Daniel B. McBride, Esq., Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Attorney for State of Delaware.
Kathryn Van Amerongen, Esq., Assistant Public Defender, Public Defender's Office, Wilmington, Delaware. Attorney for Defendant.
Calvin L. Scott, J.
On this 24th day of April, 2015, IT IS ORDERED as follows: Defendant's Motion to Suppress is DENIED.
Before the Court is Defendant Lamar Massas' ("Defendant") Motion to Suppress, brought by counsel. Defendant argues that his Fourth Amendment right against unreasonable search and seizure was violated as a result of an improper pre-textual stop that exceeded the scope of a traffic stop. The Court has reviewed the parties' submissions, held a suppression hearing and reviewed the parties' supplemental submissions on the issue of standing. For the following reasons, the Defendant's Motion to Suppress is DENIED.
Findings of Fact
On October 21, 2014, Officer Dirocco of the Wilmington Police Department was on patrol when he observed a teal Nissan Altima fail to stop completely at a stop sign at the intersection of West 29th Street and Tatnall Street, after which he activated his emergency equipment and stopped the vehicle.
At the suppression hearing, Officer Dirocco noted that he had seen this same vehicle earlier that day around noon, but did not call it in because the vehicle was parked and unoccupied. Officer Dirocco took notice of the vehicle because of an officer safety alert that had been distributed by Wilmington Detectives that morning, and provided a description of the vehicle and its license plate number. The officer safety alert also noted that detectives wanted to speak with occupants of interest associated with that vehicle, Tasia Richmond ("Richmond") and Lamar Massas, regarding them being potential witnesses to a homicide, and instructed officers to call Detective Fox should they encounter the vehicle. Officer Dirocco also recalled an earlier officer safety alert sent in September for that same vehicle, which provided a description of the vehicle and its license plate number, and stated that the vehicle had been seen fleeing several recent shooting scenes.
Officer Dirocco testified that, while he was aware that Richmond and Defendant were occupants of interest associated with that vehicle, he was not aware of the identities of the vehicle's occupants when he initially pulled the vehicle over for the moving violation. Due to the officer safety alerts on that vehicle, which Officer Dirocco was aware of at the time of the stop, he immediately radioed for additional units when he called in the traffic stop at 1:51p.m. Officer Dirocco approached the driver's side of the vehicle and asked the driver – subsequently identified as Richmond – for her license, registration and insurance. Richmond immediately produced the requested information. At that time, Officer Dirocco also asked Richmond a few standard questions asked during traffic stops such as, where are you were going to and coming from. Officer Dirocco testified that Richmond appeared extremely nervous in response to routine questions that would not trigger such unusual nervousness, to the extent that it made Officer Dirocco nervous. He testified that he observed Richmond's hands shaking or trembling, and that he could hear in Richmond's voice her breathing very heavily and fast as she answered his questions.
Officers Cannon and Tiberi of the Wilmington Police Department arrived at the scene to assist at 1:53p.m. At that time, Officer Cannon approached the passenger side of the vehicle and made contact with Defendant, who was in the passenger seat. In response to Richmond's unusually nervous demeanor, Officer Dirocco asked Richmond to step out of the vehicle. Officer Cannon then observed Defendant suddenly become extremely nervous and jittery when Richmond was removed from the vehicle. For that reason, Officer Cannon asked Defendant to step out of the vehicle as well.
Both Richmond and Defendant were cooperative and complied with the officers' instruction to sit on the curb while Officer Dirocco called Det. Fox. Officer Dirocco spoke with Det. Fox, who instructed him to transport Richmond and Defendant to the Wilmington Police Department. Richmond and Defendant were then patted down for weapons and placed in custody, pursuant to department procedure when transporting persons in a marked patrol vehicle. As they were being moved to the patrol vehicles for transport, Officer Tiberi overheard Defendant say to Richmond, "yo, make sure the vehicle is locked."
In response to Defendant's statement to Richmond, Officer Tiberi went back to the vehicle. Upon peering through the rear driver's side window, Officer Tiberi saw in plain view a handgun sticking out from underneath the back of the driver's seat. Officer Dirocco testified that, while the rear window was tinted, he could still see through it and into the vehicle when he was at the window.
Richmond and Defendant were placed in separate patrol vehicles to be transported to Wilmington Police Department. The call detail report, which was submitted at the hearing and notes the timing of radio transmissions related to the stop, shows that one patrol vehicle departed the scene at 2:00p.m. and the other patrol vehicle departed the scene at 2:05p.m. At the hearing, Officer Dirocco could not recalled which vehicle departed first, but testified that he transported ...