fourth
Amendment rights.60 But the court noted eight factors had informed the officer’s decision
to stop and pat-down Coleman: (1) the radio call with the tip; (2) Coleman’s presence near
the intersection; (3) his match to the description in the dispatch; (4) the lateness of the hour
(1:00 a.m.); (5) his knowledge that the area was a high crime area where many shootings
had occurred; (6) the response of others and Coleman’s lack of response; (7) his posture;
and (8) his failure to show his hands as ordered.
The court observed that a tip is not reliable merely because its description of the
subject proves to be accurate. It noted that radio tip was, at first, “nothing more than
Coleman’s ‘readily observable location and appearance,’ which is insufficient on its own
to support a finding of reasonable suspicion.”61 But the court concluded that the officer
“observed a number of factors indicating suspicious behavior, which served to corroborate
the otherwise unreliable tip.”62 Accordingly, the Coleman trial court found that the seizure
60
In affirming the decision of the District Court, the Court of Appeals for the Third Circuit
observed that it “need not decide today whether Coleman was seized at the moment Wilkers [the
officer] ordered him to show his hands, or later, when Wilkers physically restrained him, because
it was reasonable for Wilkers to seize Coleman in either circumstance.” U.S. v. Coleman, 383 Fed.
Appx. 180, 184 (3d Cir. 2010).
61
Coleman, 2009 WL 395218, at *7.
62
Id. at *8. See also Miller, 25 A.3d at 771 (“An informant’s tip may provide reasonable suspicion
for a stop and seizure where the totality of the circumstances, if corroborated, indicates that the
information is reliable.”); United States v. Brown, 448 F.3d 239 (3d Cir. 2006). In Brown, the
United States Court of Appeals for the Third Circuit noted factors that both the Supreme Court
and it have identified as “suggesting suspicious behavior, including: (1) the presence of an
individual in a high crime area; (2) the lateness of the hour; (3) an individual’s ‘nervous, evasive’
19
and pat-down of him was based upon reasonable suspicion and it denied his motion to
suppress. In affirming the decision, the Third Circuit agreed that the officer had not seized
Coleman based upon the tip alone. Rather, the other factors, noted above, “bolster[ed] an
insufficient tip and [gave] rise to a reasonable suspicion [that] Coleman was concealing a
handgun.”63
As in Coleman, although the tip was reliable only in part (as it was Mariney whose
clothes matched the description in the tip), the officers’ independent observation of
Flowers’ suspicious behavior justified his stop and being forced to the ground. This is
significant because “[l]aw enforcement officers must be aware of the facts constituting
reasonable suspicion before a detention [i.e., stop] is effectuated.”64 As explained above,
Flowers was detained only after Corporal Lynch observed the rectangular object under
Flowers’ clothing in Flowers’ waistband. Further, we agree with the trial court that
Flowers’ stop did not escalate into an arrest. Here, the police action did not exceed the
permissible scope of a Terry stop. The Superior Court correctly concluded that the weapon
seized from Flowers should not have been suppressed.
behavior; and (4) and individual’s acts in conformance with the police officer’s specialized
knowledge of criminal activity.” Coleman, 2009 WL 395218, at *8 (citing Brown, 448 F.3d at
251) (collecting cases). That court noted further that while the factors standing alone “may be
insufficient to establish reasonable suspicion, [] if observed by police they can serve to corroborate
an otherwise insufficient tip.” Id. (omission in original). See also LaFave, supra note 42, § 9.6(a).
63
383 Fed. Appx. at 185–86. (“Although the anonymous tip was insufficient alone to establish a
reasonable suspicion to stop Coleman, when we consider it in combination with the presence of
the bolstering factors we conclude that [the officer] had a reasonable suspicion to stop Coleman
before he commanded Coleman to raise his hands.”).
64
Woody, 765 A.2d at 1263. See also Lopez-Vazquez, 956 A.2d at 1286.
20
Accordingly, the decision of the trial court is AFFIRMED.
21