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Flowers v. State

Supreme Court of Delaware

September 27, 2018

RON FLOWERS Defendant-Below, Appellant,
STATE OF DELAWARE Plaintiff-Below, Appellee.

          Submitted: September 26, 2018

          Court Below: Superior Court of the State of Delaware I.D. No. 1706006410 (N)

          Bernard J. O'Donnell, Esquire, Office of the Public Defender, Wilmington, Delaware for the Appellant.

          Andrew Vella, Esquire, Department of Justice, Wilmington, Delaware, for Appellee.

          Before VALIHURA, VAUGHN, and TRAYNOR, Justices.


         This appeal asks us to decide whether the Superior Court abused its discretion in denying Ron Flowers' motion to suppress. In a bench ruling, the trial court determined that Flowers' actions, when viewed through the eyes of a trained police officer, gave rise to a reasonable, articulable suspicion that Flowers was concealing a firearm. Thus, the trial court found his seizure constitutional. We AFFIRM the decision of the trial court.


         Ron Flowers and his co-defendant, Tariq Mariney, were indicted on charges of Drug Dealing, Aggravated Possession of Cocaine, Possession of a Firearm During the Commission of a Felony ("PFDCF"), Carrying a Concealed Deadly Weapon ("CCDW"), two counts each of Possession of a Firearm By a Person Prohibited ("PFBPP") and Possession or Control of Ammunition By a Person Prohibited ("PABPP"), Receiving a Stolen Firearm, and Conspiracy Second Degree.[1] Flowers moved to suppress evidence before trial.[2] In a bench ruling, the Superior Court denied his motion.

         Following a two-day trial, a jury convicted Flowers of two counts of PFBPP as well as the CCDW charge.[3] Flowers was sentenced to five years of incarceration followed by descending levels of supervision.

         On the night of June 9, 2017, Wilmington Police Detective Alexis Schupp received a tip and reported to Sergeant Michael Gifford that there was a subject at Seventh and West Streets wearing a Phillies shirt, a Phillies hat, and tan shorts who was armed with a gun in his waistband. Sergeant Gifford relayed the tip to members of Wilmington Police Disrupt Squad.[4] The intersection of Seventh and West is a high-crime area.

         Around 11 p.m., Corporal Thomas Lynch responded to the call and arrived at the area in a patrol car. He saw two men standing next to a car parked on West Street. The two men were talking to the occupants of the car. One of the two men, Tariq Mariney, matched the description of the subject provided in the tip. The other man, Flowers, was standing next to Mariney.

         Mariney stepped back from the parked car as Lynch and other officers approached it. Lynch had a clear line of sight to Flowers. Flowers "turned his body and grabbed an object that was protruding from his waistband."[5] The object appeared to be rectangular and was "kind of tucked under [Flowers'] shirt," and Flowers had his fingers wrapped around the object.[6] Relying on his training and experience, Lynch believed that Flowers' actions were consistent with someone attempting to conceal a firearm.

          After observing Flowers' actions, Lynch ordered Flowers and Mariney to the ground. Another officer conducted a pat-down of Flowers and discovered a firearm.

         On appeal, Flowers contends that the trial court abused its discretion in finding that the police had reasonable, articulable suspicion to seize (or "stop") him in violation of the Fourth Amendment. He claims that this finding is erroneous since the court improperly considered the officer's reliance on a tip from an unknown source. Flowers also argues that his detention went beyond a Terry stop and frisk when Lynch ordered him to the ground. He contends that his detention turned into an arrest which requires probable cause. Finally, he argues that the circumstances, viewed in their totality, do not support a finding of probable cause.


         This Court reviews the denial of a motion to suppress for an abuse of discretion.[7]Embedded legal conclusions are reviewed "de novo for errors in formulating or applying legal precepts."[8] When we are reviewing the denial of a motion to suppress evidence based on an allegedly illegal stop and seizure, "we conduct a de novo review to determine whether the totality of the circumstances, in light of the trial judge's factual findings, support a reasonable and articulable suspicion for the stop."[9]


         Flowers' main argument on appeal is that the seizure of him and subsequent pat-down, resulting in the police finding a firearm on his person, was not justified by the requisite reasonable, articulable suspicion that he was armed, and that it was substantially more intrusive than a frisk for weapons ordinarily deemed permissible in such circumstances.

         We first set the framework for the analysis. "The United States and Delaware Constitutions protect the right of persons to be secure from 'unreasonable searches and seizures.'"[10] "Generally, '[s]earches and seizures are per se unreasonable, in the absence of exigent circumstances, unless authorized by a warrant supported by probable cause.'"[11]However, in certain circumstances, more limited searches and seizures are found reasonable absent a warrant and when based on less than probable cause: when officers have reasonable, articulable suspicion that a suspect is armed and engaged in criminal activity.[12] Under such circumstances, officers may conduct what has become known as a Terry stop-and-frisk.

         In Terry v. Ohio, [13] the United States Supreme Court held as follows:

[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.[14]

         The State of Delaware has adopted this holding, and Section 1902 of Title 11 governs such "investigative" or Terry stops in this State.[15] Section 1902 provides:

(a) A peace officer may stop any person abroad, or in a public place, who the officer has reasonable ground to suspect is committing, has committed or is about to commit a crime, and may demand the person's name, address, business abroad and destination.

(b) Any person so questioned who fails to give identification or explain the person's actions to the satisfaction of the officer may be detained and further questioned and investigated.

(c) The total period of detention provided for by this section shall not exceed 2 hours. The detention is not an arrest and shall not be recorded as an arrest in any official record. At the end of the detention the person so detained shall be released or be arrested and charged with a crime.[16]

         In Terry, the United States Supreme Court made clear that the Terry stop-and-frisk still involves a "seizure" and "search" within the meaning of the Constitution.[17]

         A person is "seized" when, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."[18] "Two categories of police-citizen encounters which constitute seizures under the Fourth Amendment have been recognized."[19] First, police may "restrain an individual for a short period of time" to investigate where officers have "reasonable articulable suspicion that the suspect has committed or is about to commit a crime."[20] It requires less than probable cause. This form of seizure is the Terry "stop," or investigative stop.[21] For simplicity, we refer to such a seizure as a "stop" in this opinion. Second, the police seize a person when they make an arrest, which requires "probable cause that the suspect has committed a crime."[22]

         The line between a "stop" and an "arrest" is important because an arrest requires probable cause-more than reasonable, articulable suspicion-in order to be reasonable. A few principles help draw the line. "A stop or detention constitutes a seizure of the person, but, in terms of duration and scope, it is a much more limited intrusion than an arrest."[23]A Terry stop must be limited, justified at its inception, and "reasonably related in scope to the circumstances which justified the interference in the first place."[24] An unreasonably intrusive stop may constitute a de facto arrest requiring probable cause.[25] Indeed, "[a]lthough an investigatory stop is not an arrest . . ., it may ripen into an arrest if the duration of the stop or the amount of force used in the situation is 'unreasonable.'"[26] But "[a] Terry stop does not turn into a full arrest merely because the officers use handcuffs and force the suspect to lie down to prevent flight, so long as the police conduct is reasonable."[27] The form of "search" deemed "reasonable" under such circumstances is also a limited one: a "frisk" or pat down to find weapons.[28]

         With this basic framework in mind, we turn to Flowers' argument that his stop and being ordered to the ground by the officers was not based on reasonable, articulable suspicion, that it exceeded mere detention, and that "[a] seizure of this scope is substantially more intrusive than an ordinary Terry frisk for weapons."[29] We disagree with each of his contentions.

         "Determining whether an officer had reasonable and articulable suspicion to conduct a stop requires a threshold finding of when the stop actually took place."[30]Although this point was not specifically briefed below, both Flowers[31] and the State assumed that he was seized after the officers observed him "blading his body and grasping his waistband."[32]

         The Superior Court determined that the officers had reasonable articulable suspicion to detain Flowers after observing Flowers' behavior. The relevant parts of the trial court's bench ruling where it found "reasonable, articulable suspicion" are as follows:

According to Corporal Lynch's testimony, the defendant turned around. He saw the defendant turn his body to I guess what's call [sic] in a term of art, blading his body, which was to show the narrower side of the body from side body to the other side of the body. And it seemed to Detective Lynch that he saw a rectangular object under clothing on the right side of the defendant's body in his waistband.

Those actions, according to Corporal Lynch, were consistent in his mind with a person attempting to conceal a weapon, hence, the crime of carrying a concealed deadly weapon under Delaware law.

He came to this conclusion in part because of his observations of the normal human being, but also in part of his training in weapons detection and criminal suspect's behavior that was part of his law enforcement training.

So he then exited his vehicle. And he directed, I believe his testimony, all four individuals to the ground, Tarik [sic] Marini and Ron Flowers, and two individuals who were a little further around. And the police officer testified that, Corporal Lynch did, he believed it was very possible that the defendant, in fact, had a gun.

Now, the key question I think or a key question is whether or not the officer was authorized by law to order the defendant to the ground. But I think he was permitted under the circumstances then to order the defendant to the ground. Terry and its progeny speak of forceable [sic] detentions. A detention can be just as forceable [sic] if somebody is given a pat-down while they are standing up. Yeah, it's a bit more of an intrusion of a person's liberty to be ordered to lie down, that's for sure. But it's a paramount consideration for officer safety to make the individual less likely to be able to inflict harm on a police officer or anyone else.

I think it's correct, as [defense counsel] argued, that the original tip that had come in, which was to say that the person with the red Phillies shirt and hat and tan pants was the one who had the gun. And that proved not to be the case. The officer didn't know that at the time. He wasn't close enough. But I think that's part of the quantum of suspicion that Officer Lynch fairly possessed in order to assess in this very fast breaking situation means to frisk the defendant, to do a pat-down for officer safety with the defendant on the ground rather than standing up.

So the bottom line in my thinking is that the officer had reasonable articulable suspicion to pat down the defendant, including the forceable requirement of him - - of defendant being forced to the ground.

I might mention also that the officer testified to this, I believe, that as he turned away from the officer, the defendant's shirt became tight to the body on the right side, and I think he said this, and he placed his right hand over the object. So I think there was more than enough reasonable articulable suspicion to have allowed the pat-down of the defendant in the manner done.[33]

         In Bryant v. State, [34] this Court stated that "reasonable articulable suspicion" is demonstrated by "an officer's ability to point to specific and articulable facts which, taken together with rational inference from those facts, reasonably warrant the intrusion."[35]Further, "[a] determination of reasonable suspicion must be evaluated in the context of the totality of the circumstances as viewed through the eyes of a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an officer's subjective interpretation of those facts."[36] "In determining whether there was reasonable suspicion to justify a detention, the court defers to the experience and training of law enforcement officers."[37]

         In this case, Corporal Lynch testified that he had made many arrests based upon the "blading" movement and had received training in the police academy and from courses on street crime as to how to recognize the characteristics of an armed person. Lynch ordered Flowers to the ground because he believed Flowers was armed after seeing Flowers grab a rectangular object protruding from Flowers' waistband. The trial court had also noted that the location of Flowers' stop was in a high-crime area and it occurred late at night. Based upon this record, the evidence supports a finding of reasonable and articulable suspicion.

         Nor did the trial court err in concluding that there were grounds not just for the stop, but also for forcing Flowers to the ground and frisking him. "During a Terry stop, officers may take measures that are reasonably necessary to protect themselves and maintain the status quo."[38] A police officer is empowered to "take necessary measures to determine whether [an individual] is in fact carrying a weapon and to neutralize the threat of physical harm" when the officer "is justified in believing that the individual whose ...

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