      `IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                    )
                                      )
            v.                        )     ID. No. 1602006736
                                      )
ANTOINE HARRIS,                       )
                                      )
      Defendant.                      )


                           Submitted: July 22, 2016
                            Decided: July 25, 2016


         On Defendant Antoine Harris‟s Motion to Suppress. DENIED.


                                   ORDER




Michael B. DegliObizzi, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.


Andrew J. Meyer, Esquire, Assistant Public Defender, Wilmington, Delaware,
Attorney for Defendant Antoine Harris.




SCOTT, J.
                                       Introduction
       Before the Court is Defendant Antoine Harris‟s (“Defendant”) Motion to

Suppress.    Therein, Defendant challenges the validity of police action, which

resulted in evidence and charges against Defendant, as having violated his right

against unreasonable searches and seizures of his person guaranteed under the

Fourth, Fifth, and Fourteenth Amendments to the United States Constitution,

Sections 6 and 7 of Article I of the Delaware Constitution, and Delaware law. The

Court has reviewed and considered the Parties‟ written submissions, as well as the

evidence provided and arguments made by the Parties at the suppression hearing.1

For the following reasons, Defendant‟s Motion to Suppress is DENIED.

                                     Findings of Fact2
       On February 10, 2016, Officers Richard Verna (“Ofr. Verna”) and Dvon

Stallings (“Ofr. Stallings”) of the Wilmington Police Department (“WPD”)

(collectively, the “Officers”) were conducting routine patrol in a marked police

vehicle on the northside of the City of Wilmington, when they observed Defendant

emerge from a convenience store located at the corner of 29th and Washington

Streets and begin walking up the street. At that time, Ofr. Verna had been working




1
  Defendant filed his Motion to Suppress on June 22, 2016. The State filed its response on July
20, 2016. The suppression hearing was held on July 22, 2016.
2
  Unless otherwise noted, the findings of facts were made from the testimony of Ofr. Verna and
Ofr. Stallings, which was provided at the suppression hearing.

                                              1
for the WPD for approximately 6 years, and Ofr. Stallings had been working for

the WPD for just over one year.

      Prior to the day in question, Ofr. Verna had responded to a department flyer

seeking assistance in the identification of two suspects in an unrelated shooting

that occurred in the same area on January 26, 2016, where he was shown the

convenience store‟s surveillance video of the incident and was able to identify one

of the two shooters from prior experiences. Regarding the video, Ofr. Verna

testified that it was of high quality, providing a clear picture of two African

American suspects firing guns, and that the unidentified gunman was of average

build and wore a maroon hoodie.

      As a result, Ofr. Verna testified that, when he got a good look of Defendant

on February 10th in the daytime, he believed that he recognized Defendant as the

second shooter from the video, because Defendant fit the description being a black

male of similar build and wearing a maroon hoodie. The Officers, thus, decided to

try and identify Defendant through what they termed a “casual” or “soft

encounter,” meaning that Defendant could have left at any time. Upon circling the

block, the Officers, who were in full uniform, observed Defendant walking

eastbound on 30th Street, whereupon Oft. Verna parked the patrol vehicle

approximately one car length away. Ofr. Stallings exited the vehicle alone, walked




                                        2
toward Defendant without putting his hands near his gun or taser, and asked

Defendant, “Hey, can I talk to you for a minute?”

      Both Officers testified that, in response, Defendant immediately grabbed the

front of his waistband and ran. Ofr. Verna remained in the patrolcar and informed

dispatch that his partner was in pursuit of a suspect who was possibly in possession

of a firearm, because based on his training and experience Defendant‟s actions

were consistent with the characteristics of an armed gunman.         Ofr. Stallings

pursued Defendant on foot approximately five to eight feet behind, and testified

that he observed Defendant running with his right hand tugging at his waistband in

what appeared to be an attempt to retrieve or conceal a firearm based on his

training and experience. He further testified that in his training and experience

when a suspect flees in this manner, they are likely trying to hide something or

have something on them. Ofr. Stallings testified that he maintained a clear line of

sight of Defendant as he followed him down an alley to the right, but that he lost

sight of Defendant for approximately two to three seconds when he made another

right turn behind the houses. When Ofr. Stallings turned the corner, he saw

Defendant stopped behind a tree and testified that Defendant looked at him and

then started running again, but that this time Defendant‟s arms were free and no

longer grabbing at his waistband.




                                         3
      Ofr. Stallings eventually apprehended Defendant and identified him as

Antoine Harris. A search of Defendant‟s person revealed that he was in possession

of money and heroin, and a search of the alley revealed a firearm.

                               Parties’ Contentions
      Defendant argues that he was seized when Ofr. Stallings approached him

and initiated conversation, because the officer‟s actions constituted a show of

authority, which made him feel that he was not free to leave. Defendant also

argues that this seizure was illegal, because Officers lacked sufficient reasonable

suspicion at this time to stop him, when nothing they observed suggested that

Defendant had committed, was committing, or was about to commit a crime.

Therefore, any evidence obtained as a result of the unlawful stop should be

suppressed as fruit of the poisonous tree.

      The State argues that there was no seizure when the Officers approached

Defendant and Ofr. Stalling asked, “Hey, can I talk to you for a minute,” because

the attempted interaction was merely a consensual encounter. Alternatively, at that

time, the Officers had reasonable and articulable suspicion to perform an

investigatory stop of Defendant pursuant to 11 Del. C. § 1902, based on Ofr.

Verna‟s belief that the individual he saw on Washington Street was the

unidentified suspect from the video of the January shooting incident. Further, any

mistake of fact by Ofr. Verna regarding the actual identity of Defendant does not



                                             4
negate the Officers‟ reasonable suspicion. The State also argues that Defendant‟s

eventual flight from the attempted consensual encounter on West 30th Street is

properly considered in determining the Officers‟ reasonable suspicion supporting

Defendant‟s ultimate arrest.

                                          Standard
       On a motion to suppress evidence seized during a warrantless search, the

State bears the burden of establishing that the challenged search or seizure did not

violate the rights guaranteed a defendant by the United States Constitution, the

Delaware Constitution, and Delaware statutory law.3 The burden of proof on a

motion to suppress is proof by a preponderance of the evidence.4

                                         Discussion
       An individual‟s right to be free from unlawful governmental searches and

seizures in Delaware is secured by two independent sources.5                      The Fourth

Amendment of the United States Constitution guarantees “the right of the people to

be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures . . . .”6 Likewise, Article I, Section 6 of the Delaware

Constitution guarantees that “[t]he people shall be secure in their persons, houses,


3
  Hunter v. State, 783 A.2d 558, 560-61 (Del. 2001).
4
  State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010) (citing State v. Bien-
Aime & Smalls, 1993 WL 138719, at *3 (Del. Super. Mar. 17, 1993).
5
  This right has been codified by title 11, chapter 23 of the Delaware Code. 11 Del. C. § 2301 et
seq.
6
  U.S. Const. amend. IV. The Fourteenth Amendment makes the Fourth Amendment applicable
to the states. See Mapp v. Ohio, 367 U.S. 643, 655 (1961).

                                               5
papers and possessions, from unreasonable searches and seizures . . . .”7 Searches

and seizures are presumptively unreasonable, unless they are authorized by

warrants or fall under a recognized exception to the warrant requirement.8

       In Terry v. Ohio, the United States Supreme Court held that a police officer

may conduct a brief, investigatory detention of an individual based on the officer‟s

reasonable and articulable suspicion that criminal activity is afoot.9 In similar

fashion, Delaware‟s Detention Statute allows a police officer to detain an

individual for investigatory purposes if the detention is supported by “reasonable

ground” to suspect that the individual “is committing, has committed or is about to

commit a crime.”10 The term “reasonable ground,” as used in 11 Del. C. § 1902(a),

has the same meaning as “reasonable and articulable suspicion” as defined by

Terry.11

       Where it is shown that there has been a violation of a defendant‟s right to be

free from illegal searches and seizures, the exclusionary rule acts as the remedy.12

The rule requires that any evidence recovered or derived from an illegal search and




7
  Del. Const. art. I, § 6.
8
  Mason v. State, 534 A.2d 242, 248 (Del. 1987).
9
  392 U.S. 1, 30 (1968).
10
   11 Del. C. § 1902(a).
11
   Jones v. State, 745 A.2d 856, 861 (Del. 1999).
12
   Id. at 872.

                                                6
seizure must be excluded from evidence, in the absence of an independent source

for or a situation allowing for the inevitably discovery of the evidence.13

        A.      The Initial Encounter
        It is well settled that, where police officers have reasonable suspicion of

criminal activity on the part of a person, they have the authority to stop and detain

that person.14 Generally, a seizure occurs when an “officer, by means of physical

force or show of authority, has in some way restrained the liberty” of the

individual, because “not all personal intercourse between policemen and citizens

involves „seizures‟ of persons.”15      However, in Jones v State, the Delaware

Supreme Court held that, because the search and seizure language in Article I, § 6

of the Delaware Constitution provides greater protections to individuals than its

federal counterpart, determining whether a seizure occurred under the Delaware

Constitution “requires focusing upon the police officer‟s actions to determine

whether a reasonable person would have believe he or she was not free to ignore

the police presence.”16 Applying this rule to the facts before it, the Jones Court

found that, where the police officer exited his vehicle, approached the defendant,




13
   Id. (citations omitted).
14
   Terry, 392 U.S. at 22.
15
   Id. at 19 n.16.
16
   745 A.2d at 869.

                                          7
and ordered him to stop and remove his hands from his coat pockets, the police

officer engaged in conduct constituting a seizure of the defendant.17

      Over the next 20 years, the Delaware Supreme Court continued to refine its

analysis of whether a police officer‟s interaction with an individual amounts to a

seizure or merely constitutes a “consensual encounter.” In Ross v. State, the Court

held that “the presence of uniformed police officers following a walking pedestrian

and requesting to speak with him, without doing more, does not constitute a seizure

under Article I, § 6 of the Delaware Constitution.”18 In Ross, the police officers

slowly drove alongside the defendant, who appeared to notice them and turned to

walk away, and then stopped their car, got out, and began requesting an interview,

asking repeatedly, “Can we talk to you?” as they followed the defendant.19 The

Court held that the lower court had properly concluded that this police conduct did

not amount to a seizure.20 Similarly, in Williams v. State, the Supreme Court found

that, where the officer observed the defendant walking on a highway median,

parked his patrol car ten feet behind him, activated his strobe light, and merely

approached him to ask if he needed a ride, under the totality of the circumstances

the interaction was merely a consensual encounter and not a seizure.21 Finally, in


17
   Id. at 859, 869.
18
   925 A.2d 489, 494 (Del. 2007).
19
   Id. at 491.
20
   Id. at 494.
21
   962 A.2d 210, 213, 215-16 (Del. 2008) (“During a consensual encounter, a person has no
obligation to answer the officer‟s inquiry and is free to go about his business.”).

                                           8
Harris v. State, the Supreme Court found that the defendant was not seized while

sitting in his vehicle parked behind a bar, when the officer stopped and exited his

patrol car approximately ten feet behind him, approached the defendant, and asked

him, first, if everything was alright and then other general questions.22

          In the instant matter, the facts and circumstances are more similar to Ross,

Williams, and Harris, where no seizures occurred, than to Jones, because the

testimony shows that Defendant was merely posed a question and was not ordered

or commanded to do anything. Furthermore, the testimony clearly shows that the

encounter sub judice pales in comparison to the level of intrusion occasioned by

the casual encounters in Ross, Williams, and Harris, because, here, only one of the

two Officers actually exited the vehicle and approached Defendant, this Officer

merely asked Defendant one time if he could talk to him, and no other officers

even approached Defendant. The record is simply devoid of any evidence that Ofr.

Stallings ordered Defendant to do anything, that any officers surrounded

Defendant, prevented him from leaving, or made any other show of force that

would cause a reasonable person to believe he or she was not free to ignore their

presence. As this Court has previously explained, “[w]hile there is an inherent

aura of authority in any . . . encounter with uniformed police officers, this factor

alone does not elevate the encounter to a seizure.”23 Therefore, after considering

22
     12 A.3d 1154 (Del. 2011) (TABLE), 2011 WL 252945, at *1.
23
     State v. Baker, 2011 WL 2535792, at *6 (Del. Super. June 20, 2011).

                                                 9
the Officers‟ conduct toward Defendant under the totality of the circumstances, the

interaction constituted a consensual encounter, if one could even call it that based

on the scant interaction between the Officers and Defendant before he fled, and not

a seizure.24

       B.      Reasonable Suspicion to Stop Defendant
       Delaware courts define reasonable suspicion as an officer‟s ability to point

to specific and articulable facts which, combined with all rational inferences,

reasonably warrant the intrusion.25          Therefore, even assuming, arguendo, that

Defendant was seized when the Officers approached him and said, “Hey, can I talk

to you for a minute,” under the totality of the circumstances, the Officers had

reasonable suspicion to stop Defendant, based on Ofr. Verna‟s belief that

Defendant was the second shooter in the surveillance video of the January shooting

case, the similar location, and the Officers‟ combined belief that Defendant was

trying to evade them.




24
   See Curtis v. State, 15 A.2d 216 (Del. 2011) (TABLE), 2011 WL 825827, at *2 (“In this case,
the mere presence of [the officer in a police vest] for a fraction of a second—or even a few
seconds—would not cause a reasonable person in [the defendant‟s] position to believe he could
not ignore the police presence.”); Woody v. State, 765 A.2d 1257, 1264 (Del. 2001) (finding no
encounter where the defendant fled almost immediately upon seeing one of the officers
approaching and before any of the officers attempted to effectuate a detention); see also State v.
Roy, 2011 WL 917416, at *4 (Del. Super. Mar. 17, 2011) (finding the defendant was seized
when the officer said to him, “[c]ome here, Carl”).
25
   Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989).

                                               10
       In weighing the evidence, the court “defers to the experience and training of

law enforcement officers.”26 A determination of reasonable suspicion must be

evaluated in the context of the totality of the circumstances as viewed through the

eyes of a reasonable, trained police officer in the same or similar circumstances,

combining objective facts with such an officer‟s subjective interpretation of those

facts.27 Lastly, “[r]easonable suspicion is a less demanding standard compared to

probable cause and only requires a showing considerably less than preponderance

of the evidence.”28

       In Jones, the Supreme Court found that the officer lacked a reasonable and

articulable suspicion to stop the defendant, because he primarily relied on the

anonymous 911 complaint merely reporting that a suspicious black male wearing a

blue coat had allegedly been standing in front of a particular address.29 The Court

found the fact that Defendant‟s location and general physical description were

similar to the individual described in the uncorroborated 911 complaint and the

fact that the events took place at night in a high crime/drug area did not constitute

reasonable and articulable suspicion sufficient to justify the officer‟s stop of the

defendant.30



26
   Woody, 765 A.2d at 1262.
27
   Id. at 1263(citing Jones, 745 A.2d at 860).
28
   Id. at 1262 (citing Illinois v. Wardlow, 528 U.S. 119, 123 (2000)).
29
   Jones, 745 A.2d at 858, 869-70.
30
   Id. at 871-72.

                                                11
       The facts of the instant case are distinguishable from the outset, because the

Officers were not acting on the basis of an unreliable anonymous tip, 911 or

otherwise. Rather, Ofr. Verna testified that he personally viewed a surveillance

video in connection with the investigation of an unrelated crime, where he saw an

individual who resembled Defendant illegally shooting a gun. In deference to Ofr.

Verna‟s testimony regarding the circumstances of the surveillance video and his

ability to recall the second shooter‟s appearance, which appeared to be credible,

the Court believes that Ofr. Verna reasonably suspected that Defendant was

involved in the January shooting when he saw him on February 10, 2016.

Therefore, Ofr. Verna had reasonable and articulable suspicion to believe

Defendant had committed a crime.31

                                        Conclusion
       For the foregoing reasons, Defendant‟s Motion to Suppress is hereby

DENIED.

       IT IS SO ORDERED.

                                                  /s/ Calvin L. Scott
                                                  The Honorable Calvin L. Scott, Jr.

cc:    Prothonotary




31
   See id. at 871 (“Reasonable and articulable suspicion cannot be based on a defendant‟s
presence in a particular neighborhood at a particular time of day with no independent evidence
that the defendant has committed, is committing, or is about to commit a crime.”).

                                             12
