Calm v. State, No. 577, 2018
| Decision Date | 26 February 2020 |
| Docket Number | No. 577, 2018 |
| Parties | Anthony CALM, Defendants Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. |
| Court | United States State Supreme Court of Delaware |
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.
Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, Justices; and MCCORMICK, Vice Chancellor,* constituting the Court en Banc.
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.
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
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, 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 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 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 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 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" 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...
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...106, 107-111 (1977)). [12] Calm v. State, 226 A.3d 186, 191 (Del. 2020) (citing Holden v. State, 23 A.3d 843, 847 (Del. 2011)). [13] Calm, 226 A.3d at 191 (citing U.S. Const. amend. IV; Del. Const. art I, § 6). [14] Calm, 226 A.3d at 191 (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). [15] M......