State v. Swanson

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) ID: 2312007369
)
MARVIN R. SWANSON, )
)
Defendant. )
)
Date Submitted: June 7, 2024
Date Decided: July 19, 2023
MEMORANDUM OPINION
Upon Defendant’s Motion to Suppress:
DENIED
Jillian L. Schroeder, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorney for the State of Delaware.
John S. Edinger, Esquire, Office of Defense Services, Wilmington, Delaware.
Attorney for Defendant.
Adams, J.
I. INTRODUCTION
On August 22, 2023, at 1:25 p.m., the Wilmington Police Department
(“WPD”) observed Defendant in an incriminating Instagram video purportedly
showing a gun visible on Defendant’s hip. Within minutes, WPD received a tip from
a past proven reliable confidential informant regarding the same Instagram video,
which prompted a search and detention of Defendant. The search of a trash can,
performed within 20-30 feet of where Defendant was standing, uncovered a gun.
After taking Defendant to the police station, Defendant gave the officers consent to
take his DNA. Defendant’s DNA was later matched to the gun. WPD then arrested
Defendant for Possession of a Firearm by a Person Prohibited and Possession of
Ammunition by a Person Prohibited. Defendant now moves to suppress the
evidence, including Defendant’s consent to DNA testing and the gun, arguing WPD
lacked reasonable articulable suspicion to stop Defendant. For the following
reasons, Defendant’s Motion to Suppress is DENIED.1
II. FACTUAL AND PROCEDURAL BACKGROUND
On August 22, 2023, Wilmington Police Detective Anthony Lerro (“Lerro”),
while conducting routine surveillance,2 observed a video posted on Marvin
1
A jury trial is set to begin in this matter on July 29, 2024.
2
Lerro described “routine surveillance” as “monitor[ing] social media” by “go[ing] on the social
media platform, Instagram, and [] click[]ing through multiple different peoples’ profiles from their
stories” including their pages, live videos, and posts. State v. Swanson, I.D. No. 2312007369, at
8:3–11 (Del. Super. June 7, 2024) (TRANSCRIPT) [hereinafter “Tr. at _”].
2
Swanson’s (the “Defendant”) Instagram stories.3 The video was posted at 12:58
p.m. on August 22, and Lerro screen recorded4 it at 1:25 p.m.5 The video displayed
Defendant, who is a person prohibited, in the area of 23rd and Jessup Street wearing
a white bucket hat, a black hoodie with Rick and Morty symbols, and ripped jeans
held up by a Louis Vuitton belt.6 Lerro testified based on his “training and
experience” that Defendant, at the 32 second mark of the Instagram video, was
shooting a fake gun.7 At the 57 second mark, Defendant then lifted his hoodie to
reveal what Lerro believed to be a magazine or handle of a firearm in Defendant’s
waistband.8 Lerro indicated the “Nike” brand on Defendant’s clothing was
obstructed by the magazine or firearm, and in Lerro’s experience, it is “common”
for individuals to hold a gun in that particular spot in their waistband.9
At 1:50 p.m. that same day, a past-proven reliable confidential informant (the
“CI”10) texted Lerro a screen recording of the same Instagram video, and told Lerro
3
Tr. at 7:14–16, 11:23–12:7. Lerro identified Defendant’s Instagram based on the account’s
handle “Lamont_Margeez” and by identifying Defendant in the pictures posted from that account
based on Lerro’s past personal observations of Defendant. Id. at 8:18–10:21.
4
Lerro described “screen recording” as “an application on your phone in the settings that you can
set up to screen record. It’s almost like screen shotting. However, you click the button and it
records whatever is on your screen.” Id. at 13:1–5.
5
Id. at 15:12–15.
6
Id. at 12:2–7, 23:6–8; St.’s Ex. 6.
7
Tr. at 20:3–21:9.
8
Id.
9
Id. at 21:4–22:3.
10
The Court intends to make no suggestion as to the identity of the CI, so will refer to the CI using
only “they” pronouns throughout.
3
that they also saw a firearm in the video.11 At approximately 2:10 p.m., the CI told
Lerro that the CI was in the same area as Defendant, at 23rd and Jessup, and that
Defendant still possessed a firearm and was in the same clothing as in the video.12
Five minutes later—at 2:15 p.m.—Lerro and several other officers travelled
to the scene in an unmarked black Dodge Durango.13 Lerro, sitting in the front
passenger seat, opened his window on approach, enabling him to hear people calling
out the officers’ vehicle.14 A “call out” refers to people warning others engaged in
illegal activity of an incoming police vehicle.15
At the scene, Lerro observed the CI in the area, and saw Defendant in the same
location as the Instagram video and where the CI indicated they had seen
Defendant.16 Defendant wore the same clothing he wore in the Instagram video.17
Based on the information officers had gathered, Investigator Linkhurst (“Linkhurst”)
believed Defendant possessed an illegal firearm and conducted a pat down of
Defendant.18 Linkhurst did not find a firearm on Defendant’s person.19 The officers
11
Id. at 23:14–21, 24:2–16, 27:4–6.
12
Id. at 25:12–26:22. The CI did not provide any detail about what the gun looked like, where the
gun would be found, or who the other individual in the video was. Id. at 25:12–17, 33:8–11,
50:16–51:1, 58:13–16.
13
Id. at 27:19–28:10.
14
Id. at 29:3–10, 29:20–30:2.
15
Id. at 29:13–19.
16
Id. at 33:2–7, 55:1–4.
17
Id. at 34:14–22.
18
Id. at 35:2–9.
19
Id.
4
then searched the immediate surrounding area because a “call out” often causes
individuals to discard contraband before being discovered.20 The officers found a
silver and black handgun with an extended magazine on top of the trash inside a
recycle bin about 20–30 feet from Defendant.21
After securing the firearm, the officers put Defendant in handcuffs and
detained him in the back of a police vehicle.22 Although the officers believed they
had probable cause to arrest Defendant at that time, they did not arrest him.23
According to Lerro, officers thought it would be better to get Defendant’s DNA to
confirm that the handgun was in Defendant’s possession.24 The officers transported
Defendant to the police station in order to obtain Defendant’s DNA.25
At the police station, WPD read Defendant his Miranda rights.26 Defendant
waived his rights and subsequently offered to provide his DNA without any verbal
prompt from officers.27 Lerro testified that he would have drafted a search warrant
if Defendant had not voluntarily consented.28 After Lerro swabbed Defendant’s
20
Id. at 35:10–19.
21
Id. at 36:2–5, 36:21–37:7. The CI had not informed the officers that the gun was located in the
trash can; the officers located it through a general canvas of the area. Id. at 51:15–23.
22
Id. at 37:8–12.
23
Id. at 37:13–19.
24
Id. at 37:17–23.
25
Id. at 38:1–6. Lerro explained that DNA cannot be taken at a street corner, necessitating
Defendant’s transport to the WPD station. Id. at 38:13–22.
26
See id. at 63:3–10; St.’s Ex. 1 (showing body worn camera footage of the interrogation and DNA
collection at the police station).
27
Tr. at 40:1–7. See also St.’s Ex. 1.
28
Tr. at 40:8–11.
5
cheeks at 3:10 p.m., Defendant was free to leave, but Defendant voluntarily spoke
to other detectives about a separate investigation.29 Approximately one hour elapsed
from the time officers put Defendant in handcuffs to the time Lerro released him
from the police station.30
At the suppression hearing, Lerro testified about his police report, but it was
not entered into evidence.31 Several details that Lerro testified to were not included
in his police report, including: where Defendant was located;32 the identity of the
other individual in the Instagram video, or if police knew the individual;33 that the
CI confirmed unprompted by Lerro– at 2:10 p.m.34 – Defendant was at the location
of the video, wearing the same clothing as the video, and possessed a firearm;35 or
that Lerro and the CI communicated by text message, or the details of those text
messages.36 Lerro credibly explained his testimony was based on his own memory,
the report, and his review of the text messages with the CI before the hearing.37
29
Id. at 40:17–41:9.
30
Id. at 41:18–23.
31
See, e.g., id. at 46:23–47:1.
32
Id. at 64:8–10.
33
Id. at 64:17–20.
34
Id. at 27:15–17.
35
Id. at 64:23–65:9.
36
Id. at 47:11–23. The State noted that it did not provide the text messages as evidence to protect
the confidentiality of the CI. Id. at 70:12–22.
37
Id. at 48:19–49:3.
6
The results of the DNA testing from the gun revealed that Defendant’s DNA
matched the DNA retrieved from the handgun collected at the scene.38 WPD
subsequently arrested Defendant on December 18, 2023 for Possession of a Firearm
by a Person Prohibited and Possession of Ammunition by a Person Prohibited.39
Defendant filed his Motion to Suppress on April 12, 2024. The State filed its
Response to Defendant’s Motion to Suppress on May 22, 2024. Defendant filed his
Reply to the State’s Response on June 6, 2024. The Court held oral argument on
June 7, 2024 and reserved decision. For the reasons that follow, the Motion to
Suppress is denied.
III. ANALYSIS
The State bears the burden of proving that the officers’ actions complied with
the United States Constitution, the Delaware Constitution, and Delaware law.40
Defendant seeks suppression of his DNA asserting that his consent to give the DNA
was fruit of an unconstitutional stop and detention.41 Defendant does not dispute
that the Miranda warnings were proper, or that Defendant’s consent given was in
any way coerced or involuntary.42 The State concedes if the stop and detention of
38
See Def.’s Mot. at 5.
39
Id.
40
E.g., Hunter v. State, 738 A.2d 558, 560 (Del. 2001) (internal citations omitted).
41
Def.’s Mot. at 5; Tr. at 63:3–10.
42
Tr. at 63:3–10.
7
Defendant were improper, then the resulting consent and DNA is inadmissible.43
Both sides agree the officers needed reasonable articulable suspicion to stop and
detain Defendant without a warrant.44 To defeat the Motion to Suppress, therefore,
the State must prove that the initial stop of Defendant and subsequent transport to
the police station to collect Defendant’s DNA was lawful.
A. THE LEGAL STANDARD FOR REASONABLE ARTICULABLE SUSPICION
An officer can stop a person “who the officer has reasonable ground 45 to
suspect an individual is committing, has committed or is about to commit a crime.”46
Pursuant to 11 Del. C. § 1902:
(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 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 arrested and charged with a crime.
43
Id. at 74:17–20 (“If your Honor finds there wasn’t enough to transport him back to WPD and he
was detained illegally, then the consent goes out the window.”).
44
Def.’s Mot. at 5; St.’s Opp’n at 5. The State also argued that the officers had the higher standard
of probable cause to arrest Defendant given the totality of the circumstances, but the Court will
not address this argument since the Court disposes of the issue on reasonable suspicion grounds.
See Tr. at 65:14–23.
45
“For the purpose of this analysis, ‘reasonable ground’ as used in Section 1902(a) has the same
meaning as reasonable and articulable suspicion.” Jones v. State, 745 A.2d 856, 861 (Del. 1999).
46
11 Del. C. § 1902(a).
8
Pursuant to 11 Del. C. § 1903, the officer can search the person “whenever the officer
has reasonable ground to believe that the officer is in danger if the person possesses
a dangerous weapon.”
“Reasonable suspicion” is “the officer’s ability ‘to point to specific and
articulable facts, which taken together with rational inferences from those facts,
reasonably warrants the intrusion.’”47 The court considers “whether the totality of
the circumstances supports any reasonable and articulable suspicion for the
detention.”48 The analysis is done “through the eyes of a reasonable, trained police
officer in the same or similar circumstances, combining objective facts with such an
officer’s subjective interpretation of those facts.”49
A warrant is generally required before an officer can search a person.50 The
Terry stop and frisk is an exception to the warrant requirement.51 A Terry stop and
frisk is permissible when “officers have reasonable, articulable suspicion that a
suspect is armed and engaged in criminal activity.”52 The officers are “empowered
47
Holden v. State, 23 A.3d 843, 847 (Del. 2011) (quoting State v. Henderson, 892 A.2d 1061,
1064–65 (Del. 2006)).
48
Lecates v. State, 987 A.2d 413, 417 (Del. 2009) (citing generally Terry v. Ohio, 392 U.S. 1(1968)).
49
Jones, 745 A.2d at 861 (citing United States v. Cortez, 449 U.S. 411, 417–18 (1981)).
50
See e.g., Garnett v. State, 308 A.3d 625, 641 (Del. 2023) (citing U.S. Const. Am. IV; Del. Const.
Art. I, § 6) (reviewing both the Delaware and United States Constitutions and the protection against
unlawful searches).
51
Moore v. State, 997 A.2d 656, 666–67 (Del. 2010) (citing generally Terry, 392 U.S. 1).
52
Flowers v. State, 195 A.3d 18, 23 (Del. 2018). See also Holden, 23 A.3d at 847 (citing
Henderson, 892 A.2d at 1064) (“[A]n officer is justified in ‘frisking’ an individual only if the
officer has reasonable articulable suspicion that the individual is armed and presently dangerous.”).
9
to ‘take necessary measures to determine whether [an individual] is in fact carrying
a weapon and to neutralize the threat of physical harm.’”53 The use of force to
conduct the search may be justified depending on several factors: “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.”54
B. THE STOP AND SEARCH OF DEFENDANT WAS SUPPORTED BY REASONABLE
SUSPICION.
The State relies on several facts to argue Lerro had reasonable suspicion to
believe Defendant was or had engaged in illegal activity. Lerro observed the
Instagram video where he perceived Defendant to be holding either a firearm or a
magazine despite being a person prohibited.55 The CI—a past proven reliable
informant supporting at least five arrests56—also observed the video and drew the
same conclusion, and also followed up with Lerro after the CI observed Defendant,
in the same clothing, in the same location, and in possession of a firearm.57 The
State also points to the “call out” that occurred prior to officers observing Defendant
53
Flowers, 195 A.3d at 28 (quoting Terry, 392 U.S. at 24).
54
Graham v. Connor, 490 U.S. 386, 396 (1989).
55
St.’s Opp’n at 7.
56
Tr. at 26:23–27:14.
57
St.’s Opp’n at 8; Tr. at 23:14–25:15.
10
as a factor the Court should consider.58 A final factor is the behavior of Defendant
in the video, including Defendant “shooting a fake gun.”59
Defendant relies primarily on Riley v. State60 to contest that the officer’s
observance of “what appears to be a firearm” supports reasonable articulable
suspicion to stop Defendant.61 In Riley, officers stopped the defendant after
witnessing “some type of exchange” between the defendant and two unidentified
females in his car in the parking lot of a liquor store.62 The officers, however, “were
unable to identify any particular objects passed by the [car’s] occupants.” 63 The
Supreme Court noted there was
no evidence that the area was the focus of special attention because of
drug sales. There was no evidence that the officers had observed a drug
sale in that area before defendant’s stop. There was no evidence the
conduct observed was consistent with conduct the officers had
observed in prior drug transactions. There was no evidence of any
exchange of money or any other item.64
Thus, the only suspicion of criminal activity was “the location of the two apparently
underage women and [the defendant] in the parking lot of a liquor store.” The
Supreme Court held that the defendant’s “mere presence in a shopping center being
monitored for underage liquor sales” did not equate to reasonable articulable
58
St.’s Opp’n at 8–9.
59
Tr. at 20:3–7.
60
892 A.2d 370 (Del. 2006).
61
Def.’s Mot. at 6.
62
892 A.2d at 372.
63
Id.
64
Id. at 376.
11
suspicion and that the “observations of the officers were all consistent with innocent
behavior.”65
The same cannot be said here. While the Court, despite its best efforts, is
unable to make out a firearm (or any part of a firearm) on Defendant’s waist in the
video, this does not end the analysis. This is because the determination of reasonable
suspicion is evaluated based on the totality of the circumstances viewed through the
officer’s eyes, and not the Court’s.66 The Court notes Lerro testified credibly at the
Suppression Hearing that he saw the gun on Defendant’s waist covering up the
“Nike” on the waistband of his compressions.67
The Court considers the following facts, along with Lerro’s observation of the
Instagram video: Defendant’s imitation of shooting a gun with his hands in the
video, the timing of the video’s posting in relation to the search (i.e., that the video
was posted within hours of the search on the same day),68 Defendant’s clothing
matching his clothing in the video, the “call out” by neighbors as the officers
approached,69 and the CI’s statements to Lerro after going to the video’s location
65
Id. at 378.
66
Jones, 745 A.2d at 862; Purnell v. State, 832 A.2d 714, 719–720 (Del. 2003) (holding that
“[c]ourts will defer to the experience and training of police officers.”).
67
Tr. at 21:4–13. Lerro testified that he watched the video approximately five times.
68
The Court does acknowledge that the video was not a “live” video and that the State did not
provide evidence that the video was taken on the same day as it was posted.
69
A “call out” can be a factor in the reasonable suspicion analysis. See, e.g., State v. Rollins, 922
A.2d 379, 385 (Del. 2007) (“[T]he focused warning shout ‘five-O’ contributed to the police
officers’ reasonable suspicion that the [suspect] might be engaged in criminal activity.”).
12
and personally observing Defendant in the same clothes, with a firearm. All of these
facts taken together support a finding of reasonable suspicion that Defendant was
“committing, has committed or is about to commit a crime.”70
Defendant also criticizes the reliance on the CI for a variety of reasons.71 The
Court notes that Lerro’s police report failed to include multiple details about the CI,
causing Defendant to be able to clarify these details for the first time at the
Suppression Hearing.72 While the Court would have benefited from having the text
messages redacted and presented into evidence, the Court does not find that Lerro is
not credible for not reading the text messages into the record. The Court, therefore,
relies on the veracity of Lerro’s statements as to the CI’s past proven reliability, the
contents of the tips provided that day, and the details those tips included.
Defendant concedes the CI was past proven reliable, but criticizes the CI’s tip
for failing to describe the gun, who the other individual was in the video, or where
the gun could be found.73 The State, relying on the CI’s past proven reliability,
asserts that the CI needed to only provide a “certain amount of detail” to support a
finding of reasonable suspicion.74
70
11 Del. C. § 1902(a).
71
Id. at 6–7. The Court notes there were discrepancies in briefing over the details of the CI’s tip
as a result of the failure to provide sufficient detail in Lerro’s police report. Lerro testified to the
details of the CI’s tips, timing, and contents at the hearing.
72
See supra Section II (detailing the omissions in Lerro’s report).
73
Tr. at 58:8–16, 59:5–9.
74
St.’s Opp’n at 12 (quoting State v. Fullman, 2024 WL 1759144, at *6 (Del. Super. Apr. 24,
2024)).
13
The Supreme Court of Delaware in Purnell v. State upheld a stop under similar
circumstances based on a reliable informant’s tip.75 There, the informant was
“known to the police as a source of reliable information.”76 The Supreme Court
distinguished this past proven reliable informant from anonymous informants in
other cases.77 This informant provided a tip with a detailed description of two black
males, their location, their clothing, and their possession of narcotics and
handguns.”78 Officers observed one of the men, the defendant, in the vicinity the
reliable informant provided.79 They also noticed that he matched the physical
description in the informant’s tip, so officers stopped and arrested the defendant.80
As a result, under the totality of these circumstances, the Supreme Court found that
the officers had reasonable suspicion to stop the defendant.
Similar to Purnell, the CI here provided a detailed description of an individual
that matched the Defendant and Defendant’s precise location.81 Moreover, the
officers corroborated the content of the tip provided when they arrived on the scene
and observed Defendant wearing the same clothing and in the same location.82 The
75
832 A.2d 714, 720 (Del. 2003).
76
Id.77
Id. Distinct from investigations arisen from a tip from an anonymous, unfamiliar informant,
investigations based on tips from reliable informants are more likely to support a finding of
reasonable articulable suspicion. See Adams v. Williams, 407 U.S. 143, 146 (1972).
78
832 A.2d at 716–717.
79
Id. at 720.
80
Id. at 717–718, 720.
81
Tr. at 25:12–26:19.
82
Id. at 33:12–34:22.
14
failure of the CI to describe the gun Defendant allegedly had does not undermine the
other corroborated facts, or the CI’s past proven reliability. Like in Purnell where
the informant reported the defendant possessed illegal drugs, the CI’s tip asserting
that they saw a gun on Defendant (along with the other detailed information from
the CI) here is enough to support reasonable suspicion to stop Defendant.83 The
Court, therefore, holds that the stop and frisk of Defendant was constitutional
because it was supported by reasonable articulable suspicion.84
C. THE DETENTION AND TRANSPORTATION OF DEFENDANT WAS SUPPORTED
BY REASONABLE SUSPICION.
In general, a lawful “investigatory detention must be minimally intrusive and
reasonably related in scope to the circumstances justifying the interference.”85 More
specifically, officers’ transportation of a suspect to another location is lawful only
when it is “reasonable and necessary.”86
In State v. Kang, officers transported the defendant to a controlled location,
away from the scene of a car accident killing the defendant’s friend, in order to
conduct a sobriety test.87 The officers concluded that not only did the scene of the
83
See Purnell, 832 A.2d at 720 (“The informant in Purnell’s case was known to the police as a
source of reliable information. Furthermore, the informant gave a detailed description of what
each of the males was wearing and the activity they were engaging in.”).
84
See, e.g., Id. at 721 (upholding a Terry search for weapons where the “informant had relayed to
the officers that the men were armed”).
85
State v. Kang, 2001 WL 1729126, at *7 (Del. Super. Nov. 30, 2001).
86
Id.87
Id. at *3.
15
accident pose a safety hazard, but also the location could hinder the defendant’s
performance on a sobriety test.88 The Superior Court held it was “reasonable and
necessary” to transport the defendant elsewhere for the sobriety test because the
roadway was at an incline, it was dark, there was a large crowd, and the defendant’s
deceased friend was still at the scene.89 The court held that, “[u]nder the
circumstances,” the officer’s “transportation of Mr. Kang to the hospital to
administer field sobriety tests did not convert the investigatory detention into an
arrest.”90
The facts here are distinguishable from Kang. Unlike Kang, where the
officers transported the defendant for his own benefit and safety,91 Lerro did not
raise similar concerns for Defendant.92 The defendant in Kang had also already
admitted some responsibility, stating he had several drinks before driving;
Defendant here did not admit to possessing a firearm.93 The Court also
acknowledges the emotionally charged situation of a death-causing accident which
is inapplicable to Defendant’s situation.
Nevertheless, officers here could transport Defendant to collect his DNA.
Despite the factual differences from Kang, the totality of the circumstances leads the
88
Id. at *7–8.
89
Id. at *8.
90
Id.
91
Id. at *8 (describing the defendant as hysterically emotional).
92
Id.
93
Id. at *7.
16
Court to conclude that WPD’s transport of Defendant to the WPD station to collect
his DNA was “minimally intrusive and reasonably related in scope.”94 Officers did
not put Defendant in handcuffs or transport him until after they found a handgun on
top of the trash in a recycling bin.95 Given the officers’ awareness that people on the
street “called out” the officers’ arrival, a reasonable person in the officers’ position
after finding the gun could believe that Defendant disposed of it nearby.96 Rather
than immediately arresting Defendant, Lerro reasonably decided to continue the
investigation by attempting to obtain Defendant’s DNA to determine a possible
connection with the gun.97 Transporting the Defendant to obtain DNA was
necessary because DNA testing cannot be performed on the street.98
Defendant argues that his transportation to the police station was unjustified,
intrusive, and should not have happened.99 Defendant relies on Hicks v. State100 to
support his position. The Supreme Court of Delaware in Hicks reversed a denial of
a motion to suppress evidence after an officer transported a defendant to continue an
investigation.101 In Hicks, an officer approached a vehicle for a traffic violation in a
94
Hicks v. State, 631 A.2d 6, 12 (Del. 1993).
95
Tr. at 37:8–12.
96
See id. at 29:9–19.
97
See id. at 65:19–23.
98
Id. According to Lerro, the DNA kits “are stored at the police department in a secure office in
a sealed Zip-Lock baggie. And once we get down to the police station, we will obtain a DNA kit.”
Id. at 38:9-12.
99
Id. at 60:17–21, 63:3–10.
100
631 A.2d 6 (Del. 1993).
101
Id. at 12.
17
high-crime area.102 As the officer spoke to the driver, the defendant approached the
officer with his hands in his pockets and a crowd behind him. 103 The officer,
concerned that the defendant may be armed, conducted a pat down of the
defendant.104 The officer felt a large bulge on the defendant’s person and discovered
it to be a small pouch.105 Inside the pouch, the officer did not see a firearm, but
found money and a sandwich bag.106 The officer transported the defendant to
another location to continue investigating “to avoid any potential threat from the
growing crowd.”107 The officer then placed the defendant in his police vehicle and
drove him to a hardware store approximately one-half mile away.108 The officer then
re-examined the pouch and found cash and crack cocaine in the plastic bag.109
On appeal, the Supreme Court held that the officer had reasonable articulable
suspicion the make a Terry stop.110 Thus, the “essential question remaining” was
whether the officer “exceeded the proper scope of [defendant’s] detention.”111 The
Supreme Court held that “[o]nce the pouch was removed, seized and inspected by
the arresting officer, no reasonable basis remained to believe that [the defendant]
102
Id. at 7.
103
Id. at 7–8.
104
Id. at 8.
105
Id.
106
Id.
107
Id.
108
Id.
109
Id.
110
Id. at 9–10.
111
Id. at 10.
18
was presently armed and dangerous.”112 Therefore, “the officer’s decision to
reexamine the contents of the pouch without articulating any reasonable basis to
believed it contained a weapon exceeded the permissible scope of the safety search
authorized under 11 Del. C. § 1903 and Terry v. Ohio.”113
Defendant relies on Hicks to argue that once the officers patted down
Defendant and did not find a firearm on him, the officers needed a search warrant to
transport Defendant to the station.114 Hicks, while instructive, is distinguishable from
Defendant’s circumstances. In Hicks, the basis for the initial encounter was a traffic
stop of a separate individual, 115 whereas here Defendant was always the focus of the
investigation.116 The defendant then approached the officer, and the officer believed
defendant was a safety threat.117 The officer then transported Hicks to the hardware
store to continue his search of the pouch, rather than continuing the original intention
of searching defendant for a weapon pursuant to Section 1903.118
In contrast to Hicks, Defendant’s stop, search, and eventual transportation all
related to the investigation of an unlawfully possessed firearm. The record indicates
112
Id. at 11.
113
Id.
114
Tr. at 61:17–21. The Court notes that the State provided no case more similar factually than
Hicks, instead relying on Hicks only for the reasonable and necessary standard. See id. at 66:10–
67:6. Defendant challenged Hicks for its factual differences, but cites no case providing a different
standard for the Court. Def.’s Reply at 3–4.
115
631 A.2d at 7.
116
See Tr. at 76:10–12.
117
631 A.2d at 8.
118
Id.
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that from the initial stop of Defendant through his consent to have his DNA tested
at the police station lasted only approximately 50 minutes.119 Further, WPD
transported Defendant to the police station to continue investigating only after a
firearm was found nearby.120 While the officer in Hicks could have searched the
pouch at the scene, the officers here could not have taken Defendant’s DNA on the
street.121 The transportation had the specific purpose of further investigating the
firearm.
The Court holds that based on the totality of the circumstances, it was
reasonable and necessary for the officers to transport Defendant to continue
investigating after finding a firearm the officers had reason to believe belonged to
Defendant. The limited duration of the detention—less than two hours—and the
release of Defendant at the conclusion of the intended investigation—the collection
of Defendant’s DNA—support a finding that the detention was reasonable in scope.
The transportation was necessary because DNA could not be taken on the street.
119
Tr. at 30:13, 41:6–9.
120
Id. at 76:19–77:4. The Court notes that the State made multiple arguments as to why the officers
chose to transport Defendant, including to avoid interruptions from others on the street while the
officers spoke with Defendant, and to hold Defendant while the officers obtained a search warrant
if necessary. See St.’s Opp’n at 16–17. Lerro only testified that Defendant was detained and
transported for the purpose of obtaining DNA, so the Court does not consider these other
arguments.
121
Id. at 38:20–22.
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IV. CONCLUSION
This Court, therefore, finds that the State proved by a preponderance of the
evidence that the officers had reasonable articulable suspicion to stop and detain
Defendant pursuant to 11 Del. C. § 1902. The detention and transportation were
reasonable, necessary, and related in scope to the investigation. For the foregoing
reasons, Defendant’s Motion to Suppress is DENIED.
IT IS SO ORDERED.
/s/ Meghan A. Adams
Meghan A. Adams, Judge
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