Submitted: November 16, 2018
Defendant Eljareau Nichols' Motion to Suppress.
Allison J. Abessinio, Esquire, Deputy Attorney General,
Attorney for the State.
Michael Modica, Esquire, Attorney for Defendant.
L. Scott, Jr. Judge
issue before the Court is whether officers had reasonable
grounds to suspect Defendant was committing, or had committed
the crime of loitering, in order to conduct a detention under
11 Del. C. § 1902 where officers may demand an
individual's name, address, and business abroad.
Defendant has filed a Motion to Suppress evidence seized as
part of a stop by Wilmington Police.
April 20, 2018 Wilmington Police Officer Corporal Akil and
two other officers were conducting a proactive patrol in an
unmarked car in the 900 block of Vandever Avenue. Corporal
Akil regularly responds to service calls in the area with a
high incidence of drug and gun related crimes. At 5:55pm,
Corporal Akil noticed Defendant and two other individuals on
the front steps of the residence located at 902 Vandever
Avenue. The residence had two "No Loitering" signs
displayed. Over one year ago, Corporal Akil had an
interaction with a resident of the home, where the resident
expressed concern about persons loitering on the steps of the
residence. Corporal Akil was familiar with the three
individuals from previous interactions, and knew none of them
lived at the residence.
officers stopped their vehicle and exited in order to issue a
warning to the individuals to move on. As the Officers
approached the three individuals they noted a strong odor of
marijuana. When questioned one of Defendant's companions
responded, "we just got done smoking." Corporal
Akil then requested the identifications of the three
individuals. After receiving their identifications one of the
officers returned to their vehicle to run DELJIS inquiries
into the individuals. When the DELJIS inquiry returned
nothing on Defendant's companions they were released and
DELJIS inquiry into Defendant returned an outstanding capias
for Defendant who was wanted in the Court of Common Pleas for
Criminal Impersonation. Based on this information Corporal
Akil ordered Defendant to come down off the steps of the
residence to be taken into custody on the warrant. Defendant
immediately attempted to flee, but was stopped and a tussle
ensued between Defendant and one of the officers. During the
ensuing struggle, Defendant's shirt rose and exposed a
firearm tucked into the waistband of his pants. Corporal Akil
removed the firearm from Defendant.
was initially charged with Loitering, Carrying a Concealed
Deadly Weapon, Resisting Arrest with Force, and Possession of
a Firearm by a Person Prohibited, Possession of Ammunition by
a Person Prohibited, and Receiving a Stolen Firearm. At the
preliminary hearing, a resident of the home where Defendant
was found stated Defendant had her permission to sit on the
steps of the home while he waited for his child's bus to
arrive. The charge of loitering was dismissed by the Court.
was not in attendance for the suppression hearing, however
defense counsel was present. Under Superior Court Criminal
Rule 43 and Smolka v. State, Defendant's presence is
not required at a suppression hearing. Prior to adjourning
the hearing defense counsel indicated the factual record for
the motion was complete, since Defendant's testimony
would have indicated that he had permission to sit on the
argued the warrantless arrest and search of his person was in
violation of the Fourth and Fourteenth Amendments to the
United States Constitution and Article 1, Section 6 of the
Delaware Constitution as well as 11 Del. C.
§§1902-1904. Defense Counsel conceded if an odor of
marijuana was detected by the officers, ...