State v. Terry

• Court: Supreme Court of Delaware
• Decided: April 2, 2020
• Docket: 430, 2019
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, § § No. 430, 2019 Plaintiff Below, § Appellant, § § v. § Court Below: Superior Court § of the State of Delaware ALFRED TERRY, § § Cr. ID No. 1803009958 (K) Defendant Below, § Appellee. §

Submitted: March 18, 2020 Decided: April 2, 2020

Before, SEITZ, Chief Justice; VALIHURA, and MONTGOMERY-REEVES Justices.

ORDER

This 2nd day of April, 2020, upon consideration of the parties’ briefs and the

record below, it appears to the Court that:

(1) The State appeals the Superior Court’s September 10, 2019 order granting

defendant Alfred Terry’s motion to suppress. The State argues that the Superior

Court applied the incorrect legal standards to assess the police search of Terry’s

automobile and person. Terry concedes that the Superior Court used the incorrect

legal standards and, thus, erroneously granted his motion to suppress. For the reasons identified below, we agree with the State and reverse the judgment of the

Superior Court.

(2) On March 15, 2018, Detective John Willson witnessed Terry leaving his

home in Dover, Delaware and recognized him from an ongoing investigation. 1 Terry

drove a Ford Escape with all windows, other than the windshield, heavily tinted.2

Detective Willson followed Terry for approximately one mile and witnessed Terry

stop on the side of the road to conduct a hand-to-hand transaction with an unknown

person.3 Due to his training and experience, Detective Willson believed he had

witnessed a drug transaction.4 Detective Willson, who was in an unmarked car,

radioed to Officers Willie Johnson and Justin Richey to inform them of his

observations.5 Officer Richey conducted a Criminal Justice Information Services

check and discovered that Terry did not have a window tint waiver. 6 Officer Johnson

then conducted a stop of Terry’s vehicle.7

(3) Officer Johnson pulled Terry over, approached Terry’s driver’s side

window, and, due to the heavy tint, asked Terry to roll down all of the vehicle’s

1 App. to Opening Br. 16, 32 (“A__” hereafter). 2 A16-17. 3 A33, 35. 4 A33-34. 5 A36. 6 A46-47. 7 A17, 41, 46.

2 windows. 8 Officer Richey, who approached the passenger side of the vehicle,

immediately noticed a strong odor of cologne emanating from the vehicle. 9 Officer

Richey also observed that Terry was nervous. 10 Once the cologne began to dissipate,

both officers noticed the smell of marijuana. 11

(4) Officer Johnson removed Terry from the vehicle “for a search of his

person and vehicle.”12 Upon exiting the vehicle, Terry admitted to having “a bit of

marijuana inside his pants pocket that he had forgotten he had.” 13 Johnson searched

Terry and recovered a plastic bag containing approximately 1.7 grams of marijuana

from Terry’s front pants pocket.14 After searching Terry, the officers conducted a

search of the vehicle. They recovered a loaded handgun under the driver’s seat, a

digital scale in the center console, plastic baggies, and an envelope containing 88

grams of marijuana. 15

(5) On June 4, 2018, a Kent County grand jury indicted Terry for drug

dealing, possession of a firearm during the commission of a felony, two counts of

possession of a firearm by a person prohibited, carrying a concealed deadly weapon,

8 A17, 48. 9 A17. 10 A66-67. 11 A17, 49. 12 A17. 13 Id. 14 Id. 15 Id.

3 receiving a stolen firearm, and possession of drug paraphernalia.16 On July 23, 2019,

Terry filed a motion to suppress the evidence gathered from the police searches of

his vehicle and person, arguing that the initial stop and both searches violated his

rights under the Fourth and Fourteenth Amendments of the United States

Constitution and Article I, Section VI of the Delaware Constitution.17

(6) On September 10, 2019, the Superior Court granted the motion, holding

that the police searches of Terry’s vehicle and person were unconstitutional. 18 The

State certified that the suppressed evidence was essential for the prosecution of the

case and moved for dismissal.19 On September 20, 2019, the Superior Court granted

the State’s motion and dismissed the indictment. 20 The State now appeals the

Superior Court’s September 10, 2019 order.

(7) This Court reviews the Superior Court’s resolution of a motion to suppress

for an abuse of discretion; nonetheless, we review questions of law de novo. 21

(8) On appeal, the State argues that the Superior Court abused its discretion

by applying the wrong legal standards to assess the warrantless searches of Terry’s

vehicle and person.

16 A1. 17 A8-12. 18 Opening Br. Ex. A. 19 A5. 20 Id. 21 Miller v. State, 25 A.3d 768, 770-71 (Del. 2011); Sierra v. State, 958 A.2d 825, 828 (Del. 2008); Lopez-Vazquez v. State, 956 A.2d 1280, 1284-85 (Del. 2008).

4 (9) The State first argues that the Superior Court abused its discretion when

it suppressed evidence gathered from the search of Terry’s vehicle because the State

failed to show that exigent circumstances existed. 22 Terry responds that “[g]iven the

Superior Court’s findings . . . police had probable cause to search the vehicle without

obtaining a search warrant regardless of the absence of exigent circumstances.” 23

(10) The United States Supreme Court has long acknowledged that police

may search vehicles without a warrant so long as “the search [is] not malicious or

without probable cause.”24 In 1985, this Court adopted the standard articulated by

the United States Supreme Court in U.S. v. Johns25 to assess warrantless vehicle

searches. Police “may lawfully search [a] vehicle without a warrant” if “the police

have probable cause to believe that an automobile is carrying contraband or

evidence.” 26 “A vehicle lawfully in police custody may be searched on the basis of

probable cause to believe that it contains contraband, and there is no requirement of

exigent circumstances to justify such a warrantless search.” 27

22 Opening Br. 2. 23 Answering Br. 2. 24 Carroll v. United States, 267 U.S. 132, 147 (1925). 25 469 U.S. 478 (1985). 26 Tatman v. State, 494 A.2d 1249, 1253 (Del. 1985) (citing Johns, 469 U.S. at 484). 27 Id.; see also Hall v. State, 981 A.2d 1106, 1113–14 (Del. 2009) (rejecting an argument that the Delaware Constitution provides greater protections than the Fourth Amendment and requires showing both probable cause and exigent circumstances); State v. DePasquale, 1991 WL 138429, at *2 (Del. July 18, 1991); Reeder v. State, 2001 WL 355732 (Del. Mar. 26, 2001); Valentine v. State, 2019 WL 1178765 (Del. Mar. 12, 2019).

5 (11) Applying the correct automobile exception standard to the facts as found

by the Superior Court, which neither party expressly challenges, reveals that the

police search of Terry’s vehicle qualified for the exception.28 When the officers

approached Terry’s vehicle, they noticed a strong odor of cologne coming from the

car. After the odor of cologne dissipated, they noticed a strong odor of marijuana.29

These facts, coupled with Detective Willson’s observation of a hand-to-hand

exchange, 30 establish that the officers had probable cause to believe that Terry’s

vehicle contained contraband; thus, the police officers were allowed to search the

vehicle under the automobile exception. The Superior Court abused its discretion

when it suppressed evidence gathered during that search because no exigent

circumstances existed.

28 Tatman, 494 A.2d at 1253. See also Harris v. State, 806 A.2d 119, 130 (Del. 2002) (finding that probable cause exists when “the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found”). 29 See Fowler v. State, 2016 WL 5853434, at *1 (Del. Sept. 29, 2016) (“[T]his Court has found strong odors of other illegal drugs, by itself, to be sufficient to constitute probable cause.”); Hall, 981 A.2d at 1114 (“The strong odor of PCP establishes probable cause to believe the vehicle occupied by Hall contained evidence of criminal activity.”). 30 See State v. Davis, 1988 WL 67724, at *2 (Del. Super. Ct. June 3, 1988) (“Here, the officer’s observation of an ‘exchange’ weighs in favor of finding probable cause.”); see also Pennsylvania v. Dunlap, 555 U.S. 964 (2008) (“All these cases have unique factual wrinkles, as any probable-cause case would, but the core fact pattern is the same: experienced police officers observing hand-to-hand exchanges.”) (citing State v. Moore, 853 A.2d 903 (N.J. 2004); State v. Castro, 891 A.2d 848 (R.I. 2006); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989)).

6 (12) The State further argues that the Superior Court abused its discretion

when it suppressed the evidence of marijuana found during the search of Terry’s

person because no facts showed that the officers believed Terry was dangerous.31

The Superior Court examined the “pat-down” of Terry as an officer safety frisk and

granted the motion to dismiss under that analysis.32 But the State maintains that the

“pat-down” of Terry constituted a lawful search incident to arrest.33 Terry agrees

with the State and concedes in his Answering Brief that “the arresting police officers

could search [Terry] as an incident to his arrest because the Superior Court found

that there was probable cause to believe that he had committed a controlled substance

offense in their presence.”34

(13) Under 11 Del C. § 1904(a), police can make a warrantless arrest when

“the officer has reasonable ground to believe that the person to be arrested has

committed a misdemeanor.”35 Police can conduct a warrantless search of a person

when that search is incident to the person’s arrest.36 Searches incident to arrest are

valid if, at the time of the arrest, “the facts and circumstances within [the officers’]

31 Opening Br. 21-22. 32 Id. Ex. A, at 10. The Superior Court stated that “[i]n order to justify a pat down on the grounds of officer safety, an officer must have reasonable, articulable suspicion that the person subject to the frisk is presently armed and dangerous.” Id. (citing State v. Abel, 68 A.3d 1228, 1233 (Del. 2012)). 33 Opening Br. at 2. 34 Answering Br. 2. 35 11 Del. C. § 1904(a). 36 Ortiz v. State, 2004 WL 2741185 (Del. Nov. 16, 2004).

7 knowledge and of which they had reasonably trustworthy information were

sufficient to warrant a prudent man in believing that [the defendant] had committed

or was committing an offense.”37 While searches incident to arrest normally follow

the arrest, this Court has held that “where the arrest and search are nearly

contemporaneous, the search may precede the arrest, so long as the police do not use

the search to establish probable cause for the arrest.” 38

(14) Based on the facts determined by the Superior Court, Officer Johnson

had probable cause to arrest Terry immediately before the search. At the time of the

“pat down,” Officer Johnson knew (i) that Detective Willson reasonably believed he

witnessed Terry engage in a hand-to-hand drug transaction, (ii) that each of the

officers smelled marijuana emanating from Terry’s vehicle, and (iii) that Terry

admitted to having “a bit of marijuana inside his pants pocket.” 39 Taken as a whole,

the three circumstances supported Officer Johnson’s reasonable conclusion that

Terry was in possession of drugs in violation of Delaware law. Thus, the officers

had probable cause to perform a warrantless search of Terry incident to his arrest.

The Superior Court abused its discretion in suppressing the evidence from that

search on the basis that the officers did not have reasonable suspicion that Terry was

armed and dangerous.

37 Coley v. State, 2005 WL 2679329, at *2 (Del. Oct. 18, 2005). 38 Ortiz, 2004 WL 2741185, at *3. 39 A17, 33, 35, 49.

8 NOW, THEREFORE, IT IS ORDERED that the September 10, 2019 order of

the Superior Court is REVERSED and this case is REMANDED to the Superior

Court for proceedings consistent with this ruling.

BY THE COURT:

/s/ Tamika R. Montgomery-Reeves Justice