State v. Poli

• Decision Date: 06 July 1978
• Citation: 390 A.2d 415
• Parties: STATE of Delaware, Plaintiff below, Appellant herein, v. Jerry G. POLI and Viola Taylor, Defendants below, Appellees herein.
• Court: Supreme Court of Delaware

Page 415

390 A.2d 415

STATE of Delaware, Plaintiff below, Appellant herein, v. Jerry G. POLI and Viola Taylor, Defendants below, Appellees herein.

Supreme Court of Delaware.

Submitted May 16, 1978.

Decided July 6, 1978.

Charles K. Meuse, Deputy Atty. Gen., Wilmington, for plaintiff below, appellant.

L. Vincent Ramunno, Lawrence A. Ramunno and James F. Kipp, Wilmington, for defendants below, appellees.

Before HERRMANN, C. J., and DUFFY and McNEILLY, JJ.

McNEILLY, Justice:

Defendants were charged with possession with intent to deliver a non-narcotic Schedule I controlled substance, marijuana, in violation of 16 Del.C. § 4752; defendant Poli was separately charged with possession of a deadly weapon during the commission of a felony (11 Del.C. § 1447). The Superior Court granted defendants' motion to suppress certain physical evidence, including the marijuana, seized by Drug Enforcement Agents in a search which the Court determined was unlawfully conducted. The State certified that the evidence suppressed was essential to the prosecution of the case, and, therefore, the Court dismissed the indictments; the State appeals pursuant to 10 Del.C. § 9902. ^* We reverse.

I

The only witnesses who testified at the suppression hearing were Agents William Glanz and William R. Boulden of the United States Department of Justice Drug Enforcement Administration. Their undisputed testimony established the following:

On February 7, 1977, Agent Glanz had a conversation with an unidentified informant (hereinafter Informant Number 1). This informant told Agent Glanz that a person named Charles Kevin Kelly, and others, were going to "rip-off" a large quantity of marijuana from an unknown large-scale marijuana dealer from New Castle, Delaware. The informant and Agent Glanz drove to an area in Pennsylvania near Chadds Ford where the theft was to occur. While there, Agent Glanz discovered a disabled truck on a remote road. A license check with the Delaware Bureau of Motor Vehicles revealed that this truck belonged to a Wallace Axselle whose son, Jerry Axselle, of New Castle, Delaware, was known to be a large-scale marijuana dealer.

Informant Number 1's knowledge of this future occurrence was obtained from a third party whose identity is unknown to Agent Glanz. Informant Number 1 had not given any previous information leading to an arrest or conviction but Agent Glanz had followed the tip based on Kelly's reputation for transactions of this sort. This reputation, coupled with the fact that the Axselle truck was located on a remote road in the early morning hours, caused Agent Glanz to rely on the accuracy of the information supplied by Informant Number 1.

On February 11, 1977, Agent Boulden talked to a second informant (hereinafter Informant Number 2). This informant told Agent Boulden that Charles Kevin Kelly, Jerry Poli and three other unknown individuals had stolen 700 pounds of marijuana from two individuals. During the transaction the two victims of the theft were shot. Agent Glanz verified through newspaper accounts and by discussions with the Wilmington Police that Wallace and Jerry Axselle had been shot.

Informant Number 2 told Agent Boulden that part of the stolen marijuana was stored in an apartment near Route 273 in New Castle, and that the apartment was occupied by Jerry Poli and Viola Taylor. Informant Number 2 also told Agent Boulden that Ms. Taylor owned a red Ford van. Poli's residence was verified as apartment 9D, Oak Hollow Apartments.

Subsequently, Informant Number 2 informed Agent Boulden that Jerry Poli would be delivering a quantity of marijuana to Summit Street in New Castle County sometime after 5 o'clock on February 18, 1977. This information was obtained by Informant Number 2 from an undisclosed third party.

On February 15, 1977, another informant (hereinafter Informant Number 3) told Agents Glanz and Boulden that Poli and Taylor were living in Oak Hollow Apartments, confirmed the previous information about the theft and said that an undisclosed third party told him that part of the stolen marijuana was stored in Poli and Taylor's apartment.

The agents gave credence to the information received from Informants 2 and 3 because both had given information leading to two arrests in the past six months. After February 18, 1977, one of these arrests did result in a conviction and the other arrest was pending at the time of the suppression hearing.

On February 18, 1977, Informant Number 2 told Agent Glanz that defendant Poli would be making a large delivery of marijuana to an address on Summit Avenue in the Richardson Park section of New Castle County, Delaware, after 5 o'clock. The informant was not aware which vehicle Poli would be driving.

Agents Glanz, Boulden and members of the Wilmington and Delaware State Police started surveillance of the Poli and Taylor apartment about four o'clock p. m. on February 18, 1977. Around 4:30 p. m., the van arrived at the apartment. At 5:50 p. m., the van drove out of the apartment complex and returned five minutes later.

At 6:30 p. m., the surveillance was discontinued and the Wilmington and Delaware State Police left. While Boulden and Glanz were discussing the case and preparing to leave, Informant Number 2 called Glanz and told him the delivery had been delayed until after 7 o'clock.

At 6:45 p. m., the red Ford van left the Oak Hollow Apartment complex. The van then travelled to a Photo Mat store in a nearby shopping center. From the Photo Mat store, Poli drove to a drug store and then back to the Photo Mat store where he picked up defendant Taylor at 7:35 p. m. From there, he travelled to Summit Avenue in Richardson Park where he stopped and parked the van in the 500 block. The agents parked behind the van, got out of their car and approached the van with guns drawn. The agents were aware that Poli had a previous armed robbery conviction and that Taylor was under indictment for kidnapping.

Taylor and Poli were ordered to exit the van and to raise their hands. Taylor complied immediately, but Poli ignored several orders and started reaching under the left side of his coat with his right hand. Poli was again ordered to exit the van and this time he complied.

Poli was patted down and a loaded, thirty-eight caliber revolver was found on his left hip. The defendants were then handcuffed.

Agent Glanz testified that, in order to protect himself, he leaned into the van to look and see whether it was occupied by anyone else. At this point, he saw a shopping bag, open at the top, in the center and slightly behind the two front seats. He looked in the bag and saw a quantity of green leafy material which he believed to be marijuana. Agent Boulden testified that they could have, but did not, obtain a search warrant for the van at the time the defendants were handcuffed. They did not do so because when Agent Glanz leaned into the van the marijuana was in plain view. Agent Glanz testified earlier that it always was their intention to search the van.

After leaving the van, Agent Glanz informed the defendants that they were under arrest and gave them the Miranda warnings. The defendants replied that they understood each right as it was given. After the warnings were given, Agent Glanz asked defendant Poli if he had a permit for the gun. Poli replied that he did not, that it belonged to a friend whose name he refused to divulge. The defendants were told that they were under arrest after the marijuana was seized.

The defendants were then taken to the New Castle County Police Department for processing. Apparently, the paperwork necessary in connection with the arrest was completed by about 10:30 p. m. It appears that another half hour was used to obtain a search warrant for the apartment. Both Taylor and Poli were taken to the apartment and were present when it was searched. The search was commenced at 12:01 a. m. and concluded at 12:55 a. m. The defendants were then taken to the Magistrate's Court at 1:00 a. m. and arraigned at 1:45 a. m.

The Superior Court also found as a matter of fact that a statement of defendant Poli was given to police in a meeting held at Poli's request during the period from 1:00 a. m. to 1:45 a. m.

II

Defendants argued three points in support of their motion to suppress:

(1) the defendants' arrest was unlawful because there was no probable cause;

(2) the warrantless search of the van was unlawful;

(3) the statement given by defendant Poli was the result of an unreasonable and unnecessary delay between arrest and arraignment.

The central issue determinative of this appeal is whether the initial stop, or seizure, of defendants while travelling in their van was legal as based upon probable cause. Compare State v. Prouse, Del.Supr., 382 A.2d 1359 (1978). If the stop was proper the pat-down search of defendant Poli, which produced a loaded .38 calibre revolver, was a legal protective frisk, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and the seizure of the marijuana was legal because either the contraband was in plain view of the agents and subject to seizure as contraband, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Miller v. State, Del.Supr., 310 A.2d 867 (1973); or, as the Superior Court decided, there were exigent circumstances justifying a warrantless search of defendants' vehicle. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Schramm v. State, Del.Supr., 366 A.2d 1185 (1976). However, the Superior Court held as a matter of law that the agents did not have probable cause to make the initial stop. It is the propriety of that ruling to which we now turn.

III

We quote the following language from State v. Schramm, supra, at 1189, which we find applicable to the case Sub judice:

There is no more jealously guarded right than that of an individual under the Fourth Amendment to be free from...