            IN THE SUPREME COURT OF THE STATE OF DELAWARE


MICHAEL CARELLO                        §
                                       §     No. 301, 2016
      Defendant-Below,                 §
      Appellant,                       §     Court Below: Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §     Cr. ID. No. 1511011583
STATE OF DELAWARE,                     §
                                       §
      Plaintiff-Below,                 §
      Appellee.                        §

                          Submitted: January 25, 2017
                          Decided:   February 8, 2017

Before HOLLAND, VAUGHN, and SEITZ, Justices.

                                       ORDER

      This 8th day of February, 2017, having considered the briefs and the record

below, it appears to the Court that:

      (1)    Delaware State Police officers stopped Frank Prentice for failing to

signal while making a left turn. When they approached Prentice’s car, they saw

two hypodermic needles in the driver’s side door. Police arrested him and the

passenger, Thomas McIlvane, for possession of drug paraphernalia. McIlvane told

the police officers that he was on probation, and that he was staying at the Motel 6

in Newark.     Because McIlvane was on probation, police decided to do an

administrative search of his hotel room. When Detective Mark Hogate of the
Delaware State Police arrived at the hotel to search the room, he discovered that

the room was rented to Michael Carello, and decided to notify him of the search.

      (2)      Carello was standing by a car near the room, loading his trunk. As the

officer approached Carello, he started reaching behind the small of his back,

backed up behind the car, threw a gun in the trunk, and took off running. Detective

Hogate arrested him, and saw the gun in plain view in his trunk. He also searched

the car and found two digital scales in the center console, and marijuana in the

floorboard of the front passenger seat. Police then searched the hotel room and

found a gun in a cardboard box between the two beds.

      (3)      Carello moved to suppress all the evidence found as a result of the

search. The Superior Court granted the motion as to all of the evidence except the

gun found in the open trunk of the car. The Superior Court ruled that the gun in

the trunk would not be suppressed because the officers were simply attempting to

notify Carello that they were going to search his room. Thus, the encounter in the

parking lot was consensual, and not a seizure under the Fourth Amendment.

Carello was subsequently convicted of various weapons offenses in a stipulated

bench trial.

      (4)      On appeal, Carello argues that the Superior Court abused its discretion

by refusing to suppress the gun found in the trunk, arguing that its discovery

resulted from an unconstitutional seizure. The Superior Court correctly held that



                                           2
the encounter in the parking lot—though escalated by Carello—did not amount to

a seizure for Fourth Amendment purposes. Therefore, we affirm the judgment of

the Superior Court.

      (5)    On November 18, 2015, Detective Hogate and several other Delaware

State Police officer members of the Governor’s Task Force were conducting

surveillance of a Motel 6 in Newark. Around 9:00 PM, they saw Prentice make a

left turn out of the hotel parking lot without using his signal, and stopped his car.

When one of the officers approached the car, he saw two hypodermic needles in

plain view in the driver’s side door. They arrested Prentice and the passenger,

McIlvane. McIlvane was on probation at the time.

      (6)    McIlvane told the officers that he was staying in a room in the Motel 6

in Newark. When police searched him, they found a key card to the room. The

officers then decided to do an administrative search of the hotel room. But when

the officers went to the hotel, they found that the room was rented in Michael

Carello’s name.

      (7)    Detective Hogate saw Carello in the hotel parking lot, loading the

trunk of his car. He approached Carello to notify him that the officers were going

to perform an administrative search of his hotel room. He did not suspect Carello

had committed any crimes. Detective Hogate called out to Carello and said, “Hey,




                                         3
Michael, I need to talk to you.”1 Carello looked at Detective Hogate and reached

behind the small of his back with his left hand. The detective said “don’t do that,”

and pointed his gun at Carello. Carello continued staring at the detective and

walked back towards the open trunk of the vehicle. The detective saw him toss

something in the trunk of his car, and heard a “metallic thud.” Carello then ran

away. Detective Hogate chased after Carello and used his taser to stop him. He

then arrested Carello.

         (8)     Detective Hogate saw a gun in the open trunk of the car. Police then

conducted an inventory search of the car because “there was no one operating the

vehicle on private property.”2 They found two digital scales in the center console

of the car and two grams of marijuana under the front passenger floorboard. The

police also searched the hotel room and found another gun in a cardboard box

between the two hotel beds.

         (9)     A grand jury indicted Carello on charges of carrying a concealed

deadly weapon, two counts of possession of a firearm by a person prohibited,

possession of ammunition by a person prohibited, possession of marijuana, and

resisting arrest. Carello moved to suppress all the evidence obtained as a result of

the search. The court held that the search of the hotel room and the interior of the

car violated Carello’s constitutional right to be free from unreasonable searches

1
    App. to Opening Br. at 118.
2
    Id. at 116.

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and seizures, and suppressed the evidence police obtained from those searches. As

to the hotel room, the court held that Carello’s constitutional rights took

precedence over the officers’ desire to conduct an administrative search of the

probationer’s hotel room. Thus, the officers needed to obtain a search warrant.

Further, the State stipulated that the marijuana police found in Carello’s car was

not seized as the result of a proper inventory search. But, the Superior Court

refused to suppress the gun in the car trunk, reasoning that Carello was not

“seized” when the officer asked to talk to him. Rather, the court held that Carello

escalated the situation through his own action.

      (10) On May 17, 2016, the Superior Court held a stipulated bench trial.

Evidence and testimony from the suppression hearing was incorporated by

reference into the bench trial. The Superior Court found Carello guilty of one

count of possession of a firearm by a person prohibited, possession of ammunition

by a person prohibited, carrying a concealed deadly weapon, and resisting arrest.

The court granted Carello’s request for immediate sentencing. The State moved to

declare Carello an habitual offender, which the court granted. He was sentenced to

a total of twenty-three years at Level V incarceration, followed by probation.

Carello appealed.

      (11) On appeal, Carello claims that the Superior Court abused its discretion

when it declined to suppress the gun police found in his trunk, arguing that it



                                         5
resulted from an unconstitutional seizure. Specifically, he argues: (1) he was

seized when the detective attempted to notify him of his intent to search his hotel

room; (2) police lacked reasonable suspicion to seize him; and (3) the gun should

have been suppressed because it resulted from an illegal seizure. We review the

Superior Court’s denial of a motion to suppress after an evidentiary hearing for

abuse of discretion.3      “To the extent that we examine the trial judge’s legal

conclusions, we review the trial judge’s determinations de novo for errors in

formulating or applying legal precepts. To the extent the trial judge’s decision is

based on factual findings, we review 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

       (12) The Fourth Amendment to the United States Constitution and Article

I, § 6 of the Delaware Constitution prohibit unreasonable searches and seizures by

the government.5       The United States Supreme Court and this Court “have

repeatedly held that not every encounter with the police is a seizure under the

Fourth Amendment.”6 For example, “mere police questioning does not constitute a

seizure. Even when officers have no basis for suspecting a particular individual,



3
  Culver v. State, 956 A.2d 5, 10 (Del. 2008).
4
  Lopez-Vazquez v. State, 956 A.2d 1280, 1284-85 (Del. 2008).
5
  Harris v. State, 806 A.2d 119, 124 (Del. 2002).
6
  Williams v. State, 962 A.2d 210, 214 (Del. 2008).

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they may generally ask questions of that individual.”7               “During a consensual

encounter, a person has no obligation to answer the officer’s inquiry and is free to

go about his business. Only when the totality of the circumstances demonstrates

that the police officer’s actions would cause a reasonable person to believe he was

not free to ignore the police presence does a consensual encounter become a

seizure.”8 In conducting this analysis, we focus on the police officer’s actions to

determine objectively whether a person would feel he or she was not free to

terminate the encounter.9

       (13) In Jones v. State, this Court adopted a six-factor test to determine

whether a person has been seized under Delaware law:

       (1) whether the encounter occurred in a public or private place; (2)
       whether the suspect was informed that he was not under arrest and
       free to leave; (3) whether the suspect consented or refused to talk to
       the investigating officers; (4) whether the investigating officers
       removed the suspect to another area; (5) whether there was physical
       touching, display of weapons, or other threatening conduct; and (6)
       whether the suspect eventually departed the area without hindrance.10

The Jones Court explained that the test is based on the totality of the

circumstances, and that “no one factor is legally determinative, dispositive, or

paramount.”11


7
  Id. at 215 (quoting Muehler v. Mena, 544 U.S. 93, 101 (2005)).
8
  Williams, 962 A.2d at 215-16.
9
  Jones v. State, 745 A.2d 856, 869 (Del. 1999).
10
   Jones v. State, 28 A.3d 1046, 1052-53 (Del. 2011) (quoting United States v. Scheets, 188 F.3d
829, 836-37 (7th Cir. 1999)).
11
   Jones, 28 A.3d at 1053 (internal citations omitted).

                                               7
       (14) The question before us is whether Detective Hogate’s statement to

Carello that he needed to talk to him would cause a reasonable person to believe he

was not free to leave. The Superior Court ruled that the detective approached

Carello only to inform him that he was going to do an administrative search of his

hotel room. Because Carello was not seized by the detective, and the police did

not provoke him to abandon the gun, the court found that the encounter was

consensual. The Superior Court’s finding is well supported by the record. This is

the type of “mere police questioning” that this Court has consistently found to pass

constitutional muster.12

       (15) Further, applying the Jones factors to the facts of this appeal, we find

that all of the factors weigh in favor of the Superior Court’s finding that Carello

was not seized. First, the encounter occurred in a public parking lot. Second, the

detective did not tell Carello he was under arrest or not free to leave. Third,

Carello neither consented nor refused to speak. Instead, he hid from the officer

and ran away. Fourth, the officers did not remove Carello from the area.13 Fifth,

Detective Hogate did not initially show a weapon until Carello reached behind his


12
   See Brown v. State, 35 A.3d 418, 2011 WL 5319900, at *1 (Del. 2011) (Table) (officers pulled
up to defendant and asked his name and if they could talk to him); Williams, 962 A.2d at 213
(officer asked defendant’s name, birth date, and if he needed a ride); Ross v. State, 925 A.2d 489,
494 (Del. 2007) (“We hold that the presence of uniformed police officers following a walking
pedestrian and requesting to speak with him, without doing anything more, does not constitute a
seizure under Article I, § 6 of the Delaware Constitution.”).
13
   The fact that Carello was taken away after he was arrested for being in possession of the gun is
not relevant to our determination of whether the initial encounter was consensual.

                                                8
back and hid behind the car. Finally, although Carello did not leave the area

without a hindrance, it is because he escalated the situation. As the Superior Court

held, Carello’s “actions raised the stakes considerably. By placing his hand behind

his back in a manner common to, at least in an area where people are known to

carry weapons, and then backing himself around into a position where he would

have cover, [he] . . . changed . . . the situation dramatically.”14

          (16) Detective Hogate did no more than attempt to notify Carello that he

was going to search his hotel room—the kind of consensual police encounter

permitted by the constitution. Therefore, the Superior Court did not abuse its

discretion by declining to suppress the gun. Because we have determined that

police did not seize Carello, we do not reach his remaining contentions.

          NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                                BY THE COURT:

                                                /s/ Collins J. Seitz, Jr.
                                                       Justice




14
     Opening Br. Ex. B. at 29-30.

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