                            SUPERIOR COURT
                                 of the
                          STATE OF DELAWARE

Jeffrey J Clark                                                 Kent County Courthouse
  Judge                                                              38 The Green
                                                                    Dover, DE 19901
                                                                 Telephone (302)735-2111


                                    April 24, 2017

Gregory R. Babowal, DAG                         Anthony J. W. Capone, Esq.
Department of Justice                           Office of The Public Defender
102 W. Water Street                             45 The Green
Dover, DE 19901                                 Dover, DE 19901

        RE: State v. Kelly L. Patrick
            ID No. 1608021083

                              Submitted: April 12, 2017
                               Decided: April 24, 2017

Counsel:

        Defendant Kelly L. Patrick (hereinafter “Ms. Patrick”) was arrested for Drug
Dealing, three separate weapon offenses, and misdemeanor Possession of Drug
Paraphernalia. Ms. Patrick argues that drug and weapons evidence seized from a
search of an automobile on August 28, 2016 should be suppressed because the Dover
Police effected a Terry stop without reasonable, articulable suspicion to justify the
detention. Specifically, she argues that (1) under the circumstances of this case, a
seizure took place at the time of first contact between the police and her; and (2) that
under the totality of the circumstances, the limited seizure was not justified at that
point. The State counters that there were sufficient facts available and known to the
officers to justify the detention. Furthermore, the State argues that since Ms. Patrick
had two outstanding capiases for missed Court appearances at the time of her arrest,
the inevitable discovery doctrine makes harmless any allegedly premature seizure.
          EVIDENCE PRESENTED AT THE SUPPRESSION HEARING
          All evidence relevant to this decision was presented on April 12, 2017, at a
suppression hearing by the State’s sole witness, Dover Police Officer Barrett. Officer
Barrett testified that while working in the area of 38 North Governor’s Avenue in
Dover on August 28, 2016, his attention was directed toward Ms. Patrick and her car.
According to Officer Barrett, the area at issue was a high crime, open air drug market.
He testified that Probation Officer Porter, who himself was in a separate vehicle, first
saw Ms. Patrick’s car in an alley. He then saw a male approach Ms. Patrick’s car and
then leave it quickly by cutting through an adjacent yard. Thereafter, when passing by,
Officer Porter saw Ms. Patrick, in the car’s driver’s seat, duck down in an apparent
effort to avoid being seen. At that point, Officer Porter contacted Officers Barrett and
Cunningham from the Dover Police Department.
          Officer Barrett testified that when he arrived, the hood of the vehicle was raised,
and it was parked in a position blocking a garage in an alley way in front of “no
parking” signs. At that point, the marked police car and an unmarked police car pulled
into the alley. It is at that point that Ms. Patrick alleges a Terry stop occurred, although
there was no evidence that the marked patrol car’s emergency equipment was
activated. Next, Officer Barrett approached a man who was working on the vehicle,
with the hood up, while Ms. Patrick remained in the driver’s seat. The man indicated
to Officer Barrett that he was a mechanic, who worked on houses. The man appeared
nervous and was attempting to turn a phillips head screw in the vehicle with a pair of
pliers.

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         The only other facts relevant to this decision include that upon questioning and
an identification check, Officer Cunningham learned that Ms. Patrick had two
outstanding capiases. Also, in plain view on one of the seats in the vehicle were a
digital scale, loose money, and numerous plastic baggies.
                            APPLICABLE STANDARDS
         In a motion to suppress based on a warrantless search and seizure, the burden
is on the State to justify that the search and seizure comply with the rights guaranteed
by the United States Constitution, the Delaware Constitution, and Delaware statutory
law.1 At a suppression hearing, the presiding judge sits as the trier of fact and evaluates
witness credibility.2 Strict rules of evidence do not apply in a suppression hearing. In
evaluating either reasonable, articulable suspicion, or probable cause, hearsay is
admissible.3
          It is well settled that the benchmark, in Delaware, for determining whether there
has been a seizure is more inclusive than that required by the United States Constitution
alone. Namely, pursuant to Article 1, Section 6 of the Delaware Constitution, the
standard is whether a reasonable person in a defendant’s position would have believed
that he or she was free to ignore the officer’s instructions and walk away.4 An initial
contact with police, based on the surrounding circumstances, can potentially amount
to a detention.5 At the point of the detention, in determining the legality of a Terry
stop, the Court must determine whether the totality of the circumstances provide a
reasonable, articulable suspicion that Ms. Patrick was engaged in criminal activity.6

1
    Hunter v. State, 783 A.2d 558, 560 (Del. 2001).
2
    Turner v. State, 957 A.2d 565, 570-71 (Del. 2008).
3
    State v. Holmes, 2015 WL 5168374, at *8 (Del. Super. Ct. Sept. 3, 2015) (citations omitted).
4
    Jones v. State, 745 A.2d 856, 867 (Del. 1999).
5
    State v. Irons, 2001 WL 1729106, at *3 (Del. Super. Ct. Nov. 27, 2001).
6
    Jones, 745 A.2d at 868.

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                                          DISCUSSION
        The key issue in this case is whether at the time the two police vehicles turned
into the alley and then stopped, the officers had facts available to them that provided
reasonable, articulable suspicion that criminal activity was afoot. The Court finds that
the facts presented at the suppression hearing through the first hand observations of
Officer Barrett established that the area at issue was a high crime area, and the parked
vehicle occupied by Ms. Patrick blocked a garage door, and sat directly in front of “no
parking” signs.
       Furthermore, through testimony referencing hearsay, another officer had
observed an individual make a short stop at the car before quickly leaving, by cutting
through a neighboring yard. In the testifying officer’s training and experience, he
believed such action to be consistent with a drug sale. Furthermore, through testimony
constituting hearsay, the driver of the vehicle, Ms. Patrick, (before the involvement of
Officer Barrett) was seen ducking to avoid detection. These facts combined, when
evaluated under the totality of the circumstances, provided more than a mere hunch that
drug activity and illegal parking or trespassing was occurring. They provided a
reasonable, articulable suspicion of criminal activity.7

7
  Here, Ms. Patrick alleges that a Terry stop occurred at the instant the two police cars (one marked
and one un-marked) pulled into the alley and stopped in front of her car. Her argument relies on the
fact that Ms. Patrick had backed her car into the alley and was no longer free to leave. Accordingly,
she argues that at that point she could not reasonably feel free to ignore the officers’ instructions.
The evidence in this case established that she had placed herself into a position of limited egress. The
Delaware Supreme Court decision in Hall v. State, 981 A.2d 1106, 1111 (Del. 2009) addressed a
similar issue and found a seizure after a police detective blocked in the Defendant’s car, approached
the car, and then ordered the Defendant to place his hands where the Detective could observe them.
That case seems distinguishable on its facts. However, the Court need not resolve the issue of
whether the seizure occurred at that instant Ms. Patrick alleges the stop occurred or when the officers
requested the Defendant and the male working on the vehicle to produce their identification. In this
case, at the earliest point in time, there was reasonable articulable suspicion for the officers to
reasonably suspect that Ms. Patrick was engaged in criminal activity, including drug activity, illegal

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       Ms. Patrick argues that the State’s extensive reliance on hearsay through Officer
Barrett’s testimony prevented the State from meeting its burden to support the detention
in this case. In support of that argument, she cites State v. Hopkins8 for its premise that
the State’s burden to support a warrantless search or seizure cannot be met if based
solely upon hearsay.9 Hopkins, however, is distinguishable from the case at hand.
Here, she is correct that much of the State’s evidence was hearsay evidence attributed
to Officer Porter who did not testify. Officer Barrett, however, testified regarding
corroborating facts including the high crime, open-air drug market nature of the area
at issue, and also his direct observation of “no parking” signs in the alley near the
vehicle where the vehicle blocked a garage. This testimony, including first hand
knowledge, is sufficient corroborating information leading the Court to find that the
more minimal standard for an initial detention based on reasonable, articulable
suspicion (as opposed to the issue of consent or probable cause discussed in
Hopkins),was met.
       Finally, independent of the valid stop in this case, Ms. Patrick had two separate
capiases for missed court appearances. The police were not only justified in an initial
detention, but were in fact justified in arresting Ms. Patrick independently of any other
factor.10   Nevertheless, the impact of her wanted status would warrant further
discussion and analysis because the officers did not learn her identity until afer
requesting her identification. Also relevant to such analysis would be the fact that a
digital scale, plastic bags, and cash were located on the front seat of her vehicle in plain
view. Since it is unnecessary for the Court’s decision, the Court declines to further
parking and trespassing.
8
   2016 WL 6958697 (Del. Super. Ct. Nov. 23, 2016.)
9
   Id. at * 2.
10
   See 10 Del. C. § 3106 (providing that “a writ of capias ad respondendum is served by arresting
the defendant . . . ”).

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address the issue of whether an arrest warrant or a capias would prevent the taint of
improperly seized evidence based on allegedly wrongful initial contact by the police.11
Furthermore, the Court declines to address the State’s argument regarding the
inevitable discovery doctrine or whether a search incident to an arrest would cure any
such wrongful initial contact.
                                         CONCLUSION
        For these reasons, Defendant Patrick’s motion to suppress is DENIED.
        IT IS SO ORDERED.




                                                                /s/Jeffrey J Clark
                                                                    Judge




11
  See State v. Severin, 1982 WL 593131, at *1 (Del. Super. Ct. Mar. 23, 1982) (holding that where
the police initially seized a person without reasonable, articulable suspicion, but later discovered the
person had an outstanding capias, the initial, unlawful, seizure did not justify exclusion of evidence
found pursuant to a search incident to an arrest after discovery of the capias). But see Moreuso v.
Baca, 431 F.3d 633, 641 (9th Cir. 2005) (holding that “police officers cannot retroactively justify a
suspicionless search and arrest on the basis of an after fact discovery of an arrest warrant . . .”).

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