State v. Abel
State v. Abel
Opinion of the Court
for the Majority:
A State Trooper stopped a Hells Angels member for speeding. When asked where he was going, the defendant cordially declined to answer. The State Trooper informed the defendant he would pat him down, and the defendant revealed he possessed two handguns. We AFFIRM the Superior Court judge’s grant of defendant’s motion to suppress because under the totality of the circumstances, no particularized, reasonable, articulable suspicion that the defendant was presently armed and dangerous existed.
I. FACTUAL AND PROCEDURAL HISTORY
Delaware State Trooper John Andrew Lloyd, while patrolling Interstate 95 on June 4, 2011, observed two motorcycles driving southbound at a higher rate of speed than normal traffic. Lloyd also observed that one of the drivers, defendant David Abel, wore Hells Angels insignia or “colors” on his clothing. After deciding to “pace” the two motorcyclists with another Trooper, Lloyd determined they were driving 80 miles per hour in a 55-mile-per-hour zone. When Lloyd activated the lights on his unmarked police car, David Abel pulled over on the left shoulder and his companion pulled over on the right. Lloyd stopped the motorcycle driven by Abel, and the other Trooper stopped Abel’s companion on the other side of the interstate.
Lloyd is a veteran member of the Delaware State Police intelligence unit, a group that receives training about and investigates criminal activity by Outlaw Motorcycle Gangs (OMGs). Hells Angels Motorcycle Club and Pagans Motorcycle Club are both recognized as OMGs. Police generally consider Delaware to be Pagan territory, and the Pagans and Hells Angels are rivals with a history of violent interactions. While Lloyd does have significant experience with Pagans members, he testified at the suppression hearing that his “experience with [Hells] Angels is very limited. Delaware doesn’t have one[ — ]I think we have one person in the State. Pagans we have. I couldn’t tell you how many we have. I encounter Pagans all the time.”
During the stop, “Abel remained calm and his hands remained primarily in view on the handlebars of the motorcycle.”
[9:45:16] [a.m.]
Trooper Lloyd: What’s going on?
David Abel: Nothing, how are you?
*1231 [Lloyd]: What’s going on? We got you going 80 and you were tailgating that car.
[Abel]: [Unintelligible]
[Lloyd]: Any reason you were going that fast?
[Abel]: Just running a little late, that’s all.
[Lloyd]: Where you headed?
[Abel]: We’re going out on a run today. [Lloyd]: Where to?
[Abel]: I think you got everything there [Abel is handing Lloyd his license and registration].
[Lloyd]: Where you guys going?
[Abel]: [laughing] I’m not gonna go through all that — I’m not gonna go through all that man. We’re just goin’ out for a ride that’s all.
[Lloyd]: Yeah no big deal. I mean I’m not ...
[Abel]: [Unintelligible] I mean yeah. Like I said we’re just running late. [Unintelligible] and that’s all ...
[Lloyd]: In Delaware or out of Delaware?
[Abel]: We’re going out of Delaware. If you guys let us go, we’ll get right out of Delaware! [laughs]
[9:45:53] [a.m.]
[Lloyd]: Any weapons on ya?
[Abel]: No.
[Lloyd]: No guns?
[Abel]: No I’m good.
[Lloyd]: Alright, I’m gonna pat you down make sure you don’t have a gun on ya.
[Abel]: Why ya, I mean, for what?
[Lloyd]: I’m gonna pat ya down.
[Abel]: I’ve got a gun [Unintelligible]. [Lloyd]: Huh?
[Abel]: I’ve got a gun. I’ve got two. I’ve got one here [points to jacket] and one here [points to pants].
[Lloyd]: Alright.
[Abel]: I’ve got a permit to carry, but I don’t have one in Delaware.
[Lloyd]: Alright. Let me just make sure you’re safe here. Put your hands behind your back.
[9:46:11 a.m.]4
After this brief interaction, Lloyd conducted a pat down, recovered the two handguns, and arrested Abel.
The State charged Abel with speeding and two counts of Carrying a Concealed Deadly Weapon.
II. STANDARD OF REVIEW
In general, we review the trial judge’s grant of a motion to suppress for an abuse of discretion.
III. ANALYSIS
A. The State is limited to arguing officer safety.
Despite the State’s “moving target” approach to its briefing, the State is limited to arguing the motion to suppress on the theory of officer safety. Under Supreme Court Rule 8, we decline to address questions that were not fairly presented to the trial judge.
B. In light of the trial judge’s factual findings, Lloyd could not have possessed a reasonable, articulable suspicion that Abel was armed and dangerous.
In order to justify a pat down on the grounds of officer safety, an officer must have reasonable, articulable suspicion that the person subject to the frisk is presently armed and dangerous.
In order to determine whether reasonable, articulable suspicion exists, we conduct a totality of the circumstances analysis, in light of the trial judge’s factual findings.
The trial judge found that Lloyd’s determination that Abel was speeding, based on Lloyd’s testimony that “he paced Abel ‘at 80 in a 55,’ ” justified the initial stop.
The trial judge, despite watching the video at least five times, did not address Abel’s statement about “going on a run today.” Because she conducted a totality
Based on the trial judge’s factual findings, she correctly noted that the issue is “whether Abel’s clothing,” denoting alleged gang membership, “coupled with his unwillingness to share his destination,” created a reasonable, articulable suspicion that Abel was presently armed and dangerous under the totality of the circumstances” as established by the facts she found.
In Caldwell, we held that the following three facts did not “justify a reasonably prudent person in believing that Caldwell was armed and dangerous:”
We next turn to the issue of Abel’s affiliation with the Hells Angels. The trial judge noted that “[w]hile the State concedes that the situation that Lloyd encountered when he approached Abel ‘would not appear to be all that menacing to the untrained observer,’ it asserts that Abel’s [Hells] Angels Motorcycle Club vest ‘changes everything.’ ”
Our decision in Walker v. State
In this specific fact setting, we find the
The Superior Court judge in Dollard found that no Delaware case was directly on point, but that other jurisdictions were split: “Some courts have concluded that a police officer’s belief that a suspect is a drug dealer along with his knowledge that drug dealers often carry weapons will justify a pat-down search of the suspect; other courts have determined that something more is required before a pat-down search is proper.”
In contrast to Dollard, State v. Miglavs
The court also addressed the defendant’s gang-related clothing. While “clothing that announces a gang affiliation does not, by itself, give rise to the kind of individualized suspicion of a safety threat required under Article I, section 9[ of the Oregon Constitution],” “officers reasonably may draw inferences about human behavior from their training and experience.”
A Sixth Circuit Court of Appeals panel confronted a very similar situation to this case in United States v. Robinson, a 2-1 table decision.
While concern for “officer safety is both legitimate and weighty, it cannot in all circumstances justify a search or seizure. Otherwise nearly any invasion of a person’s privacy could be justified by arguing that the police needed to protect themselves from harm.”
Abel’s affiliation with the Hells Angels does not support a finding of reasonable, articulable suspicion that Abel was armed and dangerous. Lloyd had no personal, particularized experience with Abel, and extremely limited experience with the Hells Angels. At best, Lloyd extrapolated his general suspicions about the Pagans and applied them to Abel. While Lloyd may have believed that the Hells Angels and the Pagans are rival gangs and Delaware is Pagan territory, Abel was traveling on a very busy interstate and Lloyd was aware of no facts that indicated gang activity was occurring nearby. This was mid-morning and not in a high crime area. Abel’s failure to reveal his destination, combined with his Hells Angels affiliation, does not catapult this case into one where reasonable, articulable suspicion exists. That is particularly so, given the trial judge’s factual finding, gleaned from a real time video of the encounter, that Abel was cooperative, polite, and jovial. As the trial judge noted, “Abel’s hands remained visible almost the entire time, Lloyd never identified a bulge in Abel’s vest or pants” that might indicate a weapon, and “all of [Abel’s] movements could be easily observed.”
IY. CONCLUSION
We AFFIRM the grant of the motion to suppress and, therefore, the judgment of the Superior Court.
. App. to Opening Br. A-56.
. State v. Abel, 2011 WL 5221276, at *1 (Del.Super. Oct. 31, 2011).
.Id. at* In. 7.
. App. to Opening Br. A-68 to A-69 (some brackets in original) (Transcript of State's Suppression Exhibit No. 1). The transcript was not available for the trial judge to review during the suppression hearing, but she did review the video from which the transcript was taken at least five times. Abel, 2011 WL 5221276, at *1 n. 6.
. Abel, 2011 WL 5221276, at *1 (footnote omitted) (citations omitted).
. Id. (citations omitted).
. Id. at *2 (citations omitted).
. Id. at * 1.
. State’s Mot. Rearg. ¶¶ 4, 6.
. State v. Abel (Abel Order), 2011 WL 5925284, at *1 (Del.Super. Nov. 28, 2011) (ORDER) (citing State Farm Fire & Cas. Co. v. Middleby Corp., 2011 WL 2462661, at *2 (Del.Super. June 15, 2011)). The State admitted it had not initially raised issues under 21 Del. C. § 701 in its Motion for Reargument. State's Mot. Rearg. ¶ 4. The State fails to mention 11 Del. C. § 1902 in its Response to Defendant's Motion to Suppress. App. to Opening Br. A-7 to A-9.
. Lopez-Vazquez v. State, 956 A.2d 1280, 1284 (Del. 2008) (citations omitted).
. Id. at 1284-85 (citations omitted).
. Id. at 1285 (citations omitted); Hudak v. Procek, 806 A.2d 140, 153 (Del. 2002) ("[T]his Court on appeal will test individual findings of fact only to ensure that the factual findings and inferences are supported by 'competent evidence.' ” (citation omitted)); Cede & Co. v. Technicolor, Inc., 758 A.2d 485, 491 (Del. 2000) ("In any appeal, the factual findings of a trial judge will not be set aside by a reviewing court unless those factual determinations are clearly erroneous.”).
. Cede & Co., 758 A.2d at 491.
. Lopez-Vazquez, 956 A.2d at 1285 (emphasis added).
. Supr. Ct. R. 8.
. See supra note 10 and accompanying text.
. Oral Argument at 8:36, State v. Abel, No. 50, 2012 (Del. Oct. 10, 2012), available at http://courts.delaware.gov/supreme/audioargs. stm.
. Id. at 8:53.
. Holden v. State, 23 A.3d 843, 847 (Del. 2011) (citing Arizona v. Johnson, 555 U.S. 323, 326, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)).
. Id. (quoting Jones v. State, 745 A.2d 856, 861 (Del. 1999)).
. Id. at 849 (citing Ybarra v. Illinois, 444 U.S. 85, 94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1980)).
. Id. at 847.
. Jones v. State, 745 A.2d 856, 861 (Del. 1999) (citations omitted).
. Holden, 23 A.3d at 847 (citing State v. Henderson, 892 A.2d 1061, 1064 (Del. 2006)).
. State v. Abel, 2011 WL 5221276, at *1, *4 (Del.Super. Oct. 31, 2011).
. Id. at *4.
. Id.
. Id.
. Id. at *6 (Del.Super. Oct. 31, 2011). We recognize that we must judge the facts "against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief that the action taken was appropriate?" Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (citations omitted). We take the trial judge's comment that Lloyd failed to articulate additional facts to mean that, with Lloyd as the only witness at the suppression hearing, she found no facts giving rise to a particularized suspicion other than the alleged Hells Angels membership and Abel's refusal to tell Lloyd his destination.
. App. to Opening Br. A-9.
. Compare Opening Br. at 18, and Oral Argument at 7:52, 9:08, State v. Abel, No. 50, 2012 (Del. Oct. 10, 2012), available at http:// courts. delaware. gov/supreme/audioargs.stm (" 'I'm out on a run.' Gang speak for ‘I’m engaged in business here, I'm engaged in gang business.' [Lloyd] knows [Abel is] in enemy territory.... He knows that in fact Mr. Abel says to him, 'I am on a run.’ That is one of those phrases that he uses. And this officer knows on a run means, and if you look that's stipulated to ... that on a run means you’re doing gang business and that ... can involve violence and that can involve weapons.”), with Answering Br. at 26-27, and Oral Argument at 20:35-22:10, 21:45 ("[T]here can be bad gang business; there can be good gang business, but saying 'on a run' doesn’t mean ‘Aha! that tells me this is bad.' And wouldn't [Abel] be kind of stupid to say to a policeman, given the experiences that Abel has had, T don't want to go through that again, been there done that,’ that he’s going to say, 'And by the way I'm doing some gang business?' ”). Even the State's counsel at one point uses the more innocuous term "ride” in place of "run” later in his argument. Oral Argument at 11:12 ("When [Lloyd] says, 'Where are you going?' And then [Abel] says, you know, 'Look, we’re just out on a ride, things like that,' and [Lloyd] says, ‘Yeah, but ... where?’ and [Abel] says 'Well I’m not going to go into all that with you.’ I think that is further evidence that he may be involved in activity that he doesn't want the police officer to know about.”).
. State v. Abel, 2011 WL 5221276, at *5 (Del.Super. Oct. 31, 2011).
. Caldwell v. State, 780 A.2d 1037, 1049 (Del. 2001).
. Id. at 1049 n. 29 (citing Berkemer v. McCarty, 468 U.S. 420, 439-40, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (“[T]he officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain
. Abel, 2011 WL 5221276, at *6.
. Id. at *4.
. Caldwell, 780 A.2d at 1051.
. Id. at 1050.
. Abel, 2011 WL 5221276, at *4.
. Id. at *5 (footnote omitted) (citing State's Resp. at 2).
. App. to Opening Br. A-9.
. We suppose the Hells Angels member would also have to give an unsatisfactory answer in response to 11 Del. C. § 1902 questions, but as he is not required to answer those questions by law, it is difficult to see how that meaningfully adds to the analysis.
. Walker v. State, 610 A.2d 728, 1992 WL 115945 (Del. Apr. 20, 1992) (TABLE).
. Id. at *2 (citation omitted).
. 788 A.2d 1283 (Del.Super. 2001).
. Id. at 1285-86.
. Id. at 1285.
. Id. at 1287.
. Id.
. Id. at 1288 (footnote omitted) (citations omitted).
. Id. at 1289.
. Id.
. 337 Or. 1, 90 P.3d 607 (2004).
. Id. at 614.
. Id. at 612 (citing State v. Ehly, 317 Or. 66, 854 P.2d 421 (1993)).
. Id. at 614 (emphasis omitted).
. Id. at 613.
. Id. (citation omitted).
. Id. at 614.
. Id. at 613 (citation omitted).
. Id.
.Id.
. United States v. Robinson, 149 F.3d 1185, 1998 WL 322656 (6th Cir. May 22, 1998) (TABLE)
. Id. at * 1
. Id. at *4-5.
. Id. at *5.
. Id.
. Jones v. State, 745 A.2d 856, 872 n. 78 (Del. 1999) (quoting United States v. Johnson, 170 F.3d 708, 718 (7th Cir. 1999)) (internal quotation marks omitted).
. Holden v. State, 23 A.3d 843, 850 (Del. 2011).
. Id. (quoting Teny v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
. Id.
. Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del. 2008).
. State v. Abel, 2011 WL 5221276, at *4 (Del.Super. Oct. 31, 2011).
Dissenting Opinion
dissenting, with HOLLAND, Justice, joining:
It is undisputed in this case that there was probable cause to stop Abel for breaking the law. Trooper Lloyd was justified in making a limited warrantless search for the protection of himself if he had a reasonable, articulable suspicion that Abel was armed and dangerous.
“[D]ue weight must be given, not to [the officer’s] inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”
Trooper Lloyd has been a Delaware State Trooper for seven years. He has participated in thousands of traffic stops and has specialized training on outlaw motorcycle gangs. He received daily intelligence briefings which include updates on the activities of outlaw motorcycle gangs. He knew from his training that members of organized, criminal gangs are more likely to assault police officers and that the most active motorcycle gang in Delaware is the Pagans, rivals of the Hells Angels. The parties stipulated that “troopers are aware that OMG [outlaw motorcycle gang] members are routinely directed to participate in club events, including mandatory motorcycle rides or ‘runs’ and these events have been the source of violent encounters involving the use of weapons against other
Trooper Lloyd -witnessed Abel and another Hells Angel travelling 80 m.p.h. in a 55 m.p.h. zone wearing Hells Angels colors in Pagan gang territory. Abel’s excessive speed on a motorcycle put at risk not only his own life but also the lives of others on the road. A conviction of driving 25 m.p.h. over the speed limit would require the suspension of his driving privileges in Delaware.
When Trooper Lloyd pulled Abel over, Lloyd was alone and did not have immediate back up. Abel said he was on a “run” but he refused to say where he was going. He explained no emergency circumstances to justify his dangerous speed that put both his life and his driving privileges at risk. His conduct was consistent with being on gang business. While the trial court and the Majority give “little to no weight” to Abel’s admission of being “on a run today,” that fact is present nevertheless and lends support to Trooper Lloyd’s suspicion that Abel was prepared for a violent encounter. Trooper Lloyd knew he would be particularly vulnerable once he returned to his car to do computer inquiries on Abel. He had a reasonable concern for his personal safety that justified a protective search. Abel’s motion to suppress should have been denied.
We respectfully dissent.
Upon Motion for Reargument
In our original opinion, the majority held that the facts of this case failed to raise a reasonable, articulable suspicion that Defendant-Appellee David Abel was armed and dangerous that would justify a pat down, and, accordingly, affirmed the Superior Court judge’s decision to suppress the evidence seized. The dissent disagreed because it believed the Delaware State Trooper had a reasonable concern for his safety that justified a protective pat down.
The State filed a Motion for Reargument or Clarification dated December 20, 2012. Abel filed a response on January 14, 2013. The purpose of this supplemental opinion is to address the Superior Court’s judge’s determination of when a “second seizure” occurred.
The Superior Court judge erred harmlessly by determining that a second seizure occurred when Trooper Lloyd merely asked David Abel whether he had any weapons on him.
We DENY the Motion for Reargument and REAFFIRM the judgment of the Superior Court.
. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
. Terry, 392 U.S. at 27, 88 S.Ct. 1868.
. Id.
. Ornelas v. U.S., 517 U.S. 690, 697-98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). See also Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del. 2008) (“Where as here, we are reviewing the denial of motion to suppress evidence based on an allegedly illegal stop and seizure, we conduct a de novo review to determine whether the totality of the circumstances, in light of the trial judge’s factual findings, support a reasonable and articulable suspicion for the stop.”)
. Jones v. State, 745 A.2d 856, 861 (Del. 1999) (citing United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
. State v. Abel, No. 50, 2012, slip op. at 11 (Del. Dec. 5, 2012) (quoting App. to Op. Br. A-9).
. 2 Del. Admin. C. § 2208-4.7.2 ("When convicted of driving 25 MPH over the posted limit, the driver's license will be suspended for a mandatory period of 1 month.”).
. See State v. Abel, 2011 WL 5221276, at *6-7 (Del. Super. Oct. 31, 2011).
. See id.
. Murray v. State, 45 A.3d 670, 674-75 (Del. 2012) (discussing Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009)).
. Id. at 674.
. See Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (citing Muehler v. Mena, 544 U.S. 93, 100-01, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005)) ("An officer's inquiries into matters unrelated to
Reference
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- STATE of Delaware, Below v. David ABEL, Below
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