Opinion
Criminal Action Nos. IN-04-09-1154 thru IN-04-04-1157, Criminal Action Nos. IN-04-09-2068, IN-04-09-2069, ID No. 0403013451.
Submitted: February 28, 2005.
Decided: March 3, 2005.
Upon Motion of Defend ant to Suppress — DENIED.
Renee L. Hrivnak, Esquire, Deputy Attorney General, Department of Justice, for State of Delaware
Robert M. Goff, Jr., Esquire, of Wilmington, Delaware, attorney for the defendant
MEMORANDUM OPINION
Defendant Eugene Maddrey has moved to suppress evidence seized from him as a result of a motor vehicle stop. He was a passenger in a vehicle and was on probation at the time.
The Court holds the enforcement authorities had lawful grounds to make a stop of that vehicle. Further, because of Maddrey's status and other factors, there was a reasonable articulable basis to seize and frisk him. The motion to suppress is DENIED.
Factual Background
On September 7, 2004, Wilmington Police officer David Rosenbloom and Probation Officer William Dupont and another officer were seated in an unmarked car parked near the corner of 29th and Claymont Streets in the City. They were on an assignment known as Operation Safe Streets. They were in the "Riverside" area of Wilmington. It, and their location, particularly the 2700-2900 block of Claymont Street, are notorious for drug activity. Rosenbloom has made over 50 arrests in the Riverside area alone for drug activities.It was around 8:11 p.m., when the two officers heard very loud music. At first, they could not determine the source. It got louder. Eventually, the source turned out to be music from a Chevrolet Lumina. When they first heard the music, the Lumina was more than 50 feet from them.
There is a stop sign at the intersection of 29th and Claymont. The Lumina was traveling southbound on Claymont but "rolled" through the stop sign without coming to the requisite full stop. The officers started up and followed the Lumina south on Claymont. The Lumina stopped suddenly and pulled over to the curb without the officers signalling or using any police equipment. After the Lumina stopped, the officers pulled parallel to it. It had dark tinted windows. They shown a light into it in order to see the occupants.
Rosenbloom recognized the vehicle as one he had stopped on August 5, 2004 at 5th and Monroe Streets. When observing the driver in this instance, Rosenbloom recognized him as the driver on the prior occasion. On that occasion, the driver, Lavance Wilmore, was rolling marijuana cigarettes. Rosenbloom did not arrest Wilmore then, but he had the car towed. Neither Wilmore nor Maddrey is the registered owner of the Lumina. Maddrey was not with Wilmore on the prior occasion.
After stopping the car, and getting out, Rosenbloom checked the driver and Dupont checked the passenger, Maddrey. Dupont had also recognized the driver, Wilmore, as being on probation. He did not recognize Maddrey. Dupont asked Maddrey for identification and if he were on probation. Maddrey replied he was on Level II probation but gave a different name. Maddrey, according to Dupont, was a little vague about where he lived. The defendant had no identification.
Dupont testified that Maddrey was quite fidgety, shifting around in his seat. It made him nervous. He asked Maddrey to get out of the car for a weapons frisk. Maddrey complied. He put his hands on the car. Dupont, when frisking him, did not detect a weapon but felt or detected a large amount of money. When discussing that, Maddrey with his left hand twice made a move toward his left pants pocket. Dupont told him not to do so. When Dupont patted down that pocket, he felt something which, through his experience, he thought could be bundled drugs.
Dupont then took Maddrey into custody. Up until that time, he had not removed anything from Maddrey's person. Later, he went to Maddrey's residence to help execute a search warrant. While there, Dupont confirmed the defendant's true identity.
An issue arose at the suppression hearing on January 7, 2005. It was whether Dupont had seized Maddrey's identification card. If he had, there would be a question about Maddrey's alleged failure to produce it when asked during this stop. Subsequent to the hearing Maddrey's counsel indicated he might have a fact witness about this issue. The Court set up time for that hearing on March 1st. Maddrey's counsel informed the Court that day that his fact witness had not appeared and that there was no need for the hearing. The Court has proceeded, therefore, on the record made at the suppression hearing.
Since Maddrey had been placed on probation prior to this stop, he had signed a document entitled "Conditions of Supervision." On that document which he signed is a statement which says, "You are subject to arrest and to search of your living quarters, person or vehicle without a warrant at any time by a probation/parole officer."
State's exhibit 1.
Decision
This was a warrantless seizure and search of Maddrey. First, there was a seizure in this case. Wilmore stopped the car without any known or apparent action or prompting by the police. Yet, shortly after it stopped, the officers shined a light into it. And then they went to it with each officer going to a separate side. Preliminary questions were asked of both occupants. Dupont asked Maddrey to get out to be frisked, Maddrey did and was frisked. When he asked him to do that, it was a seizure of Maddrey.To be able to conduct the pat down of Maddrey, Dupont had to have reasonable articulable suspicion for the seizure. That suspicion existed in this case. First, the officers had grounds to stop the car. By playing the radio as loud as it was more than 50 feet away, there was a violation of a City ordinance. Second, the car did not stop as required for the stop sign at 29th and Claymont Streets.
Purnell v. State, 832 A.2d 714, 720 (Del. 2003).
Wilmington Code Art. III, § 11-60. The Court acknowledges no ticket was given to Wilmore for this offense but there was no requirement to do so.
Again, no ticket was given for this, and again one was not needed.
The officers had grounds to keep the Lumina from going any further after it pulled over on its own. Even though the driver stopped the car on his own volition, once the police pulled along side and displayed their pesence, it was from then on stopped by them. Since is was lawfully stopped, the officers constitutionally could ask Maddrey, the passenger to get out.
Maryland v. Wilson, 519 U.S. 408, 415, 117 S. Ct. 882, 886, 137 L.Ed.2d 41 (1997).
All of this was in a high activity drug area. That alone will not establish a basis for reasonable articulable suspicion. But there was more. While Dupont had not been present on the prior occasion when Rosenbloom encountered Wilmore in the same car rolling marijuana cigarettes, and had it towed, he was made aware of it. He either knew from Rosenbloom that Wilmore was on probation or recognized him as a probationer.
Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2641, 61 L.Ed.2d 357 (1979).
He also determined Maddrey was on probation. Maddrey had no identification and gave a vague answer when asked where he lived. In addition, while Maddrey was still in the car and while talking to him, Dupont noted Maddrey was quite fidgety. He testified that it was not unusual, however, for a probationer to be nervous in his presence.
The Court finds the sum of all these factors provided reasonable articulable suspicion to Dupont to ask Maddrey to exit the car to undergo a weapons frisk. The frisk thereafter, during which money and drugs were seized was, therefore, lawful.
Conclusion
For the reasons stated herein, defendant Eugene Maddrey's motion to suppress is DENIED.