Gordon v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
THOMAS GORDON, §
§ No. 461, 2019
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ ID No. 1807010648(K)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: October 14, 2020
Decided: January 6, 2021
Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and
MONTGOMERY-REEVES, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court of the State of Delaware. AFFIRMED.
Nicole M. Walker, Esquire, (argued) and Bernard J. O’Donnell, Office of Defense
Services, Wilmington, Delaware for Appellant Thomas Gordon.
John R. Williams, Esquire, Department of Justice, Dover, Delaware for Appellee
State of Delaware.
TRAYNOR, Justice:
We confront two important issues in this appeal. One relates to a police
officer’s reliance on information provided by his fellow police officers when
deciding whether to stop a motor vehicle traveling on our public roadways. In
addressing this issue, we adhere to the “collective knowledge” doctrine that we first
recognized in State v. Cooley.1
The other issue—whether a trial court’s consideration of the lawfulness of a
warrantless detention and arrest is constrained by the facts alleged in a later filed
arrest-warrant affidavit—forces us to re-examine our holding in McDonald v. State.2
We hold today that such a “four corners” test, though appropriately applied to
search-warrant applications and arguably to arrest-warrant affidavits when the arrest
warrant itself is challenged, should not be applied under the facts of this case. In so
holding, we affirm the defendant’s convictions and overrule McDonald.
I. FACTUAL BACKGROUND
A. The Motor Vehicle Stop
As Delaware State Police (“DSP”) Trooper Brian Holl was on patrol in Kent
County, he received a call from DSP Detective Thomas Macauley, a member of a
“drug task force”3 in New Castle County. Before the call, Trooper Holl was aware
1
457 A.2d 352 (Del. 1983).
2
947 A.2d 1073 (Del. 2008).
3
App. to Opening Br. at A196.
2
of Detective Macauley’s and his brother Detective Michael Macauley’s involvement
in a wiretap investigation known as “Operation Cutthroat.”4 Detective Thomas
Macauley told Trooper Holl that his brother Michael and other officers had been
surveilling a blue Mazda that was, at the time of the call, southbound on Delaware
State Route 1 heading towards Kent County. Detective Macauley shared with
Detective Holl the reason for the surveillance of the Mazda: the surveilling officers
had just “watched a drug transaction”5 between the occupants of the car and one of
Operation Cutthroat’s targets. Macauley also provided Holl with additional
background including the substance of an intercepted phone conversation that led to
the surveillance of what appeared to be the previously-mentioned drug transaction.6
Because the Macauleys wished to maintain the secrecy of the ongoing wiretap
investigation, they enlisted Trooper Holl’s assistance in the apprehension of the blue
Mazda’s occupants. Detective Macauley’s instructions to Trooper Holl were clear:
To keep the integrity of the investigation of the wiretap
investigation, I need a traffic stop. That means you need
to . . . develop your own probable cause and go from there.
Nothing about the wiretap can be revealed, obviously, for
the integrity of the investigation.7
4
Id. at A199.
5
Id. at A230.
6
Trooper Holl testified that, when Detective Thomas Macauley called him “[he] already knew that
. . . the wiretap was going on. And when [Macauley] called [him], he said, ‘this is what we know,
this is what we intercepted on the phone, [and] this is what we saw.” Id. at A234.
7
Id.3
To Trooper Holl, this meant that he was to justify the stop of the Mazda, if
possible, by the detection of a traffic violation. He believed he found one in the form
of a violation of 21 Del. C. § 4331, a section of the Motor Vehicle Code that, among
other things, requires the display of headlights “during . . . rain or when windshield
wipers are in use because of weather conditions.”8 According to Trooper Holl’s
Affidavit of Probable Cause drafted and sworn to later that day, the Mazda’s
headlights were not activated despite “inclement weather.”9 Holl’s Affidavit stated
further that “it was raining with wet roadways and overcast skies.”10
Because of the perceived headlight infraction, Trooper Holl initiated a motor
vehicle stop by activating his emergency lights. It was 4:30 p.m. The Mazda,
according to Holl, “took an abnormally long time to stop,”11 which heightened Holl’s
safety concerns as he thought it could be a sign that the vehicle’s occupants might
be “get[ting] ready to run.”12 But the Mazda came to a complete stop, and when
Holl approached its passenger side, he saw that Jasmon Smith was the driver and
Thomas Gordon, with whom Holl had prior interactions, was in the front passenger
seat.
8
21 Del. C. § 4331.
9
App. to Opening Br. at A14.
10
Id.
11
Id. at A235.
12
Id.
4
Trooper Holl was immediately met with questions from Gordon, who wanted
to know the reason for the stop. Gordon was unable to produce a license or other
identification and, according to Holl, “was just not compliant compared to a normal
traffic stop.”13 Following that, the driver—Jasmon Smith—opened the glove
compartment to get his insurance card and, when he did, Holl saw a clear plastic
baggie containing a green leafy substance—what Holl believed to be marijuana.
Holl then removed Gordon from the car and handcuffed him. After back-up arrived,
Holl searched the Mazda, finding a black plastic bag “containing a large amount of
brand new packaging for the sale and distribution of heroin.”14 Holl also found a
window motor, which he knew from his training and experience is a device
commonly used to power aftermarket secret compartments that are installed in motor
vehicles to conceal narcotics while in transport.
At the scene of the stop, Trooper Holl conducted a pat-down search for
weapons of Smith without incident. But when he tried to pat-down Gordon, Gordon
“became very hostile”15 and became particularly agitated when the pat-down
approached “his groin and belt like area.”16 One of the back-up officers, Corporal
Long, also attempted a pat-down search of Gordon at the scene, but found it difficult
13
Id. at A236.
14
Id. at A239.
15
Id. at A242.
16
Id. at A244.
5
because Gordon was “acting strange.”17 Eventually, Gordon was taken back to DSP
Troop 3 headquarters where, during another attempted pat-down search, Detective
Michael Macauley “felt a suspicious package in [Gordon’s] pants, a bulge.”18
Detective Macauley asked Gordon to remove the item, but Gordon refused.
Gordon’s pants were then “pulled down just enough to remove the plastic bag that
was on the right side by his right testicle.”19 It was later determined that the bag
contained approximately 11 grams of heroin.
B. The Arrest Warrant
That evening, Trooper Holl took Gordon before the nearest available Justice
of the Peace Court in Kent County where Holl also filed an Adult Complaint and
Warrant supported by an Affidavit of Probable Cause. The Complaint consisted of
six charges, including drug dealing in heroin, possession of marijuana, and
possession of drug paraphernalia. The Complaint did not charge Gordon with the
headlight violation. In his Affidavit, Trooper Holl made no mention of Operation
Cutthroat or, for that matter, any of the information that the Macauleys had shared
with him before he stopped the blue Mazda. The sole reason for the stop mentioned
in the Affidavit was the alleged headlight violation. Holl qualified his statements in
17
Id. at A243.
18
Id. at A247.
19
Id. at A134.
6
the Affidavit, however, noting that he had “not listed all of the facts pertaining to
this case, only those necessary to establish probable cause.”20
C. Gordon’s Motion to Suppress
After Gordon was indicted, he moved the Superior Court to suppress “all
evidence seized and all custodial statements made as a result of unlawful searches
and seizures of his person and property”21 on the date of his arrest. Gordon’s motion
challenged the legality of what he described as “the warrantless strip search”22 that
occurred at Troop 3 on the grounds that “[n]o strip search should have been
conducted without obtaining a search warrant beforehand.”23 On appeal, Gordon
has abandoned this challenge.
But Gordon also incorporated by reference his codefendant Smith’s
suppression motion, which disputed the factual foundation upon which Trooper Holl
based his decision—or so Gordon thought when he filed his motion—to stop the
Mazda in which Smith and Gordon were traveling. Relying on a video recorded by
Trooper Holl’s in-car camera, Smith’s motion alleged that it was not raining at or
during the time immediately preceding the stop. Smith alleged specifically that the
video did not support Holl’s claim that it was raining as evidenced by the paucity of
20
Id. at A15.
21
Id. at A69.
22
Id. at A70.
23
Id.
7
raindrops on Holl’s windshield and camera lens. And no one else in the area at the
relevant time seemed to be using their wipers either as outlined in the motion:
. . . Before initiating the stop of the Defendant’s
vehicle, Trooper Holl first passes a silver minivan. The
silver minivan does not have its headlights or windshield
wipers activated.
. . . During the course of the stop and subsequent
search, over forty vehicles pass the scene of the stop
without headlamps or windshield wipers activated. Less
than ten vehicles pass with headlights or parking lamps
activated, but not windshield wipers. Of the vehicles the
[sic] pass, over 50 during the course of the stop, none
appear to have windshield wipers activated.
. . . During the course of the stop, two Delaware
State Police vehicles are captured approaching the area of
the stop by Trooper Holl’s in-car camera. The State Police
vehicles, both SUVs, approach the area at 4:39 and 4:42
respectively. Neither State Police SUV has its headlamps
or windshield wipers activated.
. . . At approximately 4:40:25 a red convertible
passes the area of the stop with its top down.24
D. The State’s Response
Despite the shadow cast upon Trooper Holl’s headlight rationale for the
vehicle stop by the detailed—and readily verifiable—allegations in Smith’s motion,
the State, in its written response, stuck to its guns. “The sky was overcast,”
proclaimed the State, “the roads were wet[,] and it was actively raining.”25 But
24
Id. at A53–54.
25
Id. at A75.
8
shortly after the Superior Court scheduled a hearing on Gordon’s motion, the State
reconsidered and filed an addendum to its earlier response.
Although the addendum is vague, we recognize that when it was filed,
maintaining the secrecy of the Operation Cutthroat wiretap was still a legitimate
concern.26 Be that as it may, the State disclosed that:
. . . At the time of the traffic stop, Trooper Holl was
in communication with other Delaware law enforcement
officers who were conducting a wiretap investigation in
New Castle County. The wiretap officers relayed a
discussion between the Target and Thomas Gordon.
These officers also told Trooper Holl of the observed
meet-up and constant surveillance on the Mazda.
. . . Based on the information received from other
law enforcement officers, Trooper Holl had, at least, a
reasonable, articulable suspicion that the driver was
committing the traffic violation noted as well as
possessing controlled substances at the time of the stop.27
E. The Suppression Hearing
With this revelation, the stage was set for the hearing on Gordon’s (and
Smith’s) motion to suppress. The hearing took place over three days, during which
26
When the addendum was filed and even during Gordon’s suppression hearing a year after his
arrest, maintaining the secrecy of the wiretap investigation remained a concern. Therefore, before
the hearing, the Superior Court entered a protective order limiting the defense’s use of discovery
materials. And when the prosecution sought to elicit testimony during the suppression hearing
from Detective Thomas Macauley regarding the substance of the intercepted calls between Gordon
and one of the investigation’s targets, the defense, oddly enough, objected on the grounds that it
would violate the protective order and was too “far afield.” App. to Opening Br. at A201–06. The
court sustained the objection and, therefore, the details of the intercepted calls are not in the record.
27
Id. at A91–92 (emphasis added).
9
the Superior Court heard the testimony of Trooper Holl, the two Detectives
Macauley, and Gordon. The court also reviewed the video from Trooper Holl’s in-
car camera. We have already touched upon the most salient aspects of Trooper
Holl’s testimony. Thus, the following factual discussion focuses on why the
Macauleys called upon Trooper Holl and asked him to follow and, if feasible, detain
the blue Mazda and its occupants.
1. Detective Thomas Macauley
In July 2018, Detective Thomas Macauley was Operation Cutthroat’s lead
investigator. At that time, the operation was ten months old and would last until
September 1, 2018. As of July 15, 2018—the date of Gordon’s arrest—the
investigation had captured many telephone conversations between the operation’s
target, Kiree Wise, and Gordon. On that particular date, Detective Thomas
Macauley listened to a conversation between Wise and Gordon that led Macauley to
believe that Gordon was going to meet with Wise at the Georgetown Apartments “to
conduct a drug transaction.”28 Macauley instructed other officers, including his
brother Michael, to establish surveillance at that location, the fruits of which will be
discussed below. Macauley stayed in touch with the surveillance teams as the events
at the Georgetown Apartments unfolded.
28
Id. at A292.
10
When the surveillance confirmed Detective Thomas Macauley’s suspicions
about the transaction between Wise and Gordon and it became apparent that Gordon
was heading south to Kent County, Macauley called Trooper Holl. Macauley
reached out to Holl, hoping that he was working that day, because the two were
friends and, according to Macauley, Holl had “significant experience in drug
investigations, particularly motor vehicle stops relating to drug investigations and
drug trafficking.”29 It was also important that, if the opportunity for a traffic stop
arose, an officer other than one of the surveilling officers, all of whom were in
unconventional, unmarked police vehicles without emergency equipment, initiate
the stop. The secrecy of the wiretap investigation was also a consideration as, at the
time, there were sealed indictments pending in New Castle County naming
approximately forty individuals many of whom had not yet been apprehended.
During Detective Macauley’s suppression hearing testimony, he described his
instructions to Trooper Holl:
I advised [Trooper] Holl that . . . our surveillance units had
observed what we determined or believed to be a drug
transaction. I told him that we were able to corroborate
this information from intercepted telephone calls and that
was consistent with what we saw and what we heard.
I advised him of the individual, Mr. Gordon, that we
positively identified as being I guess a passenger in the
motor vehicle . . . . And I advised him that we had active
surveillance on the vehicle as it departed the drug
29
Id. at A294.
11
transaction, and we were continuing to monitor the vehicle
by our surveillance units.
....
I asked Trooper Holl if he was in a position that he
could potentially assist us. All of our surveillance officers
were in unconventional vehicles.30
2. Detective Michael Macauley
Detective Michael Macauley is a DSP Detective assigned to the Governor’s
Task Force.31 In July of 2019, the task force was assisting DSP Troop 2’s drug unit
with Operation Cutthroat. Around 3:00 in the afternoon on the day of Gordon’s
arrest, Detective Michael Macauley was conducting surveillance at the Georgetown
Manor Apartments on Christiana Road in Newark. Macauley had followed Kiree
Wise, who was in a Honda, to that location after receiving information derived from
one of the operation’s wiretaps that Wise would be “meeting an unknown individual
there to complete a drug transaction.”32
Detective Macauley positioned his vehicle about 50 feet—less than the
distance from the pitcher’s mound to home plate—from where Wise was parked.
30
Id. at A294–95.
31
The Governor’s Task Force has been described as part of “a statewide crime reduction initiative
that targets high-risk probationers to ensure that they remain in compliance with curfews and other
conditions of their probation. At [its] core . . . are police and probation/parole officer teams who
enforce probation curfews, engage in surveillance activities, and conduct special investigations in
targeted high crime areas.” Richard J. Harris & John P. O’Connell, Operation Safe
Streets/Governor’s Task Force 2005 Annual Report 3 (2006), https://cjc.delaware.gov/wp-
content/uploads/sites/61/2017/06/05_OSS_GTF_Annual_Report-min.pdf.
32
App. to Opening Br. at A126.
12
Macauley had a clear view of Wise. Shortly after 3:00 p.m., the previously
mentioned blue Mazda pulled up next to Wise’s Honda. Wise got out of the Honda,
initially walking over to the driver’s side of the Mazda. He then turned and walked
to the rear of the Mazda where he greeted Thomas Gordon, who had alighted from
the passenger side, with a hug. After a brief conversation, Wise returned to the
Honda and retrieved something, but Macauley could not tell what it was; whatever
it was, Wise gave it to Gordon who put it in his pocket.
Detective Macauley then noticed a tan Ford Focus pull up “on the same street
a couple cars down.”33 An individual—later identified as John Gordon—got out of
the Ford Focus holding a black plastic bag. By this time, Jasmon Smith, the blue
Mazda’s driver, was out of the car. John Gordon walked over to Smith and handed
him the black bag. Smith opened and peeked into the bag and then put it in the
Mazda’s back seat. Smith and John Gordon then walked over to the Ford Focus and
appeared to be looking at something in its trunk. Then Smith and Thomas Gordon
got back into the Mazda and departed with Smith behind the wheel and Thomas
Gordon in the front passenger seat. Detective Macauley followed.
As Detective Macauley and two other surveillance units followed the Mazda
from Newark to Kent County, the Mazda “kept . . . pulling over,” which Macauley
33
Id. at A128.
13
interpreted as “countersurveillance to see if anybody was following them.”34
Nevertheless, Macauley was able to maintain contact and eventually contacted
Trooper Holl (presumably after his brother Thomas had spoken with Holl), telling
him that he was following a vehicle, whose occupants had been observed “possibly
. . . conduct[ing] a drug transaction up in New Castle County.”35 Macauley also
provided Holl with a description and location of the blue Mazda, as well as its
registration information. Within ten to fifteen minutes, Detective Macauley watched
as Trooper Holl stopped the Mazda near Pearson’s Corner.
F. The Superior Court’s Denial of Gordon’s Motion
As mentioned, Gordon’s motion to suppress was based on two arguments.
First, incorporating Smith’s motion, Gordon claimed that “[t]he weather conditions
at the time of the alleged traffic offense leading to the stop [did] not support a factual
finding that headlights were required under Delaware law.36 The stop, therefore,
was—according to Gordon—an illegal seizure, and the evidence obtained as a result
should be excluded at trial. The State sought to justify the vehicle stop on two
grounds: (i) that Trooper Holl had a reasonable suspicion to stop the vehicle for not
displaying its headlights while it was raining and (ii) that “[b]ased on the information
34
Id. at A130.
35
Id. at A153.
36
Id. at A56.
14
received from other law enforcement officers Trooper Holl had, at least, a
reasonable, articulable suspicion that the driver . . . possess[ed] controlled substances
at the time of the stop.”37
Second, Gordon challenged the legality of the “warrantless strip search”38
after Gordon was taken into custody. Gordon has abandoned his challenge to the
strip search. Thus, our review is limited to the Superior Court’s decision regarding
the lawfulness of the stop of the blue Mazda.
After reviewing the video of the stop recorded by Trooper Holl’s in-car
camera, the Superior Court made short work of the State’s claim that the driver of
the blue Mazda committed a headlight violation. Pointing to the fact that only a
single additional water drop appears on Trooper Holl’s windshield during the entire
22-minute recording and that “of well over 50 vehicles observed in the [video], not
a single one ha[d] its windshield wipers in use,”39 the court found that the State had
failed to carry its burden of proof that it was raining at the time of the traffic stop.
But the court ruled that “Trooper Holl had justification for pulling over the vehicle
separate and apart from the alleged traffic offense based upon the suspected drug
transaction.”40 Relying on the “collective knowledge” doctrine, the court cited
37
Id. at A91.
38
Id. at A70.
39
Ex. A to Opening Br. at 5.
40
Id. at 7.
15
Detective Thomas Macauley’s interception of the conversation in which Gordon was
planning a drug transaction at the Georgetown Manor apartments and the ensuing
confirmatory surveillance. The Macauley brothers communicated these facts, the
court found, to Holl who could reasonably rely upon them as justifying the vehicle
stop regardless of whether he sought to justify the stop on other grounds in the
interest of maintaining the wiretap investigation’s integrity. Accordingly, the
Superior Court denied Gordon’s motion to suppress.41
After a four-day trial, the jury returned guilty verdicts as to aggravated
possession of heroin and conspiracy in the second degree, but acquitted Gordon of
drug dealing and possession of drug paraphernalia.42 Following a presentence
investigation, the court declared Gordon a habitual offender as to the conspiracy
charge, and sentenced him to an aggregate of 30 years imprisonment.
II. GORDON’S CONTENTIONS ON APPEAL
In this appeal, Gordon advances a single argument—that “[the] police officers
did not have probable cause to stop the [blue Mazda] or arrest and search
[Gordon]”43—on three separate grounds. First, Gordon contends that the “[o]fficers
41
The Superior Court made several additional findings relating to the extension of the traffic stop
and search of the Mazda after marijuana was observed in plain view when Smith opened the glove
compartment and the search of Gordon’s person at DSP Troop 3. But because Gordon does not
challenge those findings on appeal, we need not address them here.
42
The State had entered a nolle prosequi before the trial began on the possession-of-marijuana
charge.
43
Opening Br. at i; 7.
16
did not have probable cause and recognized as much because Trooper [H]oll was
tasked with finding probable cause for a traffic violation stop.”44 Next, Gordon
argues that, because Trooper Holl was not directed to stop and seize the blue Mazda
because of the suspected drug transaction, the Superior Court should not have
considered what the Macauleys told Holl when determining whether Holl was
justified in stopping the blue Mazda. Finally, Gordon relies on the “four corners”
doctrine, claiming that the Superior Court erred by considering Holl’s
communications with the Macauleys because they were not included in the arrest-
warrant affidavit Holl drafted and filed after his warrantless arrest of Gordon.
III. STANDARD OF REVIEW
We review the Superior Court’s denial of a motion to suppress for an abuse
of discretion.45 We evaluate the court’s legal conclusions de novo for errors in
formulating legal precepts.46 This Court will defer to the Superior Court’s factual
findings after an evidentiary hearing on a motion to suppress unless those findings
are clearly erroneous.47 Where, as here, we are reviewing the denial of a motion to
suppress evidence based on an alleged illegal stop and seizure, we conduct a de novo
review to determine whether the totality of the circumstances, in light of the trial
44
Id. at 2.
45
Stafford v. State, 59 A.3d 1223, 1227 (Del. 2012).
46
Lopez-Vasquez v. State, 956 A.2d 1280, 1285 (Del. 2008).
47
State v. Rollins, 922 A.2d 379, 382 (Del. 2007).
17
judge’s factual findings, support a reasonable and articulable suspicion for the
stop.”48
IV. ANALYSIS
A. The Superior Court did not err in its determination that
Trooper Holl’s stop of the blue Mazda was justified by reasonable
suspicion
The first prong of Gordon’s attack on the validity of Holl’s stop of the blue
Mazda criticizes the Superior Court for applying the “reasonable suspicion”
standard—rather than a “probable cause” standard—to the vehicle stop. Gordon
then hypothesizes that probable cause for the stop was lacking as evidenced by
Detective Michael Macauley’s instruction to Trooper Holl to “develop [his] own
probable cause.”49 This instruction, according to Gordon, showed that the police did
not believe that what they heard during the intercepted conversation and what they
saw at the Georgetown Manor apartments provided probable cause for the stop.
Gordon’s contention that the State could only justify the stop of the Mazda by
showing probable cause—a more demanding standard than reasonable suspicion50—
appears to be based on the Superior Court’s reliance on two automobile-stop
48
Lopez-Vasquez, 956 A.2d at 1285.
49
App. to Opening Br. at A234.
50
United States v. Sokolow, 490 U.S. 1, 7 (1989) (“[T]he level of suspicion required for a Terry
stop is obviously less demanding than that for probable cause . . . .”). And we have recognized
that a motor vehicle stop “must be justified at its inception by reasonable suspicion of criminal
activity as defined in Terry v. Ohio.” Caldwell v. State, 780 A.2d 1037, 1046 (Del. 2001) (citations
omitted).
18
decisions of ours, Howard v. State51 and Brown v. State,52 which Gordon believes
establish probable cause as the standard by which motor vehicle stops are to be
judged. This contention cannot withstand even cursory scrutiny.
In Howard, this Court could not have been clearer that “[t]raffic stops must
be supported by reasonable suspicion of criminal activity.”53 We went on to find
that, “[b]ased on the totality of the circumstances, [the police officer] had a
reasonable basis to believe Howard had engaged in illegal drug activity before [he]
stopped Howard for the traffic violations;”54 thus, the stop was justified.
Gordon asks us to ignore these clear statements and to focus on our
statement—wedged in between the two passages quoted above—that we were not
required to consider Howard’s constitutional claim “because the police [also] . . .
had probable cause to believe Howard had engaged in illegal drug activity before
they stopped the automobile.”55 Of course, if the police had probable cause, they
necessarily met the less demanding “reasonable suspicion” standard. But more to
the point, Gordon never explains how the observation that the police’s suspicion in
Howard rose to the level of probable cause was meant to announce the abrogation
51
931 A.2d 437, 2007 WL 2310001 (Del. Aug. 14, 2007) (TABLE).
52
117 A.3d 568 (Del. 2015).
53
Howard, 2007 WL 2310001, at *2.
54
Id.55
Id.19
of the “reasonable suspicion” standard re-affirmed in the previous paragraph. Put
simply, Gordon’s reliance on Howard is far wide of the mark.
Gordon’s argument fares no better under Brown, a case involving facts similar
to the case now before us. In Brown, the officers, who were conducting a wiretap
investigation, intercepted four calls in which the target and an unknown man
arranged a meeting at the target’s home so that the man could buy cocaine from the
target. Through video surveillance at the target’s house, the police saw an unknown
woman and man, later identified as Brown, arrive at the target’s house. The two
then went around the side of the house, out of view of the surveillance camera, with
the target. Five minutes later, Brown and the woman left in Brown’s vehicle. An
officer followed Brown for a few miles, then stopped Brown’s vehicle on the pretext
that there was a problem with Brown’s vehicle registration. When Brown spoke up,
the officer recognized his voice from the intercepted telephone calls. When Brown
stepped out of his vehicle, the officer arrested him and conducted a pat-down search,
finding cocaine, crack and powder, in a pouch in Brown’s front pocket.
On appeal, Brown claimed that the Superior Court had abused its discretion
by admitting the evidence seized from him after his arrest. He argued that he was
arrested without probable cause at the scene of the motor vehicle stop and that the
evidence taken from him was fruit of the illegal arrest and therefore inadmissible.
20
We rejected Brown’s argument, finding that the Superior Court was within its
discretion to find that the arresting officer had probable cause:
Based on the events leading up to Brown’s arrest, an
objectively reasonable officer who had listened to [the
target] and the unknown man arrange a drug deal could
have believed that Brown was the unknown man, that he
purchased drugs as planned during the telephone calls, and
that he still possessed those drugs at the time he was
stopped . . . . [G]iven the content of the discussion
captured on the wiretap, it was reasonable for the police to
infer that Brown and [the target]—who the police knew to
be a cocaine dealer—had engaged in a drug deal when they
were out of the camera’s view, and that Brown was still in
possession of those drugs minutes later, when [the officer]
stopped his vehicle. Because the police had probable
cause to arrest Brown, there was no reason to exclude the
fruit of the search of his body incident to that arrest, i.e.,
the drugs that [the officer] found.56
As with Howard, Gordon argues that Brown stands for the proposition that, in
his case, the Superior Court should have applied the “probable cause” standard to
Trooper Holl’s stop of the blue Mazda, not “the diminished standard of reasonable
suspicion;”57 Brown, in our view, does nothing of the sort.
For starters, Brown’s arrest occurred almost simultaneously with the stop
before the arresting officer had found any contraband on Brown’s person or in his
vehicle. By contrast, Gordon was only arrested after Trooper Holl had observed
marijuana in plain view when Smith opened the Mazda’s glove compartment and
56
Brown, 117 A.3d at 578.
57
Opening Br. at 12.
21
heroin-packaging materials in the vehicle’s back seat. Moreover, Gordon’s motion
to suppress did not challenge the lawfulness of his arrest after the discovery of this
contraband; it was limited to an attack on the stop of the vehicle before the
contraband was found and a claim, since abandoned, that the strip search at Troop 3
was unlawful.
If Brown has any relevance here, it is its support for the Superior Court’s
finding that Trooper Holl’s stop of the Mazda was supported by reasonable
suspicion. For if on very similar facts in Brown, we did not disturb the Superior
Court’s findings the officer had probable cause to arrest, it would be illogical for us
to conclude here that Trooper Holl had not developed the lesser quantum of
suspicion known as “reasonable suspicion.”
Last but not least on this point, we note that Gordon’s position that the “correct
legal standard of probable cause”58 is applicable to “vehicle seizure[s]”59 is directly
contrary to the position Gordon took in the Superior Court. In particular Gordon’s
codefendant’s motion, which Gordon incorporated by reference in his motion,
repeatedly acknowledges that the vehicle stop in question was justified if supported
by reasonable suspicion. We quote here from the codefendant Smith’s motion:
First, the stop must be justified at its inception by
reasonable suspicion of criminal activity as defined in
Terry v. Ohio . . . .
58
Id. at 11.
59
Id. at 10.
22
. . . Delaware courts consistently define reasonable
suspicion as an “officer’s ability to point to specific and
articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the
intrusion.” Chandler, 2015 WL 1731508, at *4 (quoting
Holden v. State, 23 A.3d 843, 847 (Del. 2011)) . . . .
. . . Reasonable suspicion entails some minimal
level of objective justification for making at stop . . . .
....
. . . A traffic stop is considered a seizure for the
purposes of the Fourth Amendment and must be supported
by a reasonable suspicion or probable cause. United States
v. Arvizu, 534 U.S. 266 (2002).60
Likewise, in his opening brief’s statement of the standard of review in this
Court, Gordon acknowledged that when we review the denial of a motion to suppress
evidence collected in the wake of 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[s] a reasonable and articulable suspicion
for the stop.”61 Gordon cannot square these statements in the court below and in this
Court with his contention elsewhere that probable cause is the correct legal standard
by which our courts determine whether a motor vehicle stop is justified. Nor has he
pointed to any case law supporting this contention; we therefore reject it.
60
App. to Opening Br. at A54–55.
61
Opening Br. at 7 (quoting Lopez-Vasquez, 956 A.2d at 1285).
23
B. The Superior Court’s ruling that the collective knowledge of
the police officers justified the seizure of the blue Mazda was not
erroneous
Relying on State v. Cooley,62 Gordon argues next that, because Trooper Holl
had not independently developed sufficient justification to stop the blue Mazda and
was not “directed by another officer who possessed such information to arrest for
probable cause, Trooper Holl acted without probable cause for the seizure and the
arrest.”63
Once again, Gordon conflates reasonable suspicion to effect a motor vehicle
stop and probable cause to arrest. The record is clear that almost immediately after
Trooper Holl encountered Smith and Gordon during the roadside stop, Holl observed
marijuana in plain view when Smith opened the Mazda’s glove compartment to
retrieve the vehicles insurance documents. And the record is equally clear that the
consequent search of the vehicle, which Gordon has not challenged on any basis
other than the alleged illegality of the stop, uncovered drug paraphernalia in the form
of unused heroin packaging materials. Hence, if the stop was legal, certainly
Gordon’s arrest after the discovery of the contraband was justified. So once again
we direct our attention to the validity of the stop, this time through the lens of the
“collective knowledge” doctrine.
62
457 A.2d 352.
63
Opening Br. at 12.
24
Gordon’s argument betrays a basic misunderstanding of Cooley, which
addressed the extent to which an arresting police officer may rely on information
obtained from other officers in forming probable cause for an arrest. Relevant to
this appeal, this Court held in Cooley that arresting officers are “entitled to rely on
information relayed to [them] through official channels”64 when making an arrest.
This principle is sometimes called the “collective knowledge” doctrine.65
Under the doctrine, “[t]he arresting officer himself need not be apprised of the
underlying circumstances which give rise to a conclusion of probable cause . . . .
[Instead, he can] act in the belief that his fellow officer’s judgment is correct.”66
This is not to say, however, that arresting officers may arrest first, then gather
previously uncommunicated information scattered among his fellow officers to
support the arrest. As we noted in Cooley:
To say in the abstract that probable cause is to be evaluated
on the basis of the collective information of the police
ignores the underlying assumption—and factual reality—
that there is some communication between those officers,
who do know facts amounting to probable cause, and those
who do not.67
64
Cooley, 457 A.2d at 355.
65
See, e.g., State v. Holmes, 2015 WL 5168374, at *5 (Del. Super. Ct. Sept. 3, 2015). Elsewhere,
this doctrine is termed the “fellow officer” rule. See 2 Wayne R. LaFave, Search & Seizure: A
Treatise on the Fourth Amendment, §3.5(b) (6th ed. 2020).
66
Holmes, 2015 WL 5168374, at *4 (citations omitted).
67
Id.25
In this case, the Superior Court, having found that both Detectives Macauley
“communicated with Trooper Holl about what they had learned and observed”68 by
way of the wiretap and related surveillance and asked for Holl’s assistance, correctly
applied this doctrine. Not only did the Macauleys communicate investigative facts
to Holl sufficient to raise a reasonable suspicion that the blue Mazda contained
contraband, thus justifying its stop—a fact Gordon conceded at oral argument69—
but the three officers certainly possessed the requisite information collectively. And
Trooper Holl understood Detective Thomas Macauley’s request for assistance to
mean that he should detain the vehicle, preferably in a way that would not blow the
investigation’s cover. So it matters little whether we base our “reasonable
suspicion” analysis on the facts known by Trooper Holl or those known collectively
by Holl and the two Macauleys; either way, the motor vehicle stop was supported
by reasonable suspicion.
68
Ex. A to Opening Br. at 5.
69
See Oral Argument Video at 42:07-43:09,
https://livestream.com/accounts/5969852/events/9319197/videos/212105538/player:
Justice Traynor: Michael Macauley testified . . . that, based on what he heard
through the wiretap . . . [and] what he saw in the Georgetown Manor parking lot,
he believed he had just observed a drug transaction. I have a two-part question.
The first part is: Based on that information, did Detective Macauley have sufficient
suspicion to effect the stop of the blue Mazda? And, if he did, the second part of
the question is, if he related that to Trooper Holl . . . did Trooper Holl have sufficient
information upon which to base the motor vehicle stop?
Ms. Walker: Yes, without conceding the four corners argument . . . Trooper Holl
would have had reasonable suspicion for the stop . . . .
26
C. It was not improper for the Superior Court to consider facts
not contained in Holl’s arrest-warrant affidavit, which was drafted,
filed, and sworn to after Holl’s warrantless arrest of Gordon
Although not argued in the Superior Court, Gordon’s final contention is that,
because the arrest-warrant affidavit Trooper Holl signed and filed after Gordon’s
warrantless arrest did not allege that Holl relied on the information provided by the
Macauleys, the Superior Court was precluded under the “four corners” test from
considering the Holl-Macauley communications in determining whether Holl’s stop
of the blue Mazda was justified.
Under Rule 8 of this Court, ordinarily we will not consider questions that were
not fairly presented to the trial court.70 We may do so, however, when the interests
of justice will be served; we find that those interests require it here. Specifically, we
conclude that, had the Superior Court applied our holding in McDonald v. State71—
the sole precedent upon which Gordon now relies—Gordon would have prevailed
below. At the same time and for the reasons that follow, however, we believe that
McDonald was wrongly decided, and we therefore overrule it.
In McDonald, the defendant appealed the Superior Court’s denial of his
motion to suppress evidence seized following a motor vehicle stop that McDonald
claimed was not legally justified. McDonald was a passenger in a car, lawfully
70
See Supr. Ct. R. 8.
71
947 A.2d 1073.
27
parked in a convenient-store parking lot, that was observed by a DSP officer shortly
after midnight. The officer ran a registration check on the car and, because he
incorrectly entered the registration number, the check showed—incorrectly—that
the car was not registered. When the car eventually exited the lot, the driver did not
use a turn signal to indicate that he was turning right onto the public roadway. The
officer, believing that he had just witnessed a turn-signal violation, activated his
emergency equipment and stopped the car. A search of the car at the scene
uncovered small amounts of marijuana and cocaine, and a strip-search of McDonald
at State Police headquarters yielded 15 grams of crack cocaine and a little over five
grams of marijuana. Later that day, the officer applied for a warrant for McDonald’s
arrest. The application was supported by an affidavit of probable cause, listing the
turn-signal violation as the sole basis for the vehicle stop.
McDonald moved to suppress the evidence taken from him, arguing that the
purported turn-signal violation could not have provided the requisite suspicion for
the vehicle stop because the Delaware Motor Vehicle Code does not require a driver
to signal when entering a public highway from private property. And, according to
McDonald, if there was no traffic violation, the stop was not justified.
The Superior Court found that the driver’s failure to signal provided “only a
very questionable suspicion.”72 But the court engaged in a “totality of the
72
Id. at 1077.
28
circumstances” analysis and concluded that congregating in an area known for
criminal activity, when viewed together with the innocent—if mistaken—belief that
the car was unregistered and the car’s “unprovoked flight”73 from the parking lot,
provided a reasonable articulable suspicion sufficient to justify the stop. In a 3-2
decision, we reversed.
The majority focused on the affidavit of probable cause attached to the
application for a warrant to arrest McDonald on the drug charges, invoking the “four
corners” test:
The “four corners” test is used to determine whether an
affidavit demonstrates probable cause to issue either an
arrest warrant or a search warrant. Under that test,
sufficient facts must appear on the face of the affidavit
such that a reviewing court can ascertain from that
document alone the factual basis for a determination that
probable cause exists.74
Applying this test, the majority found that the Superior Court’s reliance on
facts extraneous to the affidavit ran counter to the purpose of the “four corners” test,
which is to ensure that the reviewing court determines “whether the constitutional
requirements of probable cause have been met without reliance upon faded and often
confused memories.”75 Thus, the majority determined that the Superior Court had
73
Id. at 1078 (quoting Pierson v. State, 338 A.2d 571, 574 (Del. 1975)).
74
Id.75
Id. (internal quotations, brackets, and footnotes omitted).
29
erred as a matter of law in denying McDonald’s motion to suppress and reversed his
convictions.
The dissent saw it differently, suggesting that the majority’s reliance on the
“four corners” test was misplaced for two closely related reasons:
First, the “four corners” test is appropriate for evaluating
whether probable cause existed for the issuance of a
warrant, a warrant issued in reliance upon an affidavit.
The test is, by definition, focused on the purpose of the
warrant—in this instance McDonald’s arrest.
....
Second, . . . the state trooper was under no duty to
set forth all of his reasons for the warrantless stop; the facts
that supported McDonald’s eventual arrest were, of
course, tied to the vehicle stop, but the state trooper had no
reason to give a complete explanation or justification for
the vehicle stop in the affidavit used to obtain a warrant
for McDonald’s later arrest.76
After a careful review of the majority’s reasoning and the precedents upon
which it relied and the relevant court rules governing arrest warrants and affidavits
filed in the wake of warrantless arrests, we have concluded that the dissent was
correct and that McDonald should be overruled.
In Pierson v. State,77 we recognized that the Delaware statutes governing
search warrants “like Federal Criminal Rule 41(c), contemplate a ‘four corners’ test
76
Id. at 1084–85.
77
338 A.2d 571.
30
for probable cause.”78 Specifically, 11 Del. C. § 2306 requires that a search-warrant
application “be in writing, signed by the complainant and verified by oath or
affirmation.”79 That section also mandates, among other things, that “the house,
place, conveyance or person to be searched”80 be described in the application with
particularity, and that “the cause for which the search is made”81 be substantially
alleged. And 11 Del. C. § 2307 authorizes a judge to issue a search warrant, but only
“[i]f the judge . . . finds that the facts recited in the complaint constitute probable
cause for the search.”82
Based upon “the clear import”83 of these statutes, in Pierson this Court
rejected the State’s argument that a facially deficient warrant application could be
saved by referring to what the issuing magistrate must certainly have known through
his “official knowledge.”84 In short, we held that “a magistrate’s personal
information cannot be used to save a defective affidavit.”85
This principle, often referred to as the “four corners” rule, is faithful to the
statutory requirements that search-warrant applications be made in writing and under
oath and be granted only if the facts recited in the application support a probable-
78
Id. at 573.
79
11 Del. C. § 2306.
80
Id.
81
Id.
82
Id. § 2307 (emphasis added).
83
Pierson, 338 A.2d at 573.
84
Id.85
Id. at 574.
31
cause finding. And it has the added benefit—cited in McDonald—of ensuring that
“‘the reviewing court may determine whether the constitutional requirements have
been met without reliance upon faded and often confused memories.’”86
We are now confronted with the question of whether the “four corners”
doctrine was correctly extended in McDonald to arrest-warrant affidavits that are
drafted and filed following a warrantless arrest; we believe it was not.
Delaware law authorizes police officers to arrest without an arrest warrant
under a variety of circumstances.87 But “[i]f not otherwise released, every person
arrested shall be brought before a magistrate without delay.”88 This statutory
requirement is mirrored and supplemented by Justice of the Peace Court Criminal
Rule 5(a):
An officer making an arrest under a warrant issued upon a complaint
or any person making an arrest without a warrant shall take the arrested
person without [un]reasonable delay before the nearest available
Justice of the Peace Court of the county in which the offense is alleged
to have been committed or such other Justice of the Peace Court as
provided by the warrant or by statute, court rule or administrative
order. If a person arrested without a warrant is brought before a Justice
of the Peace, a complaint shall be filed forthwith, which shall comply
with the requirements of Rule 4(a) with respect to the showing of
probable cause.89
86
Id. (quoting United States v. Acosta, 501 F.2d 1330, 1334 (5th Cir. 1974)).
87
11 Del. C. § 1904.
88
Id. § 1909.
89
J.P. Ct. Crim. R. 5(a).
32
Under Rule 4(a):
If it appears from the complaint, or from an affidavit or affidavits filed
with the complaint, that there is probable cause to believe that an
offense has been committed and that the defendant has committed it, a
warrant for the arrest of the defendant shall issue to any officer
authorized by law to execute it.90
Thus, the probable-cause inquiry that precedes the issuance of an arrest-
warrant is different than the inquiry into whether an officer has developed the level
of suspicion required to justify an antecedent warrantless seizure—or, in this case,
roadside detention—of a defendant. In the arrest-warrant context, the arresting
officer must show in the complaint and affidavit that there is probable cause to
believe that the defendant has committed the offenses—here, drug offenses—with
which he has been charged; no such showing is required to justify an investigative
detention. Moreover, there is nothing in our statutes or rules of court authorizing
magistrates, during an accused’s initial appearance, to pass upon the validity of an
investigative detention, including a traffic stop that leads to the discovery of
evidence giving rise to other charges. And, for these reasons, the officer is not
required to justify the stop in his arrest-warrant application. That being the case, the
90
J.P. Ct. Crim. R. 4(a) (emphasis added).
33
“four corners” test should not be applied under the facts presented here nor should
it have been, in our view, in McDonald.91
One might reasonably ask at this point how the McDonald majority came to
extend the “four corners” doctrine to arrest warrants that follow warrantless arrests.
The answer lies in the majority’s citation of United States v. Castillo,92 a Ninth
Circuit case in which the “four corners” test was applied to an arrest warrant. But
Castillo involved a challenge to the arrest warrant itself and the protective sweep of
the apartment that was conducted during the execution of that warrant. The
defendants’ motion to suppress in Castillo was “based on the alleged inadequacy of
the arrest warrant and the lack of veracity in the supporting affidavit.”93 If the
warrant was invalid, the sweep of the apartment, which came after the issuance of
the warrant, would be subject to challenge unless saved by the good-faith exception
announced in United States v. Leon.94
Here, as in McDonald and unlike in Castillo, Gordon has not challenged the
validity of the arrest warrant, and there was no relationship between the issuance of
the arrest warrant itself and the seizure of the evidence he asked the Superior Court
91
We note that one eminent Fourth Amendment scholar has questioned the soundness of
McDonald’s application of the “four corners” rule to the arrest warrant in that case. See 3 LaFave,
supra note 65, § 5.1(h) n.377.
92
866 F.2d 1071 (9th Cir. 1988).
93
Id. at 1075.
94
468 U.S. 897 (1984).
34
to suppress. We therefore reject Gordon’s claim that the Superior Court erred by
considering facts not included in the arrest warrant.
V. CONCLUSION
The Superior Court applied the correct legal standard when it determined that,
based upon the collective knowledge of the officers involved, Trooper Holl had a
reasonable suspicion that the car in which Gordon was traveling contained
contraband and was therefore subject to detention. In making this determination, the
court did not err by considering facts extraneous to the subsequently filed arrest-
warrant affidavit. We therefore affirm Gordon’s convictions.
35