SUPER|OR COURT
oF THE

STATE OF DELAWARE

VlleN L. MEDIN|LLA LEoNARD L. WlLLlAMs JusTlcE CENTER
JUDGE 500 NoRTH KlNG STREET, sulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHoNE (302) 255-0626

October 25, 2018
John S. Taylor, Esquire Andrew J. Witherell, Esquire
Department of Justice Law Office of A. Dale Bowers, P.A.
820 North French Street 203 Maryland Avenue
Wilmington, DE 19801 Wilrnington, DE 19808

Re: State of Delaware v. Larus Brown
I.D. No. 1703021437

Dear Counsel:

This is the Court’s ruling on Defendant’s Motion to Suppress (“Motion”) in
the above-captioned case. For the reasons stated below, Defendant’s Motion is
DENIED.

F actual and Procedural Background'

On March 30, 2017 at approximately 7:00 a.m., Offlcers Rodriguez and
Vasquez of the Wilmington Police Department were patrolling a high-crime area in
their marked vehicle when they observed Defendant Larus Brown (“Defendant”)
walking along the sidewalk toward a grocery store known as M&A Market located
on the corner of 10th and Bennet Streets.2 Within seconds after he entered the store,
the officers observed Defendant being forcibly escorted out by the owner.3 The

 

' This recitation is provided from the evidence presented at the suppression hearing on August
30, 2018, the written pleadings, and the subsequent submissions from both the State and

Defendant.
2 State’s Resp. to Def.’s Mot. to Suppress Evidence, Letter Memorandum at 1 [hereinafter

“State’s Resp.”].

owner, Ahmed Ahmed-Baba, known to the officers as “Ben” was visibly upset and
told police that Defendant had been banned from the store for prior stealing
incidents.4 The owner asked the officers for assistance to make sure Defendant did

not return.5

Officer Rodriguez made contact with Defendant and, after she first asked if
she could speak to him, she asked if he had any weapons. Defendant said “no.”6
Officer Rodriguez testified that because of the high-crime area_for officer safety_
she asked if she could check for weapons and Defendant agreed to be patted down.7
Defendant was directed to the police vehicle, where his hands were placed on top of
the car and he was asked to spread his feet apart.8 Defendant was searched and a
firearm was found along with marijuana.9 A video captured the incident.10 No crime
was processed or prosecuted related to the incident with the store.ll

Defendant is charged with Possession of a Deadly Weapon while Possessing
a Controlled Substance, Possession of a Firearm and Ammunition by a Person
Prohibited, Possession of a Firearm by a Person Prohibited, Possession of Marijuana,
and Carrying a Concealed Deadly Weapon. On May 22, 2018, Defendant moved to
suppress the evidence and argues that the state action by the officers amounted to an
illegal seizure in violation his constitutional rights. A suppression hearing was held
on August 30, 2018. Thereafter, Defendant submitted additional authority for the
Court’s consideration

The Court made a follow-up inquiry on September 12, 2018. Both the State
and Defendant responded to the Court by October 2, 2018. Although neither side
addressed the issue of whether there was actual probable cause to arrest, this Court
asked counsel to take a position regarding whether the officers had probable cause
to believe that Defendant had committed the crime of Criminal Trespass in the Third
Degree. The State responded in the affirmative that there was sufficient probable
cause; Defendant maintained there was neither probable cause nor reasonable
grounds to believe that a crime had been committed, but concedes that there was at

 

3 State’s Resp. at 1.

4 Ia'.

5 Id.

6 la'.

7 Id.

8 State’s Resp. at 1.

9 Ia'.

IOId

ll Def.’s Mot. to Suppress Evidence 11 2.

least a reasonable suspicion standard that would permit a stop and invoke 11 Del. C.
§ 1902.12 Having considered the supplemental positions of both sides, the matter is
ripe for consideration

Discussion

Under Delaware law, Criminal Trespass in the Third Degree occurs when “the
person knowingly enters or remains unlawfully upon real property.”'3 Although not
initially before the Court, I highlight that at least objectively, it appears that the
officers’ eyewitness observations establish sufficient probable cause to believe that
Defendant had committed the offense of Criminal Trespass Third Degree.
Alternatively, as the issue initially presented to this Court was not one of probable
cause, this Court finds the search of Defendant was conducted pursuant to valid
consent.

First, Officer Rodriguez testified that she and her partner observed Defendant
enter the store only to be immediately and forcibly escorted out by the store’s owner,
an individual they knew by name who was requesting police involvement and
assistance. They also knew him as the owner of the property who was seeking to
have Defendant removed from the store. The owner also established that Defendant
was not allowed to be on the property, having been banned for past criminal conduct
(i.e., shoplifting or theft). On these facts, it appears there was sufficient probable
cause to believe Defendant had committed the offense of Criminal Trespass Third
Degree, and the arrest was valid. The police action thereafter was a search incident
to the arrest, and the firearm was properly seized as inevitable discovery. Accepting
Defendant’s argument that there was no probable cause, his core argument that he
was illegally seized is without merit.

Under the United States Constitution and the Delaware Constitution, persons
have the right to be secure from unreasonable searches and seizures.14 Further, the
Delaware Constitution states that “no warrant to search any place, or to seize any
person or thing, shall issue without describing them as particularly as may be; nor
then, unless there be probable cause supported by oath or affirmation.”'5 “Searches
and seizures are per se unconstitutional, in the absence of exigent circumstances,

 

12 See Def.’s Suppl. Br. at 1 (Oct. 2, 2018).
1311De1.c §821.

'4 U.S. CoNsT. amend. IV; DEL. CoNsT. art. I, § 6.
‘5 DEL. CoNsT. art. I, § 6.

unless authorized by a warrant supported by probable cause.16 One exception to the
warrant requirement is valid consent to a search.17 The State argues there was a valid
consent here. Valid consent to a search must be freely and voluntarily given.18
Further, the State has the burden of proving that consent was “freely and voluntarily
given.”19 The Court determines whether consent was voluntary by examining the
totality of the circumstances20 A seizure occurs when “a reasonable person would
have believed that he was not free to leave.”21 Under Delaware law, an officer is
“permitted to initiate contact with citizens on the street for the purpose of asking
questions.”22 When determining whether there was a stop, a factor to consider is
“whether a police officer has engaged in ‘conduct that would communicate to a
reasonable person that he or she was not free to ignore the police presence.”’23

Here, the Court considered the versions offered by both Officer Rodriguez
and Defendant regarding their exchange, and reviewed the video entered into
evidence. Although Defendant testified somewhat inconsistently that he recalled
varied versions of the event, the video captures a very brief exchange consistent with
the version offered by Officer Rodriguez. The police conduct in this case was
appropriate under the totality of the circumstances and there is no indication that she
demonstrated a show of force nor was Defendant illegally detained to rise to the
level of a seizure. This Court finds that the State has met its burden of proving that
Defendant freely and voluntarily provided consent for the search and that both the
search and seizure were therefore valid. For the reasons stated, Defendant’s Motion
to Suppress is DENIED.

IT IS SO ORDERED.

 

/
/

   

 

16 Hannah v. State, 591 A.2d 158, 162 (Del. 1991) (citing State v. Poli,
1978); Schramm v. State, 366 A.2d 1185, 1189 (Del. 1976)).
17 Schnecklolh v. Buslamonte, 412 U.S. 218, 222 (1973); Cooke v. Sm '
2009).

18 Schneckloth, 412 U.S. at 222.

19 Id. (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)).
20 Cooke, 977 A.2d at 855 (citing schneckloth 412 U.s. at 226).

21 Jones v. State, 745 A.2d 856, 862 (Del. 1999) (quoting INS v. Delgaa'o, 466 U.S. 210 (1984)).
22 Lopez-Vazquez v. State, 956 A.2d 1280, 1286 n. 5 (Del. 2008) (quoting Woody v. State, 765
A.2d 1257, 1263 n. 3 (Del. 2001)).

23 Id. at 1286 n. 6 (quoting State v. Rolll'ns, 922 A.2d 379, 383 (Del. 2007)).

4

oc: Prothonotary
cc: Defendant
Office of Investigative Services

