MEMORANDUM ORDER DENYING MOTION TO SUPPRESS
M. DAVIS, JUDGE.
consideration of the Motion to Suppress Evidence (the
"Motion") filed by Defendant Murad T. Diggs on
March 11, 2019; the State's Response to Defendant's
Motion to Suppress (the "Response") filed by the
State of Delaware on March 22, 2019; the evidence provided by
the parties at a hearing begun on March 29, 2019 (the
"Hearing"); the arguments made on the Motion and
Response by the parties at the Hearing; the unsolicited
letter from Misty A. Seemans, Esq. to the Honorable Eric M.
Davis submitted after the Hearing on April 1, 2019 (the
"Letter"); and for the reasons set forth below, the
Motion is DENIED.
a criminal action. The State has charged Mr. Diggs with: (i)
possession of a firearm by a person prohibited; (ii)
possession of ammunition by a person prohibited; (iii)
carrying a concealed deadly weapon; and (iv) resisting
arrest. On October 26, 2018, a citizen contacted Corporal
Alexander Marino of the Wilmington Police Department
("WPD"), by way of Corporal Marino's personal
cellphone, regarding a black male, age 30-35, wearing a
camouflaged-styled jacket with a handgun in his waistband.
According to the citizen, the black male was entering into a
store located at the corner of Chestnut Street and S.
Harrison Street. Corporal Marino was not on duty so he
relayed the information to on-duty WPD Officer Raymond Shupe.
Shupe responded to the area of S. Harrison Street and
observed four to five black males-including a black male, age
30-35, wearing a camouflaged-styled jacket-walking down S.
Harrison Street towards Elm Street. Officer Shupe saw the
black male enter the Market on the corner of S. Harrison
Street and Elm Street. Officer Shupe called for back-up and,
after back-up arrived, approached the Shop Smart Market (the
"Market"). As Officer Shupe entered the Market,
Officer Shupe immediately encountered the black male, later
identified as Mr. Diggs and asked to speak to him. Officer
Shupe testified that Mr. Diggs threw down a cellphone and a
cigar, took a defensive position, looked around and stepped
backwards. Believing that Mr. Diggs might have a firearm,
Officer Shupe grabbed Mr. Diggs' arm to check for
weapons. A struggle ensued with two other WPD officers
assisting and Officer Shupe found a gun in Mr. Diggs'
Diggs filed the Motion to suppress the gun found on his
person arguing that Officer Shupe lacked sufficient
reasonable articulable suspicion to "seize" Mr.
Diggs because: (i) the citizen providing information to
Corporal Marino did not provide detailed enough information;
(ii) the citizen's information was relayed to Corporal
Marino and not Officer Shupe; (iii) Officer Shupe did not
observe Mr. Diggs engage in any suspicious activity prior to
engaging him in the Market.
State opposes the Motion. The State claims that: (i) Officer
Shupe's initial encounter with Mr. Diggs did not amount
to a seizure; and (ii) Officer Shupe seized Mr. Diggs based
on the tip of the citizen, his own observations and due to
the high crime area where the encounter took place. The State
contends that the totality of the circumstance created
reasonable articulable suspicion that Mr. Diggs was carrying
a concealed deadly weapon.
Court held the Hearing on March 29, 2019 and April 1, 2019.
Six persons testified at the Hearing. Corporal Marino and
Officer Shupe testified for the State and were cross-examined
by Mr. Diggs' counsel. Mr. Diggs presented as witnesses:
(i) Guy Bullock; (ii) Andrea Price; (iii) Na'Isha
Pantoja; and (iv) Julia Pantoja. The State had the
opportunity to cross-examine each of Mr. Diggs'
witnesses. All the witnesses, except Corporal Marino, were at
the Market on October 26, 2018.
Marino is a WPD officer with 12 years of experience. On
October 26, 2018, Corporal Marino was off-duty. Corporal
Marino received a call from a person he has known for 11
years. Corporal Marino did not describe this person as a
confidential informant. Instead, Corporal Marino stated the
person was a citizen who had provided Corporal Marino with
information on various crimes on five occasions. The name of
the citizen was not provided at the Hearing. Corporal Marino
testified that the citizen's information was factually
reliable and held lead to arrests. Corporal Marino knows
where the citizen lives, and stated that this citizen had
never received any compensation (money, dropped charges,
etc.) in exchange for any information provided.
Marino provided that, on October 26, 2018, the citizen called
and told him that a black male, age 30-35 and wearing a
camouflaged jacket had a handgun in his waistband. Corporal
Marino testified that the citizen also provided that the
black male was going into a store located at the corner of S.
Harrison and Chestnut Street. Corporal Marino immediately
relayed the information to a WPD officer, Officer Shupe, who
was on-duty on October 26, 2018. Corporal Marino testified
that it was standard operating procedure for an off-duty
officer to relay this type of information to an on-duty
Marino stated that the location of S. Harrison and Elm
Streets was the 200 block of S. Harrison. Corporal Marino
said that this particular block was a high crime rate
neighborhood that had recently experienced a shooting and an
incident involving "Molotov Cocktails."
Marino did not keep any messages or phone log from October
26, 2018. Corporal Marino testified that he bought a new
phone and no longer had the old phone which was wiped as part
of the upgrade.
Shupe is a WPD officer with 2.5 years of experience. Officer
Shupe was on-duty on October 26, 2019. Officer Shupe
discussed his training, including his training on how to
identify a person armed with a gun-checking to see if the gun
is secured, non-swinging arm on side where gun is located,
type of walk, etc. Officer Shupe also testified about the
ready position when drawing a fire arm with the hands up at
chest level as opposed to one's side.
October 26, 2018, Officer Shupe was in uniform and patrolling
in a "fully marked" car with Officer Agusto.
Officer Shupe received a call from Corporal Marino. Officer
Shupe testified that Corporal Marino reported that a reliable
source told him that a black male, age 30-35 in a camouflaged
jacket had a handgun in his waistband on the 200 block of S.
Harrison Street, specifically on the corner of Chestnut
Street and S. Harrison Street. Officer Shupe noted that the
200 block of S. Harrison Street is a high crime area that
recently experienced a shooting incident.
Officer Shupe proceeded to the area. When Officer Shupe
arrived, he saw four to five black males walking up the 200
block of S. Harrison Street in the direction away from
Chestnut Street and towards Elm Street. Officer Shupe
testified that he saw that one of the black males matched the
description provided to him by Corporal Marino. Officer Shupe
noted that the individual entered the Market on the corner of
S. Harrison Street and Elm Street. Due to the report of a
handgun, Officer Shupe called and waited for additional WPD
officers to arrive. Once Officers Jordan and Gaskin arrived,
Officer Shupe got out of his car and approached the Market.
As Officer Shupe entered the Market, he immediately
encountered the black male, age 30-35 and wearing the
camouflaged jacket who was leaving the Market. Officer Shupe
testified that he later learned this person was Mr. Diggs.
encountering Mr. Diggs, Officer Shupe stated that he asked to
speak with Mr. Diggs as part of a casual encounter. Officer
Shupe testified that Mr. Diggs threw down a cellphone and
cigar that he was holding and assumed a defensive position
with arms raised to chest level. Mr. Diggs then took steps
backward while looking around. Mr. Diggs faced Officer Shupe
during this initial encounter. Officer Shupe stated that this
was the first time he had approached a person to talk to
him/her and the person acted in this manner. Based on this
and the information he had from Corporal Marino, Officer
Shupe testified that he believed that Mr. Diggs had a
firearm. As such, Officer Shupe grabbed Mr. Diggs' arm
and tried to check for weapons. Officer Shupe said a struggle
ensued in the Market and that Officers Jordan and Agusto
joined in to secure Mr. Diggs. As this was happening, Officer
Shupe found a loaded handgun in Mr. Diggs' pants. Officer
Shupe testified that Mr. Diggs told him that "I need it
for protection…I've been shot before."
the arrest, Officer Shupe asked a person for the footage from
a camera located in the Market. Officer Shupe was told by a
person working at the Market that he did not know how to
retrieve the footage. At a later date, Officer Shupe went
back and tried again to retrieve the footage but, once again,
was told that no one could retrieve the footage and give it
Hearing, Officer Shupe stated that no one else in the Market
was wearing a camouflaged jacket. Officer Shupe felt the
store was not overly busy and that he only remembered one
other customer-a woman in a red shirt.
cross-examination, Officer Shupe provided that he did not
know of Corporal Marino's relationship with the citizen.
Officer Shupe stated that he did not know the citizen other
than from the phone call with Corporal Marino and was not
concerned with the reliability of the citizen. Officer Shupe
admitted that he did not mention the cigar at the preliminary
hearing and did not demonstrate, as he did at the Hearing,
the defensive stance taken by Mr. Diggs at the preliminary
hearing. Officer Shupe testified that he did not keep any
call log or text messages from October 26, 2018 as he has to
use his personal phone and that he needs to erase items for
Bullock is a cook at the Market. Mr. Bullock was working at
the Market on October 26, 2018. Mr. Bullock stated that it
was unusually hectic that night and that the store was
crowded. Mr. Bullock was talking to children, at the request
of the manager, by an ice cream machine in the front when
Officer Shupe encountered Mr. Diggs. Mr. Bullock saw Officer
Shupe grab Mr. Diggs but did not see Mr. Diggs throw anything
to the ground before Officer Shupe grabbed him. Mr. Bullock
said everything happened very quickly. Mr. Bullock thought
that the officer that grabbed Mr. Diggs looked white but that
it happened so quickly he could not be sure. Mr. Bullock said
a number of officers were involved. Mr. Bullock noted that
his focus was on the children. Mr. Bullock said he did not