State v. Abel

RIDGELY, Justice,

dissenting, with HOLLAND, Justice, joining:

It is undisputed in this case that there was probable cause to stop Abel for breaking the law. Trooper Lloyd was justified in making a limited warrantless search for the protection of himself if he had a reasonable, articulable suspicion that Abel was armed and dangerous.75 We are required to apply an objective test to resolve the issue of whether reasonable, articula-ble suspicion justified a protective search.76 The level of suspicion necessary to constitute reasonable suspicion “is considerably less than proof of wrongdoing by a preponderance of the evidence” and “is obviously less demanding than that for probable cause.”77 The “officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”78

“[D]ue weight must be given, not to [the officer’s] inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”79 Ultimate determinations of reasonable suspicion (or lack thereof) are subject to this Court’s independent review.80 Thus, we examine 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.”81 The totality of the circumstances in this case provided a reasonable, articulable suspicion that Abel was armed and dangerous.

Trooper Lloyd has been a Delaware State Trooper for seven years. He has participated in thousands of traffic stops and has specialized training on outlaw motorcycle gangs. He received daily intelligence briefings which include updates on the activities of outlaw motorcycle gangs. He knew from his training that members of organized, criminal gangs are more likely to assault police officers and that the most active motorcycle gang in Delaware is the Pagans, rivals of the Hells Angels. The parties stipulated that “troopers are aware that OMG [outlaw motorcycle gang] members are routinely directed to participate in club events, including mandatory motorcycle rides or ‘runs’ and these events have been the source of violent encounters involving the use of weapons against other *1240motorcycle clubs.”82

Trooper Lloyd -witnessed Abel and another Hells Angel travelling 80 m.p.h. in a 55 m.p.h. zone wearing Hells Angels colors in Pagan gang territory. Abel’s excessive speed on a motorcycle put at risk not only his own life but also the lives of others on the road. A conviction of driving 25 m.p.h. over the speed limit would require the suspension of his driving privileges in Delaware.83

When Trooper Lloyd pulled Abel over, Lloyd was alone and did not have immediate back up. Abel said he was on a “run” but he refused to say where he was going. He explained no emergency circumstances to justify his dangerous speed that put both his life and his driving privileges at risk. His conduct was consistent with being on gang business. While the trial court and the Majority give “little to no weight” to Abel’s admission of being “on a run today,” that fact is present nevertheless and lends support to Trooper Lloyd’s suspicion that Abel was prepared for a violent encounter. Trooper Lloyd knew he would be particularly vulnerable once he returned to his car to do computer inquiries on Abel. He had a reasonable concern for his personal safety that justified a protective search. Abel’s motion to suppress should have been denied.

We respectfully dissent.

Upon Motion for Reargument

In our original opinion, the majority held that the facts of this case failed to raise a reasonable, articulable suspicion that Defendant-Appellee David Abel was armed and dangerous that would justify a pat down, and, accordingly, affirmed the Superior Court judge’s decision to suppress the evidence seized. The dissent disagreed because it believed the Delaware State Trooper had a reasonable concern for his safety that justified a protective pat down.

The State filed a Motion for Reargument or Clarification dated December 20, 2012. Abel filed a response on January 14, 2013. The purpose of this supplemental opinion is to address the Superior Court’s judge’s determination of when a “second seizure” occurred.84 After review of the State’s motion and Abel’s response, we deny the State’s Motion for Reargument or Clarification.

The Superior Court judge erred harmlessly by determining that a second seizure occurred when Trooper Lloyd merely asked David Abel whether he had any weapons on him.85 In Murray v. State, we discussed the U.S. Supreme Court’s holding in Arizona v. Johnson.86 Unlike in Murray, where the investigation of drug activity occurred after the conclusion of a traffic stop, Lloyd merely asked “Any weapons on ya?” during the traffic stop.87 The second seizure instead occurred when Trooper Lloyd took action consistent with a pat down.88

*1241The trial judge harmlessly erred as a matter of law by failing to recognize the rule of Arizona v. Johnson, so we provide this clarification for future guidance. Because the nuance of when the second seizure occurred does not change the outcome of the appeal, we deny reargument. This supplemental opinion modifies the original opinion accordingly.

We DENY the Motion for Reargument and REAFFIRM the judgment of the Superior Court.

. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

. Id. at 21-22, 88 S.Ct. 1868.

. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

. Terry, 392 U.S. at 27, 88 S.Ct. 1868.

. Id.

. Ornelas v. U.S., 517 U.S. 690, 697-98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). See also Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del.2008) (“Where as here, we are reviewing the denial of motion to suppress evidence based on an allegedly illegal stop and seizure, we conduct a de novo review to determine whether the totality of the circumstances, in light of the trial judge’s factual findings, support a reasonable and articulable suspicion for the stop.”)

. Jones v. State, 745 A.2d 856, 861 (Del.1999) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).

. State v. Abel, No. 50, 2012, slip op. at 11 (Del. Dec. 5, 2012) (quoting App. to Op. Br. A-9).

. 2 Del. Admin. C. § 2208-4.7.2 ("When convicted of driving 25 MPH over the posted limit, the driver's license will be suspended for a mandatory period of 1 month.”).

. See State v. Abel, 2011 WL 5221276, at *6-7 (Del. Super. Oct. 31, 2011).

. See id.

. Murray v. State, 45 A.3d 670, 674-75 (Del.2012) (discussing Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)).

. Id. at 674.

. See Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (citing Muehler v. Mena, 544 U.S. 93, 100-01, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005)) ("An officer's inquiries into matters unrelated to *1241the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as those inqui-ríes do not measurably extend the duration of the stop.”); Murray, 45 A.3d at 674-75 (discussing Arizona v. Johnson).