Opinion
I.D. No. 0210011861.
July 24, 2003.
William L. George, Jr., Esquire, Deputy Attorney General, Department of Justice, Carvel State Office Building, 820 North French Street, Wilmington, DE 19801, Attorney for State.
Raymond D. Armstrong, Esquire, Assistant Public Defender, Office of the Public Defender, Carvel State Office Building, 820 North French Street, Wilmington, DE 19801, Attorney for Defendant.
OPINION AND ORDER CONCERNING THE COURT'S MARCH 21, 2003 AND MAY 7, 2003 RULINGS ON THE DEFENDANT'S MOTION TO SUPPRESS
NATURE AND STAGE OF THE PROCEEDINGS
Presently before the Court is the motion to suppress filed by the Defendant, Aaron Kelly. The Defendant sought to have this Court rule inadmissible the evidence seized in connection with his arrest on October 18, 2002 on charges of Burglary Second Degree, Felony Theft, Misdemeanor Theft, and Unlawful Use of a Credit Card. He was subsequently indicted on those charges by the Grand Jury and moved to suppress the aforementioned evidence on January 14, 2003, claiming that certain rights guaranteed to him by the United States and Delaware State Constitutions were violated on the date of his arrest.
An evidentiary hearing was held before the Court on March 21, 2003. At the conclusion of that hearing, the Court granted the Defendant's motion and allowed the parties to submit memoranda on the extent to which the decision affected the evidence seized. The Court heard further argument in that regard on May 7, 2003. That which follows is the Court's response and clarification of the basis for its decision on March 21.
The hearing and argument are hereinafter referred to respectively as "Evid. Hrg. Ir. at ___" and "Arg. Tr. at ___".
STATEMENT OF FACTS
The relevant events began on October 18 at approximately 1:50 p.m. at the intersection of Pennsylvania Avenue and Bancroft Parkway in Wilmington, Delaware. At that time, two City of Wilmington police officers, Detective Sergeant William Browne and Detective Wilfredo Campos, were traveling north on Bancroft Parkway. The officers were on their way to investigate and look for suspects involved in a bank robbery. While stopped at a red light at Pennsylvania Avenue, Det. Browne observed a black male walking down the driveway of a house at or near that intersection. That individual, later identified as the Defendant, was not carrying anything and no alarms had been sounded. The detectives immediately placed the Defendant under surveillance. No burglaries, thefts or related crimes had been reported in that area on that date. And, although there had been reports of such crimes the week before, these officers were not investigating or otherwise interested in those offenses.
The location and date of the robbery do not appear in the record, nor is the ultimate destination of the officers revealed.
The officer was unsure of the number of reported crimes and was unaware of any descriptions of the suspect or suspects purportedly involved. Evid. Hrg. Tr. at 38.
At the evidentiary hearing, Det. Browne testified that he decided to follow the Defendant because he was black and the residents of the property as well as of the surrounding area were white. Specifically, he stated:
A. . . .At any rate, we [Dets. Browne and Campos] saw the Defendant [an African-American] walking out of the driveway. From working in the city and living in the city for many years, I had the occasion to see the people that live at that location working around the yard and just in passing. I don't know them, but I have seen them. I know that that's a white family that lives there.
Q. What kind of family?
A. A white family. I know that they're white people that live there. I also know that there's no through access from Woodlawn Avenue from the rear of that house, meaning that there's a fence line back there. At that point, I thought it as strange, and I kept, I felt that he deserved more attention. So at that point from our vehicle I placed him under observation.
Evid. Hrg. Tr. at 25.
They watched the Defendant walk north on Bancroft Parkway to the corner of Fourteenth Street and turn left before losing sight of him.
Det. Browne did not know if the Defendant or other any African-Americans lived in that area, whether the Defendant was visiting someone in the area, or if the Defendant had some other legitimate purpose to be where he was when he was initially observed by the officers. The detective went on to testify that he did not see the Defendant commit a crime and did not have any knowledge that he was about to commit a crime, or that the Defendant was behaving in any fashion which suggested criminality. Det. Campos also testified that he did not see the Defendant commit any crime or engage in preparation to do so.
Evid. Hrg. Tr. at 35-37 41-42.
The witness admitted that he did not see the Defendant commit any crime, including criminal trespass. Evid. Hrg. Tr. at 36-37 53.
Evid. Hrg. Tr. at 56.
When the light changed, the detectives proceeded up Bancroft Parkway to the corner, and looked left, but did not see the Defendant on the sidewalk. Both detectives then exited the car to do a property search of 1307 Bancroft Parkway, the house closest to the location where they had last seen the Defendant. As Det. Browne walked up the driveway, he saw that the garage was open, and observed the Defendant sitting in a car in the garage.
It appears from the testimony that there was no sign of forced entry and that the Defendant simply walked in the garage. Evid. Hrg. Tr. at 26, 46 53; and Arg. Tr. at 7.
Det. Browne approached the car and asked the Defendant to exit the vehicle. When the Defendant complied, Det. Browne asked him if he lived at that residence. When the Defendant responded that he did not, Det. Browne placed him in handcuffs and took him to the police vehicle. As this activity was taking place, Det. Campos located the owner of the house and asked whether he knew the Defendant or if the Defendant had permission to be on the property. The owner answered those inquiries in the negative and accompanied Det. Campos to the vehicle to determine what items, if any, were missing.
Det. Browne admitted that he did not know when he posed the question whether the Defendant was going to see the occupant, the bishop of the Wilmington Catholic Diocese, was doing work for that individual or otherwise had permission to be on the property. Evid. Hrg. Tr. at 46-47 53.
The Defendant was then arrested and searched. Among other things, the search revealed credit and insurance identification cards associated with a car reported stolen earlier that day. He was subsequently taken to the police station where he was interrogated and gave a statement.
The instant motion sought to have all evidence and statements that resulted from the arrest and search of the Defendant suppressed because the actions of the police violated the Defendant's rights as guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 6 of the Delaware State Constitution. According to the defense, the police lacked reasonable articulable suspicion" to detain and search the Defendant on October 18. In addition, the defense alleges that the Defendant was not given Miranda warnings after being taken into custody and before making statements to police. Any statements made by him, therefore, were illegally obtained and must also be suppressed.
There is some dispute as to whether the Defendant was given Miranda warnings at this time and/or whether he was so advised when he was initially taken into custody. in any event, the defense did not present any evidence to rebut the testimony presented by the State that the warnings had in fact been given twice.
The State opposed the Defendant's motion on several grounds, but primarily focused on its contention that the police acted consistent with the Fourth Amendment and Article I, § 6.
First, the State argues that the Fourth Amendment and Article I, § 6 are not implicated until there has been an actual seizure by the police. The State argues that since there was no seizure at the time that the police made their initially observed of the Defendant, any police activity that followed is not subject to challenge based upon the aforementioned authority. In short, the State proposes that race identity alone may be used to initiate an investigation as long as there is no contemporaneous seizure.
Arg. Ir. at 6, 9-11 16-20.
Second, the State contends that the detectives had reasonable grounds upon which to base the Defendant's seizure inside the garage and subsequent detention. By the time the Defendant was detained, the police had observed him walking down a driveway of a house where they believed he did not reside and was discovered shortly thereafter in a garage of another home in which he admitted he did not reside. Consequently, the State contends that a trained police officer would have had a reasonable basis to stop the Defendant.
DISCUSSION
The Fourth Amendment to the United States Constitution establishes that "[tlhe right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . ." This right extends to state action by virtue of the due process clause of the Fourteenth Amendment. Article I, § 6 of the Delaware State Constitution also protects the citizens of this state ". from unreasonable searches and seizures. . . ." While they are linguistically similar, the aforementioned provisions of the Delaware Constitution have been held to afford greater protection than their federal counterparts. However, if the officer has a reasonable and articulable suspicion of criminal activity, a police officer may detain an individual without violating the aforementioned state and federal constitutional guarantees. Stated differently, the facts and rational inferences taken therefrom must support the impression that the individual sought to be detained was in the process of violating the law.
Mapp v. Ohio, 367 U.S. 643, 655 (1961).
Jones v. State, 745 A.2d 856, 864 (Del. 1999).
Terry v. Ohio, 392 U.S. 1, 9 (1968).
Cummings v. State, 765 A.2d 945, 948 (Del. 2001).
A reasonable and articulable suspicion is defined 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.'" Reasonable suspicion "must be evaluated in the context of the totality of the circumstances as viewed through the eyes of a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an officer's subjective interpretation of those facts." It "is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. . . ." The State bears the burden of proving that the actions of its police officers were constitutionally sound for purposes of the Fourth Amendment and Article I, § 6.
Jones, 745 A.2d at 861 (quoting Terry, 392 U.S. at 21).
Id.
Woody v. State, 765 A.2d 1257, 1263 (Del. 2001).
Hunter v. State, 783 A.2d 558 (Del. 2001). It was in Jones that Delaware adopted the principles established by the United States Supreme Court in Terry. These principles were subsequently codified in Delaware in 11 Del. C. § 1902.
In determining whether police officers had a reasonable and articulable suspicion, a court may consider flight, the character of the area in terms of past and/or ongoing criminality, time of day and tips from citizens in the area if corroborated by other information. However, certain factors do not provide an adequate basis . For example, reasonable and articulable suspicion cannot be based on a defendant's presence in a particular neighborhood at a particular time of day with no independent evidence that the defendant has committed, is committing or is about to commit a crime." Furthermore, an "officer's subjective impressions or hunches are insufficient."
Id.; see also Cummings, 765 A.2d at 948-949.
Jones, 745 A.2d at 871; and Cummings, 765 A.2d at 949.
Woody, 765 A.2d at 1263.
The extent to which the racial identity of an individual is concerned in determining whether there is reasonable and articulable suspicion to detain an individual, has also been addressed. The seminal case in Delaware on race-based stops is in Coleman v. State. In Coleman, the Delaware Supreme Court stated:
562 A.2d 1171 (Del. 1989), cert. denied, 493 U.S. 1027 (1990).
Coleman argues that he was detained solely on the basis of his race, and that such practice is arbitrary and discriminatory. The majority of Courts have held that race, as a single criteria, provides an insufficient basis for the detention or arrest of a suspect. Generally, however, courts have upheld the use of race as an identifying factor when the totality of the circumstances reveals other nonracial factors. This Court has held that the improper injection of race into a criminal proceeding violates a defendant's right to due process as guaranteed by the Constitution of this State. However, we find that "the use of race may be legitimate when it is one among several factors suggestive of criminality" (Citations omitted).
Id. at 1175 (Citing Development in the Law — Race and the Criminal Process, 101 Harv.L.Rev. 1494, 1501, 1505 (1988)).
The Court went on to uphold the stop and subsequent search based on a variety of factors in addition to race:
In this case, the officer who detained Coleman had received information concerning not only the race of the suspect, but gender, approximate height, and indications of facial hair. In addition, the location of the suspect, and the fact that he was not wearing a coat were legitimate factors to be considered. We conclude that the record clearly supports the State's assertion that more than one factor aroused suspicion on the part of the police, resulting in Coleman's detention, and that Coleman was not arbitrarily or discriminatorily detained solely on the basis of his race. . . .[as well as] the conclusion that, given the totality of the circumstances, the police had "reasonable suspicion" to stop Coleman (Citations omitted). . . .
Id. at 1176.
It is therefore apparent that in Delaware, the race and/or ethnic status of an individual, standing alone, does not and should not constitute reasonable and articulable suspicion to detain an individual for purposes of the Fourth Amendment and Article I, § 6. In this case, unless the Defendant's racial identity, when viewed in the totality of the circumstances, had some rational relationship to a specific suspicion of illegality present on October 18, 2002, the actions of Dets. Browne and Campos in detaining the Defendant can not be sustained. Simply put, the State failed to establish such a relationship.
First, the only basis the officers had to suspect criminal activity was the Defendant's race in light of Det. Browne's belief about the racial makeup of the neighborhood. Det. Browne readily admitted that he and Det. Campos placed the Defendant under surveillance because he was a black man walking down the driveway of a house in which the Det. Browne was of the opinion that only white people resided. There was no indication that the Defendant was in engaged in criminal activity, nor did the officers allege that they had a description of a suspect linked to another crime that on that date matched the Defendant. Indeed, the record reflects that although there had been reports of property crimes in the area the week before, there were no suspects or even a description of a suspect. The Defendant fell prey to the officers' subjective belief that a black man could have no legitimate business in a predominantly white neighborhood or in the driveway of a home owned by a white family.
Det. Campos was not questioned about to the ethnic/racial makeup of the neighborhood and did not offer an opinion on the subject.
While the Defendant's disappearance from the sidewalk aroused the detectives' suspicion and prompted their search for the Defendant at 1307 Bancroft Parkway, the Delaware Supreme Court has ruled that a "citizen is not required to remain in a fixed location merely upon the approach of a police officer. . . Absent that the race-based observation, the police would not have searched for and detained the Defendant. The officers cannot therefore contend that they would have inevitably discovered the Defendant in the vehicle in question given the totality of the circumstances. Furthermore, in light of the testimony of Det. Browne, it is regrettably safe to assume that had the Defendant been a white male under the same circumstances, there would not have been any attempt to further observe and/or locate him. The State conceded as much during argument on May 7. Arg. Tr. at 18.
Cummings, 765 A.2d at 949.
Nor can that discovery retroactively justify an unconstitutional activity. Once Det. Browne approached the Defendant in the garaged vehicle, he merely asked the Defendant to exit the vehicle and inquired whether he lived at that residence. Det. Browne did not ask where the Defendant was going, coming from and/or what he was doing. After the Defendant said that he did not live there, Det. Browne handcuffed and placed him in the officers' vehicle while Det. Campos approached the owner of the home for additional information.
At this point, all the detectives knew was that the Defendant was a black man in what Det. Browne believed was a white neighborhood who had walked down one family's driveway and sat in another individual's vehicle. Neither of these actions, standing alone or taken together, suggests criminal activity. Nor do they meet the reasonable and articulable suspicion standard set forth in Terry, Jones, or 11 Del. C. § 1902.
At the evidentiary hearing, the Court found that the stop and detention of the Defendant on October 18 violated the Fourth and Fourteenth Amendments of the federal constitution and Article 1, § 6 of the state constitution. To the extent that the ruling was less than clear, the Court now reiterates that all evidence flowing from the detention must also be suppressed. That includes evidence found on the Defendant's person as well as any statements he made to police.
Notwithstanding the State's arguments, the record is clear that the items seized and statements made by the Defendant would not have been discovered but for the unconstitutional activities of the police. Nothing indicates that the evidence would have inevitably discovered by some other means or in some other manner. As a result, that evidence is inadmissible. The purpose of the exclusionary rule is to deter unlawful police conduct. To allow the State to benefit from such conduct in this case would have the opposite effect.
Cummings, 765 A.2d at 949 (citing Jones, 745 A.2d at 872).
See Carter v. State, 814 A.2d 443, 446 (Del. 2002).
Because the Court has concluded that the Defendant's statements must also be suppressed as the result of the unreasonable seizure, it is not necessary to reach the remainder of the Defendant's Fifth, Sixth or Fourteenth Amendment claims. However, the Court feels compelled to note that if the State's position was to prevail, reasonable and articulable suspicion to initiate surveillance and stop an individual could be based on race and race alone, in contradiction to Coleman. Thus it appears that the State would have the Court accept the proposition that an individual of one racial group could not visit an area predominated by another racial group at any time without arousing reasonable and articulable suspicion that he or she was engaging in or about to engage in criminal activity. Aside from the law cited above, this argument in the year 2003 smacks of a view that lost favor with the passage of open housing legislation and school desegregation at least forty years ago in this state. This view does not prevail today and the State has not been able to provide any authority to the contrary.
Even if the instant prosecution were to survive the Defendant's Fourth Amendment challenge, it would seem to be vulnerable to challenge via the equal protection and due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution as well as Article I, § 7 of the Delaware State Constitution. It is axiomatic that one's freedom of movement cannot be restricted based solely upon that person's race, period, let alone because it is different from the residents of the location where the interference occurs. No citations are necessary for such a fundamental proposition. Accordingly, regardless of how it is viewed, the prosecution should end.
CONCLUSION
Based upon the foregoing, the Defendant's motion to suppress the evidence obtained from the Defendant on October 18, 2002 was granted. In addition, in light of the State's motion to dismiss the case in its entirety to facilitate the State's appeal pursuant to 10 Del. C. § 9902(b), the charges lodged against the Defendant in this action as above-captioned are hereby dismissed.