IN THE SUPREka COURT OF THE STATE OF DELAWARE

AKEEM CROPPER §
§ No. 595, 2014
Defendant-Below, §
Appellant, §
§ Court Below — Superior Court
V. § of the State of Delaware
§ in and for New Castle County
STATE OF DELAWARE, 13‘ Cr. ID. No. 1312000103
§
Plaintiﬁ-Below, §
Appellee. §

Submitted: September 16, 2015
Decided: September 16, 2015
Before HOLLAND, VALIHURA, and VAUGHN, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Bernard J. O’Donnell, Esquire, Ofﬁce of the Public Defender, Wilmington,
Delaware, Attorney for the Defendant-Below, Appellant.

Andrew J. Vella, Esquire, Department of Justice, Wilmington, Delaware, Attorney
for the Plaintiff-Below, Appellee.

HOLLAND, Justice:

The defendant/appellant Akeem Cropper (“Cropper”) was indicted on
charges of Possession of a Firearm By a Person Prohibited (“PFBPP”), Possession
of Ammunition By a Person Prohibited (“PABPP”) and Carrying a Concealed
Deadly Weapon (“CCDEW”). Cropper ﬁled a Motion to Suppress, which the
Superior Court denied after a hearing. Following a non-jury trial, the Superior
Court found Cropper guilty of PFBPP and PABPP.1

In this direct appeal, Cropper argues that the warrantiess seizure and pat-
down search was not supported by reasonable suspicion and the evidence seized
from his person should have been suppressed. We have determined that argument
is without merit. Therefore, the judgment of the Superior Court must be afﬁrmed.

Facts

On November 13, 2013, Wilmington Police Corporal James MacColl
(“MacColl”) and his partner, Brandon Mosley (“Mosley”) were in the West Center
City area of Wilmington, Delaware. While patrolling the area in a marked police
car, the ofﬁcers observed a car with an expired registration and stopped it.
MacColl got out of the patrol car and approached the stepped vehicle on the
driver’s side, while Mosley approached on the passenger side.

There were three occupants in the stopped car—a female driver, a male rear

seat passenger and Cropper, who was seated in the front passenger seat. MacColl

1 The Superior Court granted Cropper’s Motion for Judgment of Acquittal on the CCDEW
charge.

2

asked for the driver’s information and she produced her license and the vehicle’s
registration card. However, she was unable to provide MacColl with proof of
insurance.

Meanwhile, Mosley asked for Cropper’s identiﬁcation and he produced a
school identiﬁcation card. The rear seat passenger did not provide the ofﬁcers
with any identiﬁcation but did provide a name. After returning to the patrol car
with Mosley, MacColl looked at Cropper’s identiﬁcation card and recognized him
from prior encounters.

MacColl and Mosley ran DELHS inquires on all three occupants of the car
and discovered that the driver had a suspended license and the name the rear seat
passenger gave them failed to produce a record. The fact that ofﬁcers did not ﬁnd
a record in DELJIS matching the name given by the rear seat passenger raised their
suspicion that the rear seat passenger had provided a fake name. The ofﬁcers
returned to the stopped car, and MacColl had a conversation with Cropper and the
rear seat passenger. The rear seat passenger admitted that he did not give the
ofﬁcers his correct name because he had an outstanding warrant in Pennsylvania.
At that point, both the driver and rear seat passenger were removed from the car
while Cropper remained seated in the front passenger seat.

As MacColl was speaking with Cropper, he noticed that Cropper’s responses

to questions were very “clipped,” he was short of breath, he was having a hard time

turning toward MacColl to make eye contact, and his hands were slightly shaking.
MacColl was familiar with Cropper. Having worked in the West Center City area
of Wilmington for six years, MacColl had encountered Cropper several dozen
times and arrested him twice. Through his prior interactions with Cropper,
MacColl had become personally familiar with Cropper, and knew that he was
articulate and generally willing to converse with police ofﬁcers.

MacColl asked Cropper to step out of the car because it was going to be
towed. As Cropper exited the car, MacColl noticed that he kept his hands facing
away from his body. MacColl asked Cropper whether he was carrying something
and Cropper, with some apparent difﬁculty, said “110.” At that point, MacColl told
Cropper to put his hands on the car because he was going to conduct a pat-down.
As MacColl began the pat-down, he discovered a handgun tucked into the
waistband of Crepper’s pants.

Passenger Identification Request Proper

Cropper’s initial argument on appeal is that his detention was not justified
because he was the passenger companion of the driver who had committed a motor
vehicle offense and that Cropper’s detention was prolonged beyond that necessary
to determine if the driver had committed any motor vehicle offense. This Court

reviews a trial court’s decision to grant or deny a motion to suppress evidence for

. . . . . . 3
an abuse of dlscretion.2 A trial court’s legal dec1s10ns are revrew de novo. “‘To

the extent the trial judge’s decision is based on factual ﬁndings, [this Court] . . .
review[s] for whether the trial judge abused his or her discretion in determining

whether there was sufﬁcient evidence to support the ﬁndings and whether those

ﬁndings were clearly erroneous?”4

Under Delaware law “[a] police ofﬁcer who observes a trafﬁc violation has
probable cause to stop the vehicle and its driver.”5 “During a lawful stop, a police

ofﬁcer may order both the driver and passengers out of the vehicle pending

556

completion of the trafﬁc stop. At that point, “all passengers are subject to some

:57

scrutiny. The police are permitted to question the passenger about his or her

identity and those questions are not outside the scope of a reasonable
investigations As this Court explained in detail:

During a valid investigatory stop, “the ofﬁcer may ask
the detainee a moderate number of questions to
determine his identity and to try to obtain information
conﬁrming or dispelling the ofﬁcer’s suspicion. But the
detainee is not obliged to respond.” “[Q]uestions

2 Flonnory v. State, 109 A.3d 1060, 1063 (Del. 2015) (citing McVaugh v. State, 2014 WL
1117722, at *1 (Del. Mar. 19, 2014); Lopez-Vaguez v. State, 956 A.2d 1280, 1284 (Del. 2008)).

3 Id. (citations omitted).

4 Id. (quoting Lopez— Vazquez, 956 A.2d at 1284).

5 Holden v. State, 23 A.3d 843, 847 (Del. 2011); see Pennsylvania v. Mimms, 434 U.S. 107-09
1977).

gHolden, 23 A.3d at 847.

7Loper v. State, 8 A.3d 1169, 1172-73 (Del. 2010); see also Brendlin v. CaliﬁJmia, 551 U.S. 249,

257 (2007) (“[E]ven when the wrongdoing is only bad driving, [a] passenger will expect to be

subject to some scrutiny. . . .”).

sLoper, s A.3d at 1173-74.

concerning a suspect’s identity are a routine and accepted
part of many Terry stops. The ability to brieﬂy stop a
suspect, ask questions, or check identiﬁcation in the
absence of probable cause promotes the strong
government interest in solving crimes and bringing

offenders to justice.” “[I]t is well established that an
ofﬁcer may ask a suspect to identify himself in the course
ofa Terry stop . . . .”

To the extent Cropper argues he was unlawfully seized when the ofﬁcer obtained
his identiﬁcation and he was “not free to leave,” the argument is without merit.
The ofﬁcer was justiﬁed in asking for the identiﬁcation of all passengers incident
to the trafﬁc stop.10

Cropper also contends that he was unlawﬁilly seized when he was ordered
out of the car. As this Court previously explained, “the police may order the driver
or a passenger to exit the car after a valid trafﬁc stop, and that order is not a
‘seizure’ under the Fourth Amendment.”11 If anything, the order to exit the car
was a “mere inconvenience.”12 Since Cropper was already lawﬁilly detained as a
result of a valid trafﬁc stop, there is no reason to conclude that he was seized a
second time when he was ordered to leave the car because it was going to be

towed.

gMills v. State, 900 A.2d 101 (Del. 2006) (footnotes omitted).

loSee Ohio v. Robinette, 519 US. 33, 39-40 (1996) (ﬁnding no Fourth Amendment requirement
that a detainee be advised that they are “free to go” before consent to search will be deemed
voluntary).

“Loper, 8 A.3d at 1173-74 (citing Mimms, 434 U.S. at 107—11).

121141mm, 434 ms. at 111.

6

Pat-Down Search Valid

Therefore, the dispositive question in this case is whether the pat-down
search was supported by independent facts, known to MacColl at the time, that
justiﬁed that additional pat—down intrusion after Cropper was ordered to get out of
the car.13 The Fourth Amendment permits a police ofﬁcer to frisk a person “who
has been detained if he possesses a reasonable articulable suspicion that the
detainee is armed and presently dangerous.”14 The ofﬁcer must be able to point to
“speciﬁc and articulable facts which, taken together with rational inferences from
those facts, reasonably warrant the intrusion.”15 A reviewing court must consider
the totality of the circumstances “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.”16

The record reﬂects that MacColl was familiar with Cropper. He had
interacted with Cropper in the past on several dozen occasions and had previously
arrested him twice. According to MacColl, Cropper’s demeanor was markedly

different than his usual demeanor. Cropper, who was normally articulate and

willing to converse with MacColl, avoided eye contact and gave short answers to

‘3 Caldwell v. State, 780 A.2d 1037, 1050 (Del. 2001).

“State v. Henderson, 392 A.2d 1061, 1064-65 (Del. 2006) (citing Terry v Ohio, 392 US. 1, 27
(1968)).

15161. (quoting Coleman v. State, 562 A.2d 1171, 1174 (Del. 1939)).

“Id. (quoting Jones v. State, 745 A.2d 856, 861 (Del. 1999)).

7

questions. Cropper’s abnormal behavior after the car stop put MacColl “on edge.”
In denying Cropper’s Motion to Suppress, the Superior Court stated that it was
“especially signiﬁcant . . . that Corporal MacColl was concerned about this
defendant’s behavior and there was a particularized suspicion deve10ped by the
ofﬁcer with respect to this individual suspect.”

In addition to MacColl’s personal knowledge and prior interactions with
Cropper, MacColl had received specialized training in identifying characteristics of
an armed gunman.17 MacColl spoke to Cropper while he was seated in the car and
noticed that his hands were shaking, he was short of breath, his mouth appeared to
be dry, the answers he gave to MacColl’s questions were “clipped” and he had a
difﬁcult time making eye contact. After Cropper was removed from the car, his
hands were at his side, away ﬁom his body and facing outward. When MacColl
asked Cropper whether he was carrying anything, Cropper could barely get the
word “no” out of his mouth. MacColl’s specialized training about the
characteristics of an armed gunman taught him that the behaviors exhibited by
Cropper were indicative of a person armed with a ﬁrearm. In fact, MacColl
testiﬁed that Cropper’s behavior and demeanor caused MacColl enough concern to

make the hair on the back of his neck stand up.

17 MacColl attended “Characteristics of an Armed Gunman” training on four occasions.
8

This Court has recognized the importance of ofﬁcer safety during a trafﬁc
stop.18 Nevertheless, officer safety does not justify a pat-down in all

circumstances.19

A pat-down requires reasonable articulable facts for concern
about ofﬁcer safety that are speciﬁc to the person ﬁ‘isked.20

In this case, MacColl identiﬁed facts speciﬁc to Cropper that would give rise
to a reasonable concern for his safety, “viewed through the eyes of a reasonable,
trained police ofﬁcer in similar circumstances, combining objective facts with such
an ofﬁcer’s subjective interpretation of those facts.”21 Based upon the combination
of MacColl’s specialized objective training and subjective familiarity with
Cropper’s normal behavior, MacColl had a reasonable articulable belief that
Cropper was armed and presently dangerous.22 Accordingly, we hold that, under
the totality of the circumstances, the pat-down search of Cropper by MacColl was
permitted by the Fourth Amendment.

Conclusion

The Superior Court’s judgment of convictions is affmned.

18 Robertson v. State, 596 A.2d 1345, 1353 (Del. 1991); see also Jones, 745 A.2d at 873.
19 Caldwell, 780 A.2d at 1051.
2° Ybarra v. Illinois, 444 us. 85, 94 (1979).

2 Henderson, 892 A.2d at 1064-65 (quoting Jones, 745 A.2d at 861).
Id.

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