Lopez-Vazquez v. State

• Decision Date: 29 August 2008
• Docket Number: No. 547, 2007.,547, 2007.
• Citation: 956 A.2d 1280
• Parties: Jose LOPEZ-VAZQUEZ, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.
• Court: Supreme Court of Delaware

956 A.2d 1280

Jose LOPEZ-VAZQUEZ, Defendant Below-Appellant, v. STATE of Delaware, Plaintiff Below-Appellee.

No. 547, 2007.

Supreme Court of Delaware.

Submitted: July 9, 2008.

Decided: August 29, 2008.

Court Below Superior Court of the State of Delaware in and for New Castle County, ID No. 0610023663.

Upon appeal from the Superior Court.

REVERSED AND REMANDED.

Santino Ceccotti, Esquire (argued), Office of the Public Defender, Wilmington, DE, for appellant.

Timothy J. Donovan, Jr., Esquire (argued), Department of Justice, Wilmington, DE, for appellee.

Before STEELE, Chief Justice, JACOBS, and RIDGELY, Justices.

RIDGELY, Justice:

Defendant-Appellant Jose Lopez-Vazquez appeals his convictions, following a Superior Court jury trial, of various drug charges. He argues that the trial judge erred in denying his motion to suppress evidence found as a result of what he asserts was an illegal stop that violated his Fourth Amendment rights. Specifically, Lopez-Vazquez contends that the police lacked reasonable suspicion to seize him when they did, thereby tainting the subsequent consent he gave to a search of his vehicle that resulted in the seizure of cocaine. We conclude that the Superior Court erred in denying the motion to suppress. Accordingly, we reverse.

I. Facts

Detective Hector Cuadrado received a tip from a past-proven reliable confidential informant that "Popi Chulu," later identified as Julio Polanco-Lugo, was selling drugs in the city of Wilmington, Delaware. Police began to mount an investigation of Polanco-Lugo, including setting up two controlled purchases. After the first controlled purchase, police observed the seller and followed his Dodge Caravan as the seller met with other subjects and engaged in what police believed were other drug sales. They also followed the car back to the 3900 block of Lancaster Avenue, Lancaster Court Apartments, where they saw the driver enter Building 3914, an multi-unit apartment building.

Eleven days later, police set up a second controlled purchase. During surveillance at 3914 Lancaster Avenue, police observed the same Dodge Caravan parked in front of the apartment building. They also observed a green Dodge Stratus pull in front of 3914 Lancaster Avenue and park. Detective Cunningham, who had seen the seller during the first controlled buy, noted that the driver of the Dodge Stratus was the same person (Polanco-Lugo). Detective Cunningham set up a second controlled purchase and went to meet the seller. Detective Cuadrado remained behind, and saw Polanco-Lugo get into the Dodge Stratus. Although Detective Cuadrado began to follow Polanco-Lugo, Detective Cunningham told him to return to set up surveillance at 3914 Lancaster Avenue.

After Detective Cuadrado set up surveillance, he saw a green Saab pull up and park on the southeast corner of Court Drive and Lancaster Avenue. The driver of this car, later identified as Lopez-Vazquez, walked over to and stopped in front of 3914 Lancaster Avenue. Lopez-Vazquez was unknown to the police and was not a target of the investigation. Detective Cuadrado watched Lopez-Vazquez talk for about fifteen minutes with another man, who had independently arrived on the scene, while standing in front of the steps of the front entranceway of the apartment building. That man was Michael Hernandez, who Detective Cuadrado recognized as a subject of an unrelated drug investigation. Based on his experience in drug investigations, Detective Cuadrado testified that the two men appeared to be nervous and anxious, and waiting for someone to return. Dispatch then informed the detective that the driver of the Dodge Stratus was headed back to the Lancaster Court Apartments.

Detective Cuadrado testified that after the Dodge Stratus arrived and parked, Lopez-Vazquez and Hernandez reacted in a way that led him to believe that the driver was the person for whom the men had been waiting. He saw Polanco-Lugo approach Hernandez and Lopez-Vazquez. Hernandez was positioned on the front step of the building, and Lopez-Vazquez was on the ground level. Polanco-Lugo threw the keys "up high" toward Hernandez (who caught them), and then walked away from them. Polanco-Lugo did not speak to Lopez-Vazquez or acknowledge his presence. Hernandez walked into the building. Lopez-Vazquez entered the building after Hernandez. Because they disappeared from sight, Detective Cuadrado explained that he was unable to tell where each went after entering the building. Polanco-Lugo walked into the same building about five minutes later.

While Detective Cuadrado was making these observations, Detective Cunningham had applied for and obtained a search warrant for Polanco-Lugo's apartment. The team arrived to execute the search warrant about an hour after Hernandez and Lopez-Vazquez entered the building. Meanwhile, but after the search warrant had been executed, another officer told Detective Cuadrado that he saw Lopez-Vazquez coming out of the rear of the building and was heading toward the Saab. Detective Cuadrado radioed Detective Silva, who had just arrived on the scene, to approach Lopez-Vazquez and ask what his business was with Polanco-Lugo, since Lopez-Vazquez had been observed with some of the targets that he was investigating.

Detective Silva testified that he walked up to Lopez-Vazquez and asked Lopez-Vazquez if he would speak with him. When Detective Silva did not get an answer he thought Lopez-Vazquez might speak Spanish, and asked him in Spanish whether he would speak to him. Lopez-Vazquez answered "Sure." They then engaged in a conversation about where Lopez-Vazquez was coming from and what was his name.

Detective Silva testified that Lopez-Vazquez acted nervously during this encounter. Lopez-Vazquez told the detective that he was coming from his apartment, but could not tell him what his apartment number was. He also had his hands in his pocket, which prompted Detective Silva to ask him to take out his hands for safety purposes. When Lopez-Vazquez did that, the detective saw that he had a set of keys with a Saab emblem on them. Although Detective Silva knew that Lopez-Vazquez was facing the green Saab, he asked him whether his car was in that area. Lopez-Vazquez told him that it was, looked at the green Saab, but then pointed toward a different location.

Detective Silva then asked Lopez-Vazquez if he had anything in his possession and whether he could search him. Lopez-Vazquez told Detective Silva that he did not, and then consented to a search. Detective Silva found some money wrapped in plastic, although the significance of this fact was not explained. Based on his answers, demeanor, and the money being plastic-wrapped, Detective Silva testified that he placed Lopez-Vazquez "under arrest, or detained him." He then asked Lopez-Vazquez, who was facing the green Saab, "Are you sure that the car that you're talking about is not the one that you're looking at?" Lopez-Vazquez "lowered his head" and answered yes. When Detective Silva asked if there was anything in that car, Lopez-Vazquez answered "No, there's nothing." He then consented to Detective Silva's request to search the vehicle. A police canine was brought to the scene and provided a positive indication for the presence of drugs in the Saab. The vehicle was towed, and when later searched pursuant to a warrant, police found cocaine in a hidden compartment.

Lopez-Vazquez filed a motion to suppress, claiming that the police did not possess a reasonable and articulable suspicion that he was engaged in criminal activity. In response, the State argued that "the veteran detectives in this case conducted a valid Terry stop that was followed by a valid consent by the defendant." The State conceded that Detective Silva had "seized" Lopez-Vazquez during the initial encounter, which raised the issue of whether the detective had reasonable and articulable suspicion to detain him at that point. In a bench ruling, and without the benefit of a transcript, the trial judge denied Lopez-Vazquez's motion. A Superior Court jury convicted him of Trafficking in Cocaine, Possession with Intent to Deliver and Use of a Vehicle for Keeping a Controlled Substance. After sentencing, Lopez-Vazquez filed this appeal.

II. Discussion

A. Standard of review on motions to suppress

On appeal, Lopez-Vazquez argues that the trial judge erred in denying his motion to suppress. We review the grant or denial of a motion to suppress for an abuse of discretion.¹ To the extent that we examine the trial judge's legal conclusions, we review the trial judge's determinations de novo for errors in formulating or applying legal precepts.² To the extent the trial judge's decision is based on factual findings, we review for whether the trial judge abused his or her discretion in determining whether there was sufficient evidence to support the findings and whether those findings were clearly erroneous.³ Where as here, we are reviewing the denial of motion to suppress evidence based on an allegedly illegal stop and seizure, we conduct a de novo review to determine whether the totality of the circumstances, in light of the trial judge's factual findings, support a reasonable and articulable suspicion for the stop.⁴

B. Review standard for when a stop takes place and the determination of reasonable suspicion

Determining whether an officer had reasonable and articulable suspicion to conduct the stop requires a threshold finding of when the stop actually took place.⁵ "Under the Fourth Amendment to the United States Constitution, a seizure requires either physical force or submission to assertion of authority."⁶ Once the point at which the stop or seizure occurred has been determined (the Terry stop), we examine whether at that point the police had a reasonable and articulable suspicion that criminal activity was taking place.⁷ Like probable cause, reasonable suspicion is an "elusive concept"⁸, but requires "some objective manifestation that the person...