IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) ) ID No. 2204003966 JAMES MCDOUGAL, ) Defendant. )
Submitted: February 10, 2023 Decided: March 7, 2023
Memorandum Opinion & Order
Upon Defendant’s Motion to Suppress – DENIED.
This 7th day of March, 2023, having considered Defendant’s Motion to
Suppress, the State’s Response and the record in this matter; it appears to the Court
that:
1. Defendant James McDougal (hereinafter “Defendant”) was arrested on
April 8, 2022, and ultimately indicted on May 9, 2022, for the charges of Possession
of a Firearm by a Person Prohibited,1 Possession of Ammunition by a Person
Prohibited2 and Carrying a Concealed Deadly Weapon.3
1 11 Del. C. § 1448. 2 Id.. 3 11 Del. C. § 1442. See also Indictment, State v. James McDougal, ID No. 2204003966, D.I. 15. 2. Defendant filed the instant motion on December 12, 2022, seeking to
suppress the evidence obtained following his detention.4 The State responded in
opposition on January 21, 2023. 5 The motion was heard on February 12, 2023.6
Judgment was reserved.
3. Defendant’s motion challenges the basis for his initial detention with
police under Terry v. Ohio, arguing that the officers did not possess the required
reasonable, articulable suspicion of criminal activity under both the Delaware and
United States Constitutions.7
4. The relevant facts and record were developed from the filed motions
and at the motion hearing. Officers Leonard Moses and Shauntae Hunt of the
Wilmington Police Department (hereinafter “WPD”) testified. In addition, Body
Worn Camera (hereinafter “BWC”) of Officers Rosaio and Hunt were played as
State’s Exhibits.8 As a result of this record, it was revealed that in late March, 2022,
a Confidential Informant (hereinafter “CI”) told WPD that four (4) individuals were
involved with street-level drug dealing at the area of 24th and Carter Streets in
Wilmington. The CI additionally told police that these individuals were known to
carry firearms either on their person or would use a ground stash, due to a high police
4 D.I. 8. 5 D.I. 13. 6 D.I. 12. 7 See Defendant’s Motion to Suppress, D.I. 8. 8 D.I. 8, 12, 13. presence in the area.9 This CI was not past proven reliable, however following the
initial tip, WPD identified the four individuals the CI referenced by nickname as
Jamir Coleman, Rashad Acklin, Demy Lee and Dashawn Smith. The CI did not
identify Defendant. Through their research, WPD learned that prior to the CI tip,
two of the named individuals (Demy Lee and Dashawn Smith) had been located with
weapons in the area of 24th and Carter Streets.
5. On the date of Defendant’s arrest, WPD officers were on proactive
patrol in the area of 24th and Carter Streets when they observed Defendant and two
others, Jamir Coleman and Rashad Acklin, standing idle at the intersection of 24th
and Carter Streets on the sidewalk. These individuals were blocking the flow of
traffic on the sidewalk. Because of his prior research into the CI tip, Officer Moses
was aware that the people with Defendant – Coleman and Acklin – did not live in
the area. Officer Moses and the other WPD officers on scene were unfamiliar with
Defendant at the time of their initial observation. The officers then parked and exited
their patrol vehicle, with Officer Hunt approaching Jamir Coleman and Officer
Moses approaching Defendant. Another, unidentified officer approached Acklin.
9 Officer Moses defined a ground stash as an area close to where a drug dealer will stand in which a firearm and/or drugs can be concealed. This area can be behind a trash can, under wheels, broken stoop or any other area where contraband can be concealed, yet easily accessible. D.I. 12. 6. Upon approaching Defendant, Officer Moses immediately noticed
Defendant was dressed in baggy clothes with multiple layers, a characteristic of an
armed individual, according to his training. Officer Moses noted it was
unseasonable attire for the weather and that it appeared Defendant was wearing
multiple pairs of pants. According to Officer Moses, armed individuals will wear
multiple layers of clothing to prevent a firearm they are carrying from “printing”.
Printing is when the firearm is visible from outside of the clothing. Multiple layers
additionally helps secure an unholstered firearm from moving around. Moses
contacted Defendant, explained to him his concerns about loitering in the area and
asked Defendant if he was armed. Defendant replied that he was not and was asked
if he would consent to a pat down. Defendant said he would not. Officer Moses
then asked Defendant for his name and explained that the purpose was to identify
him, so that he could be given his warning and “be sent on his way.” Defendant
refused to give Officer Moses his name. At that time, Moses instructed Defendant
sit down on a nearby stoop out of concerns for officer safety, while he attempted to
learn his identity.
7. As Defendant was taken to the stoop, both Coleman and Aklin were
given a warning to move on pursuant to 11 Del. C. § 1321. Both individuals had
given their names to the officers and moved along accordingly. Upon being placed
on the stoop, Officer Moses observed a “unusual” bulge in Defendant’s waistband. Defendant was asked about the bulge and in response pulled out a medical facemask
and a hair cap. The bulge was still present, so Officer Moses conducted a pat down
of Defendant. During the pat down, a loaded pink and black 9mm firearm was
located in his clothes at his waistband. Defendant was subsequently arrested and
identified and charged with the instant offenses.
8. The Fourth Amendment of the United States Constitution and Art. I, §
6 of the Delaware Constitution prohibits unreasonable searches and seizures by the
State. A seizure occurs under the Delaware constitution “when a reasonable person
would have believed he or she was not free to ignore the police presence.” 10 The
police may stop and briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that criminal activity “may
be afoot.”11 An officer has reasonable suspicion to stop a person for investigative
purposes if the detaining officer is able to “point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant
the intrusion.”12 Reasonable, articulable suspicion is a less demanding standard than
probable cause and requires “a showing considerably less than a preponderance of
the evidence.”13 In determining whether an officer had reasonable, articulable
10 Jones v. State, 745 A.2d at 869. 11 U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (citing Terry v. Ohio, 392 U.S. at 7). 12 Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989) (quoting Terry v. Ohio, 392 U.S. 1 (1968).) 13 Woody v. State, 765 A.2d 1257, 1263 (Del. 2001) suspicion, the Court may look to the totality of the circumstances and determine
whether a reasonable officer and considers the facts using an objective standard.14
The State bears the burden of proving, by a preponderance of the evidence, that the
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) ) ID No. 2204003966 JAMES MCDOUGAL, ) Defendant. )
Submitted: February 10, 2023 Decided: March 7, 2023
Memorandum Opinion & Order
Upon Defendant’s Motion to Suppress – DENIED.
This 7th day of March, 2023, having considered Defendant’s Motion to
Suppress, the State’s Response and the record in this matter; it appears to the Court
that:
1. Defendant James McDougal (hereinafter “Defendant”) was arrested on
April 8, 2022, and ultimately indicted on May 9, 2022, for the charges of Possession
of a Firearm by a Person Prohibited,1 Possession of Ammunition by a Person
Prohibited2 and Carrying a Concealed Deadly Weapon.3
1 11 Del. C. § 1448. 2 Id.. 3 11 Del. C. § 1442. See also Indictment, State v. James McDougal, ID No. 2204003966, D.I. 15. 2. Defendant filed the instant motion on December 12, 2022, seeking to
suppress the evidence obtained following his detention.4 The State responded in
opposition on January 21, 2023. 5 The motion was heard on February 12, 2023.6
Judgment was reserved.
3. Defendant’s motion challenges the basis for his initial detention with
police under Terry v. Ohio, arguing that the officers did not possess the required
reasonable, articulable suspicion of criminal activity under both the Delaware and
United States Constitutions.7
4. The relevant facts and record were developed from the filed motions
and at the motion hearing. Officers Leonard Moses and Shauntae Hunt of the
Wilmington Police Department (hereinafter “WPD”) testified. In addition, Body
Worn Camera (hereinafter “BWC”) of Officers Rosaio and Hunt were played as
State’s Exhibits.8 As a result of this record, it was revealed that in late March, 2022,
a Confidential Informant (hereinafter “CI”) told WPD that four (4) individuals were
involved with street-level drug dealing at the area of 24th and Carter Streets in
Wilmington. The CI additionally told police that these individuals were known to
carry firearms either on their person or would use a ground stash, due to a high police
4 D.I. 8. 5 D.I. 13. 6 D.I. 12. 7 See Defendant’s Motion to Suppress, D.I. 8. 8 D.I. 8, 12, 13. presence in the area.9 This CI was not past proven reliable, however following the
initial tip, WPD identified the four individuals the CI referenced by nickname as
Jamir Coleman, Rashad Acklin, Demy Lee and Dashawn Smith. The CI did not
identify Defendant. Through their research, WPD learned that prior to the CI tip,
two of the named individuals (Demy Lee and Dashawn Smith) had been located with
weapons in the area of 24th and Carter Streets.
5. On the date of Defendant’s arrest, WPD officers were on proactive
patrol in the area of 24th and Carter Streets when they observed Defendant and two
others, Jamir Coleman and Rashad Acklin, standing idle at the intersection of 24th
and Carter Streets on the sidewalk. These individuals were blocking the flow of
traffic on the sidewalk. Because of his prior research into the CI tip, Officer Moses
was aware that the people with Defendant – Coleman and Acklin – did not live in
the area. Officer Moses and the other WPD officers on scene were unfamiliar with
Defendant at the time of their initial observation. The officers then parked and exited
their patrol vehicle, with Officer Hunt approaching Jamir Coleman and Officer
Moses approaching Defendant. Another, unidentified officer approached Acklin.
9 Officer Moses defined a ground stash as an area close to where a drug dealer will stand in which a firearm and/or drugs can be concealed. This area can be behind a trash can, under wheels, broken stoop or any other area where contraband can be concealed, yet easily accessible. D.I. 12. 6. Upon approaching Defendant, Officer Moses immediately noticed
Defendant was dressed in baggy clothes with multiple layers, a characteristic of an
armed individual, according to his training. Officer Moses noted it was
unseasonable attire for the weather and that it appeared Defendant was wearing
multiple pairs of pants. According to Officer Moses, armed individuals will wear
multiple layers of clothing to prevent a firearm they are carrying from “printing”.
Printing is when the firearm is visible from outside of the clothing. Multiple layers
additionally helps secure an unholstered firearm from moving around. Moses
contacted Defendant, explained to him his concerns about loitering in the area and
asked Defendant if he was armed. Defendant replied that he was not and was asked
if he would consent to a pat down. Defendant said he would not. Officer Moses
then asked Defendant for his name and explained that the purpose was to identify
him, so that he could be given his warning and “be sent on his way.” Defendant
refused to give Officer Moses his name. At that time, Moses instructed Defendant
sit down on a nearby stoop out of concerns for officer safety, while he attempted to
learn his identity.
7. As Defendant was taken to the stoop, both Coleman and Aklin were
given a warning to move on pursuant to 11 Del. C. § 1321. Both individuals had
given their names to the officers and moved along accordingly. Upon being placed
on the stoop, Officer Moses observed a “unusual” bulge in Defendant’s waistband. Defendant was asked about the bulge and in response pulled out a medical facemask
and a hair cap. The bulge was still present, so Officer Moses conducted a pat down
of Defendant. During the pat down, a loaded pink and black 9mm firearm was
located in his clothes at his waistband. Defendant was subsequently arrested and
identified and charged with the instant offenses.
8. The Fourth Amendment of the United States Constitution and Art. I, §
6 of the Delaware Constitution prohibits unreasonable searches and seizures by the
State. A seizure occurs under the Delaware constitution “when a reasonable person
would have believed he or she was not free to ignore the police presence.” 10 The
police may stop and briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that criminal activity “may
be afoot.”11 An officer has reasonable suspicion to stop a person for investigative
purposes if the detaining officer is able to “point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant
the intrusion.”12 Reasonable, articulable suspicion is a less demanding standard than
probable cause and requires “a showing considerably less than a preponderance of
the evidence.”13 In determining whether an officer had reasonable, articulable
10 Jones v. State, 745 A.2d at 869. 11 U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (citing Terry v. Ohio, 392 U.S. at 7). 12 Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989) (quoting Terry v. Ohio, 392 U.S. 1 (1968).) 13 Woody v. State, 765 A.2d 1257, 1263 (Del. 2001) suspicion, the Court may look to the totality of the circumstances and determine
whether a reasonable officer and considers the facts using an objective standard.14
The State bears the burden of proving, by a preponderance of the evidence, that the
stop comported with both the Delaware and Federal Constitution.15
9. Here, the State concedes that a detention occurred when Defendant was
instructed to sit down on the stoop, therefore, the analysis is limited to Officer
Moses’ observations prior to that point and whether the initial questioning of
Defendant constituted a seizure. Defendant argues the detention occurred when
Officer Moses approached Defendant which required reasonable, articulable
suspicion at that point in time. There is no body cam video of the initial approach
to Defendant, as the recording begins once Defendant is already seated on the stoop.
10. The State purports, through the testimony of both Officers Moses and
Hunt, that the officers, after having observed the three men loitering, were
attempting to give Defendant the requisite loitering warning and have him move on,
as they did with Coleman and Acklin.
11. A stop does not occur upon any encounter between a citizen and the
police. Police may ask questions of or approach a citizen without it being considered
14 Jones v. State, 28 A.3d 1046 (Del. 2011), see also Lopez-Vazquez v. State, 956 A.2d 1280 (Del. 2008), 15 Hunter v. State, 783 A2d. 558, 560 (Del. 2001). a detention.16 This is what initially occurred here. Delaware law does not prohibit
an officer from approaching a citizen and asking questions and police officers “are
permitted to initiate contact with citizens on the street for the purpose of asking
questions.”17 Therefore, when the officers initially approached the group and simply
asked for their names, it cannot reasonably be said that the individuals did not feel
free to ignore the police presence. This is further supported by the fact that the
officers did not further question or ultimately detain Coleman and Acklin.
12. However, at the point that Defendant was told that if he gave his name,
he would be allowed to move along, a reasonable person in Defendant’s shoes would
not have free to ignore the police presence, due to the officer’s own words.18
13. That being so, 11 Del C. § 1321 is important here. This section requires
an officer to give a warning prior to any arrest for a loitering violation, “[u]nless
flight by the accused or other circumstances make it impracticable.” Officer Moses
testified that it is his practice, consistent with the statute, to identify the person by
name when giving a warning to ensure that, if a citation is given in the future, it was
to the correct person. Officer Moses testified that this was his intention when
approaching Defendant. This is consistent with the evidence that the other two
16 Woody v. State, 765 A.2d 1257, 1263-64. 17 Brown v. State, 35 A.3d 418, 2011 WL 5319900, at *2 (Del. Oct. 31, 2011) (TABLE) (quoting Jones, 28 A.3d at 1051). 18 See Williams v. State, 962 A.2d 210, 215-216 (Del. 2008). individuals were similarly approached and released with their warning once their
names were provided. It was only upon Defendant’s refusal, coupled with the
observation of his clothing and a concern for officer safety, did Officer Moses
require Defendant to sit on the nearby stoop.
14. Because Moses was investigating a potential violation of the loitering
statute, 11 Del. C. § 1902, allows further detention if Moses possessed a “reasonable
ground to suspect” Defendant was “committing, has committed or is about to
commit” that crime.19 In viewing the totality of the circumstances, Officer Moses’
ability to articulate that the three men were impeding the flow of pedestrian traffic,
two of the three individuals did not live in the area and had no known lawful purpose
to be there, the background information provided by the CI that street level drug
sales were occurring at that location, 20 as well as the observations of Defendant’s
baggy, layered clothes in which it appeared he was wearing two sets of pants, a
“reasonable trained police officer in the same or similar circumstances” would be
justified in suspecting criminal activity. Thus, he possessed reasonable, articulable
suspicion at that point to detain Defendant.
19 11 Del. C. § 1902(a). 20 In this analysis, appropriate weight is being given to the credibility of the CI information. While not challenged in Defendant’s motion specifically, it is not lost on the Court that the CI was not past proven, and relayed information that potentially could have been revealed through public arrest records. 15. Accordingly, no violation under either Article I, § 6 of the Delaware
Constitution, or the Fourth Amendment of the United States Constitution occurred
when the officers approached, and eventually detained Defendant. Further, under
Terry v. Ohio and its Delaware progeny, once reasonable, articulable suspicion is
had for the initial detention, Officer Moses appropriately engaged in the pat down
of Defendant once on the stoop, no further analysis is required.21
IT IS HEREBY ORDERED, that Defendant’s Motion to Suppress is
DENIED.
________________________________ Danielle J. Brennan, Judge
Original to Prothonotary
Cc: Karin Volker, Esquire, Deputy Attorney General James Turner, Esquire, Office of Defense Service
21 Jones v. State, 745 A.2d 856 (Del. 1999).