April 24, 2019
[Copyrighted Material Omitted]
Below: Superior Court of the State of Delaware, I.D. No.
appeal from the Superior Court. REVERSED and REMANDED.
B. OConnor, Esquire (argued), Deputy Attorney General,
Wilmington, Delaware, for Appellant, State of Delaware.
M. Walker, Esquire (argued), Assistant Public Defender,
Wilmington, Delaware, for Appellee, Andre Murray.
STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR,
Justices, constituting the Court en Banc.
Justice, for the Majority:
is an appeal by the State from a Superior Court order that
granted Andre Murrays 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 officers 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 Murrays waistband on his
right side and seized it.
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 and therefore the motion
should have been denied.
II. FACTS AND PROCEDURAL HISTORY
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. 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
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." 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 doesnt fall down through their pants or so it
doesnt reveal itself to the public."
Rosaio continued to watch him for "about 20
seconds" as the two men continued walking toward the
officers vehicle. As they got closer, Murray appeared to
notice the officers and took a "stutter step, where he
kind of stopped in his tracks." Continuing to walk
forward at a slower pace, "he looked forward and then
scanned and looked back." Then Officer Rosaio, who
was wearing a vest with "[p]olice"
marked across it "in large white bold
letters," exited the vehicle, "at which
point Mr. Murray stopped and began positioning himself behind
Lenwood Murray-Stokes." 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. Officer Rosaio
testified that, from his training and experience, the
"turning and blading" movement is a characteristic
of someone "whos placing the side that the gun [is] on
in a position where the police or the public cant see
it." It was an "unnatural
movement" according to Officer Rosaio.
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." In response, Officer Rosaio raised
his service revolver, pointed it in Murrays direction, and
said, "[d]ont reach for your waistband. Get on the
ground." 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." Officer Rosaio then rolled him to
his left side, revealing that a handgun was located on the
"front right portion of his
waistband." Officer Rosaio secured the handgun
and placed Murray under arrest.
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." He also explained that for about the
last four years he has taught elements of characteristics of
armed gunmen in police academies.
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. Notwithstanding this
finding, and perhaps given the way the parties presented
their arguments, the courts analysis was not clearly tied to
either the reasonable, articulable suspicion standard for a
Terry stop or the probable cause standard for an
court then discussed, and dismissed, the States argument
that the court should give deference to the officers
training and experience to determine whether the objective
facts, paired with the officers subjective ...