Free Letter - District Court of Delaware - Delaware

Case 1:05—cr—00038-SLR Docu ment 17 Filed 09/01 /2005 Page 1 of 4
,___ _ 5 U.S. Department of Justice
. United States Attorney ’s Ojjiice
District of Delaware
Nemours Building (302} 5 73-6277
1007 Orange Street, Suite 7100 FAX (302) 5 73-6220
P. O. Box 2046
Wilmington, Delaware 19899-2046
2 September 1, 2005
- Honorable Sue L. Robinson _ U ` ‘
Chief Judge
United States District Court
J. Caleb Boggs Federal Building ‘
844 King Street
Wilmington, Delaware 1 9801
Re: United States v. Tyrone Williams
Criminal Action N0. 05-38-SLR
‘ Dear Chief Judge Robinson: ,
The Court held a suppression hearing in this case on August 1 , 2005. The Court asked for post—hearing
brieiing. The only issue is whether the Glock pistol that was seized from the Defendant should be suppressed.
Backg rou nd
p "[W] e have specifrcally recognized the inordinate risk confronting an officer as he approaches a person
seated in an automobile. ‘According to one study, approximately 30% of police shootings occurred when a I
police ofhcer approached a suspect seated in an automobile. "’ Pennsylvania v. Mmms, 434 U. S. 1 06, 1 10
(1977) (per curiam). .
` The Facts
. Onthe morning of March 17, 2005, the Wilmington Police received an anonymous 91 1 call. T:4,24-25.
The caller, who sounded sober and alert (GX- 1 ), reported that two black males were sleeping in a particular
car in front of 1 019 Elm Street, gave the license number ofthe car, and reported that they had been there an _
hour and a half and the caller did not recognize them or their car as being from the neighborhood. T:24-25.
Corporal Ronald l\/[rmiz, a seven-year veteran ofthe Wilmington Police, was dispatched to investigate the
_ I complaint. T :3 -4. After about ten to nfteen minutes, Corporal Muniz found the described car at the described
location. T:6—7. There were two black males in it. T:8. It was about 40 degrees and sunny. T:8. Corporal
Muniz drove by the two men in the car, and parked. T:8-9. The driver ofthe car was the Defendant, Tyrone
Williams. T: 10. The Defendant saw Corporal Muniz, the two men in the car then began looking at each other,
and the Defendant began shifting around in his seat. T: 8-9. As Corporal Muniz approached the car, he saw r I _

I . Case 1:05—cr—00038-SLR Document 17 ` Filed 09/01 /2005 Page 2 of 4
l ‘ Honorable Sue L. Robinson
September l, 2005
Page 2
‘ Re: Tyrone Williams
the Defendant shifting his right side back toward the seat, and his left side forward, away Hom the seat. T: 10.
Corporal Muniz noticed that the Defendant’ s right hand was down by his right side, and that there was a bulge
in the right side pocket of his Army jacket. T:1 1 .
Corporal Muniz then asked the Defendant some questions. He asked him what he was doing inthe area,
to which the Defendant replied that he was going to help his boys move. T: 1 1 . He asked him where his boy
was, and the Defendant pointed up the street. T: 12. He asked him how long he had been there, to which the
Defendant’ s response was forty-five minutes to an hour. T: 12. Corporal Muniz was concerned about the
driver’s hands, and asked the driver to keep them where Corporal Muniz could see them. T: 12. Corporal
Muniz asked the Defendant whose car it was, to which the Defendant responded, one of his friend’s boys.
_ T: 1 3. The Defendant could not identify the friend’s boy’s name. T: 13. Corporal Mtmiz asked for
identification, and the Defendant made a quick motion, in the vicinity ofthe bulge inthe Army j acket. T: 19.
The Defendant produced identification in the name of Shamar Whitehead. T: 13. The identification stated that
he was born in 1 972. T: 1 8. Corporal Muniz thought the defendant looked "much older" than a person bom
in 1972. T: 1 8. This made him doubt the genuineness of the identification. T: 1 S.
` Corporal Hazzard arrived as back-up. T:20. Corporal Muniz was concerned about whether the
Defendant had a weapon due to the way he was shifting in his seat, and then asked whether he did have any
weapons in the car or on his person. T:21. The Defendant’ s demeanor changed, becoming belligerent,
cursing, and acting indignantly in response to the question about weapons. T:21 . The change in demeanor
caused Corporal Muniz concern. T:21 . Corporal Muniz asked the driver to step out ofthe car so that he
` could perform a patdovvn search for weapons. T:21 . The Defendant continued to curse, and to act
suspiciously, by holding the right side of his body against the car, away from Corporal Muniz. T:21 -22. The
Defendant also resisted Corporal Muniz’ s instruction to spread his legs. Tt22. Resisting the instruction to I
spread his legs made it more difficult for Corporal Muniz. T:22. When the Defendant dropped his right hand,
. Corporal Hazzard grabbed it. T:22. Corporal Hazzard patted down the Defendant on his right side, which
is where Corporal Muniz indicated the pat-down was needed. T:22. When Corporal Hazzard patted clown
the Defendanfs right side, he felt a weapon, said, "gun," and Corporal Muniz arrested the Defendant. T:22-
23. The recovered gun was a Glock 23. T:23. .
The Law l
A "police officer may perform a reasonable search for weapons — also known as a ‘patdown search’
— if the police officer has reason to believe, based on specific reasonable inferences, that the individual stopped
is armed and dangerous." United States v. Monroe, 1997 WL 309497, *2 (D.Del. 1997) (Robinson, J .)
(citing T errjy v. Ohio, 392 U.S. l, 26, 30 (1968)). InPermsylvania v. Mmms, supra, the Supreme Court
considered a pat-down search that had occurred after the driver of an automobile had been stopped and
issued aticket for driving with an expired license plate. The officer asked the driver to step out ofthe car.

Case 1:0_5—cr—00038-SLR Docu ment 17 Filed 09/01 /2005 Page 3 of 4
Honorable Sue L. Robinson
September 1, 2005 _
Page 3
Re: Tyrone Williams
He did so. The officer then "noticed a large bulge under [the driver’ s] sports j acket. Fearing that the bulge
. ` nright be a weapon, the officer hisked [the driver] and discovered in his waistband” a gun. Mimms, 434 U.S.
at 107. The Supreme Court held:
There remains the second question ofthe propriety ofthe search once the bulge n
inthe jacket was observed. We have as little doubt on this point as on the first [issue
_ decided by the Court]; the answer is controlled by Terry v. Ohio, supra. In that case
. we thought the officer j ustilied in conducting a limited search for weapons once he had
reasonably concluded that the person whom he had legitimately stopped might be
armed and presently dangerous. Under the standard enunciated in that case —
whether "the facts available to the officer at the moment of seizure or the search
‘warrant a man of reasonable caution in the belief that the action taken was
p appropriate" — there is little question the omcer was justified. The bulge in the jacket
permitted the oiiicer to conclude that [the driver] was armed and thus posed a serious
and present danger to the safety ofthe officer. ln these circumstances, any man of
"reasonable caution" would likely have conducted the “pat down." _
Id. at 3 34 (underlining added).
Analysis -
The Government respectfully submits that this case is controlled by Pennsylvania v. Mimms. Corporal `
Muniz responded to a 911 complaint, and conducted an investigation to detennine the accuracy ofthe
complaint. He therefore approached the Defendant, who was in a parked car on a public street, and started
to investigate the complaint. Before any questioning, Corporal Muniz saw a bulge in the Defendant’s jacket,
and the Defendant’s attempt to turn his right side away nom Corporal Muniz. At this point, nothing had been
done that implicated the fourth amendment. See, e. g., United States v. Kim, 25 F.3d 1426, 1430 n.1 (9*
Cir. 1994) ("other circuits in factually similar cases have consistently held that an officer’s approach of a car
parked in a public place does not constitute an investigatory stop or higher echelon Fourth Amendment
seizure”). Further, Corporal Mrmiz at this point had a reasonable suspicion that the Defendant had a gun,
which not only raised safety concerns, but also a possible violation of Delaware law, namely, carrying a
` concealed deadly weapon. See 1 1 @. Qcg §1442. Thus, before asking any questions ofthe Defendant,
Corporal Muniz was already in a position comparable to that ofthe police officer in Mmms. The only
justincation for the pat-down search inMimrn.s was the bulge inthe driver’ sj acket. It would therefore appear
that on that basis alone the Court should deny the suppression motion.
There was, however, significantly more reason for Corporal Muniz to suspect that the Defendant had
.a weapon, by the time he asked the Defendant to get out ofthe car and did the pat-down, than there was for
the officer in Mimms. First, Corporal Muniz knew, as soon as he drove upon the scene that most of what the

Case 1:05—cr—00038-SLR Docu ment 17 Filed 09/01 /2005 Page 4 of 4
Honorable Sue L. Robinson
September 1, 2005
Page 4 ‘
Re: Tyrone Williams
anonymous caller had said was true —— that is, that there were two men who had been sitting in a car, for no
obvious reason, for a period of time on a cold morning. Second, with a couple of questions} Corporal Muniz
verified the essence of the rest of the anonymous call — that is, that the two men were not from the
neighborhood, and had been there a significant period of time, forty-five minutes to an hour by the Defendant’s
admission. Third, Corporal Muniz was obtaining information from the Defendant that only raised further
I suspicions. The Defendant gave avague description ofthe supposed owner ofthe car, and could not identify
him by name. The Defendant produced an identification card on which the date of birth did not appear to
correspond to what Corporal Muniz was observing about the Defendant’s age. Fourth, the Defendant’s
behavior, shifting in the seat, and keeping his right side, where the bulge in the j acket was, away Hom the
officer, further raised Corporal Muniz’ s suspicions. Fifth, when asked whether he had any weapons, "he
turned into a different person.” T:23. All of these factors, when combined with the bulge in the jacket, more
than justified Corporal Muniz in asking the Defendant out ofthe car and in conducting the pat-down search.
Conclusion ‘
5 Wherefore, the United States respectfully requests that the Court deny the Defendant’s motion to
suppress the Glock pistol.
Respectfully submitted,
COLM F. CONNOLLY
United States Attorney
_ - By: '
‘ Richard G. Andr ws
First Assistant United States Attorney
n pc: Penny Marshall, Esquire ·
Clerk, U. S. District Court
i ‘ "[A] seizure does not occur simply because a police officer approaches an individual and asks a few
questions? Florida v. Boslwick, 501 U.S. 429, 434 (1991). -