IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

v. )

) ID No. 2204003966

JAMES MCDOUGAL, )

Defendant. )

Submitted: February 10, 2023

Decided: March 7, 2023

Memorandum Opinion & Order

Upon Defendant’s Motion to Suppress – DENIED.

This 7

th day of March, 2023, having considered Defendant’s Motion to 

Suppress, the State’s Response and the record in this matter; it appears to the Court 

that:

1. Defendant James McDougal (hereinafter “Defendant”) was arrested on 

April 8, 2022, and ultimately indicted on May 9, 2022, for the charges of Possession 

of a Firearm by a Person Prohibited,1 Possession of Ammunition by a Person 

Prohibited2and Carrying a Concealed Deadly Weapon.

3

 

1 11 Del. C. § 1448.

2

Id..

3 11 Del. C. § 1442. See also Indictment, State v. James McDougal, ID No. 

2204003966, D.I. 15.
2. Defendant filed the instant motion on December 12, 2022, seeking to 

suppress the evidence obtained following his detention.4 The State responded in 

opposition on January 21, 2023.

5

 The motion was heard on February 12, 2023.6 

Judgment was reserved.

3. Defendant’s motion challenges the basis for his initial detention with 

police under Terry v. Ohio, arguing that the officers did not possess the required 

reasonable, articulable suspicion of criminal activity under both the Delaware and 

United States Constitutions.

7

 

4. The relevant facts and record were developed from the filed motions 

and at the motion hearing. Officers Leonard Moses and Shauntae Hunt of the 

Wilmington Police Department (hereinafter “WPD”) testified. In addition, Body 

Worn Camera (hereinafter “BWC”) of Officers Rosaio and Hunt were played as 

State’s Exhibits.8 As a result of this record, it was revealed that in late March, 2022, 

a Confidential Informant (hereinafter “CI”) told WPD that four (4) individuals were 

involved with street-level drug dealing at the area of 24th and Carter Streets in 

Wilmington. The CI additionally told police that these individuals were known to 

carry firearms either on their person or would use a ground stash, due to a high police 

4 D.I. 8.

5 D.I. 13.

6 D.I. 12.

7 See Defendant’s Motion to Suppress, D.I. 8.

8 D.I. 8, 12, 13.
presence in the area.9

 This CI was not past proven reliable, however following the 

initial tip, WPD identified the four individuals the CI referenced by nickname as 

Jamir Coleman, Rashad Acklin, Demy Lee and Dashawn Smith. The CI did not 

identify Defendant. Through their research, WPD learned that prior to the CI tip, 

two of the named individuals (Demy Lee and Dashawn Smith) had been located with 

weapons in the area of 24th and Carter Streets.

5. On the date of Defendant’s arrest, WPD officers were on proactive 

patrol in the area of 24th and Carter Streets when they observed Defendant and two 

others, Jamir Coleman and Rashad Acklin, standing idle at the intersection of 24th

and Carter Streets on the sidewalk. These individuals were blocking the flow of 

traffic on the sidewalk. Because of his prior research into the CI tip, Officer Moses 

was aware that the people with Defendant – Coleman and Acklin – did not live in 

the area. Officer Moses and the other WPD officers on scene were unfamiliar with 

Defendant at the time of their initial observation. The officers then parked and exited 

their patrol vehicle, with Officer Hunt approaching Jamir Coleman and Officer 

Moses approaching Defendant. Another, unidentified officer approached Acklin.

9 Officer Moses defined a ground stash as an area close to where a drug dealer 

will stand in which a firearm and/or drugs can be concealed. This area can 

be behind a trash can, under wheels, broken stoop or any other area where 

contraband can be concealed, yet easily accessible. D.I. 12.
6. Upon approaching Defendant, Officer Moses immediately noticed 

Defendant was dressed in baggy clothes with multiple layers, a characteristic of an 

armed individual, according to his training. Officer Moses noted it was 

unseasonable attire for the weather and that it appeared Defendant was wearing 

multiple pairs of pants. According to Officer Moses, armed individuals will wear 

multiple layers of clothing to prevent a firearm they are carrying from “printing”. 

Printing is when the firearm is visible from outside of the clothing. Multiple layers 

additionally helps secure an unholstered firearm from moving around. 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. 

7. As Defendant was taken to the stoop, both Coleman and Aklin were 

given a warning to move on pursuant to 11 Del. C. § 1321. Both individuals had 

given their names to the officers and moved along accordingly. 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. Defendant was subsequently arrested and 

identified and charged with the instant offenses. 

8. The Fourth Amendment of the United States Constitution and Art. I, § 

6 of the Delaware Constitution prohibits unreasonable searches and seizures by the 

State. A seizure occurs under the Delaware constitution “when a reasonable person 

would have believed he or she was not free to ignore the police presence.”10 The 

police may stop and briefly detain a person for investigative purposes if the officer 

has a reasonable suspicion supported by articulable facts that criminal activity “may 

be afoot.”11 An officer has reasonable suspicion to stop a person for investigative 

purposes if the detaining officer is able to “point to specific and articulable facts 

which, taken together with rational inferences from those facts, reasonably warrant 

the intrusion.”12 Reasonable, articulable suspicion is a less demanding standard than 

probable cause and requires “a showing considerably less than a preponderance of 

the evidence.”13 In determining whether an officer had reasonable, articulable 

10 Jones v. State, 745 A.2d at 869.

11 U.S. v. Sokolow, 490 U.S. 1, 7 (1989) (citing Terry v. Ohio, 392 U.S. at 7). 

12 Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989) (quoting Terry v. Ohio, 

392 U.S. 1 (1968).) 

13 Woody v. State, 765 A.2d 1257, 1263 (Del. 2001) 
suspicion, the Court may look to the totality of the circumstances and determine 

whether a reasonable officer and considers the facts using an objective standard.14 

The State bears the burden of proving, by a preponderance of the evidence, that the 

stop comported with both the Delaware and Federal Constitution.15

9. Here, the 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. Defendant argues the detention occurred when 

Officer Moses approached Defendant which required reasonable, articulable 

suspicion at that point in time. There is no body cam video of the initial approach 

to Defendant, as the recording begins once Defendant is already seated on the stoop. 

10. The State purports, through the testimony of both Officers Moses and 

Hunt, that the officers, after having observed the three men loitering, were 

attempting to give Defendant the requisite loitering warning and have him move on, 

as they did with Coleman and Acklin. 

11. A stop does not occur upon any encounter between a citizen and the 

police. Police may ask questions of or approach a citizen without it being considered 

14 Jones v. State, 28 A.3d 1046 (Del. 2011), see also Lopez-Vazquez v. State, 

956 A.2d 1280 (Del. 2008), 

15 Hunter v. State, 783 A2d. 558, 560 (Del. 2001).
a detention.16

 This is what initially occurred here. Delaware law does not prohibit

an officer from approaching a citizen and asking questions and police officers “are 

permitted to initiate contact with citizens on the street for the purpose of asking 

questions.”17 Therefore, 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. This is further supported by the fact that the 

officers did not further question or ultimately detain Coleman and Acklin.

12. 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 free to ignore the police presence, due to the officer’s own words.18

13. That being so, 11 Del C. § 1321 is important here. This section requires 

an officer to give a warning prior to any arrest for a loitering violation, “[u]nless 

flight by the accused or other circumstances make it impracticable.” Officer Moses 

testified that it is his practice, consistent with the statute, to identify the person by 

name when giving a warning to ensure that, if a citation is given in the future, it was 

to the correct person. Officer Moses testified that this was his intention when 

approaching Defendant. This is consistent with the evidence that the other two 

16 Woody v. State, 765 A.2d 1257, 1263-64.

17 Brown v. State, 35 A.3d 418, 2011 WL 5319900, at *2 (Del. Oct. 31, 2011) 

(TABLE) (quoting Jones, 28 A.3d at 1051).

18 See Williams v. State, 962 A.2d 210, 215-216 (Del. 2008).
individuals were similarly approached and released with their warning once their 

names were provided. It 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.

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.

19

 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, 20 as well as the observations of Defendant’s 

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. 

19 11 Del. C. § 1902(a).

20 In this analysis, appropriate weight is being given to the credibility of the CI 

information. While not challenged in Defendant’s motion specifically, it is 

not lost on the Court that the CI was not past proven, and relayed 

information that potentially could have been revealed through public arrest 

records.
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. Further, under 

Terry v. Ohio and its Delaware progeny, once reasonable, articulable suspicion is 

had for the initial detention, Officer Moses appropriately engaged in the pat down 

of Defendant once on the stoop, no further analysis is required.21

IT IS HEREBY ORDERED, that Defendant’s Motion to Suppress is 

DENIED. 

________________________________

Danielle J. Brennan, Judge

Original to Prothonotary

Cc: Karin Volker, Esquire, Deputy Attorney General 

James Turner, Esquire, Office of Defense Service 

21 Jones v. State, 745 A.2d 856 (Del. 1999).