Brown v. State

295 A.2d 575, 1972 Del. LEXIS 285
CourtSupreme Court of Delaware
DecidedJuly 25, 1972
StatusPublished
Cited by9 cases

This text of 295 A.2d 575 (Brown v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State, 295 A.2d 575, 1972 Del. LEXIS 285 (Del. 1972).

Opinion

HERRMANN, Justice.

In this appeal from convictions of carrying concealed a deadly weapon [11 Del.C. § 463] and possession of an hypodermic syringe [16 Del.C. § 4716(c)], the question is whether the search and seizure was reasonable and in conformity with the requirements of the Fourth Amendment, under the standards of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

I.

The defendant Brown was operating an automobile when he was stopped for a rou *576 tine traffic check by State Trooper Van Brunt. The suspicions of the police offi,cer had been aroused by seemingly strange and furtive looks and glances directed toward the police car by Brown and his two companions. Upon being stopped and interrogated, Brown was unable to produce a registration card; whereupon Van Brunt took Brown into the police car and initiated a check of the vehicle’s registration via police radio. Van Brunt became “a little apprehensive” when, during the wait, Brown talked of other police officers and inquired whether his name was being mentioned in police circles. The radio report confirmed Brown’s ownership of the car, and Van Brunt was about to release Brown as “cleared” on the routine stop, when Van Brunt was interrupted by two urgent radio messages, received almost simultaneously, from other cruising State police officers who had overheard Van Brunt’s radio check of Brown’s registration: Sergeant Jester and Detective Cole. The first radio instruction to Van Brunt was to remove Brown from the police car; whereupon Van Brunt directed Brown to leave the police car and wait alongside. Then Sergeant Jester informed Van Brunt that he “had confidential information” that Brown “was in possession of a hand gun of some kind” and Jester “wanted him [Van Brunt] to be careful with” Brown. Jester then advised that he “was enroute to that particular spot” and that he “would back him up due to the circumstances”, the “circumstances” being “information that he had a weapon”.

By the other intervening radio message, Detective Cole informed Van Brunt that he “had information from a woman and her son who is 16 years old — it was either the same day earlier or the day before— that Mr. Brown was supposed to be in the possession of a gun and had pulled it on this boy at the 7-11 at Foulk and Grubb Roads”.

Upon receipt of these warnings, Van Brunt immediately made a “pat-down” search of Brown standing alongside the police car, and felt “a large bulge” in the “top part of his left boot”. From the “bulge”, Van Brunt seized the knife, sheath, and hypodermic syringe here in controversy.

The defendant’s motion to suppress the evidence thus seized was denied. The main issue raised at the suppression hearing, and here, relates to the reliability of the informant * and the relevancy thereof under the standards of Terry.

II.

Recently, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the United States Supreme Court had the first occasion “to give some flesh to the bones of Terry”, 407 U.S. at 153, 92 S.Ct. at 1927. There, too, the police officer searched for and seized a weapon upon the basis of the report of an informant. There, too, the attack upon the reasonableness of the search and seizure was based, in large measure, upon the lack of personal observation by the policeman and upon the asserted unreliability of the informant.

The test applied in Adams for a pre-ar-rest Terry search was whether the infor *577 mation received by the officer “carried enough indicia of reliability” to justify the officer’s action. There, it was held that the officer acted reasonably in reaching through a window of a parked automobile and in seizing a gun from the waistband of the occupant, all upon the report of an informant who was known to the officer and who had previously provided the officer with information. In so holding, the United States Supreme Court stated in Adams: (407 U.S. at 147, 92 S.Ct. at 1924)

“ * * * we reject respondent’s argument that reasonable cause for a stop and frisk can only be based on the officer’s personal observation, rather than on information supplied by another person. Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may very greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime — the subtleties of the hearsay rule should not thwart an appropriate police response.”

The instant case is a stronger case than Adams as to the reliability of the officer’s informants. Trooper Van Brunt’s informants were his fellow officers upon whose information and warnings he was, of course, entitled and obliged to rely.

Going one step back, the defendant attacks the reliability of Sergeant Jester’s and Detective Cole’s informant. In testing the reasonableness of Van Brunt’s reaction to the information relayed to him by Jester and Cole, we deem irrelevant the reliability of the latters’ informant. In the exercise of the judgment of a reasonably prudent policeman, in the exigencies of the moment, Van Brunt could hardly be expected to stop the proceedings long enough to question and adjudge the reliability of the informant upon the basis of whose report his fellow officers saw fit to issue the urgent warning. As stated in Adams, “the subtleties of the hearsay rule should not thwart an appropriate police response” to such good faith warning. The information received by Van Brunt from his fellow officers, of course, carried ample “indicia of reliability” to justify Van Brunt’s action.

III.

The defendant contends that Trooper Van Brunt did not testify that he feared for his own safety, or for the safety of others, at any time in the confrontation with Brown; that, therefore, a Terry pre-arrest search was unwarranted. This contention is unacceptable. In both Terry and Adams, the Court spoke of the existence of justification or reason for fear, rather than the existence of fear itself, as the basis for the protective search authorized by Terry. In Terry. “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presumably dangerous to the officer or to others”, he may conduct a limited protective search for concealed weapons. Also in Terry: the issue is “whether a reasonably prudent man would have been warranted in believing” the suspect “was armed and thus presented a threat to the officer’s safety while he was investigating his suspicious behavior.” 88 S.Ct. at 1883. And in Adams,

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295 A.2d 575, 1972 Del. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-del-1972.