Bromwell v. State

• Decision Date: 23 March 1981
• Parties: Victor Eugene BROMWELL, Defendant, Appellant, v. STATE of Delaware, Plaintiff, Appellee.
• Court: United States State Supreme Court of Delaware

Page 884

427 A.2d 884

Victor Eugene BROMWELL, Defendant, Appellant, v. STATE of Delaware, Plaintiff, Appellee.

Supreme Court of Delaware.

Submitted Nov. 12, 1980.

Decided March 23, 1981.

Karl Haller and William B. Wilgus, Asst. Public Defenders, Georgetown, for defendant, appellant.

John M. Sandy and Merritt S. Burke, Deputy Attys. Gen., Gorgetown, for plaintiff, appellee.

Before McNEILLY, QUILLEN and HORSEY, JJ.

HORSEY, Justice:

Defendant, Eugene Bromwell, was convicted in a jury trial in Superior Court of Robbery II, 11 Del.C. § 831, and was sentenced to ten years in prison. Defendant's appeal raises two issues: (1) whether the exclusionary rule required suppression of evidence obtained in a warrantless police search of a box in Bromwell's possession made while Bromwell was under detention but not arrest; and (2) whether reversible error was committed by the State's questioning of Bromwell as to any prior criminal record.

I

About 3:30 in the morning on the day of defendant's detention and arrest, an armed robbery had occurred at a motel on Route 13 near Greenwood, Sussex County, Delaware. The robbery was reported to the nearby Bridgeville State Police Troop as having been committed by two black males, one of whom was described as masked but wearing blue jeans and tennis shoes and about 6 feet tall. Between $550 and $600 in cash was said to have been stolen. Both men were said to be armed and at large. Sometime later that day, State Police Officer James Mollohan of the Bridgeville Troop went on highway patrol duty. He had been given a description of the men wanted in connection with the robbery.

About 2:30 in the afternoon on the same day Officer Mollohan was directed to investigate a suspicious individual (Bromwell) on County Route 32, a few miles west of Greenwood. A resident of the area, a rural farming community within five miles of the scene of the robbery, had called the police to come and investigate a stranger in the neighborhood. ¹

Arriving at the scene, Officer Mollohan found defendant seated on a cardboard box by the side of the road. The officer asked defendant for some identification, what he was doing there and where he was headed. ² Defendant could produce no identification. When defendant said he was headed for Salisbury, Maryland, the officer told him he was on the wrong road. When defendant was asked where he was from, defendant gave the officer first one address and then another. The officer noted that defendant matched the description of one of the motel robbers. He was black, was wearing blue jeans and tennis shoes and was about six feet tall. His pants were wet and he appeared to be tired. His face was scratched and stuck with pieces of briars as though he had been running through woods. Officer Mollohan radioed his troop to run an "NICI" check on defendant's name to see if he was "wanted"; and Mollohan apparently also sought assistance, for another highway trooper arrived shortly. The officer was suspicious of defendant.

Officer Mollohan's suspicions as to defendant's involvement in the motel robbery were increased after defendant gave the second trooper a third purported place of residence and withdrew $120 from his pocket after being asked if he had any funds for public transportation. Officer Mollohan also noted that defendant appeared to be guarding the cardboard box by keeping it between his legs. The officer noted that the carton was partially open and he could see within it assorted items: a nylon stocking tied to a picture frame; a can; and what appeared to be a pillowcase stuffed in the can. Within the case could be seen something that the officer could not identify. Officer Mollohan then made a pat-down search of defendant's clothing for weapons; and when none were found, the officer extended his search to the cardboard box at defendant's feet. Officer Mollohan stated that he searched the box out of concern for his safety and to be certain that there was no weapon in the box.

A scuffle occurred; but whether it preceded or followed the search is disputed. Defendant's version is that while one officer (Mollohan) engaged him in conversation, the other officer surprised him from behind and pulled him away from the carton, whereupon the carton was searched. Officer Mollohan's version was that the scuffle occurred after his search of the carton revealed no weapons but a substantial amount of cash within the pillowcase, later determined to amount to $505.40. The sum consisted of loose coins and bills of small denominations, along with discarded paper coin wrappers. Defendant's arrest immediately followed.

II

In a pretrial motion, defendant informed the Court that he would "explain the circumstances under which the alleged stolen goods came into his possession." ³ And in his opening statement, defense counsel stated that defendant "will explain to you where (the money) came from." However, at trial, defendant moved to suppress the trooper's testimony as to the contents of the box, that is, the money that was found within the pillowcase, as being the product of an unreasonable search and seizure. The State resisted the motion contending that extending the weapons search to the open box was permissible as a protective measure for the officers' safety while defendant was under detention. The Court denied defendant's motion to suppress as well as a later motion for judgment of acquittal. Thereafter, defendant took the witness stand. He testified that while hitchhiking in search of work he found the box with the money in it by the side of the road; and that he had intended to turn it over to the police when he was detained. As stated, defendant was found guilty of Robbery II.

III

Defendant's objection on appeal goes neither to his detention nor to the "frisk." He impliedly concedes both acts of the officer to have been lawful. Defendant's contention is that his Fourth Amendment rights ⁴ were violated by the officer's extension of his search for weapons to the content of the cardboard box beside defendant. In effect, defendant argues that Officer Mollohan's justification for searching the box was insufficient as a matter of law; ⁵ that any search beyond a weapons frisk was made without reasonable cause and was an unnecessary and unreasonable invasion of defendant's privacy.

IV

The question presented relates to the permissible scope of a police officer's warrantless search, not incident to an arrest, ⁶ of a suspect properly stopped on the highway and then detained for further questioning on suspicion of having recently committed an armed robbery. More specifically, did the operative facts justify Officer Mollohan's extension of his detention search for weapons beyond a "frisk" of Bromwell to the open box at his feet?

Under the facts of this case we hold that the Trial Court properly denied defendant's motion to suppress. This holding is based on our conclusion that the officer's extension of a "frisk" search for weapons to the open carton at defendant's feet was justified and reasonable under the circumstances and not an invasion of defendant's Fourth Amendment privacy rights.

A.

Officer Mollohan's roadside stop, detention and "frisk" of defendant was clearly proper under Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and defendant does not contend otherwise. ⁷ However, defendant claims that the extension of the pat-down search of his clothing to the box at his feet was an impermissible extension of Terry and amounted to nothing more than a fishing expedition for evidence of possible criminal activity. Bromwell argues that because the NICI record check had cleared him, Mollohan had no reason to believe that Bromwell was armed and dangerous. ⁸ Bromwell relies heavily upon the fact that since he had made no attempt to reach into the box, it was unreasonable for Mollohan to search the box. Cf. Nash v. State, Del.Supr., 295 A.2d 715 (1972) and State v. Wausnock, Del.Supr., 303 A.2d 636 (1973). Thus, the parties clash over the reasonableness of the extension of the weapons search to the box.

However, a threshold question exists as to the proper test to determine the lawfulness of this pre-arrest search the subjective reasonableness-balancing test prescribed in Terry or the more traditional test of "probable cause." As stated above, Terry was noteworthy for substituting for the traditional test of probable cause for any "arrest," a subjective rule based on a balancing test of safety or security of the officer as opposed to the privacy of the individual being intruded upon.

In Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), the Supreme Court refused to apply the Terry balancing test to determine the reasonableness of a custodial interrogation in a police station. Justice Brennan, speaking for a majority of the Court, commented on Terry as follows:

Before Terry v. Ohio, 392 U.S. 1, (88 S.Ct. 1868, 20 L.Ed.2d 889) (1968), the Fourth Amendment's guarantee against unreasonable seizures of persons was analyzed in terms of arrest, probable cause for arrest, and warrants based on such probable cause. The basic principles were relatively simple and straightforward: The term "arrest" was synonymous with those seizures governed by the Fourth Amendment. While warrants were not required in all circumstances, the requirement of probable cause, as elaborated in numerous precedents, was treated as absolute.

The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest "reasonable" under the Fourth Amendment. The standard applied to all arrests, without the need to "balance" the interests and circumstances involved in particular situations. Cf. Camara v. Municipal Court, 387 U.S. 523 (87 S.Ct. 1727, 18 L.Ed.2d 930) (1967).

Terry for the first time recognized an exception to the requirement that Fourth...