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State v. Diggs

Superior Court of Delaware

April 16, 2019

STATE OF DELAWARE,
v.
MURAD T. DIGGS, Defendant.

          MEMORANDUM ORDER DENYING MOTION TO SUPPRESS

          ERIC M. DAVIS, JUDGE.

         Upon 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.

         Introduction

         This is 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.

         Officer 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' waistband area.

         Mr. 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.

         The 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.

         Facts[1]

         The 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.

         Corporal 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.

         Corporal 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 officer.

         Corporal 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."

         Corporal 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.

         Officer 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.

         On 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.

         Upon 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."

         After 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 to him.

         At the 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.

         On 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 memory reasons.

         Mr. 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 really ...


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