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State v. Murray

Superior Court of Delaware

July 26, 2018

ANDRE MURRAY, Defendant.

          Submitted: May 15, 2018

         Upon Consideration of State's Motion for Reargument. DENIED.

          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.


          BUTLER, J.

          The Court has before it a Motion for Reargument in which the State seeks reconsideration of the Court's earlier ruling suppressing evidence derived from a warrantless arrest of the Defendant for want of probable cause. The State's Motion for Reargument is devoid of any reference to any fact the Court may have overlooked or any point of law not addressed in the Court's previous ruling. Rather, the State appears convinced that the Court's conclusion that the officer lacked probable cause was simply wrong, and the State is here inviting the Court to recognize its error, repent and be forgiven. Because the Court does not believe its ruling was in error, the Court rejects the State's invitation. The State's Motion for Reargument is therefore DENIED.


         To avoid the necessity of reading the Court's previous opinion for context, here is a brief review. In the late evening hours of October 13, 2017, three Wilmington police officers and one probation officer were on "proactive mobile patrol" in a single, unmarked vehicle. They were travelling northbound on South Franklin Street and were approaching a stop sign at the corner of South Franklin and Chestnut Street-a neighborhood described by the testifying officer as a "well-known high crime, high drug area."[1]

         While approaching said stop sign, Sergeant Rosaio, who was the driver and sole witness for the State, observed two men walking towards him-southbound on the sidewalk of South Franklin Street. Sergeant Rosaio saw that one of the two men was swinging his left arm naturally while holding his right arm close to his body. Sergeant Rosaio told the Court that he recognized the way the man was holding his arm near his body as a "characteristic of somebody who is armed with a handgun"[2]which, the officer testified, he had learned about at training seminars and indeed taught to other officers.[3]

         When Sergeant Rosaio stopped in the middle of the lane and began exiting the undercover vehicle, the suspect turned his body away from the officer, which behavior the officer termed "blading" and this was enough, based upon his training and experience, for the officer to be "confident" that the suspect was armed and the suspect was thereupon ordered to the ground at gunpoint and a gun was indeed recovered from his waist area.[4]

         So, the question was-and we suppose, remains-was there probable cause to point a gun at the suspect, order him to the ground, and take him into custody? The State maintains that there was because the Court must give deference to the officer's training and experience and the "armed gunman profile" on which he has been trained. Thus, according to the State, facts that might have benign significance to the casual observer take on this new significance in the eyes of a trained law man and that ought to be all the further the Court looks in considering the existence of probable cause.

         For whatever reason, the suppression hearing in this matter came up just days before the scheduled trial date and the Court's written decision was rendered with very short notice. The Court will therefore expand on its earlier remarks herein, although the Court's ultimate conclusion remains unchanged.


         In moving for reargument on the Defendant's Motion to Suppress, the State argues that the Court "misapprehended the facts and incorrectly applied controlling precedent."[5] Moreover, the State argues that the "Court's decision to disregard Sgt. Rosaio's testimony, based on his training and experience, was erroneous."[6]Defendant argues that the State's Motion for Reargument must be denied because the Court has not overlooked a controlling precedent or legal principle, or misapprehended the law or the facts.[7]


         Superior Court Civil Rule 59(e), made applicable to criminal cases by Superior Court Criminal Rule 57(d), permits the Court to reconsider "its findings of fact, conclusions of law, or judgment. . . ."[8] "Delaware law places a heavy burden on a [party] seeking relief pursuant to Rule 59."[9] To prevail on a motion for reargument, the movant must demonstrate that the Court "overlooked a controlling precedent or legal principle[ ], or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision."[10] "A motion for reargument is not a device for raising new arguments, "[11] nor is it "intended to rehash the arguments already decided by the court."[12] Instead, the movant must demonstrate "newly discovered evidence, a change in the law, or manifest injustice."[13]


         In both its original arguments and its request for reargument, the State has been consistent. The argument is that because the defendant fit the "armed gunman profile" known to the arresting officer, the defendant's conformity with the profile was enough probable cause to justify his arrest. So it is useful to examine the subject of suspect profiles in the context of the Fourth Amendment.

         In her book Dangerous Instincts, retired FBI profiling expert Mary Ellen O'Toole describes case after case of serial killers that avoided detection for years because they frequently present as friendly, harmless, and pleasant neighbors. It is a stark, if somewhat sensational, example of the dangers of drawing legal or forensic conclusions from little or no evidence but rather based upon our own suppositions and stereotypes.

         The use of profiles in law enforcement may trace its origins to the FAA's effective efforts, in the 1960's, to curtail the problem of skyjacking.[14] The "drug courier profile" has received considerably more ...

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