IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAMES McDOUGAL, §
§ No. 170, 2023
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 2204003966 (N)
STATE OF DELAWARE, §
§
Appellee. §
Submitted: January 17, 2024
Decided: March 21, 2024
Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LeGROW, and
GRIFFITHS, Justices constituting the Court en banc.
Upon appeal from the Superior Court. REVERSED and VACATED.
NICOLE M. WALKER, Esquire, OFFICE OF DEFENSE SERVICES, Wilmington,
Delaware, for Appellant James McDougal.
ANDREW R. FLETCHER, Esquire, DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, Delaware, for Appellee State of Delaware.
TRAYNOR, Justice, for the Majority:
James McDougal was convicted of possession of a firearm by a person
prohibited, possession of ammunition by a person prohibited, and carrying a
concealed deadly weapon. He was sentenced to 15 years in prison suspended after
five years for 18 months of probation under intensive supervision. McDougal’s
convictions and sentence followed the Superior Court’s denial of his pretrial motion
to suppress the evidence taken from him during a street encounter with members of
the Wilmington Police Department.1 Although the State’s description of the
encounter and McDougal’s ensuing detention, including the suspicions justifying
them, has shifted over time, the principal justification for McDougal’s seizure,
according to the State, was that “[t]he police officers had reasonable articulable
suspicion that McDougal was loitering.”2 This suspicion, the State contends,
justified McDougal’s initial detention. And, so the State argues, when McDougal
chose not to provide identification or agree to a search of his person upon the
officers’ request, further investigation and eventually a pat-down search was
justified. That search resulted in the discovery of a firearm concealed in McDougal’s
blue jeans.
1
See State v. McDougal, 2023 WL 2423233 (Del. Super. Ct. Mar. 7, 2023) (hereinafter
“McDougal”).
2
Answering Br. at 2.
2
As we explain below, the State’s attempt to justify the officers’ seizure and
eventual search of McDougal on the basis of a suspected loitering investigation is
grounded in a flawed understanding of the loitering statute, the supposed violation
of which by McDougal aroused the officers’ suspicion. The State has yet to identify
the police officers’ pre-detention observations that would warrant an investigative
detention of McDougal for the crime of loitering. Simply put, the officers’ suspicion
of loitering was not reasonable and did not justify even a limited investigative
seizure.
The officers, of course, were permitted to approach McDougal, engage him in
conversation, and ask him his name. A consensual encounter like that does not
require any level of suspicion. But it is well-settled, too, that when a police officer
engages in such an interaction with a citizen, the citizen is not required to answer the
officer’s questions, and his refusal to answer cannot form the basis for reasonable
suspicion of criminal activity.
Applying these principles to the facts surrounding McDougal’s encounter
with the police in this case, we have concluded that the officers’ detention of
McDougal and the consequent nonconsensual search of his person was unlawful.
Accordingly, we hold that the Superior Court erred when it denied McDougal’s
motion to suppress and we reverse the court’s judgment of conviction.
3
I
A
Unless otherwise indicated, we have drawn the facts surrounding McDougal’s
arrest from the transcript of the hearing on McDougal’s motion to suppress. Two
witnesses—both officers of the City of Wilmington Police Department, Officer
Leonard Moses and Officer Shauntae Hunt—testified during that hearing. The
Superior Court also reviewed, as we have, two body-worn camera videos that
depicted a portion of the interaction between McDougal and the police.
The encounter occurred during the early afternoon hours of April 8, 2022.3
During the month of March, an informant had reported to Wilmington police that
“individuals in and around the area of 24[th] and Carter [Streets] were involved in
street-level drug dealing.”4 The informant—who, according to Officer Moses, had
not been shown to be reliable in the past—identified four suspected drug dealers by
name: Rashad Acklin, Jamir Coleman, Demy Lee, and Dashawn Smith.
The tipster mentioned that, because of increased police presence in that area,
the drug dealers, who according to the informant carried firearms, also used “ground
stashes” to conceal their firearms. On some indeterminate date after the police
3
The indictment alleges that the charged offenses occurred on April 8, 2022, but the suppression-
hearing testimony suggests that McDougal’s arrest was on April 13, 2022. Neither party addressed
this discrepancy in their briefs or at oral argument, and both appear to concede that April 8 is the
correct date. See App. to Opening Br. at A5, A8.
4
Id. at A34.
4
received the tip but before they arrested McDougal, the police found a “discarded
firearm behind a trash can”5 in the area of 24th and Carter.
It is unclear how much time elapsed between the informant’s tip and
McDougal’s arrest. Officer Moses first said that the tip was received “in the last
weeks of March.”6 He later clarified that the tip was received during the “last two
weeks of March.”7 Officer Moses was unsure of how much time passed between
the discovery of the stashed firearm and the tip, but ventured his opinion that the tip
was received “within a month”8 of the discovery.
Armed with this weeks-old tip, several Wilmington police officers (we count
six in the body-cam video) “were proactive patrolling”9 in the area of 24th and Carter
Streets. There, they saw three men standing on the sidewalk. Two of the men,
Rashad Acklin and Jamir Coleman, were among the suspected drug dealers
identified by the informant; the third was McDougal, with whom none of the officers
was familiar.
Officer Moses alighted from his police vehicle and approached McDougal.
According to Officer Moses, McDougal was wearing “baggy clothing with . . .
multiple layers,”10 an indication to Officer Moses that McDougal could be
5
Id. at A35.
6
Id.
7
Id. at A38.
8
Id. at A35.
9
Id.
10
Id.
5
concealing a weapon. By contrast, the body-cam video shows that McDougal was
dressed in blue jeans and a red t-shirt covered by an unremarkable red sweatshirt.11
Although there was no outward sign that McDougal was armed, Officer
Moses had concerns, which he then expressed to McDougal:
I believe I asked him, I gave him what my concerns were, explained to
him that I thought, I mean, that he had that bagg[y] clothing, asked him
if he had any firearms on him, he said no. I asked him if I could pat
him down, and he said no.
At that point I asked him what his name was so I could get his name
and then we’d identify him so we can give him his warning and then
send him on his way, and the individual refused to give us his name. 12
When McDougal refused to give his name, Officer Moses directed him to sit down
on a nearby stoop. Meanwhile, other officers addressed Acklin and Coleman, both
of whom identified themselves and consented to pat-down searches. Acklin and
Coleman were then permitted to leave the area.
When asked at the suppression hearing to identify the criminal activity of
which Officer Moses suspected McDougal when he directed McDougal to sit, the
11
Officer Moses also mentioned that McDougal’s “multiple layers” of clothing made it seem as
though McDougal “had, like, multiple pairs of pants, or something like that under his clothing.”
Id. Unfortunately, the officers’ body worn cameras were not activated until their initial approach
to McDougal, Acklin, and Coleman had concluded. By the time the cameras were activated,
McDougal was sitting down on a nearby stoop in compliance with Officer Moses’s order.
McDougal’s trousers did not appear to be multi-layered until one of the officers lifted up
McDougal’s sweatshirt. This happened after McDougal had been, by all accounts, seized. We
note here that the Superior Court referred twice to Officer Moses’s observation that McDougal’s
clothing was “baggy” and “layered.” McDougal, at *1, *3. We understand these references as
reflecting Officer Moses’s characterization and not a factual finding by the court that McDougal’s
clothing as depicted in the video meets that description.
12
Id. at A36.
6
officer did not mention a suspicion of drug dealing or concealing a deadly weapon.
Instead, he responded that he suspected McDougal of loitering. When pressed to
describe what he meant by “loitering,” Officer Moses said that “[s]tanding idle at
the intersection of 24[th] and Carter” was the conduct underlying his suspicion of
loitering.13 Officer Hunt, who was on the scene, having traveled there in the same
vehicle with Officer Moses, provided a similar understanding of the loitering statute:
Q. Since you cited the loitering statute in your report, can you recall
or are you aware of a place in the loitering statute where just
standing on the sidewalk alone without first being ordered to
move on can constitute the crime of loitering?
A. Right. So if you are standing idle on the sidewalk, you are
loitering.
Q. Standing idle on the sidewalk?
A. Yes.14
Unlike Officer Moses, however, Officer Hunt added that the three men were
“blocking the flow of traffic on the sidewalk.”15 But neither officer testified that
there was any pedestrian traffic on the sidewalk to block. Nor did either officer
testify that anyone asked McDougal, Acklin, or Coleman to make way for pedestrian
traffic.
13
Id. at A38.
14
Id. at A46.
15
Id. at A45.
7
In any event, McDougal complied with Officer Moses’s direction to sit down
on the stoop, and further conversation between the two ensued. According to Officer
Moses, this is when he first noticed a bulge in McDougal’s “waistband area.”16
McDougal, who by this time was surrounded by as many as seven officers, denied
that he was in possession of a weapon, specifically declined to consent to a pat-down
search, and asked the officers why they were harassing him. Undeterred, Officer
Moses grabbed the front of McDougal’s blue jeans below the belt, but even then the
officer “still didn’t feel nothing.”17 Officer Moses asked McDougal why there was
a bulge in his waistband. This prompted McDougal to remove an object—it appears
to be a cloth facial mask—from the front pocket of his sweatshirt. Officer Moses
then lifted McDougal’s sweatshirt and reached down into his blue jeans and pulled
out a pink handgun.18 McDougal was immediately handcuffed and placed under
arrest.
B
McDougal was charged with, and eventually indicted for, possession of a
firearm by a person prohibited, possession of ammunition by a person prohibited,
16
Id. at A36.
17
Id.
18
Officer Moses testified that, after he patted down the exterior of McDougal’s blue jeans and
“still didn’t feel nothing,” he “lifted up [McDougal’s] shirt, and you could see the firearm in his
waistband area.” Id. The video evidence contradicts this account. It was only after Officer Moses
lifted the shirt and put his hands down the front of McDougal’s jeans and pulled them away from
McDougal’s waist that the firearm became visible.
8
and carrying a concealed deadly weapon. He moved to suppress the firearm that
was taken from him on the grounds that the police did not have a reasonable
suspicion that he was engaged in criminal activity when Officer Moses directed him
to sit on the stoop. The State responded that “Officer Moses and the Wilmington
[p]olice had reasonable articulable suspicion to stop, frisk and make inquiries from
the defendant when they observed him loitering in the area where the confidential
informant had given information that individuals had been selling street level drugs
and carrying firearms.”19 At this juncture, the State described the stop as “a
pedestrian stop to further investigate the information obtained from the informant
that was corroborated through surveillance.”20 The State also described the area
where McDougal was arrested as a “high crime area” where numerous firearm
arrests had been made. This, according to the State’s written response to
McDougal’s motion, coupled with McDougal’s refusal to identify himself while
acknowledging that he did not live in the area, provided a reason for Officer Moses
“to deduce that [McDougal] may be in possession of a firearm.”21 The State did not
mention McDougal’s clothing in its written response.
19
Id. at A20.
20
Id. at A22. No evidence of corroboration of the informant’s tip was adduced during the
suppression hearing.
21
Id. at A23.
9
Following the testimony of Officers Moses and Hunt at the suppression
hearing, the State’s argument to the trial court was, in a word, muddled. The
prosecutor began her argument by asserting that Officer Moses had “a reasonable
articulable suspicion to stop Mr. McDougal . . . .”22 Indeed, she opined that, because
the police had reports of criminal activity in the area and had observed that Coleman,
Acklin, and McDougal “were standing out there for a good ten to 15 minutes[], . . .
if they had wanted to issue a citation for loitering, they could have.”23 Alternatively,
the State suggested that “the stop and then subsequent frisk was justified under Terry
and resulting case law.”24 But when the court asked whether the initial encounter
was an investigatory detention or a consensual encounter, the prosecutor took a
different tack:
I would say initially it’s a consensual encounter because if you look at
the encounter with the first two individuals, Hey, can we have your
name, they give it to them. Can we pat you down, and they do. But
Officer Hunt said if they had said no but at least gave their name and
date of birth and we realize they don’t have warrants, they sent them
along their way. They don’t arrest them. They don’t give them a fine.
They -- please, you know, they basically say don’t come back here or
you may get arrested. But that was the purpose in moving people along
that day.
22
Id. at A48.
23
Id. at A49. We note that the only record evidence that supports the statement that the three men
had been standing in the area for ten to fifteen minutes came from Officer Hunt and was based on
his post-arrest review of surveillance video. At the suppression hearing, when asked by the court
“how long were you, officers, in the area before you got out of the car and approached these
individuals for loitering?” Officer Hunt responded “I don’t think it was -- I think we pulled up and
observed them standing at the intersection and then we got out and made contact.” Id. at A40.
24
Id. at A49.
10
So initially it is a consensual encounter. It was the conduct of Mr.
McDougal and his actions and his clothing that cause them to
investigate further, and then it became, you know, more of a stop.25
McDougal responded that the officers never asked or instructed him to move
on, and therefore he was not loitering and could not be reasonably suspected of it.
He noted that he had a right to refuse to answer the officer’s questions in what, by
then, the State had acknowledged was a consensual encounter. Implicit in this line
of argument was that Officer Moses’s order to McDougal that he sit down on the
stoop was unjustified and that suspicion developed after that order should not be
considered.
In rebuttal, the State added to its previously offered justifications for
McDougal’s detention, arguing that the loitering statute itself allows police to detain
suspected loiterers to determine their identity.
C
Having heard the testimony of Officers Moses and Hunt and the argument of
counsel, the Superior Court reserved decision. In a memorandum opinion and order
issued a few weeks after the hearing, the court denied McDougal’s motion. First,
the court resolved the threshold issue of when McDougal’s detention occurred.
Noting that the State conceded that a detention had occurred when McDougal was
ordered to sit down on the stoop but that McDougal claimed that the detention began
25
Id.
11
upon the officers’ initial approach, the court charted a middle course. The court
rejected McDougal’s position, finding that, “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.”26 The court found,
however, that when Officer Moses told McDougal that “if he gave his name, he
would be allowed to move along, a reasonable person in [McDougal’s] shoes would
not have [been] free to ignore the police presence, due to the officer’s own words.”27
We take this to mean that, when the officer made this statement, McDougal was
effectively seized within the meaning of Article I, § 6 of the Delaware Constitution.28
The court concluded that this seizure and the ensuing search of McDougal was
justified by Officer Moses’s reasonable articulable suspicion that McDougal was
engaged in criminal activity. The court put it this way:
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” [McDougal] was “committing, has
committed or is about to commit” that crime. In viewing the totality of
the circumstances, Officer Moses’ ability to articulate that 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, as well as the
observations of [McDougal’s] baggy, layered clothes in which it
26
McDougal, at *2.
27
Id.
28
See Jones v. State, 745 A.2d 856, 869 (Del. 1999) (determining “when a seizure has occurred
under Article I, § 6 of the Delaware Constitution requires focusing upon the police officer’s actions
to determine when a reasonable person would have believed he or she was not free to ignore the
police presence.”).
12
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 [McDougal].29
The detention thus justified, the search of McDougal’s person for weapons,
according to the court, was permissible “under Terry v. Ohio and its Delaware
progeny.”30 Hence, the Superior Court denied McDougal’s motion to suppress.
D
In the wake of the Superior Court’s denial of McDougal’s motion to suppress,
the parties agreed to a “stipulated” bench trial, that is, at trial, they “stipulate[d] to
the facts and arguments presented in the suppression hearing.”31 McDougal agreed
further that he was a person prohibited from possessing a firearm or ammunition
because of a prior violent-felony conviction. The parties also stipulated that the
firearm taken from McDougal was a fully functional 9mm handgun with a magazine
containing eleven rounds of 9mm ammunition.
With these stipulations entered, the trial was, as intended by the parties, brief.
Detective Moses laid the foundation for the admission in evidence of the 9mm
handgun taken from McDougal and confirmed that the gun was concealed under
McDougal’s clothing. As anticipated, the court found McDougal guilty under all
29
McDougal, at *3.
30
Id.
31
App. to Opening Br. at A56.
13
three counts of the indictment and immediately sentenced McDougal as described
above. Two days later, McDougal filed this appeal.
E
McDougal challenges the Superior Court’s denial of his motion to suppress
on various grounds. His overarching theme is that the court erred when it found that
the officers were permitted to detain him for failing to identify himself during what
the State conceded was a consensual encounter. McDougal also contends that, even
if his detention were lawful, Officer Moses’s reaching inside his pants was not.
Finally, McDougal argues that the State’s reliance on the officers’ purported
suspicion of loitering is flawed because the officers failed to state with specificity
the elements of the loitering violation that reasonably aroused their suspicion.
The State defends the Superior Court’s denial of McDougal’s motion,
claiming that the officers had a reasonable articulable suspicion that McDougal was
loitering. The State argues further that the loitering statute upon which the police
relied required them to obtain McDougal’s name and give him a warning before they
could issue a citation. McDougal’s refusal to provide his name, the State contends,
justified the prolonging of his detention and the resultant pat-down.
14
II
We apply a mixed standard of review to a trial court’s order denying a motion
to suppress evidence after an evidentiary hearing.32 “We review findings of fact for
clear error, but we exercise de novo review over legal determinations.”33 “Once the
historical facts are established, the legal issue is whether an undisputed rule of law
is violated. Accordingly, this Court reviews de novo whether police possessed
reasonable articulable suspicion to stop a person.”34
III
A
“Generally speaking, investigative encounters between law enforcement and
citizens fall within three categories: consensual encounters or mere inquiries,
investigative detentions, and formal arrests.”35 A consensual encounter during
which a police officer asks a citizen a question is not a seizure under the Fourth
Amendment of the United States Constitution or Article I, § 6 of the Delaware
Constitution. No level of suspicion is required to support a consensual encounter.36
An investigative detention, though a more limited intrusion in scope and
duration than an arrest, nevertheless constitutes a seizure and is permissible only
32
Garnett v. State, 308 A.3d 625, 641, 2023 WL 6987145, at *12 (Del. Oct. 24, 2023).
33
Id.
34
State v. Rollins, 922 A.2d 379, 382 (Del. 2007) (quoting Purnell v. State, 832 A.2d 714, 719
(Del. 2003)).
35
Diggs v. State, 257 A.3d 993, 1003 (Del. 2021).
36
Id. at 1003–04.
15
when there is “some objective manifestation that the person stopped is, or is about
to be, engaged in criminal activity.”37 A classic formulation of the rule is that “law
enforcement officers may stop or detain an individual for investigatory purposes, but
only if the officer has reasonable articulable suspicion to believe the individual
detained is committing, has committed, or is about to commit a crime.”38 This
standard is codified in 11 Del. C. § 1902.39
During an investigative detention, if the officer encounters circumstances that
support a reasonable belief that the detained person is armed, the officer may conduct
a protective frisk for his safety.40 But “an officer may not conduct a protective search
for weapons without first having a reasonable articulable suspicion of criminal
activity that supports an investigatory stop.”41
In his concurring opinion in Terry v. Ohio, Justice Harlan articulated this
principle so:
[I]f the frisk is justified in order to protect the officer during an
encounter with a citizen, the officer must first have constitutional
37
Lopez-Vazquez v. State, 956 A.2d 1280, 1287 (Del. 2008) (quoting United States v. Cortez, 449
U.S. 411, 417 (1981)).
38
Woody v. State, 765 A.2d 1257, 1262 (Del. 2001) (citing Terry v. Ohio, 392 U.S. 11, 30 (1968);
Jones, 745 A.2d at 860; and 11 Del. C. § 1902)).
39
The relevant sections of 11 Del. C. § 1902 provide that “(a) [a] peace officer may stop any
person abroad, or in a public place, who the officer has reasonable ground to suspect is committing,
has committed or is about to commit a crime, and may demand the person’s name, address,
business abroad and destination. (b) Any person so questioned who fails to give identification or
explain the person’s actions to the satisfaction of the officer may be detained and further
questioned and investigated.”
40
Moore v. State, 997 A.2d 656, 666 (Del. 2010).
41
Id. at 666–67.
16
grounds to insist on an encounter, to make a forcible stop. Any person,
including a policeman, is at liberty to avoid a person he considers
dangerous. If and when a policeman has a right instead to disarm such
a person for his own protection, he must first have a right not to avoid
him but to be in his presence. That right must be more than the liberty
(again, possessed by every citizen) to address questions to other
persons, for ordinarily the person addressed has an equal right to ignore
his interrogator and walk away; he certainly need not submit to a frisk
for the questioner’s protection. I would make it perfectly clear that the
right to frisk in this case depends upon the reasonableness of a forcible
stop to investigate a suspected crime.42
The Superior Court concluded that, when McDougal was told that he would
be free to “move along” but only after providing his name, “a reasonable person in
[McDougal’s] shoes would not have [been] free to ignore the police presence, due
to the officer’s own words.”43 We agree. As of that moment, McDougal had been
seized within the meaning of the Fourth Amendment and Article I, § 6. 44 If that
seizure was not based upon a reasonable articulable suspicion of unlawful activity,
the evidence recovered as a result of the seizure—the firearm and ammunition—
should have been deemed inadmissible at trial.45
42
392 U.S. at 32–33 (Harlan, J., concurring).
43
McDougal, at *2.
44
See Brown v. Texas, 443 U.S. 47, 50 (1979) (holding that “[w]hen the officers detained appellant
for the purpose of requiring him to identify himself, they performed a seizure of his person subject
to the requirements of the Fourth Amendment.”); Jones, 745 A.2d at 869 (“[T]he question . . . of
when a seizure has occurred under Article I, § 6 of the Delaware Constitution requires focusing
upon the police officer’s actions to determine when a reasonable person would have believed he
or she was not free to ignore the police presence. Under that analysis, Jones was seized within the
meaning of Section 1902 when [the officer] first ordered him to stop and remove his hands from
his pockets.”).
45
Hall v. State, 981 A.2d 1106, 1110 (Del. 2009) (“Under the exclusionary rule, ‘the State may
not use as evidence the fruits of a search incident to an illegal [seizure.]’”) (quoting Jones, 745
17
B
A fundamental premise of both the State’s and the trial court’s reasoning and
hence their conclusion that McDougal’s detention was justified is that the arresting
officers were “investigating a potential violation of the loitering statute.”46 Given
the centrality of the crime of loitering to the State’s argument, a review of our
loitering statute is essential to our analysis.
The relevant portions of 11 Del. C. § 1321 provide that a person is guilty of
loitering when
(1) The person fails or refuses to move on when lawfully
ordered to do so by any police officer; or
(2) The person stands, sits idling or loiters upon any
pavement, sidewalk or crosswalk, or stands or sits in a
group or congregates with others on any pavement,
sidewalk, crosswalk or doorstep, in any street or way open
to the public in this State so as to obstruct or hinder the
free and convenient passage of persons walking, riding or
driving over or along such pavement, walk, street or way,
and fails to make way, remove or pass, after reasonable
request from any person; or
...
(6) The person loiters, congregates with others or prowls in a
place at a time or in a manner not usual for law-abiding
individuals under circumstances that warrant alarm for the
A.2d at 873); see also Jones, 745 A.2d at 869 (“If [a] seizure [is] not based upon reasonable and
articulable suspicion, anything recovered as a result of that seizure is inadmissible at trial.”).
46
McDougal, at *3 (“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’
[McDougal] was ‘committing, has committed, or is about to commit’ that crime.”); see also
Answering Br. at 2 (“The officers testified that they were investigating McDougal for violating
the Delaware loitering statute.”).
18
safety of persons or property in the vicinity, especially in
light of the crime rate in the relevant area. Unless flight by
the accused or other circumstances make it impracticable,
a peace officer shall, prior to any arrest for an offense
under this paragraph, afford the accused an opportunity to
dispel any alarm which would otherwise be warranted, by
requesting identification and an explanation of the
person’s presence and conduct. No person shall be
convicted of an offense under this paragraph if the peace
officer did not comply with the preceding sentence, or if it
appears that the explanation given by the accused was true
and, if believed by the peace officer at the time, would
have dispelled the alarm.47
That Officer Moses did not have a firm grasp of the conduct that constitutes
loitering under the statute is clear. As we mentioned above, when asked to describe
the conduct giving rise to his suspicion of loitering, the officer said nothing more
than that the three individuals—Acklin, Coleman, and McDougal were “[s]tanding
idle at the intersection of 24[th] and Carter [Streets].”48 That is not a crime. To be
sure, Officer Hunt added that the three men were “blocking the flow of traffic on the
sidewalk.”49 But that is not a crime either unless the person obstructing traffic “fails
to make way, remove or pass, after reasonable request from any person . . . .” 50 No
such request was made, which is not surprising, given the absence of any evidence
47
The dissent notes that Officer Hunt also cited the City of Wilmington loitering ordinance in his
police report. We in turn note that the State has argued that “[t]he record is clear that the officers
relied on [a] Delaware state statute[,] 11 Del. C. § 1321, not a municipal ordinance.” Answering
Br. at 15–16. We do not see any difference between the statute and the ordinance that would affect
our analysis.
48
App. to Opening Br. at A38.
49
Id. at A45.
50
11 Del. C. § 1321(2).
19
that there were any “persons walking, riding or driving over or along” the sidewalk.
Very simply, Officer Moses could not have reasonably suspected that McDougal
was loitering under subsections (1) or (2) of the loitering statute.
The State attempts to salvage its claim that McDougal was justifiably detained
for loitering by pointing to the requirement in subsection (6) of the loitering statute
that “a peace officer shall, prior to any arrest for an offense under this paragraph,
afford the accused an opportunity to dispel any alarm which would otherwise be
warranted, by requesting identification and an explanation of the person’s presence
and conduct.” According to the State, this subsection required Officer Moses to
request that McDougal identify himself and provided justification for his detention
when he failed to do so. This reasoning is manifestly flawed; it assumes that Officer
Moses had probable cause to arrest McDougal for loitering under subsection (6).
But the suppression hearing record does not establish that the officers had knowledge
of facts and circumstances based on reasonably trustworthy information that would
justify a belief that McDougal was engaged in conduct “warrant[ing] alarm for the
safety of persons or property in the vicinity . . . .”51 At the point when Officer Morris
told McDougal that he would be free to go his own way once he identified himself,
51
11 Del. C. § 1321(6); see also State v. Maxwell, 624 A.2d 926, 930 (Del. 1993) (“‘Probable
cause exists where ‘the facts and circumstances within . . . [the officers’] knowledge and of which
they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that’ an offense has been or is being committed.”) (italics and
brackets in original) (quoting Brinegar v. United States, 338 U.S. 160, 175–76 (1949)0.
20
McDougal had done nothing more than stand on a street corner while purportedly
wearing baggy clothes.
C
In apparent recognition of Officer Moses’s problematic suspicion of a
loitering violation, the Superior Court relied on facts seemingly unrelated to Officer
Moses’s loitering rationale. Specifically, the court pointed to the weeks-old tip from
the confidential informant, McDougal’s “baggy” clothing, and the fact that neither
Acklin or Coleman lived in the area of 24th and Carter Streets. These additional
facts, viewed separately or together, do not create a reasonable ground to suspect
that McDougal had committed or was about to commit a crime.
The several officers who descended upon the trio of men standing on the street
corner themselves appeared to understand that the confidential informant’s tip,
which did not mention McDougal, was stale, unreliable, and insufficient to justify a
detention of any of the three men. Indeed, they allowed Acklin and Coleman to go
their own way after they had identified themselves. Likewise, the State conceded
that, when the officers initially confronted Acklin, Coleman, and McDougal, the
encounter was consensual, that is, it was not a detention based on reasonable
suspicion or probable cause. As previously quoted, the State’s prosecutor informed
the Superior Court, “it [was] a consensual encounter [but that] it was the conduct of
21
Mr. McDougal and his actions and his clothing that cause[d] [the police] to
investigate further, and then it became . . . a stop.”52
Nor do we find that McDougal’s clothing added anything substantial to the
mix of information possessed by Officer Moses when he detained McDougal. We
have reviewed the body-worn camera video, which shows that, until Moses began
his pat-down by grabbing McDougal’s crotch, McDougal’s clothing—a red t-shirt,
covered by a red sweatshirt, and blue jeans—was not extraordinary. And the State
does not point us to anything Officer Moses could see before he ordered McDougal
to sit on the stoop, other than McDougal’s clothing, that would arouse a reasonable
suspicion that McDougal was armed.
A more likely explanation for McDougal’s detention was his failure to
identify himself and consent to a pat-down search. Officer Moses admitted as much
on cross-examination:
Defense counsel: At some point, Officer, Mr. McDougal was
asked to have a seat?
Officer Moses: Yes, sir.
Defense counsel: Was that because he would not give his
name?
52
App. to Opening Br. at A49. Indeed, we would expect that, had the officer harbored such a
suspicion, he would not have directed McDougal to move voluntarily to “sit down . . . on the
stoop,” id. at A36, but would have immediately seized and frisked McDougal to protect himself
and his fellow officers from possible danger.
22
Officer Moses: Yes.53
It bears repeating here that Acklin and Coleman identified themselves and
allowed the officers to conduct pat-downs, and they were not detained. But because
Officer Moses did not, at the time he detained McDougal, have reason to suspect
that McDougal had committed or was about to commit a crime, McDougal was free
to decline to answer Officer Moses’s questions and should have been allowed to go
on his way.54 The United States Supreme Court described the ramifications of such
an encounter in Florida v. Royer:
[L]aw enforcement officers do not violate the Fourth Amendment by
merely approaching an individual on the street or in another public
place, by asking him if he is willing to answer some questions, by
putting questions to him if the person is willing to listen, or by offering
in evidence in a criminal prosecution his voluntary answers to such
questions. Nor would the fact that the officer identifies himself as a
police officer, without more, convert the encounter into a seizure
requiring some level of objective justification. The person approached,
however, need not answer any question put to him; indeed, he may
decline to listen to the questions at all and may go on his way. He may
not be detained even momentarily without reasonable, objective
grounds for doing so; and his refusal to listen or answer does not,
without more, furnish those grounds.55
This Court echoed the Royer court in Woody v. State:
[L]aw enforcement officers may approach and ask questions of an
individual, without reasonable articulable suspicion that criminal
activity is afoot. The individual, however, may not be detained and may
53
Id. at A39.
54
See 11 Del. C. § 1902; Woody, 765 A.2d at 1265.
55
460 U.S. 491, 497–98 (1983) (citations omitted).
23
walk or even run away. Refusal to answer the officer’s inquiry cannot
form the basis for reasonable suspicion.56
Faithful adherence to these principles permits but one conclusion here:
detaining McDougal because of, to use the prosecutor’s words, his “conduct . . . and
his actions”—declining to answer Officer Moses’s questions and to permit a pat-
down search—violated McDougal’s rights under both the Fourth Amendment of the
United States Constitution and Article I, § 6 of the Delaware Constitution.
Finally, we are not persuaded that, as the Superior Court suggested, the fact
that the police knew that Acklin and Coleman did not live “in the area and had no
known lawful purpose to be there,” contributed meaningfully to their suspicion that
McDougal was subject to detention. Under the Fourth Amendment and Article I, §
6, a seizure—and an investigative detention is a seizure—is “ordinarily unreasonable
in the absence of individualized suspicion of wrongdoing.”57 The Superior Court
did not explain, nor has the State endeavored to clarify, how the residence of the two
individuals whom the police did not detain raised an individualized suspicion of
wrongdoing by McDougal.58
56
Woody, 765 A.2d at 1265.
57
City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000); see also Juliano v. State, 254 A.3d 369,
386 (Del. 2020) (“[E]ven ‘purely pretextual’ traffic stops must be supported by articulable
individualized suspicion.”); Montgomery v. State, 277 A.3d 1062,2020 WL 1672845, at *3 (Del.
Apr. 3, 2020) (TABLE) (“In the absence of individualized articulable suspicion of wrongdoing, a
search or seizure is ordinarily unreasonable.”).
58
See Brown, 443 U.S. at 49, 52 (concluding that the officer’s belief that Brown “looked suspicious
. . . and had never [been] seen in that area before” and testimony that the area had “a high incidence
24
IV
We conclude by addressing our dissenting colleagues’ conclusion that six
“uncontested facts sufficiently established reasonable articulable suspicion” that
McDougal was loitering when he was seized.59 First, the dissent mentions that
“McDougal was ‘blocking pedestrian traffic’ by ‘standing idle’ in front of the house
at 24th and Carter.”60 That, absent refusal to “move on” or “make way,” is not
loitering. Nor does the fact that “McDougal, unknown to the police, was with two
individuals known not to live at that address” transform McDougal’s otherwise
innocuous conduct into loitering.61 As for the informant’s tip, the dissent does not
address its obvious staleness and the absence of any testimony, save what the police
had found in the area before receiving the tip, tending to establish indicia of the tip’s
reliability.62 The dissent also points to the officers’ discovery of a discarded firearm
behind a trash can at 24th and Carter before they received the informant’s tip. But
the tip itself was at least two weeks old when Officer Moses seized McDougal, and
the firearm discovery was a month before that.63 Regarding McDougal’s attire, we
are simply unprepared to accept that McDougal’s sweatshirt and blue jeans as plainly
of drug traffic” did not justify a reasonable suspicion that Brown was involved in a criminal
activity.”)
59
Dissent at 20.
60
Id.
61
Id.
62
See Alabama v. White, 496 U.S. 325, 328 (1990) (“[A]n informant’s ‘veracity,’ ‘reliability,’ and
‘basis of knowledge’ . . . are . . . relevant in the reasonable-suspicion context.”).
63
App. to Opening Br. at A35.
25
depicted in the body-worn camera video “indicate[d] possession of a weapon,” as
suggested by Officer Moses and accepted by the dissent.
Finally the dissent notes that it is undisputed that “24th and Carter was a ‘high
crime’ area.”64 We must acknowledge that “the crime rate in the relevant area” is a
factor to be considered under subsection (6) of the loitering statute. But that factor
only comes into play when the police encounter a “person [who] loiters, congregates
with others or prowls at a time or in a manner not usual for individuals under
circumstances that warrant alarm for the safety of persons or property in the vicinity
. . . .”65 Our dissenting colleagues have not persuaded us that standing on a street
corner with two friends or associates on a sunny April afternoon warrants such
alarm. Absent conduct creating a reasonable suspicion of criminal activity, one does
not forfeit constitutionally protected rights by living—or, for that matter being
present—in a neighborhood where the crime rate is high.
V
For the reasons given, we conclude that the evidence seized from McDougal
was the fruit of an unlawful seizure and should have been suppressed.66 The
exclusion of that evidence precludes a finding beyond a reasonable doubt that
64
Id.
65
11 Del. C. § 1321(6).
66
In light of this conclusion, we need not address McDougal’s other grounds for reversal.
26
McDougal committed the crimes charged. Therefore, we reverse and vacate the
Superior Court’s judgment of conviction.
27
VALIHURA, J. dissenting, joined by SEITZ, C.J.:
Under Delaware and federal law, the State must have reasonable articulable
suspicion that a crime is being committed in order to transform a consensual encounter into
an investigative detention. This appeal considers whether the State established the requisite
reasonable articulable suspicion that James McDougal (“McDougal”) was loitering prior
to his initial detention. I believe that the Superior Court correctly held that the officers had
reasonable articulable suspicion that McDougal committed the crime of loitering before
they directed McDougal to provide his name under 11 Del. C. § 1902(a).1 Additionally, I
believe that the Superior Court properly held that the pat down and search underneath
McDougal’s shirt was lawful. Because I would AFFIRM McDougal’s conviction, I
respectfully dissent.
I. ANALYSIS
A. Protections from Unreasonable and Warrantless Searches Generally
Under our United States and Delaware Constitutions, citizens have the right to be
secure in their persons against unreasonable searches and seizures.2 However, in certain
1
See generally State v. McDougal, 2023 WL 2423233 (Del. Super. Mar. 7, 2023). This Court
reviews a denial of a motion to suppress under the abuse of discretion standard. Flowers v. State,
195 A.3d 18, 23 (Del. 2018) (citing Stafford v. State, 59 A.3d 1223, 1227 (Del. 2012)). “When
we are reviewing the denial of a 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.’” Id. (quoting Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del. 2008)). “‘We consider
legal questions de novo and will uphold a trial court's factual findings unless they are clearly
erroneous.’” Womack v. State, 296 A.3d 882, 889 (Del. 2023) (quoting Lloyd v. State, 292 A.3d
100, 105 (Del. 2023)).
2
Womack, 296 A.3d at 889 (“Under the Fourth Amendment, ‘[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated[.]’ Article I, § 6 provides that ‘[t]he people shall be secure in their persons, houses,
circumstances, more limited searches and seizures are found to be reasonable absent a
warrant and absent probable cause.3 Those situations require officers to have reasonable
articulable suspicion that a suspect has committed or is about to commit a crime.4
This Court described three types of interactions between law enforcement officers
and citizens in Diggs v. State: “consensual encounters or mere inquiries, investigative
detentions, and formal arrests.”5 Consensual encounters occur when the officers initiate
questioning,6 but an individual may freely leave the encounter.7 In Flowers v. State, this
Court identified investigative detentions and formal arrests as “‘[t]wo categories of police-
citizen encounters which constitute seizures under the Fourth Amendment[:]’”8
First, police may “restrain an individual for a short period of time” to
investigate where officers have “reasonable articulable suspicion that the
papers and possessions, from unreasonable searches and seizures[.]’” (alterations in original)
(quoting U.S. Const. amend. IV; Del. Const. art. I, § 6)).
3
Flowers, 195 A.3d at 23 (“Generally, [s]earches and seizures are per se unreasonable, in the
absence of exigent circumstances, unless authorized by a warrant supported by probable cause.”
(internal citation and quotation marks omitted)).
4
Id. (holding that the trial court properly found that the evidence supported the investigative
detention and frisk of defendant after officer saw him grabbing a rectangular object from his waist
and blading his body away from the officers in a high crime area late at night).
5
Diggs v. State, 257 A.3d 993, 1003 (Del. 2021) (affirming denial of suppression motion because
the initially consensual encounter, prompted by a tip, lawfully turned into an investigative
detention based on reasonable articulable suspicion established when an individual threw items to
the ground and took a defensive stance).
6
Id. at 1003–04.
7
Williams v. State, 962 A.2d 210, 214–15 (Del. 2008).
8
Flowers, 195 A.3d at 24 (citations omitted). See also I.N.S. v. Delgado, 466 U.S. 210, 215 (1984)
(“The Fourth Amendment does not proscribe all contact between the police and citizens, but is
designed ‘to prevent arbitrary and oppressive interference by enforcement officials with the
privacy and personal security of individuals.’” (quoting United States v. Martinez–Fuerte, 428
U.S. 543, 554 (1976) (holding vehicle stops at fixed border checkpoint for brief questioning was
consistent with Fourth Amendment))); Williams, 962 A.2d at 215 (a consensual encounter where
police ask questions “neither amounts to a seizure nor implicates the Fourth Amendment.”).
2
suspect has committed or is about to commit a crime.” It requires less than
probable cause. This form of seizure is the Terry “stop,” or investigative
stop. For simplicity, we refer to such a seizure as a “stop” in this opinion.
Second, the police seize a person when they make an arrest, which requires
“probable cause that the suspect has committed a crime.”9
One type of encounter may evolve into another.10 At issue in this appeal is the
transition from an initially consensual encounter to an investigative detention.
“‘Determining whether an officer had reasonable and articulable suspicion to conduct a
stop requires a threshold finding of when the stop actually took place.’”11 Once we make
that determination, we must analyze what is constitutionally required at each stage of the
encounter and evaluate whether those requirements were met based on the record
evidence.12
Here, the evidence largely consists of what information Officer Leonard Moses
(“Officer Moses”) knew at the moment he requested McDougal’s name and directed him
to sit on the stoop. I believe that the Superior Court correctly held the detention occurred
at that point and was lawful. Although Officer Moses attempted initially to consensually
resolve his suspicion that McDougal was loitering, that consensual attempt did not negate
9
Flowers, 195 A.3d at 24–25 (citations omitted). For the purposes of this opinion, I am calling
Officer Moses’s detention of McDougal an “investigative detention.” I intend no distinction
between an investigative stop and investigative detention.
10
See, e.g., Diggs, 257 A.3d at 1003–04 (transition from consensual encounter to investigative
detention); Flowers, 195 A.3d at 24–26 (transition from investigative detention to arrest).
11
Flowers, 195 A.3d at 26 (citations omitted).
12
See, e.g., Diggs, 257 A.3d at 1008 (“That these facts, viewed in their totality, justified Patrolman
Shupe's investigative detention of Diggs seems evident to us. One simple way to reach that
conclusion is to ask what Shupe was to do at each step along the way.”).
3
the fact that based upon an objective view of the evidence, Officer Moses had a valid basis
to detain McDougal when he directed McDougal to provide his name.
B. The Initial Encounter Was a Consensual Encounter
Of the three types of encounters, a consensual encounter is the least intrusive. Law
enforcement officers may “[‘]initiate contact with citizens on the street for the purpose of
asking questions.’”13 In Florida v. Royer, a plurality of the United States Supreme Court
stated that:
[L]aw enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place, by asking
him if he is willing to answer some questions, by putting questions to him if
the person is willing to listen, or by offering in evidence in a criminal
prosecution his voluntary answers to such questions.14
During a consensual encounter, individuals approached by law enforcement officers
may ignore their questioning, or leave without responding to it.15 Refusal to answer
questions, without more, does not justify further detention.16 If the person refuses to
13
Williams, 962 A.2d at 215 (citations omitted).
14
Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion) (Justice White announced the
judgment of the court and delivered an opinion joined by Justices Marshall, Powell, and Stevens,
affirming the reversal below because the detective exceeded limits of investigatory stop. Justice
Powell and Justice Brennan filed separate concurring opinions, Justice Blackmun filed a dissenting
opinion, and Justice Rehnquist filed a dissenting opinion joined by Chief Justice Burger and Justice
O’Connor). See also Delgado, 466 U.S. at 216 (7-2 decision) (observing that “our recent decision
in Royer, supra, plainly implies that interrogation relating to one's identity or a request for
identification by the police does not, by itself, constitute a Fourth Amendment seizure.”).
15
Williams, 962 A.2d at 215 (“During a consensual encounter, a person has no obligation to answer
the officer's inquiry and is free to go about his business.”). See also Royer, 460 U.S. at 497–98
(“The person approached, however, need not answer any question put to him; indeed, he may
decline to listen to the questions at all and may go on his way.” (citation omitted)).
16
Royer, 460 U.S. at 498 (“He may not be detained even momentarily without reasonable,
objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish
those grounds.” (citation omitted)).
4
answer, and the officers act further “to obtain an answer, then the Fourth Amendment
imposes some minimal level of objective justification to validate the detention or
seizure.”17 Under Delaware law, “[a] person is ‘seized’ when, ‘in view of all of the
circumstances surrounding the incident, a reasonable person would have believed that he
was not free to leave.’”18 This Court analyzes when a seizure occurs by “focusing upon
the police officer's actions to determine when a reasonable person would have believed he
or she was not free to ignore the police presence.”19
The evidence below suggests that Officer Moses attempted a consensual encounter
when initially approaching McDougal. While proactively patrolling the intersection of
24th Street and Carter Street (“24th and Carter”) on April 13, 2022, Officer Moses, Officer
Shauntae Hunt (“Officer Hunt”) and other accompanying Wilmington Police Department
officers observed three individuals “standing idle” “in front of the house[,]”20 “blocking
pedestrian traffic.”21 The individuals at the intersection were McDougal, Rashad Acklin
17
Delgado, 466 U.S. at 216–17 (citations omitted).
18
Flowers, 195 A.3d at 24 (citations omitted) (quoting Michigan v. Chesternut, 486 U.S. 567, 573
(1988) (internal citations omitted)). This standard was set forth by Justice Stewart in United States
v. Mendenhall, 446 U.S. 544, 554 (1980), but in a part of that opinion joined only by Justice
Rehnquist. Three years later, a majority of the Court accepted the standard in Royer, 460 U.S. at
502. This Court continues to follow this standard as articulated in Jones v. State, 745 A.2d 856,
862, 863–864, 868–69 (Del. 1999).
19
Jones, 745 A.2d at 869.
20
App. to Opening Br. at A38 (Officer Leonard Moses Motion to Suppress Hearing Testimony on
Feb. 3, 2023 [hereinafter “Moses Test. at [_]”] at 20:20–21:1). See also McDougal, 2023 WL
2423233, at *1.
21
App. to Opening Br. at A45 (Officer Shauntae Hunt Motion to Suppress Hearing Testimony on
Feb. 3, 2023 [hereinafter “Hunt Test. at [_]”] at 49:20–51:16).
5
(“Acklin”) and Jamir Coleman (“Coleman”).22 The officers considered this a high crime
area.
Two weeks prior to the events at issue, a confidential informant told the police that
four individuals used “ground stashes” in the area near 24th and Carter to conceal firearms
from police.23 A ground stash is a location where an individual “would place [a firearm]
where they have direct control over it, but they are able to distance themselves from it if
they think there’s going to be police contact[.]”24 Prior to the events involving McDougal
and prior to receiving the tip, the police stopped two of the four individuals identified by
the informant and discovered a firearm behind a trash can. Acklin and Coleman were the
other two individuals named by the confidential informant.25 Therefore, although the
confidential informant was not past-proven, the police partially corroborated the
information provided by the informant when they stopped Acklin, Coleman and
McDougal.
The officers did not know McDougal, but they knew that Acklin and Coleman did
not reside at this address.26 After the officers observed the individuals standing at the
22
Id. at A35, A36 (Moses Test. at 10:12–19, 12:17–13:5).
23
Id. at A34–35 (Moses Test. at 6:23–8:16). McDougal was not named in the tip nor known to
these officers prior to the events at issue.
24
Id. at A34 (Moses Test. at 7:11–16).
25
Id. at A35 (Moses Test. at 10:16–19). Acklin and Coleman consented to pat-down searches,
and the officers recovered nothing. Id. at A40 (Moses Test. at 28:20–29:20) (Acklin); Id. at A44
(Hunt Test. at 44:7–16) (Coleman).
26
Id. at A38 (Moses Test. at 21:7–9). McDougal was later found not to live at that residence. Id.
at A42 (Moses Test. at 36:3–4).
6
intersection, the officers approached the individuals to ask them questions. Officer Hunt
testified that when speaking with Coleman:
I made contact with him, I -- I asked him if he lived in the area. He advised
me that he did not. I asked him if I could pat him down. He gave me consent
to do so. I asked him for his name and date of birth, and we were in the
process of getting that information as well.27
Because Officer Hunt found no contraband, Officer Hunt told Coleman to “move
on.” 28 Officer Moses testified about his approach to McDougal:
Well, during the initial contact I tried to identify myself, say who I am and
who we are and why we’re out here so it would explain that we’re out here
because you’re loitering. And then I explained -- normally at that point
people are, like, well, loitering ain’t a big thing. And I’ll explain to them,
well, we got a lot of violence going on out here, this is one of the ways that
we keep the violence down and ensure, that individuals that are standing out
here on this corner are normally subject to being victims of just random
violence, so we try and keep the area clear of people who’s not supposed to
be out there and don’t live on the block.
So I give them that briefing, and then during that briefing it would -- for his
situation, because I had already seen some of the characteristics, I segued
into, hey, during this contact do you mind if I pat you down just to ensure
that I’m safe and you’re safe during this encounter.29
27
Id. at A44 (Hunt Test. at 44:5–10).
28
Id. (Hunt Test. at 44:11–16). The same process occurred with Acklin. Id. at A36, A37, A38,
A40 (Moses Test. at 12:12–16, 19:11–14, 20:6–15, 22:18–22, 28:20–29:20).
29
Id. at A42 (Moses Test. at 36:15–37:12). Officer Moses also testified about the initial encounter
in response to a question from the Superior Court:
Well, I walked up to him and just introduced myself. I advised him, told him we
have a tip. My normal spiel is, how you doing, you know, you not [sic] allowed to
loiter, we got a lot of crime going on out here, we’re just trying to keep the street
safe. During that -- during that incident I think I segued into his clothing. I was
identify-- I was seeing his clothing as I was approaching, and I went through that
and was just asking, hey, do you mind if I pat you down, make sure you don’t have
any weapons or anything like that during this encounter, and he refused. I asked
him for his name. He refused that also.
7
At this point, Officer Moses suspected that McDougal might have a firearm based
on the “characteristics” of an armed gunman he learned through his training. Elaborating
on what those characteristics were, Officer Moses stated “I mean, that he had that bagging
[sic] clothing, asked him if he had any firearms on him, he said no. I asked him if I could
pat him down, and he said no.”30 Officer Moses described the clothing as “baggy clothing
with a -- looked to have multiple layers. Like he had, like, multiple pair of pants, or
something like that, under his clothing.”31 He testified that in his training, he was taught a
The engagement-- the encounter continued, and in my head I’m like, all right, I got
all this previous information, I have a characteristic I know is consistent with a
person that’s -- that can conceal a firearm on their person, but I didn’t think
necessarily I was already there, so I asked him to -- I asked him to sit down while
we was -- while we try to identify him and make it a safe encounter, at least safe
for us and him, at least he’s sitting down, he’s not readily available to try and injure
us, his hands are open, I could see.
Id. at A40 (Moses Test. at 30:2–31:2). During his testimony, Officer Moses explained some of
the reasons behind loitering enforcement. Compare id. at A40, A42 (Moses Test at 30:4–7, 36:15–
37:5), with Miller v. State, 922 A.2d 1158, 1162 n.8 (Del. 2007) (citing testimony by an officer
that “individuals sometimes take up residence in a block or on a sidewalk that don’t reside there,
thus causing the neighbors some concern that the property may be damaged, cars might be broken
into or engage in some type of drug activity or weapons activity.”), and id. at 1162 (“[T]he police
were aware of community concerns about weapons activity, drug dealing, and property damage
caused by individuals who loitered but did not reside in the area.”).
30
App. to Opening Br. at A36 (Moses Test. at 13:17–20). See also McDougal, 2023 WL 2423233,
at *1 (“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.”).
31
App. to Opening Br. at A35 (Moses Test. at 11:10–12).
8
characteristic of an armed gunman is multilayer clothing to hide the “print” or outline of
the gun.32 The layers were unseasonable for the weather in April.33
Officer Moses asked McDougal for his name and McDougal refused to provide it.
Officer Moses testified that he could not order McDougal to leave or issue a warning until
he obtained his name because “that would be part of a warning.”34 The rationale for this
practice is to avoid miscommunication and misidentifications at future stops.35 According
to Officer Moses, at this point, McDougal was “legally stopped for loitering.” 36 Because
McDougal refused to provide his name, Officer Moses ordered McDougal to take a seat on
the stoop for officer safety while officers identified him.37
McDougal was free to leave until Officer Moses told McDougal that he could leave
if he provided his name. The Superior Court correctly held that:
[W]hen 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.
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 [sic] free to ignore the police presence, due to the officer's
own words.38
32
Id. at A36, A37 (Moses Test. at 11:13–23); McDougal, 2023 WL 2423233, at *1.
33
McDougal, 2023 WL 2423233, at *1 (“Officer Moses noted it was unseasonable attire for the
weather and that it appeared Defendant was wearing multiple pairs of pants.”).
34
App. to Opening Br. at A37 (Moses Test. at 19:7–10).
35
Id at A41 (Moses Test. at 33:16–34:3, 34:18–35:5). The police also check for warrants. Id.
(Moses Test. at 35:8–13).
36
Id. at A37 (Moses Test. at 19:22–23).
37
Id. at A36, A39 (Moses Test. at 14:3–5, 27:15–19).
38
McDougal, 2023 WL 2423233, at *2.
9
The Superior Court held, and I agree, that McDougal was initially free to leave and
within his rights to refuse to answer questions. McDougal could and did reject Officer
Moses’s attempt to obtain consent to pat down McDougal. Once Officer Moses told
McDougal he could move on if he provided his name, McDougal could no longer feel free
to leave.39 The Superior Court wrote “[i]t 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.”40 At this point, the attempted consensual encounter
with McDougal became a detention. Thus, in order for this detention to be lawful, the State
needed to establish reasonable articulable suspicion that McDougal had committed, was
committing, or was about to commit some crime.
The Majority argues that Officer Moses obtained no new information during the
consensual phase of this encounter, and therefore the State could not lawfully detain
McDougal and establish that the officers had reasonable articulable suspicion that
39
Officer Moses testified that:
I believe I asked him, I gave him what my concerns were, explained to him that I
thought, I mean, that he had that bagging [sic] clothing, asked him if he had any
firearms on him, he said no. I asked him if I could pat him down, and he said no.
At that point I asked him what his name was so I could get his name and then we’d
identify him so we can give him his warning and then send him on his way, and the
individual refused to give us his name.
So after refusing to give us his name, to try and keep this as safe a situation as
possible, I asked him to sit down. Upon having him sit down on the stoop, once he
sat down, you could see an unusual bulge in his waistband area.
App. to Opening Br. at A36 (Moses Test. at 13:15–14:7).
40
McDougal, 2023 WL 2423233, at *3.
10
McDougal was loitering. Based upon the record, including the State’s position below, I
would frame the issue differently.41 The record suggests that the State never conceded that
the officers could not have conducted an investigative detention of McDougal; the State
only conceded, as the Superior Court found, that McDougal could no longer have felt free
to leave when Officer Moses told McDougal that he could leave if he provided his name.42
Officer Moses lawfully conducted an investigative detention because there was at
41
On appeal, the State argues:
As such, even if the encounter may have had a consensual nature initially with some
of the individuals, the State did not concede and the Superior Court did not accept,
McDougal’s claim that he was prevented from leaving a consensual encounter.
Despite McDougal’s contention, the State argued that, based on the evidence
available to them, the officers had reasonable articulable suspicion to obtain
McDougal’s name, and, at that point, Officer Moses’s words showed McDougal
that he was not free to leave unless he provided his name.
Answering Br. at 25.
42
McDougal, 2023 WL 2423233, at *2 (“[T]he 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.”). Below, the State argued the following at the hearing:
I would say initially it’s a consensual encounter because if you look at the
encounter with the first two individuals, Hey, can we have your name, they give it
to them. Can we pat you down, and they do. But Officer Hunt said if they had said
no but at least gave their name and date of birth and we realize they don’t have
warrants, they sent them along their way. They don’t arrest them. They don’t give
them a fine. They -- please, you know, they basically say don’t come back here or
you may get arrested. But that was the purpose in moving people along that day.
So initially it is a consensual encounter. It was the conduct of Mr. McDougal and
his actions and his clothing that cause them to investigate further, and then it
became, you know, more of a stop.
App. to Opening Br. at A49 (Motion to Suppress Hearing Transcript from Feb. 3, 2023 [hereinafter
“Hearing Trans. at [_]”] at 65:17–66:10). See also id. at A20 (Answer to Motion to Suppress at 8)
(“Officer Moses and the Wilmington Police had reasonable articulable suspicion to stop, frisk and
make inquiries from the defendant when they observed him loitering in the area where the
confidential informant had given information that individuals had been selling street level drugs
and carrying firearms.”).
11
least reasonable articulable suspicion that the individuals were violating the loitering laws.
Officer Moses attempted to resolve his reasonable articulable suspicion by initiating a
consensual encounter and issuing a warning, even though, as he testified, McDougal “was
legally stopped for loitering.”43 I believe the key is whether the State can establish that
Officer Moses had reasonable articulable suspicion that McDougal was loitering at the
point that McDougal could no longer believe he was free to leave. As the Superior Court
found that point occurred when McDougal was told if he provided his name, he would be
allowed to leave. I consider that question next.
C. The State Established Reasonable Articulable Suspicion Justifying McDougal’s
Detention on the Stoop
An attempted consensual encounter can evolve into an investigative detention when
“‘in view of all of the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.’”44 In Terry v. Ohio, the United States Supreme
Court held that an officer may only briefly detain or seize an individual for an investigative
detention when the officer has reasonable articulable suspicion that “criminal activity may
be afoot[.]”45
43
App. to Opening Br. at A37 (Moses Test. at 19:22–23).
44
Flowers, 195 A.3d at 24 (citations omitted) (quoting Michigan, 486 U.S. at 573 (internal
citations omitted)).
45
Terry v. Ohio, 392 U.S. 1, 30 (1968).
12
In Flowers, this Court held that “[t]he State of Delaware has adopted [the holding
in Terry], and Section 1902 of Title 11 governs such ‘investigative’ or Terry stops in this
State.”46 Under 11 Del. C. § 1902:
(a) A peace officer may stop any person abroad, or in a public place, who the
officer has reasonable ground to suspect is committing, has committed or is
about to commit a crime, and may demand the person's name, address,
business abroad and destination.
(b) Any person so questioned who fails to give identification or explain the
person's actions to the satisfaction of the officer may be detained and further
questioned and investigated.
(c) The total period of detention provided for by this section shall not exceed
2 hours. The detention is not an arrest and shall not be recorded as an arrest
in any official record. At the end of the detention the person so detained shall
be released or be arrested and charged with a crime.47
This Court interprets “reasonable ground” to mean “reasonable and articulable
suspicion.”48 As this Court held in Diggs: “‘[a] determination of reasonable suspicion must
be evaluated in the context of 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.’”49
46
Flowers, 195 A.3d at 24.
47
11 Del. C. § 1902 (emphasis added).
48
Jones, 745 A.2d at 861 (“Delaware has codified this standard for investigatory stops and
detentions in 11 Del. C. § 1902. For the purpose of this analysis, ‘reasonable ground’ as used in
Section 1902(a) has the same meaning as reasonable and articulable suspicion.”).
49
Diggs, 257 A.3d at 1004 (citing Jones, 745 A.2d at 861). The United States Supreme Court
elaborated on the required totality of the circumstances analysis in United States v. Cortez:
First, the assessment must be based upon all the circumstances. The analysis
proceeds with various objective observations, information from police reports, if
such are available, and consideration of the modes or patterns of operation of
certain kinds of lawbreakers. From these data, a trained officer draws inferences
13
Reasonable articulable suspicion requires “considerably less” than “proof by a
preponderance of the evidence” and is “less demanding than probable cause[.]”50 It
requires more than an inarticulate hunch and good faith by the officer.51
and makes deductions—inferences and deductions that might well elude an
untrained person.
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
common sense conclusions about human behavior; jurors as factfinders are
permitted to do the same—and so are law enforcement officers. Finally, the
evidence thus collected must be seen and weighed not in terms of library analysis
by scholars, but as understood by those versed in the field of law enforcement.
The second element contained in the idea that an assessment of the whole picture
must yield a particularized suspicion is the concept that the process just described
must raise a suspicion that the particular individual being stopped is engaged in
wrongdoing.
449 U.S. 411, 418 (1981).
50
Diggs, 257 A.3d at 1004 (“This level of justification is often referred to as reasonable articulable
suspicion and is considerably less than proof by a preponderance of the evidence and less
demanding than probable cause, which is necessary to support an arrest.” (internal quotation marks
and citations omitted)). The United States Supreme Court held the same in U.S. v. Sokolow:
The Fourth Amendment requires “some minimal level of objective justification”
for making the stop. That level of suspicion is considerably less than proof of
wrongdoing by a preponderance of the evidence. We have held that probable cause
means “a fair probability that contraband or evidence of a crime will be found,” and
the level of suspicion required for a Terry stop is obviously less demanding than
that for probable cause[.]
490 U.S. 1, 7 (1989) (citations and quotations omitted).
51
Terry, 392 U.S. at 22 (“Anything less would invite intrusions upon constitutionally guaranteed
rights based on nothing more substantial than inarticulate hunches, a result this Court has
consistently refused to sanction. And simple ‘good faith on the part of the arresting officer is not
enough.’” (citations and quotations omitted)). The Supreme Court observed in Terry that:
There is nothing unusual in two men standing together on a street corner, perhaps
waiting for someone. Nor is there anything suspicious about people in such
circumstances strolling up and down the street, singly or in pairs. Store windows,
moreover, are made to be looked in. But the story is quite different where, as here,
two men hover about a street corner for an extended period of time, at the end of
which it becomes apparent that they are not waiting for anyone or anything; where
these men pace alternately along an identical route, pausing to stare in the same
store window roughly 24 times; where each completion of this route is followed
14
This Court held in Lopez-Vazquez v. State, that the following factors can contribute
to finding reasonable articulable suspicion under the totality of the circumstances:
[A]ctivity such as “leaving the scene upon the approach, or the sighting, of a
police officer” or the “refusal to cooperate with an officer who initiates an
encounter” cannot be the sole grounds constituting reasonable suspicion.
These events, however, may be considered as part of the totality of the
circumstances. Other circumstances may also be considered, such as the
presence of a defendant in a high crime area, the defendant's “unprovoked,
headlong flight,” a defendant “holding a bulge in his pocket that appeared to
be either a gun or a large quantity of drugs”, [sic] a “focused” warning shout
of police presence, or a furtive gesture after the officer's approach or display
of authority. The officer's subjective interpretations and explanations of why
these activities, based on experience and training, may have given him a
reasonable suspicion to investigate further are also important, as is the trial
judge's evaluation of the officer's credibility.52
I now look to the statutes to compare the elements of the loitering statutes with what
information Officer Moses knew when he directed McDougal to provide his name.53 There
are two relevant statutes – 11 Del. C. § 1321, (“Section 1321”) and Section 36-68, the City
immediately by a conference between the two men on the corner; where they are
joined in one of these conferences by a third man who leaves swiftly; and where
the two men finally follow the third and rejoin him a couple of blocks away. It
would have been poor police work indeed for an officer of 30 years' experience in
the detection of thievery from stores in this same neighborhood to have failed to
investigate this behavior further.
Id. at 22–23.
52
Lopez-Vazquez v. State, 956 A.2d 1280, 1288–89 (Del. 2008) (citations and quotations omitted).
53
Officer Moses testified, and the Superior Court held, that he was investigating loitering. App.
to Opening Br. at A37, A42 (Moses Test. at 19:22–23, 36:15–18); McDougal, 2023 WL 2423233,
at *1 (“Moses contacted Defendant, explained to him his concerns about loitering in the area and
asked Defendant if he was armed.”); id. at *3 (“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.” (quoting 11 Del. C. § 1902(a))).
15
of Wilmington Ordinance on Loitering (“Section 36-38”) –that set forth the elements of
the crime of loitering.
Under Section 1321 a person is guilty of loitering when:
(1) The person fails or refuses to move on when lawfully ordered to do so by
any police officer; or
(2) The person stands, sits idling or loiters upon any pavement, sidewalk or
crosswalk, or stands or sits in a group or congregates with others on any
pavement, sidewalk, crosswalk or doorstep, in any street or way open to the
public in this State so as to obstruct or hinder the free and convenient
passage of persons walking, riding or driving over or along such pavement,
walk, street or way, and fails to make way, remove or pass, after reasonable
request from any person; or
(3) The person loiters or remains in or about a school building or grounds,
not having reason or relationship involving custody of or responsibility for a
pupil or any other specific or legitimate reason for being there, unless the
person has written permission from the principal; or
(4) The person loiters, remains or wanders about in a public place for the
purpose of begging; or
(5) The person loiters or remains in a public place for the purpose of engaging
or soliciting another person to engage in sexual intercourse or deviate sexual
intercourse; or
(6) The person loiters, congregates with others or prowls in a place at a time
or in a manner not usual for law-abiding individuals under circumstances
that warrant alarm for the safety of persons or property in the vicinity,
especially in light of the crime rate in the relevant area. Unless flight by the
accused or other circumstances make it impracticable, a peace officer shall,
prior to any arrest for an offense under this paragraph, afford the accused
an opportunity to dispel any alarm which would otherwise be warranted, by
requesting identification and an explanation of the person's presence and
conduct. No person shall be convicted of an offense under this paragraph if
the peace officer did not comply with the preceding sentence, or if it appears
that the explanation given by the accused was true and, if believed by the
peace officer at the time, would have dispelled the alarm.
16
Loitering is a violation.54
Although defense counsel and Superior Court discussed Section 1321 at the
hearing,55 Officer Hunt quoted a different provision in the police report.56 Officer Hunt
quoted to Section 36-68:
(a) Definitions. The following words, terms and phrases, when used in this
section, shall have the meanings ascribed to them in this section, except
where the context clearly indicates a different meaning:
Public place means an area generally visible to public view and including
streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots,
automobiles, while moving or not, within 50 feet of buildings which are
single-family or multifamily residences, or which are open to the general
public and which serve food or drink for consumption on or off the premises,
or which provide entertainment, and the doorway and entrances to such
buildings and the grounds enclosing them, or any other area either publicly
owned or to which the public has access or any vacant property in either a
residential or commercial district as designated by section 48-96 of this
Code.
(b) Prohibited behavior. A person is guilty of loitering under this section
when, within 50 feet of a single-family or multifamily residence, or within 50
feet of a business which is open to the general public and which serves food
or drink for consumption on or off the premises or which provides
entertainment, or within 50 feet of any vacant property in either a residential
or commercial district:
(1) The person fails or refuses to move on when lawfully ordered to
do so by any police officer;
(2) The person stands, sits idly or loiters upon any pavement, sidewalk
or crosswalk, or stands or sits in a group or congregates with others
on any pavement, sidewalk, crosswalk, or doorstep, in any street or
way open to the public in this city so as to obstruct or hinder the free
and convenient passage of other persons walking, riding or driving
54
11 Del. C. § 1321 (emphasis added).
55
App. to Opening Br. at A45 (Hunt Test. at 49:20–51:16).
56
Reply Br. at Ex. A.
17
over or along such pavement, walk, street or way, and shall fail to
make way, remove or pass, after reasonable request from any other
person;
(3) The person loiters or remains in a public place for the purpose of
solicitation as set forth in section 36-93; or
(4) The person loiters, prowls, wanders or creeps in a place at a time
or in a manner not usual for law-abiding individuals under
circumstances that warrant alarm for the safety of persons or
property in the vicinity. Unless flight by the accused or other
circumstances make it impracticable, a police officer shall, prior to
any arrest for an offense under this subsection, afford the accused an
opportunity to dispel any alarm which would otherwise be warranted,
by requesting him to identify himself and explain his presence or
conduct. No person shall be convicted of an offense under this
subsection if the police officer did not comply with the preceding
sentence, or if it appears that the explanation given by the accused was
true and, if believed by the police officer at the time, would have
dispelled the alarm.
(c) Notice to the public. The owner or proprietor of any business which is
included within the provisions of this section shall post a sign or signs in the
business premises which shall clearly state for customers to read the
prohibition of loitering under this section and the penalties for violation
thereof.
(d) Penalties. Any person who violated the provisions of this section shall
be fined $100.00 for his first offense, $250.00 for a second offense, $450.00
for a third offense, and $500.00 for every subsequent offense. These fines
shall not be subject to suspension or reduction for any reason. The current
offense shall be considered a subsequent offense to any offense or offenses
for the same violation which have occurred within the past five years.57
The police report states that “[t]he above listed information was referenced from the
Delaware State Code and the City of Wilmington Code.”58 This statement indicates an
57
Wilm. C. § 36-68 (emphasis added) (subsection title emphasis in original).
58
Reply Br. at Ex. A.
18
attempt to reference both statutes, rather than rely only on Section 36-68 as McDougal
suggests. McDougal argues that the State failed to name with specificity which provision
formed the basis of Officer Moses’s investigation and therefore the State lacked reasonable
articulable suspicion to detain McDougal. This lack of specificity as to which of the two
substantially similar statutes was at issue does not invalidate the detention. 11 Del. C.
§ 1902 required only that Officer Moses have reasonable ground to suspect McDougal “is
committing, has committed or is about to commit a crime[.]”59
In Miller v. State, this Court held that the police established reasonable articulable
suspicion to detain an individual for loitering under 11 Del. C. § 1321(6) when they
observed an individual “sit on the step of the vacant business for twenty to thirty minutes;
the vacant building was formerly used in an illegal bookmaking operation; it was 9 p.m.,
and the general area was known for drug problems and other criminal activity.”60
Similarly, at the time Officer Moses directed McDougal to provide his name, the
officers knew information from the confidential informant and their observations that
59
11 Del. C. § 1902(a) (emphasis added).
60
Miller, 922 A.2d at 1162–63. The Court in Miller also held:
Although the Delaware statute does not generally define loitering, a common
definition of the word “loiter” is “to remain in an area for no obvious reason.” A
reasonable, trained police officer, viewing a person sitting on the steps of a vacant
building at night for an extended period of time doing nothing, would have a
reasonable and articulable suspicion that the person was loitering. Accordingly, in
accordance with Delaware's loitering statute, such activity would warrant a brief
detention to investigate or warn the person to move on.
Id. at 1162 (citations omitted).
19
implicated many of the elements of Section 1321 and Section 36-38. The following facts
establish reasonable articulable suspicion that McDougal was violating a loitering statute:
• McDougal was “blocking pedestrian traffic” by “standing idle” “in front
of the house” at 24th and Carter; 61
• McDougal, unknown to the police, was with two individuals known not
to live at that address;62
• Officers were investigating a tip by a confidential informant which
indicated that McDougal’s companions and two other individuals used
ground stashes in this area to hide drugs and guns;63
• Prior to receiving that tip, officers stopped the other two individuals
identified by the confidential informant around the area of 24th and Carter
and “located a discarded firearm behind a trash can;”64
• 24th and Carter was in a “high crime” area; 65
• McDougal was dressed in baggy and multiple-layered clothing,
inappropriate for the season, which was a characteristic known from
police training and experience to indicate possession of a weapon (for
example, by hiding the “print” of a gun).66
The above uncontested facts sufficiently established reasonable articulable
suspicion of loitering. Officer Moses observed the individuals and their position relative
to the residence at 24th and Carter. The confidential informant’s tip was relevant to
61
App. to Opening Br. at A38, A45 (Moses Test. at 20:20–21:1; Hunt Test. at 51:9–51:16). See
also McDougal, 2023 WL 2423233, at *1.
62
App. to Opening Br. at A38, A41 (Moses Test. at 21:7–9, 35:16–19).
63
Id. at A34–35 (Moses Test. at 6:23–8:16).
64
Id. at A35 (Moses Test. at 8:17–21); McDougal, 2023 WL 2423233, at *1.
65
App. to Opening Br. at A39 (Moses Test. at 25:7–8).
66
Id. at A35 (Moses Test. at 11:10–12) (“baggy clothing with a – looked to have multiple layers.
Like he had, like, multiple pair of pants, or something like that, under his clothing.”); id. (Moses
Test. at 11:16–23) (baggy clothing hides weapons); McDougal, 2023 WL 2423233, at *1.
20
whether McDougal’s behavior was “not usual for law-abiding individuals under
circumstances that warrant alarm for the safety of persons or property in the vicinity[,]”67
“especially in light of the crime rate in the relevant area.”68 Although reasonable
articulable suspicion requires more than a hunch,69 it also requires “considerably less” than
“proof by a preponderance of the evidence” and is “less demanding than probable
cause[.]”70 What Officer Moses knew prior to detaining McDougal may amount to less
than proof by preponderance of the evidence but was sufficiently more than a hunch that
one of the provisions was violated. Even if Officer Moses initially attempted to resolve
the loitering violation through a consensual encounter, that does not negate the existence
of reasonable articulable suspicion to detain McDougal at the time that Officer Moses
ordered McDougal to provide his name. Therefore, I believe that the Superior Court
correctly held that the State had a valid basis to detain McDougal because the State
established that Officer Moses had reasonable articulable suspicion that McDougal
committed the crime of loitering.71
67
11 Del. C. § 1321(6); Wilm. C. § 36-68(4).
68
11 Del. C. § 1321(6).
69
Terry, 392 U.S. at 22 (citations omitted).
70
Diggs, 257 A.3d at 1004 (internal quotation marks and citations omitted).
71
The Superior Court held:
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. 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, as well as the observations of Defendant's
21
Because Officer Moses had a reasonable articulable suspicion that McDougal
committed a loitering violation, he could detain McDougal pursuant to 11 Del. C. § 1902(a)
and request his name, address, and business abroad. Because McDougal did not provide
his name, Officer Moses could then detain McDougal pursuant to 11 Del. C. § 1902(b) to
question McDougal and further investigate the reasonable articulable suspicion of
loitering. This detention had to be under two hours and limited to the purpose of the stop
pursuant to 11 Del. C. § 1902(c). The nature of the detention itself, asking McDougal to
sit on the stoop, was “limited, justified at its inception, and ‘reasonably related in scope to
the circumstances which justified the interference in the first place.’”72 Therefore, the
Superior Court correctly concluded that the officers lawfully detained McDougal.
D. The State Needed Reasonable Articulable Suspicion That McDougal was Armed
and Presently Dangerous to Pat Him Down for Weapons
As required under Delaware law, the State established reasonable articulable
suspicion that McDougal was armed and presently dangerous to Officer Moses and others
prior to patting down McDougal. Therefore, I believe the pat down was lawful.
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.
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.
McDougal, 2023 WL 2423233, at *3 (quoting 11 Del. C. § 1902(a)).
72
Flowers, 195 A.3d at 25 (quotation and citations omitted).
22
On appeal, the State asserts that McDougal waived any claim that the pat down was
unlawful. At the suppression hearing, McDougal’s attorney confirmed he did not challenge
the retrieval of the gun. The State argues that this was a strategic decision of trial counsel,
which precludes appellate review under our Supreme Court Rule 8.73 Because McDougal’s
trial counsel did not challenge,74 and the Superior Court did not analyze whether the pat
down was lawful, the plain error standard applies.75
In Flowers, this Court articulated the standard for when an officer may pat down an
individual during an investigative detention:
“During a Terry stop, officers may take measures that are reasonably
necessary to protect themselves and maintain the status quo.” A police
officer is empowered to “take necessary measures to determine whether [an
individual] is in fact carrying a weapon and to neutralize the threat of
physical harm” when the officer “is justified in believing that the individual
whose suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others.”
During an investigative stop, officers may, under appropriate circumstances,
search the detainee to determine whether he is armed. An officer may
conduct such a search for weapons if “he has reason to believe that he is
dealing with an armed and dangerous individual, regardless of whether he
has probable cause to arrest the individual for a crime.” The search must be
strictly circumscribed by the exigencies that justify its initiation.76
73
Del. Supr. Ct. R. 8.
74
App. to Opening Br. at A50 (Hearing Trans. at 71:3–6) (“Certainly when an officer sees a bulge,
that’s when Mr. McDougal is sitting down. Obviously I can’t contest the case law when the officer
sees a bulge.”).
75
This Court considers arguments not raised below under a plain error standard of review. A plain
error is “[‘]so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of
the trial process . . . [and is a] material defec[t] which [is] apparent on the face of the record [and
is] basic, serious and fundamental. . . .’” El-Abbadi v. State, – A.3d –, –, 2024 WL 14537, at *20
(Del. Jan. 2, 2024) (alterations in original) (quoting Williams v. State, 796 A.2d 1281, 1284 (Del.
2002)).
76
Flowers, 195 A.3d at 28 (citations and quotations omitted).
23
Regarding the scope of the search, “[t]he form of ‘search’ deemed ‘reasonable’
under such circumstances is also a limited one: a ‘frisk’ or pat down to find weapons.” 77
A pat down must be “limited to that which is necessary for the discovery of weapons which
might be used to harm the officer or others nearby, and may realistically be characterized
as something less than a ‘full’ search, even though it remains a serious intrusion.”78
The State established, under the totality of the circumstances, that Officer Moses
had reasonable articulable suspicion to believe that he was dealing with an “armed and
presently dangerous” person.79 At the hearing below, Officer Moses testified that he saw
an “unusual bulge” in McDougal’s waist area when McDougal sat on the stoop.80 Officer
Moses asked McDougal about the bulge, and McDougal removed “some articles” out of
his pocket; however, the bulge remained.81 Officer Moses observed McDougal’s multiple
layers of clothing and knew that to be a characteristic of an individual concealing a firearm.
Officer Moses also knew from his training and experience that the bulge was at
McDougal’s waist where a person might conceal a firearm. Therefore, the State established
that Officer Moses had reasonable articulable suspicion that McDougal was armed and
presently dangerous prior to patting down McDougal.82 Thus, I believe there was no error
77
Id. at 25–26 (citing Terry, 392 U.S. at 26).
78
Terry, 392 U.S. at 26. See also Royer, 460 U.S. at 498 (“[T]he search must be limited in scope
to that which is justified by the particular purposes served by the exception.”).
79
Flowers, 195 A.3d at 28 (citing Terry, 392 U.S. at 24).
80
App. to Opening Br. at A36 (Moses Test. at 14:5–7).
81
Id. (Moses Test. at 14:12–15:4). See also McDougal, 2023 WL 2423233, at *2 (“Defendant was
asked about the bulge and in response pulled out a medical facemask and a hair cap.”).
82
Terry, 392 U.S. at 27 (“And in determining whether the officer acted reasonably in such
circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or
24
when Superior Court held, even without additional analysis, that “Officer Moses
appropriately engaged in the pat down of Defendant once on the stoop[.]”83
Finally, McDougal’s argument that Officer Moses searched McDougal beyond the
permitted scope of a pat down has no merit. Officer Moses testified as follows on direct
examination:
Q. When you say you reached down, could you describe more of what you
do? Are you going in his pants? Are you going over the top of his pants to
feel it? What are you doing?
A. I believe what happened is I reached down and I was patting it down, and
then still didn’t feel nothing, and I lifted up his shirt, and you could see the
firearm in his waistband area.
Q. Okay. So when you pat, could you still feel something?
A. Yes.
Q. All right. And because you felt something, then you lifted his shirt?
A. Correct.84
Although Officer Moses initially stated he felt nothing, when the State specifically
asked him if he felt something, he altered his answer. McDougal’s trial counsel did not
cross-examine Officer Moses regarding that initial description of the pat down. The
Superior Court was in a better position to determine Officer Moses’s credibility, having
observed Officer Moses’s body language and tone during his testimony, and then by
‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in
light of his experience.” ).
83
McDougal, 2023 WL 2423233, at *3.
84
App. to Opening Br. at A36–37 (Moses Test. at 15:16–16:6).
25
comparing that testimony to what the judge saw when reviewing the body camera footage.
The Superior Court did not make a finding of fact regarding whether Officer Moses felt
anything:
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.85
The lack of argument by trial counsel and lack of finding of fact by the Superior
Court suggests that the parties and court were satisfied that the pat down was conducted
properly. It also suggests that the parties and the court understood that Officer Moses
corrected himself in his testimony. I see no error in the result, and if there were an error,
it was not “[‘]so clearly prejudicial to substantial rights as to jeopardize the fairness and
integrity of the trial process . . . [and is a] material defec[t] which [is] apparent on the face
of the record [and is] basic, serious and fundamental. . . .’”86 Accordingly, I believe that
McDougal has not satisfied the plain error standard.
II. CONCLUSION
Our law enforcement officers must follow proper procedural safeguards and satisfy
the requisite standard during each step of their investigation from consensual encounter to
arrest. This ensures that law enforcement officers can investigate efficiently, and
simultaneously protects the paramount constitutional rights of Delawareans. I believe that
85
McDougal, 2023 WL 2423233, at *2 (emphasis added).
86
El-Abbadi, 2024 WL 14537, at *20 (alterations in original) (citation omitted).
26
the Superior Court correctly determined that the State justified both detaining McDougal
and conducting the pat down with the required reasonable articulable suspicion. Therefore,
I would AFFIRM McDougal’s conviction and accordingly, I respectfully DISSENT.
27