IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) ) v. ) I.D. No. 2103011314 ) Cr. A. Nos. IN21-05-0153, etc. ) AARON A. JACKSON )
Submitted: September 12, 2022 Decided: December 28, 2022 Written Opinion Issued: January 23, 2023
MEMORANDUM OPINION & ORDER
Upon Defendant Aaron Jackson’s Motion to Suppress, DENIED.
Jillian L. Schroeder, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE, Wilmington, Delaware, for the State of Delaware.
John S. Edinger, Jr., Esquire, Assistant Public Defender, OFFICE OF DEFENSE SERVICES, Wilmington, Delaware, for Defendant Aaron Jackson.
WALLACE, J. Defendant Aaron Jackson has been indicted for Possession of a Firearm by a
Person Prohibited and other related offenses. He’s vigorously prosecuted a motion
to suppress the gun and drugs the State intends to use at trial. But, because the police
had a reasonable articulable suspicion that Mr. Jackson was committing or was about
to commit a criminal offense, they properly stopped the car in which he was
travelling and thereafter properly discovered the gun and drugs. So, Mr. Jackson’s
motion to suppress that evidence must be DENIED.
I. MR. JACKSON’S MOTION TO SUPPRESS
Mr. Jackson has moved to suppress evidence obtained when the vehicle he
was riding in was stopped; he says the police had no valid reason to stop the vehicle.
In his view, a police officer’s observation that he was rolling a marijuana cigar in
the front seat of the moving vehicle did not reasonably indicate that he was engaged
in illegal activity. In turn, Mr. Jackson says that officer’s observation of his alleged
illegal conduct absent more—like a traffic violation or other criminally suspicious
behavior on the part of himself or the vehicle’s other passengers—was not sufficient
to warrant the pull-over. Mr. Jackson insists those deficiencies, coupled with key
investigating officer, Wilmington Police Department Corporal Jhalil Akil’s
credibility issues, should be more than enough to find the vehicle’s initial detention
was unconstitutional. Accordingly, he seeks to suppress all evidence gathered
thereafter.
-2- II. APPLICABLE LEGAL STANDARDS
A. GENERAL CONSTITUTIONAL STANDARDS APPLICABLE TO THE SEIZURE QUESTION POSED HERE
In Delaware, individuals are protected from unreasonable seizures by both the
Fourth Amendment to the United States Constitution and Article I, § 6 of the
Delaware Constitution.1 “But it is only those searches and seizures that are
‘unreasonable’ that run afoul of” either or both.2
“When law enforcement directs a driver to stop her car, the State has ‘seized’
the car and its occupants, and the protections of the Fourth Amendment [and Article
I, § 6] apply.”3 “In the traffic stop context, . . . a seizure is reasonable when a law
enforcement officer conducts a brief investigatory traffic stop based on reasonable
and articulable suspicion of criminal activity.”4 The legitimacy of motor vehicle
stops is tied to the existence of a “reasonable suspicion that a legal violation has
occurred”5 or, perhaps more aptly here, is about to occur.6
1 U.S. CONST. amend. IV; DEL. CONST. art. I, § 6. 2 West v. State, 143 A.3d 712, 716 (Del. 2016). 3 Id.; Tann v. State, 21 A.3d 23, 26 (Del. 2011) (“Under the Fourth Amendment of the United States Constitution and Article I, § 6 of the Delaware Constitution, a traffic stop is a seizure of the vehicle and its occupants.” (citation omitted)). 4 West, 143 A.3d at 716 (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968)). 5 State v. Prouse, 382 A.2d 1359, 1361 (Del. 1978). 6 See Holden v. State, 23 A.3d 843, 847 (Del. 2011) (“Generally, police officers can stop an individual for investigatory purposes if they have a reasonable articulable suspicion that the person is committing, has committed, or is about to commit a crime.” (citations omitted)); Quarles v. State, 696 A.2d 1334, 1337 (Del. 1997) (Such police-citizen encounters “require[] that the officers -3- “A ‘reasonable suspicion’ exists when the officer can ‘point to specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant th[e] intrusion.’”7 “[T]he quantum of evidence necessary for
reasonable suspicion is less than that which is required for probable cause to arrest.”8
Indeed, while a mere “hunch” does not constitute reasonable suspicion,9 the level of
suspicion required is “considerably less than proof of wrongdoing by a
preponderance of the evidence,” and “obviously less demanding than that for
probable cause.”10
“Police officers are permitted to stop a motor vehicle based on a police
officer’s reasonable suspicion that the operator or occupant of the vehicle has
committed or is committing a violation of the law.”11 The existence of reasonable
suspicion is “evaluated in the context of the totality of the circumstances to assess
whether the detaining officer had a particularized and objective basis to suspect
have a reasonable articulable suspicion that the suspect has committed or is about to commit a crime.”). 7 Juliano v. State, 254 A.3d 369, 388 (Del. 2020) (alteration in original) (citing Downs v. State, 570 A.2d 1142, 1145 (Del. 1990)). 8 Id. (quoting Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989)). 9 United States v. Sokolow, 490 U.S. 1, 7 (1989) (“The officer, of course, must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.”) (cleaned up); Woody v. State, 765 A.2d 1257, 1262 (Del. 2001) (“An officer’s subjective impressions or hunches are insufficient.” (citation omitted)). 10 Sokolow, 490 U.S. at 7 (citation omitted); Quarles, 696 A.2d at 1337. 11 State v. Mayfield, 2021 WL 4188725, at *2 (Del. Super. Ct. Sept. 14, 2021) (citations omitted).
-4- criminal activity.”12 That totality giving rise to the vehicular stop is “viewed through
the eyes of a reasonable, trained police officer in the same or similar circumstances,
combining objective facts with the officer’s subjective interpretation of those
facts.”13 And when determining whether reasonable suspicion exists to justify a
detention, a court might rightly defer to the experience and training of a law
enforcement officer.14
B. EVIDENTIARY STANDARDS APPLICABLE TO THE SEIZURE QUESTION POSED HERE
“The principal components of a determination of reasonable suspicion . . . will
be the events which occurred leading up to the stop . . . and then the decision whether
these historical facts, viewed from the standpoint of an objectively reasonable police
officer, amount to reasonable suspicion.”15 Accordingly, the suppression hearing
judge’s first responsibility is to determine the historical facts from the testimony
presented, physical or documentary evidence, and inferences from other facts.16
Among other things, “the trial judge, sitting as the finder of fact at a pretrial
suppression hearing, determines witness credibility.”17 And “when presented with
12 Lopez-Vazquez v. State, 956 A.2d 1280, 1288 (Del. 2008) (citing cases). 13 Id. (citations omitted). 14 Woody, 765 A.2d at 1262 (citations omitted). 15 Ornelas v. United States, 517 U.S. 690, 696 (1996). 16 Lopez v. State, 861 A.2d 1245, 1248-49 (Del. 2004) (citing Ornelas, 517 U.S. at 696 and Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985) (noting that: “The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.”)). 17 Turner v. State, 957 A.2d 565, 570-71 (Del. 2008) (citations omitted).
-5- differing accounts of historical facts, ‘it is the [suppression hearing judge’s] role to
resolve the conflicts in witnesses’ testimony and weigh their credibility.’”18 To do
so, the judge might consider any existing objective evidence.19 She might also
consider whether certain proffered testimony is so “inconsistent or implausible on
its face that a reasonable factfinder would not credit it.”20 In the end though, when
weighing the evidence and finding facts, the suppression hearing judge may “reach
any ‘inferences, deductions and conclusions to be drawn from the evidence.’”21
III. DISCUSSION
A. THE COURT EVALUATED CPL. AKIL’S CREDIBILITY IN MAKING THE FINDINGS OF FACT UNDERPINNING THIS SUPPRESSION RULING.
These suppression proceedings meandered an uncustomary path. Resultingly,
this writing must take a not-oft-travelled detour to address a unique witness
credibility issue posed here.
The vehicle that Mr. Jackson was riding in on March 19, 2021, was stopped
18 Diggs v. State, 257 A.3d 993, 1006 (Del. 2021) (alteration added) (quoting Johnson v. State, 2007 WL 1575229, at *1 (Del. May 31, 2007)). See Anderson, 470 U.S. at 575 (explaining the “greater deference [accorded] to the trial court’s findings [based on determinations regarding the credibility of witnesses]; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said” (citation omitted)). 19 Anderson, 470 U.S. at 575. 20 Id. 21 United States v. France, 414 F. Supp. 3d 747, 750 (W.D. Pa. 2019) (quoting United States v. Harris, 884 F. Supp. 2d 383, 387 n.2 (W.D. Pa. 2012)). And a suppression hearing judge’s factual findings “can be based upon physical evidence, documentary evidence, testimonial evidence, or inferences from those sources jointly or severally.” State v. Abel, 68 A.3d 1228, 1232 (Del. 2012) (quoting Cede & Co. v. Technicolor, Inc., 758 A.2d 485, 491 (Del. 2000)).
-6- by WPD officers based solely on Cpl. Akil’s visual observation of Mr. Jackson
rolling and licking what appeared to be a marijuana cigar in the front seat.22 Because
that seizure was warrantless, the State has the burden of proving the validity of the
police’s action.23 To do so, the State called as its only suppression witness
Cpl. Akil—the officer who purportedly made the observation just mentioned—to
testify as to what he saw, his interpretation thereof, and his actions related to
Mr. Jackson’s stop and seizure.
1. The State’s Brady Disclosure
Before Mr. Jackson’s preliminary hearing, the State notified him that
Cpl. Akil was placed on the Delaware Department of Justice (“DelDOJ”)’s “Brady
list”24 due to his conduct in State v. Deonte Robinson—a 2020 case in which
Cpl. Akil made certain averments in an arrest warrant and offered certain testimony
at a preliminary hearing that were not factually accurate.25 At bottom, both sides
agree that in Robinson, Cpl. Akil used the phrases or terms “received information
22 Suppression Hr’g Tr. at 8, 32, State v. Aaron A. Jackson, ID No. 2103011314 (Del. Super. Ct. Nov. 12, 2021) (D.I. 18) (hereinafter cited as “Jackson Supp. Hr’g Tr. at __”). 23 Juliano, 254 A.3d at 392 (quoting Hunter v. State, 783 A.2d 558, 560 (Del. 2001)). 24 See Michael v. State, 529 A.2d 752, 755 (Del. 1987), abrogated on other grounds, Stevens v. State, 129 A.3d 206 (Del. 2015), (citing Brady v. Maryland, 373 U.S. 83 (1963)) (defining Brady material as “evidence favorable to the defendant and material either to guilt or punishment”); State’s Ans. to Supp. Mot. at 11 n.34, State v. Aaron A. Jackson, ID No. 2103011314 (Del. Super. Ct. Nov. 9, 2021) (D.I. 10) (As defined by the State here: “The [Del]DOJ ‘Brady List’ is an internal working document for prosecutors to assist them in satisfying their constitutional obligations.”). 25 Preliminary Hr’g Tr. at 5, 13, State v. Aaron A. Jackson, ID No. 2103011314 (Del. Com. Pl. May 5, 2021) (Del. Super. Ct.—D.I. 2) (hereinafter cited as “Jackson Prelim. Hr’g Tr. at __”); Jackson Supp. Hr’g Tr. at 25-27, 35.
-7- from a confidential informant” or “was notified by a confidential informant” to
describe how he obtained certain information when, in fact, Cpl. Akil gathered such
via his own direct online observation of suspects while he was logged into his own
camouflaged social media account.26
That all was divulged during the Robinson proceedings27 and eventually
investigated for internal discipline by the Wilmington Police Department with no
finding of actionable misconduct.28 Even still, the DelDOJ disclosed Cpl. Akil’s
activity in the Robinson case here to Mr. Jackson.29 The reason: It’s long been
understood that impeachment evidence falls within the Brady rule just the same as
more direct exculpatory evidence.30 And “[u]nder Brady and its progeny, the State’s
failure to disclose exculpatory and impeachment evidence that is material to the case
26 Jackson Supp. Hr’g Tr. at 17-18, 20, 24, 27. 27 Preliminary Hr’g Tr. at 6-9, 16-18, State v. Deonte L. Robinson, ID No. 2008006367 (Del. Com. Pl. Sept. 14, 2020) (Ex. C., Def. Mot. to Compel, State v. Aaron A. Jackson, ID No. 2103011314 (Del. Super. Ct. Jan. 3, 2022) (D.I. 20)) (hereinafter cited as “Robinson Prelim. Hr’g Tr. at __”); Jackson Supp. Hr’g Tr. at 25-27, 35. 28 Jackson Prelim. Hr’g Tr. at 13-17 (WPD Office or Professional Standards Sergeant: “There was an investigation. The official charge was inaccurate reporting regarding Corporal Akil and it was found that it was unsubstantiated. So it did not occur in our eyes . . .”); see also State’s Mot. in Limine at 3, State v. Aaron A. Jackson, ID No. 2103011314 (Del. Super. Ct. Oct. 27, 2021) (D.I. 7). 29 See Jackson Prelim. Hr’g Tr. at 5, 13-17; see also State’s Mot. in Limine at 3; State’s Ans. to Supp. Mot. at 15; Jackson Supp. Hr’g Tr. at 25-27, 35. 30 United States v. Bagley, 473 U.S. 667, 676 (1985); Michael, 529 A.2d at 756 (“Evidence which the defense can use to impeach a prosecution witness . . . as well as exculpatory evidence, falls within the Brady rule.” (citation omitted)); id. at 756 n.9 (observing that: “In 1807, the United States Supreme Court ruled that prior to trial a defendant must have access to impeachment evidence in the government’s possession.” (citing United States v. Burr, 25 Fed. Cas. 30, 36 (No. 14,692(d)) (CCVA 1807))).
-8- violates a defendant’s due process rights.”31
2. Cpl. Akil and the Robinson Case
It appears that at some point in 2019 or 2020, certain WPD investigators came
to use disguised social media accounts to surveil possible criminal activity that
wrongdoers might be broadcasting live on such platforms.32 Those officers—not
wanting to burn their online undercover identities—sought advice through the WPD
chain-of-command from the DelDOJ.
Apparently, in an answer to this inquiry regarding such use, a Deputy Attorney
General sent an e-mail to a WPD Lieutenant that read, in pertinent part:
[Lieutenant]
Attached is our advice regarding social media posts with guns.
[Deputy Attorney General]
* * *
5. Citing to Instagram as a “confidential informant” in warrants
It is acceptable to list information obtained from Instagram as coming from a confidential informant.33
There was no citation to authority or other basis provided for the advice given in this
e-mail, just the simple statement quoted here.
31 Wright v. State, 91 A.3d 972, 987 (Del. 2014) (citations omitted). 32 Robinson Prelim. Hr’g Tr. at 6-8; Jackson Supp. Hr’g Tr. at 25-27. 33 DelDOJ E-mail to WPD (Feb. 5, 2020), Jackson Supp. Hr’g, Ct.’s Ex. 1 (alterations in brackets added); see Jackson Supp. Hr’g Tr. at 19-24.
-9- That e-mail was then distributed to WPD officers, including the street crimes
unit to which Cpl. Akil was attached.34 A little over six months later, Cpl. Akil
followed this advice when drafting the Robinson arrest warrant35—the first for which
he was including information that came from his use of covert social media
surveillance.36 In that warrant he averred: first, that he “received information from
a confidential informant” that the suspects were in a particular vehicle and in
possession of a firearm; and second, his unit later “then received information from a
confidential informant” the about the possible whereabouts of one of those
suspects.37
About a month later at the Robinson preliminary hearing, Cpl. Akil testified:
Q. Can you walk us through how this investigation began?
A. Yes. So August 14th of 2020 at approximately 1250 hours I was notified by a confidential informant that Deonte Robinson and another male were occupying a Nissan --38
The examining Deputy Attorney General immediately interrupted Cpl. Akil and the
two corrected the misrepresentation—identifying the true source of the information
to be Cpl. Akil’s personal real-time observations made via his covert social media
34 Jackson Prelim. Hr’g Tr. at 13-14; Jackson Supp. Hr’g Tr. at 17-19. 35 Robinson Arrest Warrant (Ex. B, Def. Mot. to Compel (D.I. 20)). 36 Jackson Supp. Hr’g Tr. at 19. 37 Robinson Arrest Warrant at 3. 38 Robinson Prelim. Hr’g Tr. at 6.
-10- account.39 Cpl. Akil later explained in the Robinson hearing—as he has time and
again in these proceedings—that he identified the fruits of his own online
surveillance as coming from “a confidential informant” because he was “taught” to
do so.40 And he’s further explained by that he meant he was trying to assiduously
follow the advice given in the DelDOJ’s February 2020 e-mail.41
Again, Cpl. Akil’s conduct in the Robinson case was reported by the DelDOJ
to the WPD, subjected to a WPD professional standards investigation, and never led
to imposition of any discipline.42 But the DelDOJ did include and retain Cpl. Akil
on its “Brady list.”
3. Rule 608 and Cpl. Akil’s Conduct in the Robinson Case
The State readily disclosed Cpl. Akil’s activity in the Robinson case to
Mr. Jackson here—where Cpl. Akil would be testifying as to his observations and
actions related to Mr. Jackson’s stop and seizure.43 And that evidence was used to
attempt to impeach Cpl. Akil as a State’s witness during Mr. Jackson’s suppression
39 Id. at 6-9. 40 Id. at 18 (“Well, I was taught and I was also advised that we could use social media accounts as a notifier and describe them in the report as confidential informants. That’s what I was always taught.”). 41 E.g., Jackson Prelim. Hr’g Tr. at 14 (“My wording was confidential informant because [the Deputy Attorney General’s] exact wording in the email that he sent was confidential informant.”); Jackson Supp. Hr’g Tr. at 19, 25-28. 42 Jackson Prelim. Hr’g Tr. at 13-17; State’s Mot. in Limine at 3. 43 Jackson Prelim. Hr’g Tr. at 13.
-11- hearing.44
Thereafter, the State argued that given what occurred in the Robinson matter
as explained by Cpl. Akil and demonstrated by the e-mail on which he relied, any
questioning of him thereon at any proceeding is inappropriate.45 Hardly so.
Rule of Evidence 608(b) governs how and when the introduction of a
witness’s “bad acts” that are probative of truthfulness or untruthfulness may be
allowed to impeach him.46 “There are four factors a trial court should consider when
making that determination: (1) whether the testimony of the witness being
impeached is crucial; (2) the logical relevance of the specific impeachment evidence
to the question at bar; (3) the danger of unfair prejudice, confusion of the issues and
undue delay; and (4) whether the evidence is cumulative.”47
The first factor, the importance of the testimony of the witness being
impeached, heavily favors Mr. Jackson. The vehicle that Mr. Jackson was in was
pulled over based solely on Cpl. Akil’s supposed visual observation of Mr. Jackson
44 See Jackson Supp. Hr’g Tr. at 25-28. 45 State’s Mot. in Limine at 4 (“State . . . does not believe . . . that the use of the information should be allowed in any further proceedings where Cpl. Akil is called as a witness.”); State’s Ans. to Supp. Mot. at 11 (“[Cpl. Akil’s] prior misrepresentation is inadmissible character evidence.”); id. at 16 (insisting that because Cpl. Akil made the representations “under advice of the D[el]DOJ. He was not untruthful.”); State’s Post-Hr’g Br. at 9, State v. Aaron A. Jackson, ID No. 2103011314 (Del. Super. Ct. Apr. 14, 2022) (D.I. 27) (arguing Mr. Jackson should be precluded from cross- examining Cpl. Akil on his Robinson conduct at trial). 46 Harper v. State, 970 A.2d 199, 201 (Del. 2009); Manna v. State, 945 A.2d 1149, 1155-56 (Del. 2008). 47 Harper, 970 A.2d at 201 (citations omitted).
-12- preparing what appeared to be a marijuana-stuffed cigar in the front seat. Because
that seizure was warrantless, the State has the burden of proving its validity by a
preponderance of the evidence.48 And in its attempt to shoulder this burden, the
State called Cpl. Akil as its only suppression witness to relay what he saw, give his
interpretation thereof, and recount his actions related to Mr. Jackson’s stop and
seizure.
The second factor, the logical relevance of the impeachment evidence to the
question at bar, also favors Mr. Jackson. The State has endeavored to explain the
reasoning for Cpl. Akil’s warrant and testimonial averments made in Robinson, but
even its own most generous labeling admits they were knowing “misrepresentations”
in sworn statements to a judicial factfinder.49 And while no doubt the product of
patent misadvice by a prosecutor,50 those misrepresentations weren’t benign. The
48 See Juliano, 254 A.3d at 392 (quoting Hunter, 783 A.2d at 560). 49 E.g., State’s Ans. to Supp. Mot. at 11-14; State’s Post-Hr’g Br. at 8. 50 To be clear, it is NOT “acceptable” for a law enforcement officer to aver under oath that his own observation via social media surveillance was instead information provided by a “confidential informant.” This is not to say law enforcement’s surreptitious use of social media is impermissible; it certainly has been recognized as a valid investigatory tool. See Everett v. State, 186 A.3d 1224, 1236 (Del. 2018) (affirming denial of suppression motion after finding “the Fourth Amendment does not guard against the risk that the person from whom one accepts a ‘friend request’ and to whom one voluntarily disclosed such information might turn out to be an undercover officer or a ‘false friend’”); Commonwealth v. Carrasquillo, 179 N.E.3d 1104, 1120-21 (Mass. 2022) (affirming denial of suppression motion after finding defendant did not have a reasonable expectation of privacy of his private social media account after the defendant accepted an undercover officer’s friend request); United States v. Montijo, 2022 WL 93535, at *8 (M.D. Fla. Jan. 10, 2022) (denying suppression motion after finding defendant did not have a reasonable expectation of privacy in a video message sent to another Facebook user); United States v. Dever, 2012 WL -13- first were included to influence a judge to find probable cause, and misidentified the
source of key evidence (though not the substance of the evidence itself) in a material
way; the second in sworn testimony. The use of “confidential informant” has well-
accepted and significant meaning in that context.51 And while Cpl. Akil’s employing
12540235, at *2 (N.D. Okla. Dec. 28, 2012) (denying suppression motion after finding defendants’ expectation of privacy ended when “they disseminated posts to their ‘friends’ because those ‘friends’ were free to use the information however they wanted–including sharing it with the government” (citation omitted)); United States v. Meregildo, 883 F. Supp. 2d 523, 526 (S.D.N.Y. 2012) (denying suppression motion after finding defendant “surrendered his expectation of privacy” by sharing posts with his Facebook friends). And even the continued keeping of such concealed during the investigative stage is untroubling. Certain ruses and some amount of deception as investigative tools have been long-tolerated. E.g., Hicks v. State, 1990 WL 168284, at *2 (Del. Sept. 13, 1990) (“The use by law enforcement officers of deception and trickery to expose criminal activity is not improper or sufficient standing alone to establish entrapment.” (citation omitted)); Evans v. Phelps, 2012 WL 1134482, at *10 (D. Del. Apr. 2, 2012) (finding “a law-enforcement agent may use some psychological tactics or even actively mislead a defendant in order to obtain a confession, provided that a rational decision remains possible” (citation omitted)). But that must all end at the courthouse door. If a police officer undertakes to present the covertly- developed information to a judicial factfinder whose probable cause (or other necessary legal finding) she’s seeking, she must use no false label to try to conceal its source from that proceeding’s factfinder—the officer must make the decision whether to “burn” that specific resource or not; there is no middle ground. And here the emailing prosecutor’s attempt to accommodate law enforcement’s want to not reveal such covert social media surveillance was inexplicable. 51 Indeed, anyone would understand that misrepresentation to have the effect of diverting the warrant-affidavit’s reader from the true facts—that the officer used and was referring to his own watching of social media through an undercover digital persona—to a belief that there was some natural human being with valuable insider information who had obtained and reported that information to the police. See Confidential Informant, BLACK’S LAW DICTIONARY 373 (11th ed. 2019) (“Someone who provides information to a law-enforcement agency . . . on the express or implied guarantee of anonymity.”) (emphasis added); Confidential Informant, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/dictionary/english/confidential-informant (last visited Jan. 22, 2023) (“A person who secretly gives information to the police about criminal activity.”) (emphasis added). See also United States v. Crawford, 943 F.3d 297, 306 (6th Cir. 2019) (noting “the vital role confidential informants can play in furthering criminal investigations”).
-14- agency found administrative discipline unwarranted—which can be a weighty
consideration in such circumstances—it is hardly dispositive here.52
At issue now in this suppression hearing is whether the Court can, when
deciding the constitutional challenge posed, confidently credit Cpl. Akil’s sworn
testimony relaying what he purportedly saw, how he interpreted it, and key facts
related to Mr. Jackson’s stop and seizure.
The third factor—the danger of undue prejudice, confusion of the issues and
undue delay—is either neutral or also slightly favors Mr. Jackson.
As a general matter, such questioning is paradigmatic impeachment.53 “[T]he
cross-examination attack . . . [is limited] to acts which have a significant relation to
the witness’s credibility.”54 And courts have found a witness’s prior instances of
giving false testimony to be sufficiently related to credibility; so, they can be
inquired of to impeach.55
52 In neither of the State’s cited cases was there the straightforward evidence (and admissions) of the challenged officers’ actual prior conduct like that here. There is no question as to what Cpl. Akil wrote and said in Robinson, just explanations why he was motivated and felt it acceptable to make such misrepresentations. See State v. Tilghman, 2010 WL 703055, at *1 (Del. Super. Ct. Feb. 25, 2010); United States v. Johnson, 195 F. App’x 52, 62 (3d Cir. 2006). 53 See 3 MUELLER & KIRKPATRICK, FEDERAL EVIDENCE (2d ed. 1994) § 264 (noting that under even the most focused view, Rule 608 and modern cases clearly approve questioning on a witness’s prior behavior that bears on veracity and noting that questioning on alleged instances of a witness’s prior falsehood or deception are included thereunder). “The Delaware Uniform Rules of Evidence are modeled upon the Federal Rules of Evidence.” Atkins v. State, 523 A.2d 539, 542 (Del. 1987). And F.R.E. 608(b) is nearly identical to D.R.E. 608(b), and functionally identical for the purpose of this analysis. Compare F.R.E. 608, with D.R.E. 608. 54 1 MCCORMICK ON EVIDENCE § 41 (8th ed. Supp. July 2022) (citing cases). 55 3 MUELLER & KIRKPATRICK, FEDERAL EVIDENCE (2d ed. 1994) § 264 (citing cases).
-15- Once that witness is so impeached, the sponsoring party can attempt to
rehabilitate him. And as demonstrated here, one common method of doing so may
be through the introduction of relevant supportive evidence56 “to show that any
misconduct []he was asked about did not occur or that other circumstances not
mentioned during the earlier questioning are important in evaluating the conduct.”57
Though made a bit more daunting than necessary in this particular proceeding,
proper cross-examination on Cpl. Akil’s Robinson conduct is relatively
straightforward. So too is the State’s attempt at rehabilitation.58 In this instance, the
presentation of the Robinson impeachment evidence doesn’t risk confusing the Court
about the key issues in this suppression hearing. Nor has the State demonstrated
how that presentation has caused it substantial prejudice.
Factor four, whether the evidence is cumulative, also favors Mr. Jackson. The
impeachment evidence is not cumulative. It is, though, a recognized means by which
to attack Cpl. Akil’s credibility where no other negative character evidence has been
56 1 MCCORMICK ON EVIDENCE § 47 (8th ed. Supp. July 2022). 57 3 MUELLER & KIRKPATRICK, FEDERAL EVIDENCE § 270 (2d ed. 1994) (citing cases); see 1 IMWINKELRIED ET AL., COURTROOM CRIMINAL EVIDENCE § 717 (5th ed. 2011). 58 To attempt to rehabilitate Cpl. Akil after the questioning on his Robinson conduct, the State gave Mr. Jackson and the Court a highly redacted printout of the beforementioned e-mail. Jackson Supp. Hr’g, Ct.’s Ex. 1; see Jackson Supp. Hr’g Tr. at 19-24. Prompted by Mr. Jackson’s later motion to compel (D.I. 20), the Court examined the unredacted e-mail in camera and determined no information relevant to the specifics of this attempted credibility attack had been censored. Jackson Status Conf. Tr. at 5-6, State v. Aaron A. Jackson, ID No. 2103011314 (Del. Super. Ct. Mar. 16, 2022) (D.I. 29). The Court also inspected in camera the Wilmington Police Department- Office of Professional Standards’ materials related to the investigation of Cpl. Akil’s conduct in the Robinson case; the Court found no additional disclosures therefrom were necessary. Id. at 6-7.
-16- proferred. So the impeachment evidence is not cumulative.
Taking all the 608(b) factors together, each favors Mr. Jackson in the analysis
required for admission and use in this particular inquiry.59 And so, the Court has
given due consideration to the Robinson impeachment evidence as a factor in
assessing Cpl. Akil’s credibility as the State’s witness here.
That said, when making its findings in a suppression proceeding, the Court
must evaluate the credibility of any witness60 by giving due weight to the usual
factors identified in such exercise61 as well as any impeachment or counter evidence
presented. And at bottom, the Court’s findings here are—as they in the norm are—
“based upon physical evidence, documentary evidence, testimonial evidence, or
inferences from those sources jointly or severally.”62
B. FACTUAL FINDINGS RELATED TO THE STOP OF THE VEHICLE IN WHICH MR. JACKSON WAS TRAVELLING
On March 19, 2021, Cpls. Akil and Vasquez, and Patrolman Thomas were on
59 As mentioned before, the State seemingly seeks absolution for Cpl. Akil on this issue and some blanket declaration that his Robinson conduct may never be inquired-of again. See supra note 45. But those the Court cannot grant. For, as demonstrated here, the Harper Rule 608(b) examination is proceeding-specific. Even here, the result was admission at the suppression hearing, but could be exclusion at trial; it depends on Cpl. Akil’s role as a witness in a given proceeding. 60 Diggs, 257 A.3d at 1006; State v. Brown, __ A.3d __, 2023 WL 164302, at *3 (Del. Super. Ct. Jan. 11, 2023) (“At a suppression hearing, the Court sits as the finder of fact and evaluates the credibility of the witnesses.”); see also France, 414 F. Supp. 3d at 750. 61 See Anderson, 470 U.S. at 575 (observing in a such a proceeding: “only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said” (citation omitted)). 62 Abel, 68 A.3d at 1232 (cleaned up).
-17- patrol in an unmarked vehicle near the 2700 block of North Market Street.63
Cpl. Akil was sitting in the backseat of the unmarked vehicle.64 At around 6:30 p.m.,
while still in daylight, Cpl. Akil took notice of a specific vehicle coming southbound
on North Market Street.65
Cpl. Akil looked into that vehicle travelling in the opposite direction and saw
the front-seat passenger, later identified as Mr. Jackson, roll and lick a brown cigar
wrapper.66 At its closest point, the other vehicle was approximately five to six feet
away and vehicles were travelling somewhere between 10 and 25 miles per hour.67
Based on Cpl. Akil’s knowledge and experience, he believed that Mr. Jackson
was licking closed a marijuana cigar.68 Cpl. Akil based that observation on his
experience that regular tobacco cigars bought from a store do not need to have their
seams licked to close, but one altered to be a marijuana cigar—i.e. “a blunt”—needs
to be rolled and licked closed in the very manner Mr. Jackson was doing.69
Believing Mr. Jackson was about to light up what he believed was a blunt,
63 Jackson Supp. Hr’g Tr. at 5-8. 64 Id. at 6. 65 Id. at 7-8, 10. 66 Id. at 8 (“I observed him with a brown in [color] cigar leafy-style wrapper, put it up to his mouth like rolling it (indicating) . . . it’s indicative of a subject who is trying to ingest marijuana through smoking it); id. at 32 (“I saw him, up to his mouth, he’s rolling it -- so as you’re rolling it, you’re licking it, you’re rolling it and you’re licking it.”). 67 Id. at 10, 31. 68 Id. at 11-13. 69 Id. at 9-12.
-18- Cpl. Akil alerted Cpl. Vasquez and Patrolman Thomas.70 The officers pulled over
the vehicle and Cpl. Akil approached Mr. Jackson, who was sitting in the front
passenger side of the vehicle.71
With the windows of the vehicle down, Cpl. Akil saw “a small green in color
plant-like substance crumbled in [Mr. Jackson’s] lap area” and “smell[ed] a strong
odor of marijuana emanating from the vehicle.”72 At that point Cpl. Akil explained
to Mr. Jackson: “the reason why we’re stopping you is because I saw you rolling a
blunt.”73 In response, Mr. Jackson “shook his head and . . . acknowledged . . . that
he understood what [Cpl. Akil] said and . . . understood what [Cpl. Akil] saw and
what [Mr. Jackson] was doing.”74
C. OFFICERS HAD REASONABLE ARTICULABLE SUSPICION TO STOP THE VEHICLE.
“In the traffic stop context, . . . a seizure is reasonable when a law enforcement
officer conducts a brief investigatory traffic stop based on reasonable and articulable
suspicion of criminal activity.”75 “Reasonable suspicion is defined as the officer’s
70 Id. at 13. 71 Id. at 14. 72 Id. at 14-15. 73 Id. at 15. 74 Id. 75 West, 143 A.3d at 716 (citing Terry, 392 U.S. at 20-21 and DEL. CODE ANN. tit., 11 § 1902(a)). It was Mr. Jackson’s behavior alone that led the police to stop the vehicle. In that sense, the car stop is analytically akin to a pedestrian stop for which the applicable reasonable suspicion standards are the same. See Moody v. State, 2006 WL 2661142, at *2-3 (Del. Aug. 24, 2006) (allowing detention of a suspect on reasonable articulable suspicion after observing him discard -19- ability to point to specific and articulable facts, which taken together with rational
inferences from those facts, reasonably warrants the intrusion.”76
“In determining whether reasonable suspicion exists, the court looks at the
totality of the circumstances, as viewed through the eyes of a reasonable, trained
police officer in the same or similar circumstances, combining objective facts with
such an officer’s subjective interpretation of those facts.”77 A finding that reasonable
articulable suspicion exists does not require an ultimate finding of contraband or
illegal activity, rather it need only be found that a reasonable articulable suspicion
“support[ed] the belief that[] ‘a crime had just been, was being, or was about to be
committed.’”78
Here, Mr. Jackson contends that “[b]ecause Cpl. Akil only saw what looked
to be a marijuana cigar, the officers did not have reasonable articulable suspicion to
stop [the] car.”79 Mr. Jackson, citing numerous other jurisdictions, suggests that the
mere observation of a hand-rolled cigarette or cigar is insufficient for a finding of
what an officer believed was “a ‘blunt’—a cigar known by police to be commonly hollowed out and filled with marijuana”); Spencer v. State, 2018 WL 3147933, at *3 (Del. June 25, 2018) (allowing detention of a suspect on reasonable articulable suspicion after observing him bicycling on the wrong side of the road while smoking a marijuana cigar that he then handed to another). 76 Holden, 23 A.3d at 847 (citation and internal quotation marks omitted). 77 Hall v. State, 981 A.2d 1106, 1111 (Del. 2009) (citations and internal quotation marks omitted). 78 Backus v. State, 845 A.2d 515, 517 (Del. 2004) (quoting Robertson v. State, 596 A.2d 1345, 1350 (Del. 1991) (quoting Brown v. Texas, 443 U.S. 47, 51 (1979))). 79 Def. Mot. to Suppress at 5, State v. Aaron A. Jackson, ID No. 2103011314 (Del. Super. Ct. Aug. 12, 2021) (D.I. 5).
-20- reasonable articulable suspicion of a marijuana offense.80
But there is more particularized evidence and interpretation here. Cpl. Akil
saw Mr. Jackson put the apparently altered cigar wrapper to his mouth and lick and
roll it.81 Based on Cpl. Akil’s training and experience,82 he believed that Mr. Jackson
was rolling, and preparing to smoke, a blunt.83 Cpl. Akil explained why he would
associate Mr. Jackson’s actions with marijuana ingestion as opposed to ordinary
cigar smoking. He had seen the rolling and preparing of blunts for smoking hundreds
of times before.84
The objective evidence submitted at the suppression hearing corroborate
Cpl. Akil’s recounting of what exactly he saw and his interpretation of what
Mr. Jackson was doing. In the cupholder right next to Mr. Jackson were two blunts.85
On Mr. Jackson’s lap and seat were crumbs of marijuana and a lighter.86 And in the
80 Def. Supp. Ltr. at 2-3, State v. Aaron A. Jackson, ID No. 2103011314 (Del. Super. Ct. Apr. 14, 2022) (D.I. 28). 81 Jackson Supp. Hr’g Tr. at 8, 32. 82 At the time of the incident, Cpl. Akil had been a Wilmington Police Department officer for more than six years, half of that time with the Street Crimes Unit. Id. at 4; see also id. at 11 (“Q. Through your training and experience as a police officer, are you familiar with the ways that individuals can smoke marijuana? A. Yes. Q. Have you seen these cigar wrappers used as marijuana blunts before observing the defendant on March 19th? A. Yes.”). 83 Id. at 10-12; see United States v. Brown, 2008 WL 4936517, at *1 (D. Mass Nov. 17, 2008) (detaining suspect after observing the front-seat passenger “taking a drag” from a small cigar which the defendant held “between his thumb and forefinger”), aff’d, 621 F.3d 48 (1st Cir. 2010). 84 Jackson Supp. Hr’g Tr. at 10-12. 85 Jackson Supp. Hr’g, State’s Exs. 2 and 3; see also Jackson Supp. Hr’g Tr. at 15-16, 28-29. 86 Jackson Supp. Hr’g, State’s Ex. 2; see Jackson Supp. Hr’g Tr. at 15.
-21- door pocket next to him was a small bag of marijuana.87 In other words, all these
items were consistent with Mr. Jackson having just prepared a blunt for use or
consumption in precisely the manner Cpl. Akil knew it to be done.88
Sixteen Del. C. § 4764(d) makes the use or consumption of marijuana in a
moving vehicle a misdemeanor.89 And under the reasonable articulable suspicion
standard, an officer can stop a vehicle or individual if “that . . . person is committing,
has committed, or is about to commit a crime.”90 Based on Cpl. Akil’s observations,
he reasonably believed that a violation of Delaware’s marijuana laws was being or
was about to be committed. This gave Cpl. Akil, and the officers with him,
reasonable articulable suspicion to pull over the vehicle in which Mr. Jackson was
riding. So that initial seizure of Mr. Jackson’s person—stop of the vehicle—was
constitutionally permissible.
D. THERE IS NO BASIS TO EXCLUDE ANY OF THE ITEMS—A GUN AND PURPORTED DRUGS—RECOVERED FROM THE VEHICLE IN WHICH MR. JACKSON WAS A PASSENGER.
After the officers pulled over the vehicle Mr. Jackson was travelling in,
87 Jackson Supp. Hr’g, State’s Ex. 4; see Jackson Supp. Hr’g Tr. at 16-17. 88 Jackson Supp. Hr’g Tr. at 10-12. 89 DEL. CODE ANN. tit. 16, § 4764(d) (2021) (“Any person who knowingly or intentionally uses or consumes up to a personal use quantity of a controlled substance or a counterfeit controlled substance classified in § 4714(d)(19) of this title in an area accessible to the public or in a moving vehicle, except as otherwise authorized by this chapter, shall be guilty of an unclassified misdemeanor and be fined not more than $200, imprisoned not more than 5 days, or both.”). 90 Holden, 23 A.3d at 847 (citations omitted).
-22- Cpl. Akil asked the occupants, including Mr. Jackson, to step out of it.91 Mr. Jackson
complied and exited the vehicle.92 Thereafter, officers began to search the vehicle
for any more possible marijuana inside.93 As they neared the seat that he had
previously occupied, Mr. Jackson shoved an officer aside and began to run.94
Once a vehicle is validly stopped, the police may have the vehicle’s driver and
passengers step out of it.95 When that happens, mere passengers lose any potential
standing they may have had to challenge evidence gathered from a later search of
the vehicle.96 And no doubt Mr. Jackson’s fleeing from the officers as they were
beginning the vehicle search demonstrated his intent to abandon any previous
possessory interest in the items to be found.97
91 Jackson Prelim. Hr’g Tr. at 8. 92 Id. 93 Id. 94 Id. at 8-9. 95 Loper v. State, 8 A.3d 1169, 1174 (Del. 2010); Pennsylvania v. Mimms, 434 U.S. 106, 107-11 (1977). 96 State v. Goldsborough, 2022 WL 3695054, at *2 (Del. Super. Ct. Aug. 23, 2022) (“a mere passenger in a vehicle does not have standing to challenge a search” (citations omitted)); United States v. Baker, 221 F.3d 438, 441-42 (3d Cir. 2000) (“It is clear that a passenger in a car that he neither owns nor leases typically has no standing to challenge a search of the car.” (citing Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)); see Mills v. State, 2006 WL 1027202, at *2 (Del. Apr. 17, 2006) (finding a mere passenger lacks “standing with respect to the . . . search of [a] vehicle”). 97 See Jackson v. State, 990 A.2d 1281, 1289 (Del. 2009) (“Property discarded by a suspect who refuses to submit to an officer’s authority and flees is deemed abandoned.” (citing California v. Hodari D., 499 U.S. 621, 629 (1991)).
-23- IV. CONCLUSION
The Court has engaged the necessary credibility determination and given such
weight to Cpl. Akil’s testimony as it found was due. The Court has also considered
the testimonial evidence, physical evidence, documentary evidence, and the
legitimate inferences from those sources jointly and severally in making its findings.
That that done, Cpl. Akil and his partner Wilmington police officers had a
reasonable articulable suspicion that Mr. Jackson was committing or about to
commit a criminal offense. It was, therefore, permissible for them to pull over the
vehicle in which Mr. Jackson was a passenger. Accordingly, Mr. Jackson’s Motion
to Suppress the evidence uncovered through and after that stop is DENIED.
IT IS SO ORDERED.
_ Paul R. Wallace, Judge
-24-