MMD&C Wins Criminal Case: Nervousness Is Not Enough

MMD&C recently won a suppression case before the Delaware Court of Common Pleas, successfully arguing that a police officer may not continue to investigate a motorist outside the scope of the traffic stop, based on the nervousness of the driver.

Under the law, there are three types of police encounters. (1) a mere encounter, (2) an investigatory detention, and (3) an arrest. A Mere Encounter occurs when an officer stops to talk to an individual. For example, an officer asking a motorist with a flat tire if they need any assistance, is a mere encounter. This is a mere encounter, and the motorist is free to walk away at any time.

Investigative detentions occur when an individual is not under arrest for a crime but is not free to leave. To escalate a mere encounter to an investigatory detention, also known as a Terry Stop, an officer must have reasonable suspicion. Reasonable suspicion requires specific and articulable facts that would lead an officer to believe that criminal activity is afoot. An example of reasonable suspicion would be if an individual, known to the police to have a criminal record, in a high crime area walking around in a parking lot late at night with a wire hanger. In this situation an officer can detain and question the individual.

An arrest occurs when an officer has probable cause. Probable cause is defined as facts and circumstances known by the police officer would lead a reasonable person to believe that the suspect has committed, is committing, or is attempting to commit a criminal offense. An example of probable cause is when an officer pulls a motorist over for swerving on the road. The officer notices that the motorist has glassy eyes, and slow movements. The officer smells alcohol on the motorist, and the motorist fails a field sobriety test. That officer has probable cause to arrest the motorist on suspicion of Driving Under the Influence.

The question becomes, when an individual is pulled over for a traffic violation can an officer continue to detain the driver based solely on the driver’s nervousness?

For example, an individual is pulled over for running a traffic light. After giving the officer his license, registration and insurance, and the officer issues a citation, the driver rightfully believes he is free to leave. However, the officer believes the driver is acting nervous and continues asking questions unrelated to the traffic stop. Can the officer do this? The short answer is NO, the officer cannot. To further keep the motorist there, or “detain” him, the officer must have further independent reasonable suspicion unrelated to the traffic violation.

Where an investigative detention follows a lawful traffic stop, the officer must demonstrate cause for suspicion after the end of the initial stop, independent of any basis upon which he conducted the initial stop.” Commonwealth v. Freeman, 757 A.2d 903, (2000).

In MMD&C’s recent win, the District Attorney’s Office argued that their officer was allowed to continue the traffic stop because the defendant was nervous and that constituted enough to for the officer to have reasonable suspicion. Our firm successfully argued to the Court that nervousness was NOT enough for reasonable suspicion and therefore the officer could not continue to detain the defendant. The Court ruled in our favor, and found the officer’s detainment was illegal, and that all evidence seized from the Defendant’s vehicle be suppressed as fruit of the poisonous tree. Put simply, because the evidence would not have been found but for the illegal detainment, all evidence from the vehicle was thrown out.

When choosing a criminal attorney, it is important to choose someone who knows and understands the law. You need an attorney who will fight and outwork the other side.

If you or someone you know has been charged with a crime, it is important that you understand your rights. Please contact Musi, Merkins, Daubenberger & Clark, LLC for assistance, and we will ensure you get the best legal help available.