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State v. Murray

Supreme Court of Delaware

July 10, 2019

STATE of Delaware, Plaintiff Below, Appellant,
Andre MURRAY, Defendant Below, Appellee.

         Submitted: April 24, 2019

Page 572

[Copyrighted Material Omitted]

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          Court Below: Superior Court of the State of Delaware, I.D. No. 1710007866 (N)

         Upon appeal from the Superior Court. REVERSED and REMANDED.

         Martin B. O’Connor, Esquire (argued), Deputy Attorney General, Wilmington, Delaware, for Appellant, State of Delaware.

         Nicole M. Walker, Esquire (argued), Assistant Public Defender, Wilmington, Delaware, for Appellee, Andre Murray.

         Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.


         VAUGHN, Justice, for the Majority:


          This is an appeal by the State from a Superior Court order that granted Andre Murray’s motion to suppress evidence in a criminal proceeding. In the late evening hours of October 13, 2017, Wilmington Police Officer Matthew Rosaio was on patrol with other officers when he observed two men walking on a nearby sidewalk. One of the men, Murray, was walking with his right arm canted and pinned against the right side of his body, specifically the right front portion of his body. The other man, Lenwood Murray-Stokes, was walking normally. The manner in which Murray was walking made Officer Rosaio suspicious that Murray was carrying a concealed firearm in his waistband on his right side. After watching Murray for about 20 seconds, during which Murray continued to walk in that same manner, Officer Rosaio approached the two men. Murray then began positioning himself behind Murray-Stokes, turning and blading his right side away from the officer. This furthered the officer’s suspicion that Murray possessed a firearm. The officer began drawing his weapon and instructed Murray to show his hands. Murray appeared to reach for his waistband area. The officer then pointed his weapon at Murray and instructed him to not reach for his waistband and to get on the ground. Murray complied. The officer then asked Murray whether he had anything in his possession. Murray replied that he had a firearm in his waistband. The officer located the firearm in Murray’s waistband on his right side and seized it.

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          Murray was charged with Carrying a Concealed Deadly Weapon, Possession of a Firearm by a Person Prohibited, and Possession of Ammunition by a Person Prohibited. He filed a motion to suppress the discovery of the firearm from use as evidence at trial, arguing that the officer did not have a reasonable, articulable suspicion that Murray had committed or was about to engage in any illegal activity to justify detaining him or probable cause to arrest him. The Superior Court agreed and granted the motion to suppress. For the reasons that follow, we conclude that the officer performed a legitimate Terry stop[1] and therefore the motion should have been denied.


         The factual record consists of the unrebutted testimony of Officer Rosaio, the sole witness at the suppression hearing. He testified that on October 13, 2017, at approximately 11:00 p.m., he and three other officers were "conducting proactive mobile patrol" in Wilmington.[2] They were traveling northbound on South Franklin Street in an unmarked vehicle when they stopped at a stop sign at the corner of South Franklin and Chestnut Street— a neighborhood described by Officer Rosaio as a "well-known high crime, high drug area," where he has made numerous gun- and drug-related arrests.[3]

         While stopped at the stop sign, Officer Rosaio saw two men, later determined to be Andre Murray and Lenwood Murray-Stokes, walking on the sidewalk along South Franklin towards their vehicle. Officer Rosaio observed Murray swinging his left arm naturally while holding his right arm close to his body, behavior which he explained was consistent with an armed individual. He "noticed right away ... that Mr. Murray was walking with his right arm canted and pinned against the right side of his body, specifically the right front portion of his body, which is one of the telltale signs of ... somebody who is armed with a handgun."[4] This is a sign that someone is armed, he explained, because "[s]ubjects will often carry firearms in their waistband unsecured by any type of holster and in a way that they can control that firearm and adjust it, if need be, as they are walking so it doesn’t fall down through their pants or so it doesn’t reveal itself to the public."[5]

         Officer Rosaio continued to watch him for "about 20 seconds" as the two men continued walking toward the officers’ vehicle.[6] As they got closer, Murray appeared to notice the officers and took a "stutter step, where he kind of stopped in his tracks."[7] Continuing to walk forward at a slower pace, "he looked forward and then scanned and looked back."[8] Then Officer Rosaio, who was wearing a vest with "[p]olice"

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marked across it "in large white bold letters,"[9] exited the vehicle, "at which point Mr. Murray stopped and began positioning himself behind Lenwood Murray-Stokes."[10] At the same time, Murray began "turning and blading" the right side of his body, the side that he had his arm pinned against, away from Officer Rosaio.[11] Officer Rosaio testified that, from his training and experience, the "turning and blading" movement is a characteristic of someone "who’s placing the side that the gun [is] on in a position where the police or the public can’t see it."[12] It was an "unnatural movement" according to Officer Rosaio.[13]

         By then confident that Murray had a handgun on his right side, Officer Rosaio began drawing his service firearm and ordered him to stop and show his hands. At that point, Murray "began reaching for the lower ... waistband area."[14] In response, Officer Rosaio raised his service revolver, pointed it in Murray’s direction, and said, "[d]on’t reach for your waistband. Get on the ground."[15] Murray complied and got on the ground. When asked if he had anything on him, Murray replied, saying "I have a handgun in my waistband."[16] Officer Rosaio then rolled him to his left side, revealing that a handgun was located on the "front right portion of his waistband."[17] Officer Rosaio secured the handgun and placed Murray under arrest.

         Officer Rosaio also testified that he has received training on characteristics of armed gunmen at the Wilmington Police Academy and at sessions hosted by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives and the U.S. Department of Justice. These characteristics include "things that people display when they are attempting to conceal firearms from the police and from the public."[18] He also explained that for about the last four years he has taught elements of characteristics of armed gunmen in police academies.

         Following the hearing, the Superior Court granted the motion in a written opinion, which noted several reasons for its decision. First, the court found that although at some point the encounter was a Terry stop, once Officer Rosaio drew his firearm "an arrest was effectuated," thus requiring there to have been probable cause to believe that Murray was committing a crime.[19] Notwithstanding this finding, and perhaps given the way the parties’ presented their arguments, the court’s analysis was not clearly tied to either the reasonable, articulable suspicion standard for a Terry stop or the probable cause standard for an arrest.[20]

         The court then discussed, and dismissed, the State’s argument that the court should give deference to the officer’s training and experience to determine whether the objective facts, paired with the officer’s subjective ...

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