IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

V. § I.D.: 1710007866
ANDRE MURRAY, §
Defendant. §

Decided: April 2, 2018
Submitted: March 29, 2018

MEMORANDUM OPINION

Upon Consz'deration of Defena'ant ’s Motion to Suppress.
GRANTED.

Erika R. Flaschner, Esquire, DEPARTMENT OF JUSTICE, Wilmington,
Delaware. Attorney for the State.

Ross A. Flockerzie, Esquire, OFFICE OF DEFENSE SERVICES, Wilmington,
Delaware. Attorney for the Defendant.

BUTLER, J.

This is a pedestrian Stop resulting in the seizure of a handgun. The defendant
has moved to suppress the handgun. The Court will grant the motion with the
following findings and observations

EA_~QF_S

In the late evening hours of October 13, 2017, four members of the
Wilmington Safe Streets squad were on “proactive patrol” in a Single unmarked
vehicle. They were northbound on South Franklin Street and stopped at a stop sign
at the corner of South Franklin and Chestnut Street-a neighborhood described by
the officer as a “high crime” neighborhood.

While so Stopped at said stop sign, Officer Rosaio, who was the driver and
sole witness for the State, saw two men walking towards them, southbound on the
sidewalk of South Franklin Street, headed toward the intersection with Chestnut
Street. Officer Rosaio told the Court that one of the two men was swinging his left
arm naturally but holding his right arm close to his body which behavior, the officer
testified from his “training and experience,” was consistent with an armed gunman.
We will have more to say about this momentarily. But there is very little left to the
story so let us finish first.

As the two continued toward them, Officer Rosaio suspected the “one arm
swinging man” was armed. Officer Rosaio waited, watching_ for “6 to 7 seconds.”

He testified that as they got closer, the defendant appeared to notice them and he

took a “stutter step” as he was reaching the curb. He then slowed his gate. Officer
Rosaio opened the driver’s side door and the defendant appeared to move behind his
walking partner, but made no sudden move and was still plainly visible to Officer
Rosaio, who was only about five feet away. The defendant did, however, turn his
body somewhat, a behavior Officer Rosaio characterized as “blading,” a move he
testified, from his training and experience, was another characteristic of an armed
gunman.

Convinced the defendant was armed, Officer Rosaio drew his revolver and
told the defendant not to move his hands towards his waist. EXactly how it all went
from there is unclear, but we know that the defendant was taken to the ground and
when he was rolled over, a firearm was indeed recovered from his right side.

ANALYSIS

A. Facts vs. Hunches

To be sure, there was perhaps a moment, as the officer was exiting his vehicle
and before he drew his service revolver, where this was a “Terrjy” stop, requiring
reasonable articulable suspicion that criminal activity is afoot and the subject is
armed and dangerous1 But upon seeing the defendant turn his body, and before any

“real” contact was made, the officer candidly testified that he was convinced the

 

1Terry v. Ohio, 392 U.S. l, 30 (1968).

defendant was indeed armed and may be reaching for his pistol and thus, an arrest
was effectuated which, as we all know, must be preceded by probable cause to
believe a crime is being committed and the suspect committed it.

Alas, neither side parsed its arguments so neatly into “reasonable articulable
suspicion” or “probable cause.” The defense takes the position that the officer had
neither, at any time, while the State argues that deference is owed to the skills and
training of the officer who determined the existence of either or both.

From the record, there is no “tell-tale bulge,” no “furtive movement,” no flight
or abandonment, no informant tip, corroborated or otherwise, no “hand-to-hand”
gestures. The State argues that none of this is needed because of the officer’s
training in “armed gunman” profiling. Indeed, he now trains others in this “science.”
Based upon his training and his experience_which while we assume is real but for
which there is no further record_We are essentially told to “trust me.”

There are many articulations of the standards the State must meet in sustaining
its burden of proving the lawfulness of a stop. Justice Ridgely engaged the subject
at some length in Lopez- Vazquez v. State. While the Court Will dispense with a

longer quote, it is worth reading. Most significantly, he said, “we think it impossible

for a combination of wholly innocent factors to combine into a suspicious
conglomeration unless there are concrete reasons for such an interpretation.”?'

This is not an isolated refrain. Terry itself said, “in determining whether the
officer acted reasonably in such circumstances, due weight must be given, not to his
inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his experience.”3

Thus, it cannot be, as the State urges, that the Courts are required to simply
“trust” the training and experience of a police officer to make findings as to the
appropriate balance between individual liberties and legitimate law enforcement
The logical ends of the State’s argument would effectively vitiate judicial oversight
of law enforcement’s behavior towards citizens. Any officer could justify any stop,
interrogation or detention on grounds that his “training and experience” led him to
reasonably believe the subject is engaging in criminal conduct, leaving the judiciary

with little to do but trust the officer’s training and experience and sanction the

intrusion. Thankfully, that is not the law. Subjective impressions or hunches are

 

2 Lopez-Vazquez v. State, 956 A.2d 1280, 1288 (Del. 2008) (citing Karnes v. Skrutski, 62 F.3d
485, 496 (3d Cir. 1995), distinguished on other grounds by Curley v. Klem, 499 F.3d 199 (3d
Cir. 2007)).

3 Terry, 392 U.S. at 27.

insufficient4 The officer must be able to point to objective facts which, taken
together with reasonable inferences, justify the government intrusion into the

citizen’s right to move about freely.

B. The Armed Gunman Testimony

Here, the State relies almost exclusively on two objective facts: 1) the
defendant’S swinging of one arm while holding the other close to his side and 2) his
“blading” or moving his body sideways when he and his walking partner stopped.
The other factors include the high crime neighborhood, the apparent “stutter step”
and his “looking around” as the officer was getting out of the car. These latter factors
are, however, essentially chaff, thrown off by the essential facts that the officer
advises his training and experience teach that the defendant was carrying a concealed
weapon.

Does walking while swinging one arm and holding the other close to one’s
body appear suspicious? Probably not to the lay observer, but we are told that in the

eyes of one trained to look for “armed gunmen,” it is indeed indicative of just that.

 

4 Woody v. State, 765 A.2d 1257, 1263 (Del. 2001) (citing United States v. Sokolow, 490 U.S. 1,
7 (1989)). See also Quarles v. State, 696 A.2d 1334, 1340 (Del. 1997) (Veasey, C.J. dissenting)
(explaining that “[h]unches and subjective impressions of experienced police officers will not
suffice” for reasonable suspicion).

6

What we are not told, however, is the basis for this belief. The record is bereft
of any scientific support for the proposition. What percentage of armed gunmen
walk swinging one arm but not the other? What percentage of citizens who walk
swinging one arm but not the other are armed gunmen? How, if at all, do these
percentages change based upon the time of day or the fact that it is a high crime
neighborhood? Similarly, in a police encounter with a citizen, what percentage of
the citizens turn their bodies away from the policeman? And of those that do, what
percentage are hiding something? And of those that are hiding something, what
percentage of them are hiding firearms?

The Court recognizes that the rules of evidence do not apply to “preliminary
question[s] of fact governing admissibility”,5 but is nonetheless constrained to note
that the “armed gunman” testimony in which we are asked to have faith is certainly
not a “lay opinion” under D.R.E. 701 as it is professed to be based on “scientific,
technical, or other specialized knowledge” and therefore, it is within the scope of
D.R.E. 702. In order to qualify for admissibility under Rule 702, however, such
testimony would necessarily be “based on sufficient facts or data” and “the product

of reliable principles and methods” that have been “reliably applied” to the facts.6

 

5D.R.E. 1101(b)(1).
6 D.R.E. 702.

None of these criteria have been met here. While the officer had some sort of
“training,” it cannot be said to have qualified as “science”_junk or otherwise. On
this record, the Court cannot assign it the weight it was obviously accorded by the
officer on the night in question.

CONCLUSION

One supposes there is always a temptation to engage in post hoc reasoning
that, since an officer’s hunch turned out to be correct, we should accord it a wide
path and backfill the logic leading to the capture of the weapon. We decline to do
so in this case. The Court certainly understands the challenges facing police officers
engaged in the “often competitive enterprise of ferreting out crime.”7 But we are
bound to adhere to the greater value that under our Constitution, citizens are entitled
to be free from government intrusion except when the government can articulate a
clear, objective basis upon which to believe the intrusion is justified. The handgun

seized as a result of the stop/arrest of the defendant will be suppressed

Judge Charles E. BuM \)

IT IS SO ORDERED.

 

7 Joh)"zson v. Um`ted States, 333 U.S. 10, 14 (1948).
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