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State v. Morgan

Superior Court of Delaware

November 8, 2018


          Submitted: September 28, 2018


         Upon Defendant's Motion to Suppress: DENIED

         This 8th day of November, 2018, upon consideration of the Motion to Suppress (the "Motion") filed by Josiah Morgan, the record in this case, and the applicable legal authorities, it appears to the Court that:


         1. Morgan was indicted on charges of Carrying a Concealed Deadly Weapon, Possession of a Weapon with a Removed Serial Number, Resisting Arrest, Possession of Marijuana, two counts of Drug Dealing, and three counts of Possession of a Firearm During the Commission of a Felony. The charges arise from a traffic stop in which Morgan was the vehicle's front seat passenger. During the traffic stop, the officer ordered Morgan out of the car, and shortly thereafter Morgan struggled with the officer and fled the scene. In his Motion, Morgan contends the officer lacked either reasonable articulable suspicion or probable cause for his initial seizure, and all evidence flowing from the seizure and his flight therefore must be suppressed.

         2. On February 14, 2018, Officer David Schulz, a member of the Wilmington Police Department, was on proactive patrol in the City of Wilmington in an unmarked police vehicle with his partner, Corporal Moses. While driving in the area of 12th and Washington streets, the officers observed a tan Toyota Camry disregard a traffic light. The officers stopped the vehicle at the 400 block of Washington Street.

         3. Corporal Moses approached the driver side window to advise the driver of the reason for the stop. At the same time, Officer Schulz approached the passenger side and made contact with the vehicle's front seat passenger, Morgan. Upon approaching the passenger side window, Officer Schulz observed a thin cigar in the vehicle's center console. Officer Schulz believed the cigar was a marijuana blunt. At the suppression hearing, Officer Schulz testified that the cigar "appeared to be modified because it was smaller and thinner than a typical cigar would be." He explained that, based on his training, experience, and daily contact with marijuana while on patrol, he knows it is common for individuals to empty the contents of a store-bought cigar and fill it with marijuana.

         4. After observing what Officer Schulz believed was a marijuana blunt, he and Corporal Moses ordered both the driver and Morgan out of the car and asked them to place their hands on top of the vehicle. While exiting the vehicle, Morgan hesitated in following Officer Schulz's commands, at which point Officer Schulz grabbed Morgan's right-hand wrist. Morgan immediately pulled away, and a struggle ensued, during which Officer Schulz tripped on a large tree root in the sidewalk. Officer Schulz's stumble allowed Morgan to break free and flee on foot. While in pursuit, Officer Schulz observed Morgan reach for his waistband area, which caused Officer Schulz to believe Morgan was carrying a firearm. Officer Schulz lost sight of Morgan several times, but ultimately caught up with him at the intersection of 5th and Montgomery streets.

         5. Morgan was taken into custody and searched. During that search, police found on Morgan's person two grams of crack cocaine and a small Listerine bottle containing several oxycodone pills. Officer Schulz later recovered a loaded Smith and Wesson 9mm semi-automatic handgun at the intersection of North Jefferson and West 5th streets, near the path Morgan took during the foot chase.

         6. Neither party contends the officers lacked reasonable articulable suspicion to initiate the traffic stop. The parties disagree, however, as to whether the interaction between Officer Schulz and Morgan was a detention or an arrest. Morgan argues the interaction constituted an arrest, for which the police lacked probable cause. Even if the interaction was a detention, Morgan argues, Officer Schulz did not have reasonable articulable suspicion to detain him based on the brief observation of the cigar from several feet away. Morgan contends the illegal detention or arrest renders all subsequently-obtained evidence inadmissible. The State argues this was not an arrest, but an investigatory detention arising from a traffic stop. The State contends Officer Schulz's order and showing of force was not consistent with an arrest. The State also argues that even if the interaction did escalate to an arrest, there was probable cause to arrest Morgan for possession of marijuana. The State concedes that, if Morgan's detention was unconstitutional, evidence obtained after his flight must be suppressed. ANALYSIS

         7. The Fourth and Fourteenth Amendments to the United States Constitution guarantee "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."[1] A "seizure" occurs "when a reasonable person would have believed he or she was not free to ignore the police presence."[2] There is no dispute the initial traffic stop was a lawful seizure after a motor vehicle violation. Morgan, however, challenges whether Officer Schulz's decision to order him out of the car constituted an illegal seizure.

          A. At the time he was ordered to exit the car and place his hands on the vehicle, Morgan was detained but not under arrest.

         8. Morgan first argues he was placed under arrest when Officer Schulz ordered him to exit the vehicle. There are three categories of police-citizen interactions: (1) a consensual encounter; (2) a detention or "Terry Stop" where an individual is restrained for a short period of time; and (3) a full-scale arrest.[3] Only the second and third categories are seizures under the Fourth Amendment. Distinguishing a detention from an arrest is important because an officer only may arrest an individual if the officer has probable cause to believe the person has committed a crime.[4] For a detention, however, an officer has a lower threshold, and may stop an individual for investigatory purposes if he has reasonable articulable suspicion that the individual "is committing, has committed, or is about to commit a crime."[5] Like an arrest, a detention is a seizure, but the duration and scope are more limited.[6] If, however, "the duration of the stop or the amount of force used in the situation is unreasonable," a detention may escalate to an arrest, requiring probable cause.[7]

         9. When considering whether an interaction was an arrest or a detention, this Court must "take care to consider whether the police are acting in a swiftly developing situation and . . . should not indulge in unrealistic second-guessing." [8] detention does not ripen to an arrest simply because, in hindsight, the police could have used "less intrusive" means to accomplish the investigation.[9] Although there is no bright-line rule distinguishing a detention from an arrest, some factors courts consider are (1) the amount of force applied, (2) the extent to which the person was restrained, (3) whether handcuffs were used, (4) the number of officers involved, (5) the duration of the stop, and (6) whether the person was suspected of being armed and dangerous.[10]

         10. Morgan contends Officer Schulz's order directing him to exit the car and place his hands on the vehicle, combined with the use of force, exceeded the scope of a detention and amounted to a full-scale arrest. Based on the interaction's brief duration, the number of officers present, and the minimal level of force applied, this interaction was not an arrest, but merely a detention relating to a traffic stop.

         11. First, the initial traffic stop and subsequent order to exit the vehicle was not significant in duration. The entire interaction occurred within a few minutes, cut short by the altercation between Morgan and Officer Schulz. In addition, the number of officers involved in the investigation was not so excessive as to transform the stop into an arrest. There were two officers interacting with Morgan and the driver, and only Officer Schulz directly approached Morgan.

         12. Finally, under the circumstances of the stop, the amount of force Officer Schulz used did not convert the detention to an arrest. During an investigatory stop, "[g]enerally, a show of force, including the use of drawn weapons, does not render [the] investigative stop unreasonable if the police determine that it is 'reasonably necessary to protect themselves and maintain the status quo.'"[11] As Officer Schulz testified, asking a detainee to place his hands on the roof of the vehicle allows police to maintain control over the situation for purposes of officer safety. Here, Officer Schulz asked Morgan to exit and place his hands on the vehicle, and Morgan did not comply with that instruction. Officer Schulz only used force after Morgan hesitated to show his hands, and Officer Schulz's decision to grab Morgan's wrist ...

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