Moore v. State

• Decision Date: 08 June 2010
• Docket Number: No. 97,2009.,97
• Parties: Terry L. MOORE, Defendant Below, Appellant,v.STATE of Delaware, Plaintiff Below, Appellee.
• Court: United States State Supreme Court of Delaware

997 A.2d 656

Terry L. MOORE, Defendant Below, Appellant,v.STATE of Delaware, Plaintiff Below, Appellee.

No. 97, 2009.

Supreme Court of Delaware.

Submitted: April 28, 2010.

Decided: June 8, 2010.

Reargument En Banc Denied July 6, 2010.

COPYRIGHT MATERIAL OMITTED

Court Below-Superior Court of the State of Delaware, in and for New Castle County, Cr. I.D. No. 0806025309.

Upon appeal from the Superior Court. AFFIRMED.

Bradley V. Manning, Esquire (argued), and Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware, for appellant.

Gregory E. Smith, Esquire, Department of Justice, Wilmington, Delaware, for appellee.

Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the Court en Banc.

HOLLAND, Justice:

On June 18, 2008, New Castle County Police arrested the defendant-appellant, Terry L. Moore (“Moore”), as he was walking with a companion at a distance of approximately 1000 yards from a location where radio broadcast reports indicated a possible stabbing and the sound of gunshots. A grand jury indicted Moore on charges of Possession of a Deadly Weapon by a Person Prohibited (“PDWPP”) and Carrying a Concealed Deadly Weapon (“CCDW”). Moore filed a motion to suppress the evidence obtained at the time of his arrest. The Superior Court denied that motion after an evidentiary hearing.

The Superior Court held a three-day bench trial and found Moore guilty of both charges. Moore was sentenced on the PDWPP charge to one year at Level V, suspended for one year at Level II, and on the CCDW charge to one year at Level V, suspended for one year at Level II.

In this direct appeal, Moore argues that when the arresting officer, Sergeant Claudia Malone (“Sgt. Malone”), stopped Moore and his companion, she lacked facts that would support a reasonable, articulable suspicion that Moore may have been involved in criminal activity. Accordingly, Moore argues, the evidence obtained as a result of the illegal stop should have been suppressed. We have concluded that Moore's argument is without merit. Therefore, the judgments of the Superior Court must be affirmed.

Facts

At approximately 11:15 p.m. on June 18, 2008, the New Castle County Police began receiving reports about a large group of disorderly black males who were yelling and threatening each other in the vicinity of Spencer Park Townhouses, located off Old Forge Road in New Castle, Delaware. At approximately 11:25 p.m., the New Castle County Police Regional Communication Center (“RECOM”) reported that one person involved in the dispute may have been stabbed and fled the area. At approximately 11:26 p.m., RECOM received and immediately broadcast reports of gunshots being fired near the intersection of Cathy Court and Old Forge Drive.

In response to this broadcast, Sgt. Malone and other police officers began heading towards that location. Sgt. Malone later testified that Spencer Park Townhouses is a “high call for service area,” which she defined as a high crime area in the Old Forge Corridor, with drug and gun violations giving rise to frequent calls for police service. Sgt. Malone was driving a marked police car. Because she did not hear that other officers were heading west of Cathy Court, she drove in that direction. About two minutes after hearing the broadcast, while heading westbound on Old Forge Road away from Cathy Court, Sgt. Malone observed two black males walking westbound on Old Forge Road near its intersection with Hamilton Court. This location is approximately 1000 feet from the intersection of Cathy Court and Old Forge Road.

The two men were walking away from the area where gunshots and a possible stabbing had just been reported when Sgt. Malone first saw them. She did not observe other people in the area at that moment. Sgt. Malone's actions subsequent to this point led to the discovery that one of the two men, Moore, was carrying an ammunition magazine and a concealed handgun. As a result, Moore was charged with and convicted of PDWPP and CCDW.

Arrest Report

Malone prepared a written report describing the arrest, dated June 20, 2008. This report, however, does not provide the reasons behind Sgt. Malone's actions on the night of the arrest. The police report states, in relevant part:

I arrived in the area and upon property check of Old Forge Road, I observed 2 B/M's walking on the westbound side of roadway walking away from and just down the street from the area in which the shots were heard. I had the two subjects place their hands on the hood of my fully-marked patrol vehicle while I performed a pat-down search for weapons.

Therefore, Sgt. Malone's testimony at the suppression hearing must be reviewed to ascertain her reasons for the stop and frisk of Moore. The parties have emphasized different pieces of Sgt. Malone's testimony to further their arguments regarding the validity of the stop and frisk. For clarity and accuracy, therefore, the relevant portions of her testimony on both direct and cross examination are restated in full.

Initial Observations-Stabbing Victim

Prior to trial, Moore filed a motion to suppress the evidence obtained-the gun and ammunition magazine-arguing that at the time of the warrantless stop and seizure, Sgt. Malone did not have a reasonable, articulable suspicion that Moore had committed or was about to commit a crime. At the suppression hearing, Sgt. Malone was questioned on direct examination by the prosecutor, who first asked Sgt. Malone to describe her initial encounter with Moore and his companion:

Q: Okay. [So you're at] the intersection of Cathy Court and Old Forge?

A: Yes.

Q: What did you do?

A: I proceeded past that area, because I did not hear any officers checking areas west of that location so I proceeded that way. As I-as I drove, I was looking for, obviously, any pedestrian traffic that I could find and I came upon two black males walking on the right hand shoulder in a westerly direction. And actually, one of them had their hands in their pockets and the other one had their hands at the waist. And my first instinct was maybe that was my stab wound victim because his hands were there, it looked like he was protecting his abdomen.

...

Q: What were they doing when you first saw them, other than simply walking?

A: One of the men had his hands in both pockets.

Q: Both pockets of what?

A: I don't recall whether it was a jacket pocket or pants pocket, but they were concealed in pockets.

Q: Okay.

A: And another one, I could see was, in particular when I had turned around, made the U-turn, was fidgeting at his waistband with both hands.

Q: And is that the one that you thought could have been the stabbing victim, because he was fidgeting? Do I understand that correctly?

A: Yes, he was fidgeting and my initial instinct was that he was being protective of that area of his body.

On cross examination, defense counsel asked Sgt. Malone to further describe the initial encounter:

Q: Okay. So you drove through the area and you went past the scene of where everything was occurring and then you continued around the curve on Old Forge Road and then you saw the two suspects-or the two black males walking away from the scene on the right side of the road and your lights and sirens were not on?

A: Correct, were not.

Q: Okay. When you were driving, did they look over their shoulders to see you?

A: As I approached, I don't recall them looking over their shoulders, although I-you know, like I said, I spun around and then activated my lights and all that.

Q: Before you turned around though, you drove past them, you saw them, they were of interest to you?

A: Yes.

Q: Okay. But you don't recall them looking over their shoulder at you?

A: I don't recall that, no.

Q: And they certainly didn't flee or make any evasive gestures?

A: No, just gestures that were suspicious to me in nature.

Q: But did you see those before you turned around or after?

A: I could tell that one subject from behind was protective of the mid section of his body. And the other one simply had his hands in his pockets.

Q: Okay. But they didn't turn around and make eye contact with you, that you recall?

A: Not that I recall, no.

...

Q: So sitting here today, you don't know if Mr. Moore here had his hands in his pockets or his waistband?

A: Not during my initial observation. I do remember his hands at his waistband after I had turned around.

Q: Okay.

A: Initially I simply thought he was-whichever gentlemen had their hands at the center of their body, I thought they were a victim.

Subsequent View of Moore and Companion

At the hearing, Sgt. Malone also testified that after viewing Moore and his companion from behind, as they walked along the right side of the road ahead of her car, she “drove just past them and then made a U-turn and came back on them so that [she] could illuminate them better and conducted a pedestrian stop.” The prosecutor asked Sgt. Malone to further describe what happened:

Q: Now, you told the court that you passed by them in your marked patrol car, turned the patrol car around so that you could use your headlights to illuminate them and I think used the phrase, effected a pedestrian stop. What does that mean?

A: That means that these two individuals were out and about of the scene of a stabbing and also a shots fired complaint. I had two suspicions that I had to satisfy, one of which was is one of these gentlemen the stabbing victim; and secondly, is one of these gentlemen a shooting suspect.

Q: I'm sorry, I asked a bad question. How did you go about stopping the men?

A: I-just verbally. They actually voluntarily stopped. I asked them to show me their hands.

Q: Well, how did you indicate to them that you wanted to talk to them?

A: I asked them to come over to me, walk over to me.

Q: Is that the first thing you said?

A: From what I recall, yes.

Q: Okay. So you-you stopped them by turning your car around and then saying, please come over and talk to me or words to that effect?

A: Yes.

Q: And then I interrupted you. You said you said something else to

...