Submitted: March 29, 2018
Consideration of Defendant's Motion to Suppress. GRANTED.
R. Flaschner, Esquire, DEPARTMENT OF JUSTICE, Wilmington,
Delaware. Attorney for the State.
A. Flockerzie, Esquire, OFFICE OF DEFENSE SERVICES,
Wilmington, Delaware. Attorney for the Defendant.
Charles E. Butler, Judge
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
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
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.
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
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
Facts vs. Hunches
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. 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 ...