Opinion
I.D. No. 9904014932.
Date Submitted: February 2, 2000.
Date Decided: April 10, 2000.
Upon Defendant's Motion to Suppress Evidence, DENIED.
MEMORANDUM OPINION
Defendant Daniel Hunter ("Hunter") is charged with Trafficking in Cocaine, Possession with Intent to Deliver a Controlled Substance, and Use of a Vehicle for Keeping Controlled Substances. Hunter has moved to suppress the drugs seized at the time of his arrest on the grounds that the rights guaranteed by the Fourth Amendment to the United States Constitution, and Article 1, Section 6 of the Delaware Constitution were violated when police relied upon outdated warrant information to support the arrest.
For the reasons that follow, Defendant's motion is denied.
I. FACTUAL BACKGROUND
The facts of this case are not disputed. Between July and September of 1997, Detective Rodriguez of the Wilmington Police Department Vice Unit was investigating Corey Medley for distribution of cocaine. On January 1, 1998, a federal arrest warrant was issued for Medley and he was subsequently declared a federal fugitive. Daniel Hunter was not a part of Detective Rodriguez' investigation but a confidential source advised Rodriguez that Hunter was friends with Medley. Detective Rodriguez conducted a background check of Hunter between December 13, 1997 and February 10, 1998. This background check revealed that Hunter had an outstanding warrant in Municipal Court for failure to appear for a traffic violation.
The validity of Medley's warrant is not questioned in this proceeding.
On April 20, 1999, the police conducted a spot check of Hunter's residence. Detective Rodriguez and his partner observed two unidentified individuals leave the residence and drive toward Newark, Delaware. The officers observed the vehicle park at the Post House Restaurant on Main Street in Newark, and saw the two individuals enter the restaurant. Officer Rodriguez, who could identify Medley, entered the restaurant. He identified the two individuals as they exited the bathroom as Medley and Hunter. Detective Rodriguez, in plain clothes, identified himself as a police officer and placed Medley under arrest pursuant to the federal warrant.
Rodriguez testified at the suppression hearing that Medley appeared nervous, and that the detective believed that Medley was intending to resist arrest. Rodriguez ordered both men to place their hands on the wall. Detective Rodriguez informed Hunter that he was under arrest on the basis of an outstanding warrant. Rodriguez then observed Hunter move his hands to his pant leg pocket, at which time Detective Rodriguez conducted a pat-down search of that pocket and as an officer with many years of experience, easily felt what he recognized to be crack cocaine.
Rodriguez testified that he conducted the pat-down for the purpose of ensuring the safety of himself, and the safety of the patrons in the restaurant. After Hunter was arrested, it was discovered that the warrant from Municipal Court had been cleared prior to his arrest. Rodriguez admitted that Hunter's warrant status was not checked after its initial discovery on or before February 10, 1998.
The defendant moves to suppress the drugs arguing that the police violated Hunter's Fourth Amendment right to be free from unreasonable searches and seizures when they relied upon an outdated arrest warrant to support the stop in this case. Hunter argues that reliance upon the outdated data was either reckless or negligent and cannot form the basis of a constitutionally valid arrest.
The State argues that the evidence should not be suppressed because the stop was not based solely on the outdated information, and the good faith exception to the exclusionary rule should apply. Alternatively, the State argues that if the Court rejects the good faith argument, the Court should apply the attenuation doctrine and admit the evidence based on Hunter's movement toward his leg that served as an intervening event which supplied probable cause and thereby separated the taint of the outdated warrant from the discovery of the drugs.
A suppression hearing was held December 27, 1999, followed by briefing by the State and the defendant in support of their respective positions. This is the Court's decision upon consideration of the testimony presented at the suppression hearing and the memoranda.
II. STANDARD OF REVIEW
On a motion to suppress, the defendant bears the burden of establishing that a challenged search or seizure violated his Fourth Amendment rights. The defendant must prove by a preponderance of the evidence that he is entitled to relief.
State v. Thomason, Del. Super., Cr. A. No. IN92-07-0022, Goldstein, J. (March 14, 1994), Mem. Op. at 5 (citing Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978).
Id.
III. DISCUSSION A. The Arrest Warrant
The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, prohibits unreasonable searches and seizures. Generally, the police must have a warrant to conduct a search unless it falls within one of the exceptions to the warrant requirement. The exclusionary rule applies to suppress evidence acquired as a result of an illegal arrest where the arrest warrant is no longer valid, and the good faith exception does not apply to the recalled warrant.Here, it is undisputed that the warrant relied upon by Detective Rodriguez as to Hunter was outdated and invalid. While the State argues that the good faith exception applies, or alternatively, that the Court should apply the attenuation doctrine and admit the evidence, the Court does not find it necessary to address either of these arguments. The Court finds the evidence to be admissible absent a valid arrest warrant as discovered pursuant to a lawful protective detention and pat-down based on the officer's reasonable and articulable suspicion that Hunter was armed and dangerous.
B. Absent the Warrant
Generally, warrantless searches and seizures are presumed invalid, absent a few narrow exceptions. In limited circumstances an individual may be stopped, briefly detained and frisked for investigatory purposes without probable cause. Such a protective search is permitted without a warrant and on the basis of reasonable suspicion, but must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." In order for a stop and frisk to be reasonable, however, the police conduct must meet a twofold test. First, in order for the stop to be appropriate, the officer must have reasonable suspicion, based upon specific and articulable facts, that criminal activity may be afoot. Second, in order to justify the frisk, the officer must reasonably believe that the suspect is armed and dangerous.
Minnesota v. Dickerson, 508 U.S. 366, 372-73 (1993).
Terry v. Ohio, 392 U.S. 1, 27 (1968).
Id. at 26.
Terry, 392 U.S. 1.
Id. at 24.
However, under the "automatic companion rule," a search of the companions of an arrestee, especially where the arrestee is armed, is lawful whether the companion has given the officer independent grounds for suspecting danger, provided there is an objective ground for caution.
State v. Fitzpatrick, Del. Super., Cr.A. No. IN93-08-1593, Carpenter, J. (June 29, 1994), Mem. Op. at 11 (citing United States v. Simmons, 7th Cir., 567 F.2d 314, 319-20 (1977); United States v. Poms, 4th Cir., 484 F.2d 919, 922 (1973); United States v. Berryhill, 9th Cir., 445 F.2d 1189, 1193 (1971)).
1. The Automatic Companion Rule
The automatic companion rule provides that "[a]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory `pat-down' reasonably necessary to give assurance that they are unarmed." In United States v. Berryhill, the Ninth Circuit Court of Appeals held that while the lawful arrest of a suspect cannot legalize a personal search of a companion for evidence simply because the companion is there, " Terry recognizes and common sense dictates that the legality of such a limited intrusion into a citizen's personal privacy extends to a criminal's companions at the time of arrest." The Delaware Supreme Court has not addressed the constitutionality of this rule, although it has noted the existence of the rule in Hovington v. State.In Hovington, the defendant was charged with trafficking in cocaine, and sought to suppress a slip of paper found on his person which indicated a measurement of drugs. The defendant was observed seated at a table eating lunch with two individuals for whom the police had obtained arrest warrants. As the police exited their vehicle, the defendant and his two companions attempted to run away. The defendant was captured by police, told he was under arrest for "suspicion of narcotics," and searched incident to arrest. It was in the course of that search that police removed a small slip of paper containing names with corresponding numbers from the defendant's pocket. The defendant argued that the police had no legal authority to pursue and detain him when they arrived to execute the arrest warrant for his companions.
The Court held that the slip of paper was admissible as being discovered pursuant to a lawful arrest. In reaching its conclusion, the Court cited Michigan v. Summers where the United States Supreme Court held that in assessing the propriety of detaining an occupant of premises which were being searched pursuant to a valid warrant,
452 U.S. 692, 702 (1981).
both law enforcement interest and the nature of the "articulable facts" supporting the detention are relevant. Most obvious is the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found. Less obvious, but sometimes of greater importance, is the interest of minimizing the risk of harm to the officers . . . [T]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.
Id.
The Delaware Supreme Court found that this same rationale applies to the execution of a warrant to arrest someone for a narcotics violation. The Court held that the police by pursuing Hovington, were properly "exercising `unquestioned command of the situation' in order to minimize the risk of harm to themselves and all persons who were present."
Hovington, 616 A.2d at 832; see Maryland v. Buie, 494 U.S. 325 (1990); accord Downs v. State, Del. Supr., 570 A.2d 1142 (1990).
Hovington, 616 A.2d at 832 (citing Michigan v. Summers, 452 U.S. at 702).
The Supreme Court also cited Berryhill's automatic companion rule to support the holding in Downs v. State. In Downs, the Superior Court held that where the driver of an automobile was arrested for a narcotics violation, albeit without a warrant, the occupants of an automobile were properly subjected to an "investigatory stop." No other mention was made to Berryhill or the automatic companion rule in the Hovington decision. This citation to Berryhill, however, has been held to support the ability of law enforcement, believing themselves in danger, to pat-down an individual.
Del. Supr., 570 A.2d 1142 (1990).
Hovington, 616 A.2d at 832 n. 5 (discussing the facts of Downs v. State, 570 A.2d at 1144).
See Fitzpatrick, Cr. A. No. IN93-08-1593, mem. op. at 12.
In State v. Fitzpatrick, a New Castle County Police Officer stopped a caravan of pick-up trucks for motor vehicle violations. In the course of issuing traffic citations, the officer observed guns in plain view whereupon he drew his weapon and ordered the men out of the car. Several other officers arrived on the scene and together the police searched the other individuals in the caravan. At this point, Fitzpatrick was searched and was arrested and charged with carrying a concealed deadly weapon. Fitzpatrick argued that the search was unreasonable because he was merely a companion of those who exhibited weapons and "automatic companion" searches are unreasonable. The State argued that the search was lawful under the "stop and frisk" doctrine.
The Court held that a search of the companions of an armed individual is lawful whether the companion has given the officer independent grounds for suspecting danger or not, provided there is an objectively-based overall ground for caution. The Court found that the Delaware Supreme Court had cited Berryhill's automatic companion rule with approval in Hovington v. State. This Court may therefore consider the rule in Berryhill as referenced in Hovington.
Fitzpatrick, Cr. A. No. IN93-08-1593, mem. op. at 11 (citing United States v. Simmons, 567 F.2d at 319-20; United States v. Poms, 484 F.2d at 922; Berryhill, 445 F.2d at 1193).
Fitzpatrick, Cr.A. No. IN93-08-1593, mem. op. at 12. The Court found that even if Hovington's citation to Berryhill was "considered dicta, the `automatic companion' rule nevertheless is adopted because it makes more sense in light of the ever-increasing dangers inherent in encounters with criminal suspects, particularly when the suspects outnumber the officers as they did here." The Court found that in light of Terry, "it would be illogical to conclude that, although a police officer may conduct a pat-down search of an initial suspect on the basis of circumstantial evidence without a showing of direct offensive behavior by the suspect, those same circumstances do not support the pat-down search of a companion when a weapon has already been found on the initial suspect." Id.
In the matter sub judice, Detective Rodriguez believed he and the patrons of the restaurant were in danger as Medley was a federal fugitive being arrested on narcotic charges. Detective Rodriguez testified that it was his experience that individuals involved in the drug trade "usually carry weapons." Under the automatic companion rule, the frisk of Hunter was proper and the suppression of the drugs would not be warranted. The motion to suppress must be denied.
2. The Stop and Frisk Doctrine
The Court notes that even were the automatic companion rule to be inapplicable, the limited search in this case is valid. In Pennsylvania, the courts have noted that while there is authority to find that law enforcement officers are per se authorized to conduct a pat-down search upon an arrestee's companions, Berryhill's automatic companion rule has drawn a large amount of criticism. In Graham, the Pennsylvania Superior Court rejected the automatic companion rule and found that a per se rule that a companion of an arrestee is subject to a pat-down search regardless of justification, effectively warrants "unreasonable searches" and is, thus, contrary to the Fourth Amendment, as such a rule "grants authority to the police to stop and search an individual based solely upon his choice of company without requiring reasonable suspicion that either criminal activity is afoot or that the individual is armed and dangerous."
Commonwealth v. Graham, Pa. Super., 685 A.2d 132, 135 (1996), rev'd on other grounds, Pa. Supr., 721 A.2d 1075 (1998).
Id.
Having rejected the automatic companion rule, the court in Graham analyzed the case under a Terry reasonable suspicion standard. The courts have found that an arrestee's companion may be stopped and frisked when there is reasonable suspicion that the companion is armed and dangerous. In doing so, the court found that the societal interest in safeguarding law enforcement officials is at a premium and the officer's task of performing an arrest is inherently fraught with danger. In light of these risks, the court concluded that
Id.
Graham, 685 A.2d at 136.
it is inherently reasonable for a law enforcement officer to briefly detain and direct the movement of an arrestee's companion, regardless of whether reasonable suspicion exists that the companion is involved in criminal activity. Such minimal intrusion upon the companion's federal and state constitutional rights are clearly outweighed by the need to extinguish the risks otherwise posed to the lawman's well-being. Accordingly, the first prong of the "stop and frisk" test is a nullity in cases involving an arrestee's companion.
Id. at 137 (citing Michigan v. Summers, 452 U.S. at 702, where the Court discussed the risk of harm in executing a warrant to search for narcotics).
The court then examined the frisk which it found involves a much greater intrusion upon the person's constitutional rights than a mere detention. "Thus, without additional justification, we cannot find that a `pat-down' search of the arrestee's companion serves to insure the safety of the officer to any greater extent than the officer's ability to briefly detain the companion and direct his/her movement. Accordingly, as with any `stop and frisk,' the officer must have reasonable and articulable suspicion that the arrestee's companion is armed and dangerous before conducting a pat-down search."
Graham, 685 A.2d at 137.
Id. at 137.
Reasonable suspicion that a suspect is armed or dangerous may arise under a number of different circumstances. A police officer may reasonably believe himself or herself to be in danger when the crime reported to have been committed is a violent crime, when a perpetrator is reported to possess or have used a weapon, or when the hour is late or the location is desolate. A frisk might also be implemented to protect innocent bystanders within the vicinity.
Commonwealth v. Jackson, Pa. Super., 519 A.2d 427, 431 (1986).
Id.
Detective Rodriguez had actual knowledge of a valid federal arrest warrant for Medley for distribution of narcotics. Detective Rodriguez was outnumbered by Medley and Hunter, and believed they might be armed and dangerous as those involved in the narcotics trade often carry firearms. When he sought to control Hunter's movements, Hunter's hand moved toward his pocket. Rodriguez testified that he believed it was necessary to pat-down Hunter for the protection of himself and the other restaurant patrons.
IV. CONCLUSION
Given all the circumstances involved, Detective Rodrigues' actions were justified in conducting an "investigatory stop" and pat-down of Hunter to minimize the risk of harm to himself and the other patrons in the restaurant. Considering the totality of the circumstances as viewed through the eyes of a trained officer, the factors support the conclusion that the detective's suspicions were not unreasonable. This Court finds that the minimal intrusion of a safety-oriented frisk was warranted. Thus, finding a reasonable basis for the pat-down, the seizure of the drugs was lawful and are admissible as evidence at trial. Defendant's Motion to Suppress is DENIED.
IT IS SO ORDERED.
Orig: Prothonotary cc: Peter W. Veith, Esq. — DAG Eugene J. Maurer, Jr., Esq.