Opinion
I.D. No. 0201003617
Submitted: May 23, 2002
Decided: September 6, 2002
Upon Defendant's Motion to Suppress. Denied.
Martin B. O'Connor, Esquire, Deputy Attorney General, Dover, Delaware, for the State.
Deborah L. Carey, Esquire, Assistant Public Defender, Dover, Delaware, for the Defendant.
ORDER
This 6th day of September, 2002, after consideration of the submissions of the parties concerning defendant's motion to suppress, as well as testimony upon hearing of the motion, it appears to the Court that the Dover Police Department had reasonable articulable suspicion to detain the defendant in this case and, later, there was probable cause to place the defendant under arrest. The search of the vehicle pursuant to impoundment was acceptable as an inventory search. Because no illegal search and seizure occurred in this case, defendant's Motion to Suppress must be denied.
Facts
1. On approximately January 1st or 2nd of 2002, a shooting occurred at the Brotherly Love Club in the jurisdiction of the State Police. The State Police put out a description of the vehicle used in the shooting. The Dover Police were provided a description and license plate number of a vehicle that was allegedly involved in the shooting. The description of the vehicle was that it was dark blue, similar in style to a late-model Thunderbird, with a tag number "9113."
2. On or about the night of the shooting, Officer Gregory M. Hopkins of the Dover Police ran the tag number "9113." He responded to the address of the tagholder to determine if the tag belonged to a vehicle matching the description of the car used in the shooting. The vehicle associated with tag "9113" did not match the description of the vehicle used in the shooting.
3. A few nights later, on the night of January 6, 2002, Officer Hopkins, a member of the K-9 unit, was on routine patrol and responded to the Elk Lodge for control of a large crowd there. At that time, a vehicle closely matching the description of the one used in the Brotherly Love Club shooting was spotted. It was parked on Mary Street, near the Elk Lodge.
4. The license plate number on the spotted vehicle was "91113," and it was a big blue car (a "1986" Lincoln Mark VII). Officer Hopkins set up surveillance on the vehicle to determine if anybody would approach it. He then ran the tag number "91113" from the Mark VII. The search revealed that the owner of the vehicle was Raymond Greer. Hopkins stated that in the past, Dover Police have stopped various vehicles that have been registered to Mr. Greer (who is the owner of Ray's Auto Body), and he has had fictitious tags (from his auto body shop) on those stopped vehicles.
5. After watching the vehicle under surveillance for about five minutes, the officers saw the defendant approach it. Defendant appeared to be entering the driver's side. Hopkins pulled his vehicle in behind the suspect vehicle. Hopkins thought defendant was going to run; therefore, Hopkins advised defendant not to run. Defendant ran anyway. Hopkins advised the defendant that he would release his K-9 dog if defendant did not stop. Defendant did not stop. Hopkins released the K-9 and apprehended the subject. As the defendant was being chased by the dog, defendant threw an object which later turned out to be the keys to the suspect Mark VII. The defendant was taken and placed in a patrol vehicle and then taken to Kent General Hospital.
6. After recovering the keys, the Dover Police contacted the State Police to determine if they were going to come to the scene to continue the Brotherly Love shooting investigation. The State Police advised the Dover Police that they were not, and for the Dover Police to do what they needed to do with the vehicle, and with the charges that they had on the defendant. Hopkins testified that, at this point, the Dover Police believed that the vehicle was going to be used as part of the State Police investigation of the Brotherly Love Club shooting.
7. Accordingly, the Dover Police contacted the State Police to inform the State Police that the suspect vehicle was located. At that point, the State Police advised that the victim in the shooting case was extremely uncooperative; therefore, the State Police were not going to go forward with the prosecution and would not be responding to this vehicle.
8. The Dover Police notified their dispatcher to locate the registered owner of the vehicle to obtain permission from them to leave the car in the current location which is a high crime area. It is departmental policy, if the Dover Police arrest a subject operating or in control of a vehicle, and the police can't contact the owner of the vehicle to get permission to leave it at the scene of the arrest, then the department must tow the vehicle to a safe place. This policy is to protect the police department from liability should someone break into it while it is left abandoned after the arrest, unbeknownst to the owner. Corporal Daniel McKeown, testifying for the Dover Police Department, stated that the police may be held liable for damages because it's their responsibility to protect the owner and his vehicle in a case where the driver arrested is not the owner.
9. Dispatch was unable to contact the owner of the vehicle. At that point, Corporal McKeown decided to tow the vehicle to a safe place. Consequently, he impounded the vehicle, and conducted an inventory of the vehicle and completed a tow slip. No search warrant was obtained to search the vehicle. To conduct the inventory search, Corporal McKeown opened the driver's side door. Next, as is normally done, he checked for valuables in the center console, throughout the vehicle and in the trunk, to document valuables prior to the tow company removing the car. As a result of the inventory search at the arrest site, a .32 caliber handgun was located in the center console. A jacket on the back seat contained 1.2 grams of crack cocaine in a pocket. These items were secured in Corporal McKeown's vehicle and he responded back to the Dover Police Department with the evidence found.
10. Next, another officer, Officer Jackson, arrived at the scene and he completed the tow slip which included an inventory and pedigree section. (The evidence taken back to the station by Corporal McKeown was not listed as inventory because it was not left in the vehicle, but was removed to the police station.) The tow slip did not have the section filled in that stated the reason for the tow. Officer McKeown testified that it was his intent to impound the vehicle because the operator was arrested, and the owner could not be located. Since Officer Jackson arrived late on the scene, he did not fill in this information; however, Corporal Jackson testified as to the purpose of the tow. The car was towed to the lot at Harris Towing.
11. Corporal McKeown later filed the tow slip at the Dover Police COM Center. When the owner responds to the station, the police give the filed copy to the owner. At that point, the owner goes to the company and retrieves his or her vehicle. In this case, the owner never came and got the vehicle. The vehicle was still at Harris Towing at the time of the suppression hearing.
12. Defendant argues, first, that the initial stop and detention were illegal because the police did not have reasonable articulable suspicion. Second, he argues that the search of the parked vehicle was illegal since there was no probable cause to search it and no search warrant. Finally, defendant maintains that incriminating oral statements made after the allegedly illegal arrest in this case are fruit of the poisonous tree and should be suppressed.
Discussion
13. The police had reasonable suspicion to conduct an investigatory stop in this case, and probable cause to make an arrest. Testimony also established a proper basis for an inventory search and that proper inventory procedures were followed; therefore, the search of the vehicle was permissible pursuant to its impoundment. Moreover there was probable cause for the search. Assuming that the defendant was read his Miranda rights, and defendant waived them, evidence of the incriminating statements are admissible.
Investigatory Stop
14. In determining if the investigatory stop and detention were constitutionally permissible in this case, the Court will consider the Delaware constitutional standards for police investigatory stops. This is because Delaware law provides more protection to its citizens than the Federal Constitution. If a citizen is not protected from an unreasonable search or seizure under Delaware law, the Federal Constitution will not provide greater protections in this area.
Jones v. State, 745 A.2d 856, 863 (Del. 1999) (interpreting United States and Delaware constitutions so as to construe search and seizure rights under each); see also, Dorsey v. State, 761 A.2d 807, 814 (Del. 2000) (finding that "Delaware's citizens enjoy more rights, more constitutional protections, than the Federal Constitution extends to them" in the area of protection from unreasonable governmental search and seizures).
15. The Delaware constitutional standard for lawful detentions and stops has been codified by 11 Del. C. § 1902. This provision provides, in pertinent part:
Jones, 745 A.2d at 863.
(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.
16. A stop or seizure has occurred under Article I, § 6 of the Delaware Constitution, and under 11 Del. C. § 1902, when a reasonable person would have believed he or she was not free to ignore the police presence. The focus is on police action and how a reasonable person would view it. It is an objective test. Use of force to the defendant's person is not required to effectuate a stop under § 1902. Nor, does a stop require submission by the defendant to a show of police authority.
Jones, 745 A.2d at 869; State v. C.J.M., 2000 WL 33200949 at *2 (Del.Fam.).
Jones, 745 A.2d at 869.
Id. at 867 (differentiating the requirements for a "seizure" under the Fourth Amendment to the Federal Constitution).
17. Applying the test for when a stop occurs to this case, a reasonable person would have believed he was not free to ignore the police presence when the officer told the defendant not to run. These actions constituted a seizure of the defendant and must have been supported by reasonable articulable suspicion.
Reasonable Articulable Suspicion
18. Since it is established that an investigatory stop did occur here, the Court must determine if its purpose was constitutionally justified. An investigatory "stop must be justified at its inception by reasonable suspicion of criminal activity as defined in Terry v. Ohio." The Delaware Supreme Court has stated that an officer has reasonable and articulable suspicion to support a detention when he or she can "point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[s] th[e] intrusion." The Court must analyze a police officer's determination of reasonable and articulable suspicion under the "totality of the circumstances" as evaluated "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."
Caldwell v. State, 2001 WL 1078869 at *3 (Del.Supr.) (emphasis added) citing Terry v. Ohio, 392 U.S. 1, 21, 30 (1968) (noting that "`reasonable ground' as used in Section 1902(a) has the same meaning as reasonable and articulable suspicion" under Terry).
Jones, 745 A.2d at 861(internal citations omitted).
Id.
Id.
19. In the present case the stop was justified because Officer Hopkins could "point to specific and articulable facts that would warrant a person of reasonable caution to believe that it was necessary to seize the defendant in order to perform his [police] duties, i.e., that the person has committed or is about to commit a crime." Here, a shooting had occurred a few days earlier. Defendant appeared to be in possession of a vehicle that closely matched the description of a vehicle involved in that shooting. The vehicle had a very close tag number to the one that was being pursued in the shooting investigation, and was also the same size and color. Moreover, even if this vehicle was not the correct vehicle, the police knew that the tag owner often switched his tags; therefore, upon further investigation, the tag on defendant's vehicle could have led to the discovery of another vehicle used in the shooting.
State v. Thomason, 1994 WL 637294 at *6 (Del.Super.), aff'd, 1994 WL 534995 (Del.Supr.).
20. The Court finds that there was reasonable articulable suspicion of criminal activity that would warrant an investigatory stop here. The police would have been derelict not to investigate such strong evidence linking the suspect vehicle to a shooting. Under 11 Del. C. §(a) the police had the right to stop the defendant and demand his name, address, business abroad and destination. When defendant ran and, therefore, failed to give identification or explain his actions to the satisfaction of the officer, the police could detain him for further questioning and investigation.
Arrest
21. At some point the intrusion here rose to the level of an arrest. It is the Court's view that when the K-9 was released, the "police procedures qualitatively and quantitatively be[came] so intrusive with respect to [the] subject's freedom of movement and privacy issues as to trigger the full protection of the Fourth and Fourteenth Amendments."
State v. Kang, 2001 WL 1729126 at *6 (Del.Super.) (citations omitted) (noting that "[i]n order to determine whether a seizure is an investigatory detention or an arrest, the Court must examine the reasonableness of the level of intrusion under the totality of the circumstances"). In making its determination as to when an arrest occurred in the instant case, the Court considered the amount of force and the need for force; the extent to which the defendant's freedom of movement was restrained; the physical treatment of the defendant; the number of agents involved; the duration and likelihood of the defendant being armed. Id.
Probable Cause
22. To effectuate an arrest, the police must have had probable cause, i.e. "information which would warrant a reasonable man in believing that a crime has been committed." Probable cause is analyzed, "not by precise standards, but by the totality of the circumstances through a case by case review of the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." The standard to determine probable cause is well settled.
A finding of probable cause does not require the police to uncover information sufficient to prove a suspect's guilt beyond a reasonable doubt or even to prove that guilt is more likely than not. To establish probable cause, the police are only required to present facts which suggest, when those facts are viewed under the totality of the circumstances, that there is a fair probability that the defendant has committed a crime. The possibility that there may be a hypothetically innocent explanation for each of several facts revealed during the course of an investigation does not preclude a determination that probable cause exists for an arrest.
Id. at 930 (internal citations omitted) (emphasis in original).
23. The circumstances preceding the arrest here provided Officer Hopkins with probable cause, i.e. enough information which would warrant a reasonable man in believing that a crime has been committed. The facts have been fully set forth above. To reiterate, briefly, it reasonably appeared that defendant was in possession of a vehicle that closely matched the description of a vehicle involved in a prior shooting. When those facts are viewed under the totality of the circumstances, there was a fair probability that the defendant had committed a crime, and was somehow involved in the shooting. The possibility that there may be a hypothetically innocent explanation for defendant's possession of the car at issue does not preclude a determination of probable cause.
Impoundment Search
24. In the instant case, the impoundment of the vehicle was not used as "a pretext for conducting a warrantless inventory search. Instead, the police testimony established that the car had to be impounded according to policy to protect the Dover Police Department from civil liability. If the State did not impound the car under the facts in this case they were breaking their own policies and would be liable for any damage that might occur to the vehicle.
Probable Cause for Search
25. Moreover, it is also well-established that "[w]hen the police have probable cause to believe that an automobile is carrying contraband or evidence, they may search the vehicle without obtaining a search warrant." Here, there was probable cause that the vehicle contained evidence regarding a prior shooting.
Tatman v. State, 494 A.2d 1249, 1251 (Del. 1985) (citing Carroll v. United States, 267 U.S. 132, 153-54 (1925)).
Oral Statements
26. Because the Court does not find that an illegal search or seizure occurred in this case, the Court does not find that incriminating oral statements are fruit of the poisonous tree. If the defendant has no other basis to preclude admission of any subsequent statements, the statements are admissible.
WHEREFORE, for the foregoing reasons, defendant's motion to suppress is denied.
IT IS SO ORDERED.