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State v. Nichols

Superior Court of Delaware

November 26, 2018

STATE OF DELAWARE,
v.
ELJAREAU NICHOLS, Defendant.

          Date Submitted: November 16, 2018

         On Defendant Eljareau Nichols' Motion to Suppress. DENIED.

          Allison J. Abessinio, Esquire, Deputy Attorney General, Attorney for the State.

          Michael Modica, Esquire, Attorney for Defendant.

          ORDER

          Calvin L. Scott, Jr. Judge

         The 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.

         Finding of Facts

         On 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.

         The 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 moved on.

         The 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.

         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.

         Defendant was not in attendance for the suppression hearing, however defense counsel was present. Under Superior Court Criminal Rule 43 and Smolka v. State[1], 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 steps.

         Parties Contentions

         Defendant 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. ยงยง1902-1904. Defense Counsel conceded if an odor of marijuana was detected by the officers, ...


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