             IN THE SUPREME COURT OF THE STATE OF DELAWARE

ANTHONY CALM,                                      §
                                                   §    No. 577, 2018
          Defendants Below,                        §
          Appellant,                               §    Court Below: Superior Court
                                                   §    of the State of Delaware
                 v.                                §
                                                   §    C.A. No. N1712007183
STATE OF DELAWARE                                  §
                                                   §
          Plaintiff Below,                         §
          Appellee.                                §


                                 Submitted: December 11, 2019
                                 Decided:   February 26, 2020


Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, Justices; and
MCCORMICK, Vice Chancellor,* constituting the Court en Banc.

Upon appeal from the Superior Court of the State of Delaware. AFFIRMED IN
PART, REVERSED IN PART.

Santino Ceccotti, Esquire, Office of the Public Defender, Wilmington, Delaware,
Counsel for Appellant.
Andrew J. Vella, Esquire, Department of Justice, Wilmington, Delaware (argued)
and Abby L. Adams, Esquire Department of Justice, Georgetown, Delaware,
Counsel for Appellee.




*
    Sitting by designation under Del. Const. art. IV, § 12.
TRAYNOR, Justice, for the Majority:

       Anthony Calm was convicted in the Superior Court of several weapons

charges and resisting arrest.1 His sole argument on appeal is that the Superior Court

erred in denying his motion to suppress the evidence—a firearm and ammunition—

that the arresting officer found on Calm during a stop of a motor vehicle in which

Calm was the passenger. Pat-down searches must be justified by a “reasonable

articulable suspicion that the detainee is armed and presently dangerous.”2 The

Superior Court did not apply this standard. Instead, it concluded that the mere

removal of Calm from the vehicle for the purpose of conducting a consent search of

the vehicle justified the pat-down of his person. What is more, the court’s other

findings indicate that, had it applied the correct standard, the court would have found

the State’s proof lacking and granted the motion to suppress. We therefore reverse

Calm’s convictions for possession of a firearm by a person prohibited, possession of

ammunition by a person prohibited, and carrying a concealed deadly weapon.

Because the evidence seized from Calm was not relevant to the resisting-arrest

charge, we affirm that conviction.




1
  App. to Answering Br. at B22. The State dismissed the additional charge of possession of a
weapon with a removed, obliterated or altered serial number. Id. at B9.
2
  Cropper v. State, 123 A.3d 940, 945 (quoting State v. Henderson, 892 A.2d 1061, 1065 (Del.
2006), which, in turn, cites Terry v. Ohio, 392 U.S. 1, 27 (1968)).

                                             2
                                     I. FACTS

       In December 2017, Corporals Timothy O’Connor and Aaron Metzner

observed a vehicle with illegally tinted windows going 35 miles per hour in a 25

mile-per-hour zone.3 At the time, the officers were working in the “disrupt” unit of

the Wilmington Police Department, the purpose of which was to “seek out high-risk

offenders and . . . reduce guns on the street.”4 The officers followed the vehicle for

several blocks before conducting a traffic stop.5 While Corporal Metzner spoke with

the driver, Corporal O’Connor addressed Calm, who was in the front passenger seat.6

When Corporal O’Connor asked Calm for his identification, Calm asked why that

was necessary.7      Although Calm provided his identification after asking this

question, Corporal O’Connor interpreted the question to be a “small red flag.”8

During their conversation, Calm also did not make eye contact with Corporal

O’Connor and instead looked “straight ahead,”9 an action that Corporal O’Connor

took to be a “second minor red flag.”10




3
  App. to Opening Br. at A20.
4
  Id. at A17.
5
  Id. at A20.
6
  Id.
7
  Id. at A21.
8
  Id. at A22.
9
  Id.
10
   Id. at A23.

                                          3
        After the initial conversation, the officers returned to their patrol car and found

that the driver was on Level III probation. Calm, however, was neither on probation

nor did he have any active capiases or warrants.11 The officers returned to the

detained vehicle, and Corporal Metzner asked the driver if there were any weapons

in the car.12 The driver said that there were none and consented to a search of the

vehicle.13

        After the driver consented to the search, Calm immediately opened the

passenger door and stuck one leg out of the car.14 Although Corporal O’Connor did

not describe Calm’s movements with particularity, he believed that Calm was

attempting to flee, so he promptly blocked the door, and Calm remained in the car.15

After that, according to Corporal O’Connor, Calm moved excessively in his seat,

fidgeted around, checked his pockets, and appeared “extremely nervous.”16

O’Connor testified that those behaviors, combined with his belief that Calm’s

opening of the door was the beginning of an attempt to flee, caused him to believe

that Calm possessed some sort of contraband or possibly a firearm.17 At that point,




11
   Id.
12
   Id. at A24.
13
   Id.
14
   Id.
15
   Id.
16
   Id. at A27.
17
   Id. at A25.

                                             4
Corporal O’Connor decided that he was going to remove Calm from the vehicle and

pat him down.18

       The officers removed the driver from the car first. Corporal Metzner patted

the driver down and found nothing.19 The officers then removed Calm from the car,

with Corporal O’Connor immediately instructing him to place his hands on the top

of the car while holding on to Calm “at his waistband area.”20 Corporal O’Connor

then asked Calm “if he had any weapons on him,” to which Calm “hesitated for like

a brief second” before saying no.21 Corporal O’Connor explained how this “brief

second” hesitation—a “final red flag,” in his words—aroused his suspicion that Calm

was armed:

       So that to me was like a final red flag because someone that’s not in
       possession of a weapon is pretty confident if their answer, no, I don’t
       have any weapons on me. It’s a pretty easy answer. So the fact that he
       hesitated just a second or so when I asked that question, again, really at
       that point made me feel as though he could be in possession of a
       firearm.22

       Then Calm took his hand off the top of the vehicle and moved it toward the

left side of his body.23 Corporal O’Connor immediately grabbed Calm’s hand and




18
   Id. at A27.
19
   Id. at A26.
20
   Id. at A28–29.
21
   Id.
22
   Id. at A29 (emphasis added).
23
   Id.

                                           5
placed it back on top of the car, but as soon as Corporal O’Connor let go of Calm’s

hand, Calm shoved away from the car, spun, and attempted to run away.24 Calm

managed three to four steps before Corporal O’Connor, who still had a hand on

Calm’s belt area, regained his footing and brought Calm “to the ground.”25 Corporal

O’Connor then immediately asked Calm what he had on him, to which Calm

responded that he had a gun.26 Corporal O’Connor retrieved the gun, which was

located on the left side of Calm’s waistband.27

      A grand jury indicted Calm on charges of possession of a firearm by a person

prohibited, possession of ammunition by a person prohibited, carrying a concealed

deadly weapon, resisting arrest, and possession of a weapon with an obliterated or

altered serial number.28 The State dismissed the last charge at trial.29 Calm moved

to suppress the evidence of the firearm and ammunition found on his person during

the pat-down, claiming that, at the time Corporal O’Connor initiated that pat-down

search, he did not have the required suspicion that Calm was armed and dangerous

that would justify the search.30 After hearing Corporal O’Connor’s testimony and



24
   Id.
25
   Id. at A30.
26
   Id. at A31.
27
   Id.
28
    Id. at A6–8.
29
   App. to Answering Br. at B9.
30
   App. to Opening Br. at A42. The Superior Court denied Calm’s motion to suppress after an
evidentiary hearing at which O’Connor testified.

                                            6
the argument of counsel, the court denied the motion, and the jury found Calm guilty

of the remaining charges.31 The Superior Court sentenced Calm to a total of 5 years

of unsuspended Level V imprisonment followed by various levels of probation. 32

Calm appeals his conviction, arguing that the Superior Court erred in denying his

motion to suppress the evidence of the firearm and ammunition.

                                    III. ANALYSIS

       “We review the trial court’s refusal to grant the motion to suppress evidence

under an abuse of discretion standard.”33 In determining whether the trial court

abused its discretion in making factual findings, we ask whether there was sufficient

evidence to support the findings, and whether those findings were clearly

erroneous.34 Legal conclusions are reviewed de novo.35

       Here, there is no dispute that O’Connor and his partner made a legal traffic

stop, given that the vehicle in question was speeding and had tinted windows without

the required waiver.36 “A police officer who observes a traffic violation has probable

cause to stop the vehicle and its driver.”37 Nor is there any dispute that O’Connor


31
   App. to Answering Br. at B22.
32
   Id. at B28–29.
33
   West v. State, 143 A.3d 712, 715 (Del. 2016).
34
   Id.
35
   Lopez-Vazquez v. State, 956 A.2d 1280, 1284–85 (Del. 2008).
36
   Howard v. State, 931 A.2d 437 (TABLE), 2007 WL 2310001, at *2 (Del. 2007) (“Traffic stops
must be supported by reasonable suspicion of criminal activity. Violation of traffic laws
constitutes reasonable suspicion.”).
37
   Holden v. State, 23 A.3d 843, 847 (Del. 2011).

                                             7
and his partner could remove Calm and the driver from the vehicle after the driver

consented to a search of the vehicle.38 “During a lawful traffic stop, a police officer

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

the traffic stop.”39 The only dispute is whether, after the driver’s consent was given,

Corporal O’Connor was justified in initiating a search of Calm’s person immediately

upon Calm’s exit of the vehicle.40

       An “officer’s purpose in an ordinary traffic stop is to enforce the laws of the

roadway, and ordinarily to investigate the manner of driving with the intent to issue

a citation or warning.”41 Thus, “[a] police officer may not conduct a pat down search

of a person during a traffic stop unless the officer [also] has reasonable suspicion

that the person subject to the frisk is armed and dangerous.”42 In this area, our law

strives to balance two vitally important interests—officer safety and the right of the




38
   See Caldwell v. State, 780 A.2d 1037, 1047 (Del. 2001) (“Once the officer has issued a citation
or warning and has run routine computer checks, the vehicle must be released unless the driver
voluntarily consents to further questioning or the officer uncovers facts that independently warrant
additional investigation.” (emphasis added) (citing Ferris v. State, 735 A.2d 491, 498–99 (Md.
1999))).
39
   Id.
40
   Terry, 392 U.S. at 21 (“[I]n justifying the particular intrusion[,] the police officer must be able
to point to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes
meaningful only when it is assured that at some point the conduct of those charged with enforcing
the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the
reasonableness of a particular search or seizure in light of the particular circumstances.”).
41
   Ferris, 735 A.2d at 499.
42
   Holden, 23 A.3d at 847.

                                                  8
people to “be secure in their persons . . . from unreasonable searches and seizures.”43

To that end, Terry v. Ohio and its progeny recognize that when the police officer can

articulate facts that cause her reasonably to suspect that a citizen is armed, a pat-

down search is reasonable and therefore permitted in the interest of protecting the

officer’s safety.44 “In determining whether reasonable articulable suspicion exists,

we must examine the totality of the circumstances surrounding the situation as

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.”45

       During the suppression hearing, Corporal O’Connor testified to four “red

flags” that gave rise to his suspicion that Calm was armed and dangerous: (1) Calm’s

inquiry into why O’Connor needed his identification,46 (2) Calm’s failure to make

eye contact while O’Connor questioned him,47 (3) Calm’s attempt to leave the car

after the driver gave his consent for the car to be searched,48 and (4) Calm’s excessive

movements, fidgeting, checking of his pockets, and overall “extremely nervous”



43
   U.S. CONST. amend. IV; DEL. CONST. art I, §6.
44
   Terry, 392 U.S. at 21 (In order to have “reasonable suspicion,” “the police officer must be able
to point to specific and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant” the frisking.”).
45
   Holden, 23 A.3d at 847.
46
   App. to Opening Br. at A21–22.
47
   Id. at A22–23.
48
   Id. at A24–25.

                                                 9
demeanor.49 He also testified to a “final red flag”—Calm’s “brief second” hesitation

before denying that he was armed—but that occurred after O’Connor had initiated

the pat-down.50

       The Superior Court “[did not] believe [that those initial four factors], in and

of [themselves,] . . . would have justified the moving of the defendant and patting

him down.”51 That conclusion should have caused the Superior Court to grant the

motion to suppress. The court, however, then concluded that “[o]nce [the police

officers] remove [the driver and passenger] from the vehicle, they have the right to

pat down those individuals for their own protection.”52 That legal conclusion caused

the court to find sufficient reasonable and articulable suspicion for the pat-down.

But that legal conclusion is incorrect; consent to search the vehicle does not provide

consent to search the individual passengers’ persons.53 To conduct such a search

requires consent or reasonable and articulable suspicion sufficient to justify the

search.54 The Superior Court’s conclusion that “[t]he consent is the key that allowed




49
   Id. at A27.
50
   Id.
51
   Id. at A42.
52
   Id. at A41.
53
   Holden, 23 A.3d at 847 (“During a lawful traffic stop, a police officer may order both the driver
and passengers out of the vehicle pending completion of the traffic stop. . . . A police officer may
not conduct a pat down search of a person during a traffic stop unless the officer has reasonable
suspicion that the person subject to the frisk is armed and dangerous.” (emphasis added)).
54
   Id.; Terry, 392 U.S. at 21.

                                                10
[the police officers] to remove the defendants” and “[o]nce that happened, . . . to

conduct the pat down for their own safety”55 is thus legal error and requires reversal.

       As to the factual findings, however, the Superior Court did not abuse its

discretion in finding that Corporal O’Connor lacked a reasonable and articulable

suspicion that Calm was armed and dangerous when Corporal O’Connor decided

that he would subject Calm to a pat-down. Corporal O’Connor testified that he

decided to pat-down Calm after blocking Calm’s attempt to exit the car but before

removing him from the car—i.e., before the final red flag occurred.56 And, in any

event, the final red flag occurred after the frisk had begun. A police officer may not

rely on a suspect’s reaction to a search to justify the search itself. As we held in

Jones v. State, when “an officer attempts to seize someone before possessing

reasonable and articulable suspicion, that person’s actions stemming from the

attempted seizure may not be used to manufacture the suspicion the police lacked

initially.”57 The “final red flag,” therefore, can have no bearing on the analysis of

whether, at the time Corporal O’Connor decided to conduct a pat-down, he had a

reasonable and articulable suspicion that Calm was armed and dangerous.

       Although an officer need not presume innocent explanations of otherwise

suspicious conduct, Corporal O’Connor himself testified that what really caused him


55
   App. to Opening Br. at A42.
56
   Id. at A27.
57
   Jones v. State, 745 A.2d 856, 874 (Del. 1999).
                                               11
to suspect that Calm was armed was this “final red flag,” which occurred after

Corporal O’Connor commenced the pat-down. In particular, Corporal O’Connor

acknowledged that it was only after Calm had placed his hands on the top of the

vehicle at O’Connor’s direction while he held on to Calm’s waistband that he “really

. . . [felt] as though [Calm] could be in possession of a firearm.”58 It was within the

trial court’s discretion to credit this testimony and find that Corporal O’Connor did

not have a reasonable and articulable suspicion that Calm was armed until that final

red flag occurred.

       Further, the “reasonable suspicion” test is an objective standard, and the trial

judge was free to consider whether a reasonable officer would have believed Calm

was armed.59 Here, there is sufficient evidence to find that a reasonable officer

would not have had a reasonable and articulable belief that Calm was armed before

getting Calm out of the vehicle. For example, a passenger may very well inquire

why police officers need his identification for a routine speeding traffic stop given

that he was not the one speeding; it is normal to be nervous when stopped by police

officers; and it is not unreasonable for a passenger to believe he must exit the car

when the driver gives consent to a search of the car.60 Hence, the trial judge’s


58
   App. to Opening Br. at A29.
59
   Terry, 392 U.S. at 21–22.
60
   This is not to say that Corporal O’Connor was required to credit these innocent explanations,
only that we may consider them as we assess the reasonableness of the trial court’s factual findings.

                                                12
determination that Corporal O’Connor’s four “red flags” alone did not “reasonably

warrant” a pat-down is supported by sufficient evidence and is entitled to deference

on appeal.61

                                      IV. CONCLUSION

          The Superior Court’s legal conclusion that the officers could pat-down Calm

merely by virtue of getting him out of the car is incorrect. And the Superior Court

found that Corporal O’Connor did not have a reasonable articulable suspicion that

Calm was armed based only on the four “red flags” that occurred before Calm was

removed from the vehicle. That finding is entitled to deference and is sufficiently

supported by the evidence. It follows that the evidence seized as a result of the pat-

down—the firearm and ammunition—must be suppressed, because the pat-down

was not justified at the time Corporal O’Connor initiated it. In the absence of that

evidence, Calm’s convictions for possession of a firearm by a person prohibited,

possession of ammunition by a person prohibited, and carrying a concealed deadly

weapon cannot stand. Calm’s conviction for resisting arrest, however, is unaffected.

We therefore reverse the Superior Court’s judgments of conviction under Counts I

(possession of a firearm by a person prohibited), II (possession of ammunition by a

person prohibited), and III (carrying a concealed deadly weapon) of the indictment,




61
     Terry, 392 U.S. at 21; App. to Opening Br. at A42.
                                                 13
and affirm the judgment of conviction under Count V (resisting arrest) of the

indictment.




                                     14
VAUGHN, Justice, concurring in part and dissenting in part;

       The Superior Court denied the motion to suppress on the theory that the

driver’s consent to a search of the vehicle allowed the officers to remove the driver

and Calm from the vehicle and pat them both down for officer safety. The following

excerpt from the transcript is the judge’s ruling:

               If the driver had said no, this would have been a much
               more difficult case because I’m not sure they had
               justification to pursue anything further at that time. But
               he did say yes. They searched and they had the right at
               that point in time to remove both the driver and the
               passenger from the vehicle. Once they remove them from
               the vehicle, they have the right to pat down those
               individuals for their own protection. And the pat down
               resulted in firearm being found in the defendant’s
               waistband. And there is no basis to suppress that evidence
               since it was done in a legal pat down for officer safety, as
               a result of a valid motor vehicle stop and a consent to
               search a vehicle.62

I agree that a driver’s consent to a search of a vehicle does not, in and of itself, provide

legal justification for a pat-down of a passenger. “A pat-down requires reasonable

articulable facts for concern about officer safety that are specific to the person

frisked.”63 Accordingly, I agree that Calm’s convictions of possession of a firearm




62
  App. to Opening Br. at A41:10—A42:1.
63
  Cropper v. State, 123 A.3d 940, 946 (Del. 2015) (citing Ybarra v. Illinois, 444 U.S. 85, 94
(1979)).
                                               15
by a person prohibited, possession of ammunition by a person prohibited, and

carrying a concealed deadly weapon must be reversed.

       However, I would not take the additional step of continuing to review the case

to decide whether Calm’s specific personal conduct justified a pat-down. While this

Court reviews a trial court’s determination that the totality-of-the-circumstance did

(or did not) give rise to reasonable, articulable suspicion to frisk a person de novo,64

it appears to me that the Superior Court did not base its ruling on Calm’s specific

personal conduct and the attendant circumstances. It left the issue of whether the

totality-of-the-circumstances justified a pat-down unresolved. In other words, the

court did not expressly determine whether Calm’s specific conduct and the attendant

circumstances created a reasonable and articulable suspicion for concern about

officer safety. As a general rule, I would not decide an issue upon which the trial

court did not expressly rule unless the interests of justice required otherwise.

       What the judge did say about the circumstances giving rise to the pat-down

was that:

              the other factors testified by the officers as to the suspicion
              certainly provided some further justification for the
              conducting of the pat down, but I don’t believe, in and of
              itself it would have justified the moving of the defendant
              and patting him down. The consent is the key that allowed

64
   E.g., State v. Henderson, 892 A.2d 1061, 1064 (Del. 2006) (en banc) (“The trial judge’s
determination of whether the police possessed reasonable articulable suspicion to stop and frisk
[the defendant] and then seize [contraband] found is a mixed question of law and fact that this
Court reviews de novo.”) (citing Jones v. State, 745 A.2d 856, 860 (Del. 1999) (en banc)).
                                              16
                 them to remove the defendants. And once that happened,
                 the defendant’s conduct not only – not only were they
                 allowed to conduct the pat down for their own safety, but
                 the defendant’s reaction to being removed from the
                 vehicle and being patted down provided the officers with
                 further justification.65

         The foregoing comments about Calm’s conduct are not part of the judge’s

ruling that the driver’s consent to a search of the vehicle gave the officers grounds

for the pat-down. In my view they are dicta in a bench ruling and stop short of an

express determination by the trial court that the totality of Calm’s specific conduct,

including his conduct outside as well as inside the vehicle, and the attendant

circumstances, did or did not create a reasonable and articulable concern for officer

safety. I would remand this case to the Superior Court for further proceedings there,

to include findings of fact and a ruling on Calm’s motion to suppress applying the

correct legal standard.




65
     App. to Opening Br. at A42:2-13.
                                            17
