[54 Del. 390] Clement C. Wood, Chief Deputy Atty. Gen., for State.
John J. Morris, Jr., and Arthur J. Sullivan, of Morris, James, Hitchens & Williams, Wilmington, and Thomas A. Wadden, Jr., and Robert L. Weinberg, of Williams & Stein, Washington, D. C., for defendant.
On October 15, 1958, the defendant was arrested and charged with the unauthorized possession of a narcotic drug in violation of 16 Del.C. § 4702(a). She was tried without a jury in the Court of Common Pleas and found guilty. She has appealed to the Superior Court where she is entitled to a trial de novo. A pretrial motion to suppress the evidence here discussed was considered on affidavits and denied by this Court.
In the course of the trial before a jury the State sought to introduce a substance alleged to be marijuana which had been seized from defendant's luggage. Defendant objected on the ground that such evidence was obtained as a result of an illegal search contrary to her right against unreasonable searches under the Constitutions of Delaware and of the United States.
The Court heard extensive testimony outside of the presence of the jury. Only some of the significant facts are here mentioned.
The undisputed evidence shows that on October 15, 1958 defendant had stopped her car in front of a motel on U. S. Route 13 south of Wilmington in order that Thelonious Monk, one of her passengers, could get a drink of water. At this point a State trooper appeared and questioned Monk. Monk did not reply to the trooper's questions, and defendant explained that Monk was sick.
[54 Del. 391] With the apparent approval of the trooper, defendant started to drive on toward Baltimore. The trooper followed and stopped defendant, demanding that Monk get out of the car. Monk refused to get out and asked 'why the hell' he should do so, or used words to that effect. The trooper was angry by then and informed Monk he was under arrest. It was not clear whether the arrest was based on the use of profanity or for a minor incident which had taken place while Monk was seeking water at the motel for which an arrest warrant was later issued. In any case Monk continued to refuse to get out of the car.
Several other police officers were called by the arresting officer. They appeared in patrol cars with handcuffs and weapons. Monk was removed from the car by force and thrown to the ground. While this was going on defendant got out of the car and begged the police not to strike Monk because he was sick. The police told her not to interfere and proceeded to use blackjacks on Monk. Finally his hands were handcuffed behind his back.
Monk was then placed on the floor of a police car. When he prevented the closing of the car door by refusing to draw in his legs a blackjack was again used on him.
Defendant's keys, driver's license and auto registration had been taken from her by the police. After Monk was removed her keys were returned to her and she was told to follow the police car to a Magistrate's office. She did so without protest.
There she saw Monk searched. Later Monk pleaded guilty to a disorderly conduct charge arising out of a minor incident which had taken place at the motel before the police arrived. He was fined $10 and costs.
There were several police officers at the Magistrate's office. After a time two police detectives arrived. Defendant [54 Del. 392] heard one of them mention a search warrant to the Magistrate.
More than two hours after defendant's registration card and driver's license were taken from her the police asked defendant for permission to search her pocketbook and car. She gave such permission ...