STATE OF DELAWARE, Plaintiff Below, Appellant, v. ANDRE MURRAY, Defendant Below, Appellee.
No. 414, 2018
IN THE SUPREME COURT OF THE STATE OF DELAWARE
July 10, 2019
Submitted: April 24, 2019; I.D. No. 1710007866 (N); Court Below: Superior Court of the State of Delaware
Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Martin B. O‘Connor, Esquire (argued), Deputy Attorney General, Wilmington, Delaware, for Appellant, State of Delaware.
Nicole M. Walker, Esquire (argued), Assistant Public Defender, Wilmington, Delaware, for Appellee, Andre Murray.
VAUGHN, Justice,
I. INTRODUCTION
This is an appeal by the State from a Superior Court order that granted Andre Murray‘s motion to suppress evidence in a criminal proceeding. In the late evening hours of October 13, 2017, Wilmington Police Officer Matthew Rosaio was on patrol with other officers when he observed two men walking on a nearby sidewalk. One of the men, Murray, wаs walking with his right arm canted and pinned against the right side of his body, specifically the right front portion of his body. The other man, Lenwood Murray-Stokes, was walking normally. The manner in which Murray was walking made Officer Rosaio suspicious that Murray was carrying a concealed firearm in his waistband on his right side. After watching Murray for about 20 seconds, during which Murray continued to walk in that same manner, Officer Rosaio approached the two men. Murray then began positioning himself behind Murray-Stokes, turning and blading his right side away from the officer. This furthered the officer‘s suspicion that Murray possessed a firearm. The officer began drawing his weapon and instructed Murray to show his hands. Murray appeared to reach for his waistband area. The officer then pointеd his weapon at Murray and instructed him to not reach for his waistband and to get on the ground. Murray complied. The officer then asked Murray whether he had anything in his possession. Murray replied that he had a firearm in his waistband. The officer located the firearm in Murray‘s waistband on his right side and seized it.
II. FACTS AND PROCEDURAL HISTORY
The factual record consists of the unrebutted testimony of Officer Rosaio, the sole witness at the suppression hearing. He testified that on October 13, 2017, at approximately 11:00 p.m., he and three other officers were “conducting proactive mobile patrol” in Wilmington.2 They were traveling northbound on South Franklin Street in an unmarked vehicle when they stopped at a stop sign at the corner of South Franklin and Chestnut Street—a neighborhood described by Officer Rosaio as a “well-known high crime, high drug area,” where he has made numerous gun- and drug-related arrests.3
While stopped at the stop sign, Officer Rosaio saw two men, later determined to be Andre Murray and Lenwood Murray-Stokes, walking on the sidewalk along South Franklin towards their vehicle. Officer Rosaio observed Murray swinging his left arm naturally while holding his right arm close to his body, behavior which he explained was consistent with an armed individual. He “noticed right away . . . that Mr. Murray was walking with his right arm canted and pinned against the right side of his body, specifically the right front portion of his body, which is one of the telltale signs of . . . somebody who is armed with a handgun.”4 This is a sign that someone is armed, he explained, because “[s]ubjects will often carry firearms in their waistband unsecured by any type of holster and in a way that they can control that firearm and adjust it, if need be, as they are walking so it doesn‘t fall down through their pants or so it doesn‘t reveal itself to the public.”5
Officer Rosaio continued to watch him for “about 20 seconds” as the two men continued walking toward the officers’ vehicle.6 As they got closer, Murray appeared to notice the officers and took a “stutter step, where he kind of stopped in his tracks.”7 Continuing to walk forward at a slower pace, “he looked forward and then scanned and looked back.”8 Then Officer Rosaio, who was wearing a vest with “[p]olice”
By then confident that Murray had a handgun on his right side, Officer Rosaio began drawing his service firearm and ordered him to stop and show his hands. At that point, Murray “began reaching for the lower . . . waistband area.”14 In response, Officer Rosaio raised his service revolver, pointed it in Murray‘s direction, and said, “[d]on‘t reach for your waistband. Get on the ground.”15 Murray complied and got on the ground. When asked if he had anything on him, Murray replied, saying “I have a handgun in my waistband.”16 Officer Rosaio then rolled him to his left side, revealing that a handgun was located on the “front right portion of his waistband.”17 Officer Rosaio secured the handgun and placed Murray under arrest.
Officer Rosaio also testified that he has received training on characteristics of armed gunmen at the Wilmington Police Academy and at sessions hosted by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives and the U.S. Department of Justice. These characteristics include “things that people display when they are attempting to conceal firearms from the police and from the public.”18 He also explained that for about the last four years he has taught elements of characteristics of armed gunmen in police academies.
Following the hearing, the Supеrior Court granted the motion in a written opinion, which noted several reasons for its decision. First, the court found that although at some point the encounter was a Terry stop, once Officer Rosaio drew his firearm “an arrest was effectuated,” thus requiring there to have been probable cause to believe that Murray was committing a crime.19 Notwithstanding this finding, and perhaps given the way the parties’ presented their arguments, the court‘s analysis was not clearly tied to either the reasonable, articulable suspicion standard for a Terry stop or the probable cause standard for an arrest.20
The court then discussed, and dismissed, the State‘s argument that the court should give deference to the officer‘s training and experience to determine whether the objective faсts, paired with the officer‘s subjective interpretation of those facts, justified the intrusion. According to the court,
In addition, while the court noted that the rules of evidence do not apply to preliminary questions of fact governing admissibility, it determined that “the ‘armed gunman’ testimony in which we are asked to have faith is certainly not a ‘lay opinion’ under
Following the court‘s grant of Murray‘s motion to suppress, the State moved for reargument, requesting that the court reconsider its ruling. In denying the State‘s motion, the court expanded on its earlier remarks, but its ultimate conclusion remained unchanged.26 Although the court reiterated that the seizure of Murray was an arrest governed by the probable cause standard,27 its anаlysis included references to both the probable cause standard and the lesser reasonable articulable suspicion standard required for an investigatory stop.28
The State argues on appeal that the Superior Court erred by finding that Murray‘s arrest without probable cause occurred when Officer Rosaio drew his firearm, before he located the firearm in Murray‘s waistband. Under the State‘s theory, Murray‘s detention was a Terry stop that did not become an arrest until after the firearm was found. The State also argues that under a Terry-stop analysis, the officer had a reasonable articulable suspicion that Murray was carrying a concealed deadly weapon. Murray opposes both arguments and argues that the Superior Court‘s reasoning and result were correct.
“We review the grant or denial of a motion to suppress for an abuse of discretion.”29 Although “this Court will defer to the factual findings of a Superior Court judge unless those findings are clearly erroneous,”30 “[e]mbedded legal conclusions are reviewed de novo for errors in formulating or applying legal precepts.”31 Accordingly, we review de novo whether the police possessed reasonable, articulable suspicion to stop a person.32
We will first address the State‘s argument that the Superior Court erred by finding that an arrest lacking probable cause occurred before Murray‘s firearm was found in his waistband. Second, we will address whether the stop was justified under the appropriate standard.
A.
There is a difference between an arrest and a Terry stop. “An arrest occurs when a reasonable person in the suspect‘s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.”33 By contrast, a Terry stop or seizure occurs when “under all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he/she was not free to terminate the encounter with the officers.”34 For example, the United States Supreme Court has found that the line between a Terry stop and an arrest is crossed when the police “forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative рurposes.”35
The Superior Court‘s ruling on arrest versus Terry stop is as follows:
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 “Terry” stop, requiring reasonable articulable suspicion that criminal activity is afoot and the subject is armed and dangerous. But upon seeing the defendant turn his body, and before any “real” contact was made, the officer candidly testified that he was convinced the 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.36
Our view is that an arrest did not occur until after the officer found the weapon in Murray‘s waistband. The officer testified that after Murray bladed his body, he was confident that Murray possessed a firearm, but that confidence remained a suspicion until Murray admitted he had a firearm, after which the officer immediately found the firearm on his person. It was only then that Officer Rosaio placed Murray into custody and an arrest occurred, at which point there was clear probable cause to believe that a crime was being committed—carrying a concealed deadly weapon.
In addition, Officer Rosaio‘s actions in drawing his weapon and forcing Murray to the ground at gunpoint did not convert the encounter into an arrest. Although “[a]n unreasonably intrusive stop may constitute a de facto arrest requiring probable cause,” a ”Terry stop does not turn into a full arrest merely because the officers use handcuffs and force the suspect to lie down to prevent flight, so long as the police conduct is reasonable.”37 “During a Terry stop, officers may take measures that are reasonably necessary to protect themselves and maintain the status quo.”38 Specifically, an officer is empowered “to take necessary measures to determine whether [an individual] is in fact carrying a weapon and to neutralize the threat of physical harm” when the officer “is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous.”39
Although Officer Rosaio began drawing his weapon аfter Murray engaged in a blading movement, he testified that it was only after he saw what appeared to be Murray reaching for his waistband that he pointed his weapon at Murray and told him to get on the ground. These were reasonable defensive measures that the officer took for his own safety under the circumstances.40
Because Officer Rosaio was engaged in a Terry stop at the time he discovered the gun, the gun was lawfully seized provided the stop was supported by a reasonable, articulable suspicion that Murray was engaged in criminal activity, specifically, carrying a concealed deadly weapon.41
B.
The police may “restrain an individual for a short period of time’ to investigate where officers have ‘reasonable articulablе suspicion that the suspect has
Officer Rosaio was able to point to specific and articulable facts giving rise to his suspicion that Murray was carrying a concealed deadly weapon. These facts included the high crime area, stutter-stepping, the unnatural canting and blading that the officer described as well as Murray scanning the area and looking back upon seeing the offiсer. A fair reading of the officer‘s testimony creates an inference that the occurrence of unusual canting and blading movements has risen to such a level that these movements are discussed in officer training as being indicators that a person is carrying a concealed weapon. The officer reasonably explained the process by which he combined the objective facts he observed with his subjective interpretation of those facts, based upon his training and experience, to arrive at a reasonable and articulable suspicion that Murray was carrying a concealed deadly weapon. Indeed, the fact that Officer Rosaio honed in on Murray and not his companion—who was, by Officer Rosaio‘s account, walking normally at the same time of night in the same high crime area—lends further support to Officer Rosaio‘s reasonable suspicion that Murray had a weapon. In other words, Officer Rosaio did not simply stop two people walking late at night in a high crime area indiscriminately; instead, he focused his attention specifically on one of them who engaged in behavior that was indicative of the possession of a deadly weapon.
We think the Superior Court failed to give due deference to the training and experience of the police officer. The court described the officer‘s suspicion as a hunch and “bereft of any scientific support.”49 It also asked a number of unanswered questions:
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?50
In addition, the court stated, or at least suggested, that the officer‘s testimony was not admissible under
Our good friend in dissent contends that an officer who sees someone engaging in furtive, odd behavior indicative of carrying a weapon cannot make a stop unless the officer has a reasonable suspicion that the person does not have a license to carry. But, of course, if a person has a legal right to carry a concealed weapon, that person has no need to act like someone in possession of illegal contraband. If police officers are to help protect the public from gun violence, they must be able to make reasonable inferences from unusual, awkward behavior uncharacteristic of people who have a legal right to possess a gun.55
IV. CONCLUSION
For the foregoing reasons, the judgment of the Superior Court is reversed, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
TRAYNOR, Justice, dissenting:
This case requires us to balance the rights of our citizens to be “secure in their
I disagree with the Majority in two respects. First, I do not believe that on this record the trial judge was required to defer absolutely to Rosaio‘s testimony merely because he purported to ground it upon his “training and experience.” Second, I question the constitutionality of Rosaio‘s seizure of Murray based on his suspicion that Murray was carrying a concealed weapon absent a legitimate suspicion that Murray was doing so unlawfully.
After hearing all that Rosaio had to say about his training in the “the characteristics of an armed gunman”58 as it applied to the facts of this case, the Superior Court found his testimony wanting. This constituted, in the Majority‘s view, a “fail[ure] to give due deference to the training and experience of the police officer.”59 To be sure, we have recognized that, in this field, “we give due deference to an officer‘s experience and knowledge.”60 But where, as here, the officer‘s testimony is vague and fails to inspire confidence, I cannot say that the Superior Court‘s failure to give the officer‘s testimony as much weight as the Majority would give was an abuse of discretion.
To expand on this last point, there was scant evidence in the record about the extent and reliability of the training upon which Rosaio claims to have relied when he formed the belief that Murray unlawfully possessed a firearm. When asked at the suppression hearing about what he learned during his “training on the characteristics of an armed gunman,” Rosaio replied:
I mean, everything. There‘s several characteristics involving people‘s behavior and the geographical locations that they are in. I mean, a lot of it is observations, and there are elements that -- certain things that people display when they are attempting to conceal firearms from the police and from the public. They‘re just things that we‘re aware of and that we can use as a tool
.61
The Superior Court was skeptical of Rosaio‘s testimony,62 and the Majority holds that the Superior Court‘s skepticism constituted error. According to the Majority, the Superior Court should have deferred to Rosaio and, in any case, should not have demanded that Rosaio‘s testimony “be supported by a statistical analysis or a scientific study where there is no evidence that such an analysis or study exists.”63 But I do not read the Superior Court‘s decision as hinging upon the absence of such analyses or studies. Rather, taken as a whole, the ruling below appears to be the product of the trial judge‘s legitimate testing of the prosecution‘s assertion “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.”64 In my view, it was appropriate for the Superior Court to push back against this notion and within its discretion to conclude, based upon the totality of the circumstances, that Rosaio was not in fact acting upon reasonable articulable suspicion but rather only upon a mere hunch.
Rosaio also offered that his training and experiеnce enabled him to use Murray‘s turning away from him as Rosaio exited his vehicle to infer Murray‘s possession of a concealed gun because Murray‘s turn shows that he was “someone who‘s placing the side that the gun was on in a position where the police or the public can‘t see it.”65 But this assumes that the turning away is designed to conceal something and that the thing must have been an unlawfully concealed firearm or another illicit item. In order to escape this fallacy, Rosaio should have—but did not—offer testimony showing why turning away is solely or at least substantially linked to illegal activity, such as unlawful concealed weapon possession, as opposed to lawful activity.
It is also significant that Murray was free to leavе until Rosaio detained him. In light of that fact, the trial court‘s skeptical reaction to Rosaio‘s reliance on Murray‘s turning away from him was fully justified. As the Court of Appeals of Wisconsin, when confronted with similar testimony, pondered:
[H]ow does a person walk away from another as [the Defendant] had the right to do without turning his or her body to some degree? Calling a movement that would accompany any walking away “blading” adds nothing to the calculus but a false patina of objectivity.66
Likewise, Rosaio‘s description of how Murray‘s arms were positioned in relation to his body—the so-called “canting” motion—and the “stutter step” Murray took does little to persuade me that Murray had done anything to arouse a reasonable suspicion that would justify his detention. As the Majority points out, Murray was “walking late at night in a high crime area”67 as Rosaio and his companions observed him from their unmarked lights-on Chevrolet Tahoe full-size sport utility vehicle.
I also part with the Majority‘s conclusion that Murray‘s detention was justified because “Officer Rosaio was able to point to specific and articulable facts giving rise to his suspicion that Murray was carrying a concealed deadly weapon.”69 Because Terry stops are permissible only upon suspicion of criminal activity, implicit in this part of the Majority‘s analysis is the premise that carrying a concealed dеadly weapon is forbidden by our criminal code and therefore constitutes “criminal activity,” the reasonable suspicion of which justifies an investigative detention.
But carrying a concealed deadly weapon is not in and of itself against the law. The Delaware statute that prohibits carrying a concealed deadly weapon,
A person is guilty of carrying a concealed deadly weapon when the person carries concealed a deadly weapon upon or about the person without a license to do so as provided by
§ 1441 of this title.
As I read this statute, the absence of a license is an element of the offense that the State would be required to prove beyond a reasonаble doubt in a prosecution under
A very recent Pennsylvania Supreme Court opinion is instructive on this point. In Commonwealth v. Hicks, 2019 WL 2305953 (Pa. May 31, 2019),70 the court rejected the notion that a police officer may infer criminal activity merely from an individual‘s possession of a concealed firearm in public. As the Hicks court wrote:
We find no justification for the notion that a police officer may infer criminal activity merely from an individual‘s possession of a concealed firearm in public. . . . Although the carrying of a concealed firearm is unlawful for a person statutorily prohibited from firearm ownership or for a person not licensed to do so, there is no way to ascertain an individual‘s licensing status, or status as a prohibited person, merely by his outward appearance. As a matter of law and common sense, a police officer observing an unknown individual can no more identify whether that individual has a license in his wallet than discern whether he is a criminal. Unless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.71
And I respectfully suggest that we should reconsider Upshur. Upshur involved, among other things, а prosecution for carrying a concealed deadly weapon of
[w]hen this Criminal Code or another statute specifically exempts a person or activity from the scope of its application and the defendant contends that the defendant is legally entitled to be exempted thereby, the burden is on the defendant to prove, as an affirmative defense, facts necessary to bring the defendant within the exemption.
But
For all these reasons, I would affirm the judgment of the Suрerior Court.