Quarles v. State

696 A.2d 1334, 1997 Del. LEXIS 237, 1997 WL 395329

• Court: Supreme Court of Delaware
• Decided: June 18, 1997
• Docket: 113, 1996
• Status: Published

Opinions

WALSH, Justice (for the majority).

In this appeal from the Superior Court, the appellant, Samir Quarles (“Quarles”) seeks a reversal of a ruling that denied his motion to suppress evidence of illegal drugs seized from his person during a street encounter with police. The Superior Court rejected Quarles’ contention that the police lacked “reasonable suspicion” to detain him or, alternatively, that even if the stop was sustainable, the subsequent consent to search his person was not voluntary. We conclude that under a totality of circumstances test the conduct of the appellant, measured from the perspective of experienced police officers, provided a specific and articulable basis for a limited investigative stop. We further conclude that the Superior Court’s factual determination that Quarles consented to a search of his person is supported by the record. Accordingly, the judgment of the Superior Court is affirmed.

I

The facts underlying the Superior Court’s ruling are drawn from the testimony presented at a pretrial suppression hearing. That testimony, partially in conflict, concerned the stop and eventual arrest of Quarles, and a co-defendant Michael Thomas (“Thomas”), by officers of the Wilmington Police Department on September 15, 1995 near the Wilmington bus terminal at Second and French Streets.

At approximately 10:00 p.m. on the date in question, Officers Looney and Solge went to the terminal to meet a bus arriving from New York City. Based on their past experience, the officers were aware that the bus in question was often used by persons acting as drug couriers. It was their intention to conduct surveillance of persons departing the bus with the hope of intercepting the flow of drugs into the city. As they watched, fifteen to twenty passengers disembarked from the bus with two individuals, later identified as Quarles and Thomas, exiting last.

Although Quarles and Thomas were conversing as they left the bus, their conversation “came to an abrupt halt” as soon as they observed two uniformed officers standing nearby. The conversation was not reinitiat-ed once the pair passed the officers. The pair then stood motionless on the sidewalk for a few moments before turning to walk north toward Second Street in the opposite direction of the police. The police observed as Quarles began walking at a faster pace ahead of Thomas, who eventually caught up with Quarles after some distance. As Quarles and Thomas proceeded quickly toward Second Street, Quarles looked back on three different occasions to determine the location of the police officers. When Quarles and Thomas reached the intersection of Second and French Streets they turned west on Second Street. After they turned the corner, Quarles observed a third officer, Officer Cunningham, sitting in his patrol car in a parking lot a short distance ahead on Second Street. Upon observing Cunningham’s vehicle, Quarles backtracked to the corner and looked around to determine where the two officers on foot were located. According to the officers, Quarles and Thomas seemed “kind of surprised” and in a quandary as to what direction to proceed. At that point Officers Looney and Solge approached the pair and Officer Solge asked if he could speak to them. Quarles and Thomas agreed to speak with the officers.

In the meantime, Officer Cunningham, who had been in radio contact with the other two officers, proceeded the wrong way on Second Street, against traffic, and parked his vehicle partially on the sidewalk prior to joining the group gathered at the corner. The defendants gave inconsistent statements as to their destination and appeared nervous in answering questions about their origin and destination. They were advised that the police were checking for drugs and/or weapons couriers and were asked if they, had any drugs or contraband on their persons. The police requested permission to conduct a search of their persons as well as of a bag carried by Quarles. Quarles testified that he consented only to a search of his bag. The police proceeded to search both Quarles’ bag and his person, uncovering a large quantity of cocaine in Quarles’ boot.

Although the State argued in the Superior Court that the police had not detained the two suspects and that the encounter was consensual, the Superior Court ruled to the contrary holding that the defendants had been “seized,” thus requiring a showing that the officers had a “reasonable articulable suspicion” of wrongdoing sufficient to justify stopping the defendants. The court further concluded that the officers proffered a sufficient explanation to justify the seizure and that Quarles had consented to the body search.

II

In this appeal we first consider Quarles’ contention that the Superior Court erred by admitting evidence which was seized by police incident to an allegedly invalid investigatory stop. Quarles argues that the encounter between himself and the police amounted to a “seizure,” in violation of his rights under the Fourth Amendment to the United States Constitution, because the police lacked justifiable grounds to detain him. In addition, he argues that the search which resulted in the discovery of drugs on his person was conducted in the absence of his consent. Having carefully weighed the protections afforded Quarles under the Fourth Amendment against the totality of circumstances perceived by the police officers on the scene, we conclude that the police had a sufficient basis upon which to detain Quarles. We further conclude that the Superior Court’s factual determination that Quarles, in fact, consented to a search which revealed the illegal drugs is factually supportable.

The Fourth Amendment. affords the citizenry the right to be free from unwarranted governmental searches and seizures. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 1872-73, 20 L.Ed.2d 889 (1968). A “seizure” within the meaning of the Fourth Amendment occurs when a suspect is physically forced to stop or when a suspect submits to a show of authority by the police. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). When evaluating whether a seizure has occurred, a reviewing court looks to see if, under all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he/she was not free to terminate the encounter with the officers. Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388-89, 115 L.Ed.2d 389 (1991).

Two categories of police-citizen encounters which constitute seizures under the Fourth Amendment have been recognized. The first is a limited intrusion in which the police restrain an individual for a short period of time. United States v. Hernandez, 8th Cir., 854 F.2d 295, 297 (1988). This is commonly referred to as a Terry-stop and requires that the officers have a reasonable articulable suspicion that the suspect has committed or is about to commit a crime. The second and more intrusive seizure occurs when the police effectuate an arrest of a suspect for the commission of a crime. Id. A full-scale seizure of this type may occur only when police have established probable cause that the suspect has committed a crime.¹ Id. The question presented to this Court is whether the police approached Quarles in such a manner that he felt compelled to yield to the officers’ control and if so, whether the police had an articulable basis to suspect he was committing a crime.

We concur with the findings of the Superior Court that the police conduct did constitute a seizure. Shortly after exiting the bus, Quarles and his companion caught the attention of Officers Looney and Solge, who proceeded to follow the two suspects north on French Street towards Second Street. As the two proceeded west on Second Street, Officer Cunningham drove his marked police car east on Second Street, against the flow of traffic, pulled his vehicle halfway up on to the sidewalk, and stopped just west of where Quarles was standing. At this point, Quarles found himself positioned between Officer Cunningham and Officers Looney and Solge. When approached by the three officers under these conditions, Quarles’ stopping was an act of submission to a show of authority by the police. In view of all the circumstances, “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). This was clearly a Fourth Amendment seizure.

Having found a seizure, we now focus on whether the police conduct can survive constitutional scrutiny. Under the Fourth Amendment, a police seizure can be justified only when, based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the belief that a crime is being or has been committed. Terry, 392 U.S. at 17-18, 88 S.Ct. at 1877-78. Under this standard, the courts must look for a minimal level of objective “justification” for making the stop. U.S. v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). This burden of proof is “considerably less” than proof by a preponderance of the evidence and less demanding than probable cause. Id. See also Robertson v. State, Del.Supr., 596 A.2d 1345, 1352 (1991) (Quantum of evidence necessary for reasonable suspicion is less than that required for probable cause). When conducting its analysis, the court must consider the totality of the circumstances, the “whole picture,” as viewed through the eyes of a police officer who is experienced in discerning the ostensibly innocuous behavior that is indicative of narcotics trafficking. U.S. v. Forero-Rincon, 2d Cir., 626 F.2d 218, 222 (1980).

The United States Supreme Court has stated that the circumstances must be evaluated under an objective/subjective standard as opposed to a purely objective standard. This reflects the reality that:

[m]uch of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs ... may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.

United States v. Place, 462 U.S. 696, 704 n. 5, 103 S.Ct. 2637, 2643 n. 5, 77 L.Ed.2d 110 (1983) (citing Mendenhall, 446 U.S. at 561, 100 S.Ct. at 1880-81). It logically follows that a pattern of behavior interpreted by an untrained observer as innocent could justify an investigatory stop when viewed by experienced law enforcement agents who are cognizant of current drug trafficking operations.² United States v. Cortez, 449 U.S. 411, 418-19, 101 S.Ct. 690, 695-96, 66 L.Ed.2d 621 (1981); United States v. Vasquez, 2d Cir., 634 F.2d 41, 43 (1980). In Cortez, the United States Supreme Court cautioned that terms like “articulable reasons” and “founded suspicion” are not self-defining. But the Court noted that any assessment of police conduct must be two-pronged, based upon: (1) “all the circumstances,” including objective observations and “consideration of the modes or patterns of operation of certain kinds of lawbreakers”; and (2) the inferences and deductions that a trained officer could make which “might well elude an untrained person.” Cortez, 449 U.S. at 417-18, 101 S.Ct. at 695. We believe that standard is an appropriate one for use by courts reviewing the conduct of detaining officers, and we adopt it here.

In our case, the officers relied upon specific factors together with a “drug courier profile” to justify their articulable suspicion. Although the use of “profiling” is vigorously debated in academic circles, it has been accepted by the United States Supreme Court. The Court has stated that a “profile,” alone, will not justify a seizure, but when considered in conjunction with police observations, a seizure could be warranted even though the “non-profile” observations by themselves would not justify an investigatory stop. Sokolow, 490 U.S. at 9, 109 S.Ct. at 1586-87. Moreover, the fact that the articulated factors “may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance as seen by a trained agent.” Id. at 10, 109 S.Ct. at 1587.

Here the “profile” characteristics were: (1) the defendants came into Wilmington via bus from New York (a known drug source city); (2) they carried no luggage; (3) they came in at night, typically when law enforcement activity is at a minimum; and (4) they traveled as a pair. This profile was compiled relying upon police experience, based on past arrests of individuals bringing drugs into the City of Wilmington. The “non-profile” factors relied upon by police were: (1) the defendants’ startled reaction to uniformed police officers upon exiting the bus (ceasing their conversation); (2) quickly leaving the bus terminal in a direction away from the officers; (3) the defendants’ repeated glances over their shoulders to see if the officers were following them both before and after turning the corner; (4) rapid stride; and (5) abrupt about face upon seeing a marked police car.

When assessing the relevance of these factors the focus is not on whether the “particular conduct is ‘innocent’ or ‘guilty’ but the degree of suspicion that attaches to particular types of conduct.” Illinois v. Gates, 462 U.S. 213, 245 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983). Courts have recognized that wholly lawful and innocent conduct descriptive of a large segment of the population can justify the suspicion that criminal activity is afoot. Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980).

When Quarles exited the New York bus in Wilmington, he and his companion satisfied a number of well known “drug courier profile” characteristics. While this fact alone would not justify a seizure, when combined with the other specific instances of suspicious and odd behavior, police were justified in effectuating a seizure. Com. v. Mallory, 418 Pa.Super. 614, 614 A.2d 1174, 1178 (1992). This Court notes that the conclusions reached by the officers as to Quarles’ behavior were based in large part upon their personal experiences in conducting drug courier surveillance at the bus station.³ ' Combined, the officers conducted surveillance at the bus station over 90 times, approximately two to three times a month, with, over the past year, Officer Looney personally arresting 12 people for carrying drugs through the station.⁴

The two arresting officers, drawing on their experience of observing hundreds of people move through the bus station, were able to conclude that Quarles’ behavior was abnormal and suspicious when compared to other passengers.⁵ Quarles’ suspicious behavior and the “drug profile,” when taken as a whole from the perspective of one who is trained in narcotics detection, produces a reasonable articulable suspicion that a crime was afoot. We therefore conclude that the police officers had a sufficient basis upon which to support an initial stop to question Quarles.

The safeguarding of a citizen’s rights against unreasonable stops and seizures by police officers is a cherished protection under the Fourth Amendment and this Court’s obligation to advance those rights is clear. But this Court should not turn a blind eye to the realities of society’s war against drugs and the experience of the police in combating that problem. We are entitled to test the actions of the police by the exacting standards of the Fourth Amendment jurisprudence, but we should be reluctant to substitute an academic analysis for the on the spot judgment of trained law enforcement officers. There is no suggestion here of a pretextual stop— merely a disagreement concerning the level of suspicion.

Finally we turn to the remaining issue in this appeal — whether Quarles voluntarily consented to having the police search his person for illegal weapons or drugs. According to Quarles’ own testimony, the officers stated that they were having problems with weapons coming in from New York and asked if Quarles would consent to a search. It is at this point that Quarles’ version of the events differs from that of the officers. Quarles contends that he only consented to a search of his bag while the officers testified that Quarles consented to a search of his person as well as his bag. As to the scope of the consent, the Superior Court was faced with an issue of credibility.

In determining that Quarles did in fact consent to a search of his person, the Superi- or Court concluded that the testimony of Officers Looney and Solge was more credible than that of Quarles. As this Court has stated previously in passing upon a trial court’s factual findings made incident to a suppression hearing, it is the province of the trier of fact to judge the credibility of the witnesses and to resolve conflicts in testimony. Chao v. State, Del.Supr., 604 A.2d 1351, 1363 (1992). The Superior Court’s decision not to accept the testimony of Quarles will not be disturbed by this Court on appeal.

After careful review of the record, we conclude that Quarles’ detention was permissible under the Fourth Amendment and that he voluntarily consented to the search of his person. Accordingly we affirm the decision of the Superior Court.

1 . Consensual encounters are not deemed to be seizures and do not implicate the Fourth Amendment. See Bostick, 501 U.S. at 439, 111 S.Ct. at 2388-89. Similarly, a seizure does not occur simply because police approach an individual and ask a few questions based on a hunch. United States v. Manuel, 10th Cir., 992 F.2d 272, 274 (1993).

2 . The Court described the formulation of suspicion as follows:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as fact finders are permitted to do the same — and so are law enforcement officers.

Cortez, 449 U.S. at 418, 101 S.Ct. at 695.

3 . The record contains relevant testimony concerning the officers' observations and the abnormal behavior of Quarles.

The following is from the redirect examination of Officer Looney:

Q. In the forty times you had been there, had you been able to tell the difference between people who are just looking around and people who are looking around suspiciously, at least in your mind.

A. Yes.

Q. When the fifteen to twenty people that got off the bus before these two got off the bus, did they all look at you or notice you?

A. I’m sure they did, yes.

Q. Did they do the same kinds of things that these two did with regard to noticing your presence?

A. No.

Q. Did any of the other fifteen or twenty people keep looking back to see where you were?

A. No.

Q. What about you said there were some people waiting to get on the bus.

A. Yes.

Q. Did you notice any of them looking at you?

A. No. Most of the time they just look at us once and that’s it. They're happy to see that we’re down there, I suppose.

4 . The officers' extensive experience conducting surveillance at the bus station is supported by testimony elicited during the trial.

The following is from the cross examination of Officer Looney:

Q. Prior to September 5th, 1995 how many times had you done surveillance at either the bus station or the Amtrak train station?

A. To date not including this—

Q. I’m talking about prior to September 5th, 1995, not after.

A. I’d say close to a dozen cases.

Q. You had been down there a dozen times?

A. No. I mean we’ve been down there more than that. I'd say we've been down there at least thirty, forty times.

Q. What period of time would that cover?

A. From, I would say, within about a year.

Q. So you go down there maybe once or twice a month, three times a month?

A. About that. It depends.

The following is from the direct examination of Officer Cunningham:

Q. [H]ow many times have you been down there [at the bus station] conducting surveillance just generally? More than fifty?

A. Probably.

5 . With over 90 surveillance operations at the bus station, if each night only one bus carrying twenty passengers came into the station, the two arresting officers would have witnessed the behavior of over 1800 passengers. This vast experience gave the officers an adequate frame of reference for detecting abnormal or suspicious behavior.