State v. Rose
| Decision Date | 30 June 2022 |
| Docket Number | C. A. 1911004775 |
| Parties | STATE OF DELAWARE, v. JEFFREY ROSE, Defendant. |
| Court | Superior Court of Delaware |
Submitted: March 11, 2022
Upon Defendant Jeffrey Rose's Motion to Suppress: GRANTED
1. Police officers patrolling a Wilmington neighborhood at night smelled marijuana while they drove past a parked car occupied by one individual. The officers did not see any indication that marijuana was being smoked in the car and never saw anyone operating the vehicle. After a single pass around the block, the officers detained the vehicle's occupant, who then allegedly spontaneously confessed to a variety of crimes. The defendant now moves to suppress all the evidence obtained through his detention and subsequent arrest, arguing the officers' detection of an odor of marijuana associated with his parked vehicle was not reasonable suspicion to permit an investigative detention. Because a vaguely described odor of marijuana connected with a parked vehicle did not give the officers reasonable articulable suspicion to believe criminal activity was afoot, the motion to suppress is granted.
2. The State offered the following facts at an evidentiary hearing conducted on November 5, 2021. On November 8, 2019, three law enforcement officers assigned to Wilmington Police Department's Safe Streets division ("Safe Streets") were conducting "proactive patrol" in Wilmington's Southbridge area. Safe Streets is a joint task force comprised of officers assigned to Wilmington Police Department and Probation & Parole.[1] On the night in question, Sergeant Matthew Rosaio and Detective James Wiggins were paired with Probation Officer Justin Phelps[2] (collectively, the "Safe Streets officers") and were patrolling their assigned area in an unmarked black Chevy Tahoe (the "Tahoe"). At the evidentiary hearing, Sergeant Rosaio described "proactive patrol" as "actively driving around in some of the more high-crime areas that are known throughout the city … looking for anything of a criminal nature or that would be suspicious that would require some sort of further investigation."[3]
3. The Safe Streets officers' encounter with Defendant Jeffrey Rose ("Defendant") occurred in the 1300 block of B Street, which is intersected by Bradford and Claymont streets. The Ezion Fair Church and Hicks Park sit on the Bradford Street end of the block, and the Neighborhood House Community Center sits on the Claymont Street end of the block. Between Bradford Street and Claymont Street is the largely residential area of B Street.[4] At approximately 10:00 p.m when the events in question occurred, B Street was quiet with little-to-no pedestrian or vehicle activity. The south side of B Street contains some residences, while the north side is vacant. [5] The Safe Streets officers did not have any tips or intelligence that criminal activity was occurring in the area at that time, but they view the neighborhood as a high-drug area that typically is quiet and dark at that time of night.[6]
4. When they turned onto B Street from Bradford Street, the Safe Streets officers were travelling at approximately 10 to 15 mph, with all four windows of the Tahoe down. According to their testimony, Sergeant Rosaio and Detective Wiggins, who were in the front of the Tahoe, both "began detecting an odor of what [they have] learned through [their] training and experience to be marijuana."[7] Sergeant Rosaio noticed a black Chrysler (the "Chrysler") parked midway up the block across from the residential houses.[8] There were no other vehicles parked on the street.[9]According to the Safe Streets officers, the odor of marijuana intensified as the Tahoe approached the Chrysler. Sergeant Rosaio observed a black male sitting in the driver's seat, leaned back, with the window open. The Safe Streets officers did not see any smoke or other indication that the vehicle's occupant was using marijuana at the time.[10] Sergeant Rosaio could not classify the marijuana smell as raw or burnt.[11] According to the officers, they did not see anyone else in the vehicle when they drove past it.
5. The Tahoe continued past the Chrysler and, according to testimony, the marijuana smell dissipated. Sergeant Rosaio and Detective Wiggins apparently were both able to detect a strengthening and weakening of the odor as the Tahoe continued down B Street.[12] In fact, Detective Wiggins testified to their shared observations regarding what "we," i.e. he and Sergeant Rosaio, smelled.[13] At this time, the Safe Streets officers, intent on further investigating the smell of marijuana, circled the block and again turned onto B Street from Bradford. At that time, Sergeant Rosaio and Detective Wiggins testified they "began detecting the same odor of marijuana to the same extent that [they] did the first time."[14]
6. After circling the block, Sergeant Rosaio, who was driving the Tahoe, stopped in the roadway about 15 to 20 feet behind the Chrysler. The Safe Streets officers did not activate their lights or sirens, and Sergeant Rosaio conceded Defendant could not have been known the Tahoe's occupants were law enforcement officers.[15] All three Safe Streets officers exited the Tahoe simultaneously and began approaching the Chrysler.[16] As they approached, Defendant "quickly exited" the driver's side of the vehicle carrying a bookbag.[17] Believing Defendant was about to flee the scene, Sergeant Rosaio ordered Defendant to stop, drop the bookbag, and put up his hands.[18]
7. According to Sergeant Rosaio and Detective Wiggins, Defendant complied with that order and then "spontaneously uttered without being questioned"[19] that he (1) had an outstanding capias, (2) previously smoked marijuana, and (3) had ecstasy and psychedelics in the bookbag.[20] Defendant immediately was taken into custody and handcuffed, all within 30 seconds of the Safe Streets officers exiting the Tahoe.[21] While the officers were circling the block, a passenger apparently entered the Chrysler.[22] That person also was taken into custody, and a gray bottle containing Xanax and ecstasy was recovered from the passenger's seat.[23] The officers later confirmed that Defendant had an outstanding capias. Upon further investigation, no marijuana or related paraphernalia was found in the Chrysler.[24] In fact, there was no evidence that anything ever had been smoked in the car.
8. During the evidentiary hearing, Defendant challenged the officers' testimony.[25] For example, it is undisputed that, at some point during the interaction, additional Safe Streets units were called to the scene. But Defendant disagreed with the timing of when those officers arrived and some other aspects to the Safe Streets officers' testimony. Defendant testified that two vehicles simultaneously stopped near his parked car - the Tahoe and a grey car. Frightened, Defendant exited the car and saw law enforcement officers wearing police vests and pointing weapons at him. Defendant then stopped in accordance with Sergeant Rosaio's instructions. Defendant also denies volunteering that he had an outstanding capias, drugs, or previously smoked marijuana.
9. On January 6, 2020, Defendant was indicted for Drug Dealing and Aggravated Possession in connection with the drugs seized during his arrest. On August 17, 2020, Defendant's counsel filed a motion to suppress all the evidence seized by the Safe Streets officers following Defendant's detention and arrest on November 8, 2019 (the "Motion"). In connection with that Motion, Defendant sought discovery regarding similar traffic stops conducted by Safe Streets. The Court entered orders on February 8, 2021, and June 17, 2021, permitting some of the requested discovery. An evidentiary hearing was held on November 5, 2021, after which the parties submitted supplemental briefing refining their arguments in light of the discovery and testimony.
10. In his Motion to Suppress,[26] Defendant argues the Safe Streets officers' decision to stop him was pretextual and, even if it was not pretextual, the officers lacked reasonable articulable suspicion to detain him based solely on the odor of marijuana.[27] Defendant alternatively argues that he was arrested, rather than detained, when he was ordered to place his hands in the air.[28] In his post-hearing memoranda, Defendant reiterates his argument that the odor of marijuana the officers described, standing alone, does not amount to reasonable articulable suspicion to detain-or probable cause to arrest-him. Defendant contends Delaware's 2015 decriminalization of possession and use of a small amount of marijuana changed the legal landscape and compels the conclusion that the odor of marijuana does not point to criminality.[29] Moreover, Defendant asserts that law enforcement's or the Court's reliance on the amorphous and subjective nature of an "odor" of marijuana "exacerbates the practice of targeting motorists based upon race."[30] For all those reasons, Defendant urges the Court to suppress all evidence seized by Wilmington Police following Defendant's detention or arrest.[31]
11. The State, on the other hand, argues the Safe Streets officers possessed reasonable articulable suspicion to detain Defendant based on their detection of the odor of marijuana coming from his car and the fact that the vehicle was parked "on a dark, somewhat desolate street in a high-crime high-drug area, at a time of night where community members would not be congregating in the area."[32] The State also asserts the State Street officers had probable cause to arrest Defendant based on his admissions to having a capias, smoking marijuana, and possessing ecstasy. Finally, the State argues Delaware's decriminalization of...
To continue reading
Request your trial