IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARKEEVIS MCDOUGAL, §
§ No. 66, 2015
Defendant Below- §
Appellant, § Court Below: Superior Court
§ of the State of Delaware in and
v. § for New Castle County
§
STATE OF DELAWARE, § No. 1311013513
§
Plaintiff Below- §
Appellee. §

Submitted: October 21, 2015
Decided: November 16, 2015

Before STRINE, Chief Justice, HOLLAND, and VAUGHN, Justices.
0 R D E R

On this 16th day of November 2015, it appears to the Court that:

(1) Defendant-Below/Appellant Markeevis McDougal (“McDougal”) appeals
from 3 Superior Courtjury verdict ﬁnding him guilty of Possession of a Firearm by
a Person Prohibited (“PFBPP”),' Possession of Ammunition by a Person Prohibited
(“PABPP”),2 and Carrying a Concealed Deadly Weapon (“CCDW”).3 McDougal
raises one claim on appeal. McDougal contends that the trial court erred when it

denied his motion to suppress certain evidence because the police had conducted an

illegal search of his vehicle. We ﬁnd no merit to McDougal’s appeal and afﬁrm.

(2) On November 20, 2013 at approximately 2 a.m., Wilmington Police
Ofﬁcers Steven Bender and Steven Cancila responded to reports of a domestic
dispute on West 6th Street in Wilmington. While en route, the ofﬁcers were notiﬁed
of shots ﬁred in the same area. As the ofﬁcers turned on to 6th Street, they observed
a small group of women pointing at a silver car and screaming “he hit her.” Due to
this, Ofﬁcer Cancila parked in front of the silver car. As the patrol car was coming
to a stop, McDougal exited the silver car from the front driver side. Ofﬁcer Bender
exited the patrol car and ordered McDougal to put his hands up and come towards
him. McDougal complied with Ofﬁcer Bender’s demands, leaving the door to the
silver car open. Ofﬁcer Cancila spoke with McDougal and then placed him in the
back of the patrol car.

(3) Because the alleged victim of the domestic dispute was still in the silver
car, the ofﬁcers approached the vehicle together. Ofﬁcer Bender approached the
driver side while Ofﬁcer Cancila approached the passenger side. Ofﬁcer Cancila
made contact with a female passenger, Tracy Brown (“Brown”). She was huddled
against the door and crying. As Ofﬁcer Cancila spoke with Brown, Ofﬁcer Bender
looked to see if there were any passengers in the back of the vehicle. Because it was

difﬁcult for him to see into the back seat due to the vehicle’s tinted windows, he

stepped into the “V” area between the open door and the vehicle’s frame. He did not
go inside the vehicle. He observed a silver handgun with brown grips behind the
driver’s seat and signaled to Ofﬁcer Cancila that there was a weapon in the backseat.
Ofﬁcer Cancila then removed Brown from the vehicle. At that point the gun was left

undisturbed in the vehicle.

(4) At this time, Ofﬁcers Kane and Muziol arrived. Ofﬁcer Muziol approached
the group of females that had formed on the sidewalk. One witness, who did not want
to give her name, told Ofﬁcer Muziol that there was a gun in the silver car. Ofﬁcer
Kane also spoke with a witness who said there was a gun in the silver car. Ofﬁcer
Muziol then walked across the street and spoke with Brown. He asked her who
owned the silver car, to which she replied “it’s both of ours.”4 He then asked if she
minded if he searched the car, and she said no. Ofﬁcer Muziol then walked over to
the silver car. At this point the door was closed, although it is unclear who closed it.
Ofﬁcer Muziol opened the door and saw the handgun behind the driver’s seat. Brown
then ran over and stood between the door and the car, attempting to block where the
ofﬁcer had seen the weapon. Brown was removed ﬁ'om the area, and Ofﬁcer Muziol
shut the door to the vehicle and waited for the evidence detection unit to collect the

gun. Ofﬁcers Muziol, Kane, Bender, and Cancila were not able to discuss their

4 Appellant-'5 Op. Br. App. at A22.

observations of the gun until after Ofﬁcer Muziol saw the weapon.

(5) McDougal was arrested and indicted on charges of PFBPP, PABPP, and
CCDW. McDougal filed a motion to suppress any evidence seized as a result of the
search of his vehicle on the basis that Brown did not have the authority to consent to
a search of the vehicle. The trial court denied McDougal’s motion, ﬁnding that the
gun was in plain view. The jury found McDougal guilty on all three counts.

(6) “We review a trial court’s denial of a motion to suppress for abuse of
discretion.”5 “To the extent the claim of error implicates questions of law; however,

the standard of review is de nova.”6

“We review a trial judge’s factual ﬁndings to
determine whether there was sufﬁcient evidence to support the findings and whether
those ﬁndings were clearly erroneous?”

(7) “An individual’s right to be free of unlawful searches and seizures in
Delaware is secured by” the Fourth Amendment to the United States Constitution as

well as Article 1, Section 6 of the Delaware Constitution.8 The plain view doctrine

provides an exception to the Fourth Amendment’s warrant requirement. “A law
enforcement ofﬁcer may seize, without a warrant, contraband that the ofﬁcer observes
in plain view, but only if (1) the ofﬁcer is lawfully in a position to observe the

5 Holden v. State, 23 A.3d 843, 846 (Del. 2011).
6 1d.
7 1d.
8 Jones v. Stale, 745 A.2d 856, 860 (Del. 1999).

4

contraband, (2) the item’s evidentiary value is immediately apparent, and (3) the
ofﬁcer has a lawful right of access to the item.”9

(8) McDougal’s claim is unavailing. First, Ofﬁcer Bender testiﬁed that he
looked in the back to determine if anyone else was in the car, which he was unable
to determine earlier because McDougal chose to exit his car and approach the
ofﬁcers. Officer Bender did not open the door as it was left open by McDougal.
Further, Officer Bender did not cross the threshold of the door frame. Thus, Ofﬁcer
Bender was outside of the vehicle and was lawfully in a position to observe the
contraband.

(9) Second, the evidentiary value was immediately apparent. It is illegal to
carry a concealed deadly weapon without a proper license.10 While a gun may be
easily discoverable through routine police procedures, it may still be considered
“concealed” for purposes of 11 Del. C. § 1442. “[A]n item may be in plain view for
search-and-seizure purposes, though concealed for purposes of the substantive
criminal law.”ll Ofﬁcer Bender testiﬁed that he immediately identiﬁed the object as

a handgun. Thus, the handgun had immediately apparent evidentiary value, relevant

to the offense of CCDW.

9 Hardin v. State, 844 A.2d 982, 985 (Del. 2004).
'0 11 Del. C. § 1442.
” Robertson v. State, 704 A.2d 267, 269 (Del. 1997).

5

(10) The ﬁnal prong is satisﬁed based upon the ﬁrst two prongs. Since Ofﬁcer
Bender was lawfully in a position to observe the handgun and the evidentiary value
of the gun was immediately apparent because it is illegal to conceal a deadly weapon
in Delaware, the warrantless seizure of the gun was proper. Thus, McDougal’s rights
under the Fourth Amendment to the United States Constitution and Article 1, Section
6 of the Constitution of the State of Delaware were not violated, and his motion to
suppress was correctly denied by the Superior Court. The gun was properly seized
based upon Ofﬁcer Bender’s observing the gun in his plain view when he stood in the
“V” between the car door and the car’s frame and looked inside.

( l 1) The parties have not raised consent as an issue in this appeal. Therefore,
we do not discuss it.

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

Court is AFFIRMED.

BY THE COURT:

 

