State v. Moore

• Decision Date: 09 January 1963
• Citation: 55 Del. 356,187 A.2d 807
• Parties: , 55 Del. 356 STATE of Delaware v. George Washington MOORE (two cases). STATE of Delaware v. Elwood C. WILLIN.
• Court: Delaware Superior Court

Page 807

187 A.2d 807

5 Storey 356, 55 Del. 356

STATE of Delaware v. George Washington MOORE (two cases).

STATE of Delaware v. Elwood C. WILLIN.

Superior Court of Delaware, New Castle County.

Jan. 9, 1963.

Thomas Herlihy, III, Deputy Atty. Gen., Wilmington, for the State.

David C. Rittenhouse (of Morris, Nichols, Arsht & Tunnell), Wilmington, for defendants.

LYNCH, Judge.

Defendants are charged with carrying concealed a deadly weapon, i. e. revolvers, in violation of Title 11 Del.C. § 463. Defendant Moore is also charged with failing to drive a slow moving vehicle as close as possible to the right side of a highway in violation of Title 21 Del.C. § 4130(a). When he was before the Common Pleas Court he was also charged with driving without an operator's license. He pleaded guilty to this charge. There was no appeal from the sentence.

Defendants moved on July 6, 1962 to suppress evidence taken from their persons, and from the car Moore was operating, i. e. revolvers, a pair of gloves, and a bandana-handkerchief, formed in a triangle, which were found on the front seat of the car which Moore was operating when apprehended and in which defendant Willin was riding as a passenger. An affidavit made by Corporal O'Neal of the Delaware State Police was filed by the State in support of its motion to dismiss defendants' motions to suppress--as filed untimely--it appearing therefrom that defendants had been arrested on February 27, 1962 and they had been taken before the Court of Common Pleas on March 8, 1962 where Moore pleaded guilty to the charge of driving without an operator's license. Both were tried and found guilty of carrying concealed a deadly weapon and Moore was also convicted of failing to drive to the right side of a highway as required by statute. Each appealed to this Court from their convictions by the Court of Common Pleas and were arraigned before this Court on June 8, 1962. Counsel was appointed to defend each of them and they announced they were ready for trial. On July 6, however, defendants' motions to suppress were filed and their trial was continued on July 10, 1962 because of their pending motions to suppress and the State's motion. Because of the conflicting statements in and between the allegations appearing in the affidavits the Court ordered a hearing on all motions. Following a number of hearings and following the filing of briefs, the case is now ready for decision.

From the credible evidence heard, the Court finds that Trooper O'Neal of the Delaware State Police was patrolling in an unmarked car on Highway #13, a dual highway, in the vicinity of the Wilmington Airport, in the early morning hours of February 27, 1962. Just south of this airport there is a service station, located on the west side of the southbound lane of Route #13, which service station stays open all night. Trooper O'Neal noticed the car operated by defendant Moore proceeding very slowly on the southbound lane; Moore was watching this gas station; Moore's car 'was swerving on the roadway' because of Moore's seeming interest in the gas station. The Moore car did not stop at the gas station but proceeded past it. Shortly thereafter Trooper O'Neal again observed Moore's car--this time proceeding in a northerly direction very slowly in the inside lane on the northbound lane of Route #13, and in the vicinity of this same gas station--and again the driver Moore was watching what was going on at the gas station. Again Moore did not stop at the gas station but went by it. Trooper O'Neal, maintaining his observation of the Moore car, saw it again drive south slowly past this same gas station; Moore still was watching the station but he continued past it; he proceeded to the intersection of Route #13 and a road leading to New Castle known as Hare's Corner, where he went to the northbound lane.

Apparently the Moore car traveled back and forth on Route #13 in the immediate vicinity of this gas station a number of times--all as observed by Trooper O'Neal.

Ultimately, Trooper O'Neal saw the Moore car operating in the left or inside lane of Route #13; then he observed it cutting across the three lanes to the east and come to a stop in a Shell station. The Moore car did come to a stop at the entrance of this Shell gas station, which was located on the east side of the northbound lane of Route #13.

This Shell station was closed for the night but there were lights in and about the station that afforded some illumination. Trooper O'Neal pulled up parallel and close to the Moore car and got out of his car and approached the Moore car. He drew his side arms and ordered Moore to step out of his car. As Moore got out of the driver's side of the car Trooper O'Neal noticed that the upper pocket of Moore's jacket had been ripped--it was hanging and there was some heavy object in it. Trooper O'Neal 'frisked' Moore (patted the outside of his clothes) and in doing so detected the outlines of a gun. Trooper O'Neal took this gun from the jacket pocket. This gun was a 38-30 caliber automatic pistol, fully loaded, and had been in the ripped jacket pocket. Moore was told he was under arrest for carrying concealed a deadly weapon and the Trooper directed Moore to put his hands up and on the roof of his car.

Trooper O'Neal then turned his attention to the other person in the car, the defendant Willin. He was sitting in the passenger side of the Moore car. Trooper O'Neal ordered him to get out of the car, and he noted as Willin got out that the pocket of his jacket was also ripped and it too appeared to have a heavy object in it. Trooper O'Neal 'frisked' Willin and felt the outline of a gun in this jacket pocket. The Trooper then removed a 32 caliber Harrington and Richardson 5 shot revolver from Willin's ripped jacket pocket and told Willin he was under arrest for carrying concealed a deadly weapon. Trooper O'Neal called a nearby State Police Station for assistance and two other State Troopers quickly came to the scene. Defendants were handcuffed and taken to the Police Station for questioning. Defendants, in their affidavits, each concede that in the course of questioning they advised the Troopers they were paroled convicts, having been convicted of armed robbery. When the questioning was completed--in something less than 2 hours--Trooper O'Neal took the defendants to a Magistrate where he typed up the several charges made against them. The defendants asked for trial before the Common Pleas Court. After trial there they were convicted as heretofore noted and their cases are here on appeal.

Counsel for defendants first contends that Trooper O'Neal could not 'search' the defendants when they were apprehended because he had no search warrant. That issue was disposed of in State v. Halko, Del., 188 A.2d 100, on the basis of the reported opinion of our Supreme Court in HALKO V. STATE, DEL., 175 A.2D 42 (1961)¹.

In United States v. Rabinowitz, 339 U.S. 56, 65, 70 S.Ct. 430, 435, 94 L.Ed. 653, the Supreme Court of the United States ruled it was not absolutely necessary to have a search warrant; '* * * the reasonableness of the search [can depend upon] a lawful arrest * * *' and if there is a lawful arrest a lawful search of the person can follow. In Rabinowitz the U.S. Supreme Court overruled Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), which had previously decided a search warrant was needed even though there may have been a lawful arrest.

Many of the contentions advanced and arguments asserted by the defendants are disposed of in the Halko decisions referred to above. No further reference need be made to them. To the extent they are not I propose to analyze and determine them herein.

Defendants' arguments really seem to be that their apprehension and 'detention' and consequent 'arrest' by Trooper O'Neal cannot be justified as a matter of law, and therefore, their motions to suppress must be granted. I do not and cannot agree with these arguments.

The United States Supreme Court has, in late years, considered many cases involving alleged invalid arrests and illegal searches and relationship thereof to the Fourth Amendment of the Federal Constitution, now applicable to the several states by interpretation of the Fourteenth Amendment.

A consideration of the Fourth Amendment to the Federal Constitution and Section 6 of Article I of the 1897 Constitution of Delaware, Del.C.Ann. show their purposes are the same; if the Fourth Amendment is violated because of an 'unreasonable' search and/or seizure it would necessarily result in a violation of the cited provisions of the applicable Delaware Constitution. These constitutional provisions were clearly intended to put some restraint upon the circumstances under which police officers are authorized to make arrests. It is clear from the language appearing in each of these provisions that the people have a right 'to be secure in their persons' and against 'unreasonable * * * seizures'; it does not mean or apply to 'reasonable' searches and seizures.

Since Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356 at p. 1359, 1 L.Ed.2d 1479 at p. 1483 (1957) is very clear that '* * * The police may not arrest upon mere suspicion but only on 'probable cause.' * * *' The judgment to be put on the legal significance of the circumstances that lead to the 'detention' and 'arrest' is for the Court. 6 C.J.S. Arrest § 73f, 5 Am.Jur.2d Arrest--s 49, p. 741.

There is an excellent discussion of the determination of the existence of 'probable cause' in 5 Am.Jur.2d in Section 48. I quote it at length:

'The existence of 'probable cause', justifying an arrest without a warrant, is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.

'Probable cause does not...