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State v. Murray

Superior Court of Delaware

April 2, 2018

STATE OF DELAWARE,
v.
ANDRE MURRAY, Defendant.

          Submitted: March 29, 2018

         Upon Consideration of Defendant's Motion to Suppress. GRANTED.

          Erika R. Flaschner, Esquire, DEPARTMENT OF JUSTICE, Wilmington, Delaware. Attorney for the State.

          Ross A. Flockerzie, Esquire, OFFICE OF DEFENSE SERVICES, Wilmington, Delaware. Attorney for the Defendant.

          MEMORANDUM OPINION

          Charles E. Butler, Judge

         This is a pedestrian stop resulting in the seizure of a handgun. The defendant has moved to suppress the handgun. The Court will grant the motion with the following findings and observations.

         FACTS

         In the late evening hours of October 13, 2017, four members of the Wilmington Safe Streets squad were on "proactive patrol" in a single unmarked vehicle. They were northbound on South Franklin Street and stopped at a stop sign at the corner of South Franklin and Chestnut Street-a neighborhood described by the officer as a "high crime" neighborhood.

         While so stopped at said stop sign, Officer Rosaio, who was the driver and sole witness for the State, saw two men walking towards them, southbound on the sidewalk of South Franklin Street, headed toward the intersection with Chestnut Street. Officer Rosaio told the Court that one of the two men was swinging his left arm naturally but holding his right arm close to his body which behavior, the officer testified from his "training and experience, " was consistent with an armed gunman. We will have more to say about this momentarily. But there is very little left to the story so let us finish first.

         As the two continued toward them, Officer Rosaio suspected the "one arm swinging man" was armed. Officer Rosaio waited, watching- for "6 to 7 seconds." He testified that as they got closer, the defendant appeared to notice them and he took a "stutter step" as he was reaching the curb. He then slowed his gate. Officer Rosaio opened the driver's side door and the defendant appeared to move behind his walking partner, but made no sudden move and was still plainly visible to Officer Rosaio, who was only about five feet away. The defendant did, however, turn his body somewhat, a behavior Officer Rosaio characterized as "blading, " a move he testified, from his training and experience, was another characteristic of an armed gunman.

         Convinced the defendant was armed, Officer Rosaio drew his revolver and told the defendant not to move his hands towards his waist. Exactly how it all went from there is unclear, but we know that the defendant was taken to the ground and when he was rolled over, a firearm was indeed recovered from his right side.

         ANALYSIS

         A. Facts vs. Hunches

         To be sure, there was perhaps a moment, as the officer was exiting his vehicle and before he drew his service revolver, where this was a "Terry" stop, requiring reasonable articulable suspicion that criminal activity is afoot and the subject is armed and dangerous.[1] But upon seeing the defendant turn his body, and before any "real" contact was made, the officer candidly testified that he was convinced the defendant was indeed armed and may be reaching for his pistol and thus, an arrest was effectuated ...


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