IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. )
)
ELJAREAU NICHOLS, ) ID NO. 1804012836
Defendant. §
)
)

Date Submitted: November 16, 2018
Date Decided: November 26, 2018

On Defendant Eljareau Nichols’ Motion to Suppress. DENIED.
QR_DE_R

Allison J. Abessinio, Esquire, Deputy Attorney General, 820 N. French Street, 7th
F 100r Wilmington, Delaware 19801. Attorney for the State.

Michael Modica, Esquire, 715 King Street, Wilmington, Delaware 19801.
Attorney for Defendant.

Scott, J.

The issue before the Court is whether officers had reasonable grounds to
suspect Defendant was committing, or had committed the crime of loitering, in order
to conduct a detention under ll Del. C. § 1902 where officers may demand an
individual’s name, address, and business abroad Defendant has filed a Motion to
Suppress evidence seized as part of a Stop by Wilmington Police.

Finding of F acts

On April 20, 20l8 Wilmington Police Officer Corporal Akil and two other
officers were conducting a proactive patrol in an unmarked car in the 900 block of
Vandever Avenue. Corporal Akil regularly responds to service calls in the area with
a high incidence of drug and gun related crimes. At 5:55pm, Corporal Akil noticed
Defendant and two other individuals on the front steps of the residence located at
902 Vandever Avenue. The residence had two “No Loitering” signs displayed Over
one year ago, Corporal Akil had an interaction with a resident of the home, where
the resident expressed concern about persons loitering on the steps of the residence
Corporal Akil was familiar with the three individuals from previous interactions, and

knew none of them lived at the residence

The officers stopped their vehicle and exited in order to issue a warning to the
individuals to move on. As the Officers approached the three individuals they noted
a strong odor of marijuana When questioned one of Defendant’s companions

responded, “we just got done smoking.” Corporal Akil then requested the
2

identifications of the three individuals After receiving their identifications one of
the officers returned to their vehicle to run DELJIS inquiries into the individuals
When the DELJIS inquiry returned nothing on Defendant’s companions they were
released and moved on.

The DELJIS inquiry into Defendant returned an outstanding capias for
Defendant who was wanted in the Court of Common Pleas for Criminal
Impersonation. Based on this information Corporal Akil ordered Defendant to come
down off the steps of the residence to be taken into custody on the warrant.
Defendant immediately attempted to flee, but was stopped and a tussle ensued
between Defendant and one of the officers. During the ensuing struggle, Defendant’s
shirt rose and exposed a firearm tucked into the waistband of his pants. Corporal
Akil removed the firearm from Defendant.

Defendant was initially charged With Loitering, Carrying a Concealed Deadly
Weapon, Resisting Arrest with Force, and Possession of a Firearm by a Person
Prohibited, Possession of Ammunition by a Person Prohibited, and Receiving a
Stolen Firearm. At the preliminary hearing, a resident of the home where Defendant
was found stated Defendant had her permission to sit on the steps of the home while
he waited for his child’s bus to arrive. The charge of loitering was dismissed by the

Court.

Defendant was not in attendance for the suppression hearing, however defense
counsel was present. Under Superior Court Criminal Rule 43 and Smolka v. State',
Defendant’s presence is not required at a suppression hearing Prior to adjouming
the hearing defense counsel indicated the factual record for the motion was
complete, since Defendant’s testimony would have indicated that he had permission
to sit on the steps.

Parties Contentions

Defendant argued the warrantless arrest and search of his person was in
violation of the Fourth and Fourteenth Amendments to the United States
Constitution and Article 1, Section 6 of the Delaware Constitution as well as l 1 Del.
C. §§1902-1904. Defense Counsel conceded if an odor of marijuana was detected
by the officers, then officers were justified in detaining the individuals for the
purpose of further inquiry.

Defendant argued Police lacked a reasonable suspicion he was in violation of
the loitering statute prior to being detained Defendant argues the statute requires an
officer to order an individual to move on, and if the individual fails to do so, only

then may an officer arrest an individual for loitering. Defendant argued there was no

order to move on, and therefore he could not have been arrested for loitering.

 

l Smolka v. State, 147 A.3d 226 (Del. 2015).
4

The State argued the detention of Defendant was lawful and conducted in
accordance with 11 Del. C. § 1902. Accordingly, when officers discovered
Defendant had an outstanding capias, his arrest was valid as was the seizure of the
firearm.

Analysis

Defendant relies on the Supreme Court’s decision in Carter v. State to support
its position that the officers lacked probable cause for the arrest.2 In Carter, at 2:30
in the morning, police observed an individual identified as Carter standing in one
area for approximately fifteen minutes. The officers witnessed several individuals
interact with Carter for short periods of time, but did not see any hand-to-hand
transactions take place. The officers approached Carter and ordered him to move on.
Approximately two hours later, officers observed Carter several blocks away from
where they first encountered him. The officers only observed him for a short period
of time before arresting him for loitering. During the arrest the officers discovered
Carter to be in possession of heroin. Carter was convicted of Possession of Heroin
along with other offenses.

The Supreme Court overruled the conviction holding there was no probable
cause for Carter’s arrest, and the evidence discovered as a result of his arrest should

have been suppressed The Court found that Carter complied with the officers’ order

 

2 Carter v. State, 814 A.2d 443 (Del. 2002).
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when told to move on earlier in the morning. When officers encountered him later,
he was sufficiently removed from the location of the first encounter to be in
compliance with their order. The Court ruled that Officers would have to have given
Carter a second order to move on, and if that order was refused, then the Officers
would have probable cause for the arrest.

The State points to ll Del C. § 1902 and Miller v. State to support their
argument that the officers were justified in detaining Nichols.3 Under Delaware law
“a peace officer may stop any person abroad, or in a public place, who the officer
has reasonable ground to suspect is committing, has committed or is about to commit
a crime, and may demand the person's name, address, business abroad and
destination.”4 In Miller, the Defendant and two other individuals were observed by
Wilmington Police officers sitting on the steps of an unoccupied business building
for approximately 20 minutes. The area was described as known for drug activity
and other criminal conduct. A special “sweep” team was called by the observing
officers to respond to the location. The sweep team arrived in an unmarked van, with
a number of officers dressed in blue tactical vests with “Police” written on the front
and back of the vests. The officers exited the van and ordered Miller to get on the
ground After a pat-down search of Miller and the other individual weapons revealed

no weapons, the officers continued their stop for loitering.

 

3 Miller v. Sm¢e, 922 A.2d 1158 (D@i 2007).
4 11 Dez. C. § 1902 (a).

6

A probation officer asked Miller his name, and whether he was on probation.
Miller replied that he was currently on Level III probation. The officer contacted the
probation monitoring center which confirmed this information. Miller was detained
for a brief period while officers confirmed his address Miller, who had not advised
his probation officer of an address change was found to be in violation of probation
and an administrative search of the new address was conducted

The Court upheld the initial detention of Miller under 1 1 Del. C. § 1902 stating
“a trained police officer, viewing a person sitting on the steps of a vacant building at
night for an extended period of time doing nothing, would have a reasonable and
articulable suspicion that the person was loitering.”5

The facts of this case are more similar to that of Miller. In this case, officers
observed 3 individuals seated on the steps of a residence. The residence had two “no
loitering” sign displayed out front and the arresting officer had previously spoken to
a resident of the home, who informed him of her concern with loiterers and their
refusal to move on after she requested they do so. The officer’s previous engagement
by the resident, the escalated crime rate of the area, and the smell of marijuana gave
them reasonable grounds to stop and identify the individuals, before issuing an order

tO mOV€ OH.

 

5 Miller v. State, 922 A.2d 1158, 1162 (Del. 2007).
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When an inquiry into Defendant’s identity returned an outstanding capias,
officers had probable cause to place Defendant into custody. It was in the process of
arresting Defendant for the outstanding capias where officers encountered the
weapon, not in effecting an arrest for loitering as Defendant claims Defendant is
correct that there was no probable cause to arrest him for loitering. However, this
ignores the outstanding capias and “stop and identify” statute.

Conclusion

When a police officer has reasonable grounds to suspect an individual is
committing a crime, the officer may demand that individual’s name, address, and
business abroad In this case, that information revealed a warrant for the arrest of
Defendant. Defendant was not searched in the course of enforcing the loitering
statute, rather the firearm on his person was discovered in the course of a lawful

arrest.

For the foregoing reasons, Defendant’s Motion to Suppress is DENIED.

IT IS SO ORDERED.

A/////D
y
Judge Calvin L. Scott, Jr.

