IN THE SUPREME COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

Plaintiff Below, 

Appellant,

v.

ANDRE MURRAY,

Defendant Below, 

Appellee.

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No. 414, 2018

Court Below: Superior Court

of the State of Delaware

I.D. No. 1710007866 (N)

Submitted: April 24, 2019

Decided: July 10, 2019

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and 

TRAYNOR, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. REVERSED and REMANDED.

Martin B. O’Connor, Esquire (argued), Deputy Attorney General, Wilmington, 

Delaware, for Appellant, State of Delaware.

Nicole M. Walker, Esquire (argued), Assistant Public Defender, Wilmington,

Delaware, for Appellee, Andre Murray.
2

VAUGHN, Justice, for the Majority:

I. INTRODUCTION

This is an appeal by the State from a Superior Court order that granted Andre 

Murray’s motion to suppress evidence in a criminal proceeding. In the late evening 

hours of October 13, 2017, Wilmington Police Officer Matthew Rosaio was on 

patrol with other officers when he observed two men walking on a nearby sidewalk. 

One of the men, Murray, was walking with his right arm canted and pinned against 

the right side of his body, specifically the right front portion of his body. The other 

man, Lenwood Murray-Stokes, was walking normally. The manner in which 

Murray was walking made Officer Rosaio suspicious that Murray was carrying a

concealed firearm in his waistband on his right side. After watching Murray for 

about 20 seconds, during which Murray continued to walk in that same manner, 

Officer Rosaio approached the two men. Murray then began positioning himself 

behind Murray-Stokes, turning and blading his right side away from the officer. 

This furthered the officer’s suspicion that Murray possessed a firearm. The officer 

began drawing his weapon and instructed Murray to show his hands. Murray 

appeared to reach for his waistband area. The officer then pointed his weapon at 

Murray and instructed him to not reach for his waistband and to get on the ground. 

Murray complied. The officer then asked Murray whether he had anything in his 
3

possession. Murray replied that he had a firearm in his waistband. The officer 

located the firearm in Murray’s waistband on his right side and seized it.

Murray was charged with Carrying a Concealed Deadly Weapon, Possession 

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

Prohibited. He filed a motion to suppress the discovery of the firearm from use as 

evidence at trial, arguing that the officer did not have a reasonable, articulable 

suspicion that Murray had committed or was about to engage in any illegal activity

to justify detaining him or probable cause to arrest him. The Superior Court agreed 

and granted the motion to suppress. For the reasons that follow, we conclude that 

the officer performed a legitimate Terry stop1and therefore the motion should have 

been denied.

II. FACTS AND PROCEDURAL HISTORY

The factual record consists of the unrebutted testimony of Officer Rosaio, the 

sole witness at the suppression hearing. He testified that on October 13, 2017, at 

approximately 11:00 p.m., he and three other officers were “conducting proactive 

mobile patrol” in Wilmington.

2

 They were traveling northbound on South Franklin 

Street in an unmarked vehicle when they stopped at a stop sign at the corner of South 

Franklin and Chestnut Street—a neighborhood described by Officer Rosaio as a 

 

1 Terry v. Ohio, 392 U.S. 1 (1968).

2 App. to Appellant’s Opening Br. at A28, A25-28.
4

“well-known high crime, high drug area,” where he has made numerous gun- and 

drug-related arrests.3

While stopped at the stop sign, Officer Rosaio saw two men, later determined 

to be Andre Murray and Lenwood Murray-Stokes, walking on the sidewalk along 

South Franklin towards their vehicle. Officer Rosaio observed Murray swinging 

his left arm naturally while holding his right arm close to his body, behavior which 

he explained was consistent with an armed individual. He “noticed right away . . . 

that Mr. Murray was walking with his right arm canted and pinned against the right 

side of his body, specifically the right front portion of his body, which is one of the 

telltale signs of . . . somebody who is armed with a handgun.”

4

 This is a sign that 

someone is armed, he explained, because “[s]ubjects will often carry firearms in their 

waistband unsecured by any type of holster and in a way that they can control that 

firearm and adjust it, if need be, as they are walking so it doesn’t fall down through 

their pants or so it doesn’t reveal itself to the public.”5

 

3

Id. at A28.

4

Id. at A31.

5

Id. at A31-32. This Court has encountered the concept of “canting” before. In Lum v. State, 

Officer Rosaio described canting as “when a subject either instinctively or nervously adjusts a

firearm in their waistband, and their arm goes up and holds it tight against the body. It’s almost 

like a 90-degree motion you make with your arm.” 193 A.3d 733, 2018 WL 4039898, at *1 n.2 

(Del. Aug. 22, 2018) (Table) (alterations and omissions omitted) (quoting Suppression Hearing 

Tr.).
5

Officer Rosaio continued to watch him for “about 20 seconds” as the two men 

continued walking toward the officers’ vehicle. 6 As they got closer, Murray 

appeared to notice the officers and took a “stutter step, where he kind of stopped in 

his tracks.”7 Continuing to walk forward at a slower pace, “he looked forward and 

then scanned and looked back.”8 Then Officer Rosaio, who was wearing a vest 

with “[p]olice” marked across it “in large white bold letters,”9exited the vehicle, 

“at which point Mr. Murray stopped and began positioning himself behind Lenwood 

Murray-Stokes.”10 At the same time, Murray began “turning and blading” the right 

side of his body, the side that he had his arm pinned against, away from Officer 

Rosaio. 11 Officer Rosaio testified that, from his training and experience, the 

“turning and blading” movement is a characteristic of someone “who’s placing the 

side that the gun [is] on in a position where the police or the public can’t see it.”12 

It was an “unnatural movement” according to Officer Rosaio.13

By then confident that Murray had a handgun on his right side, Officer Rosaio

began drawing his service firearm and ordered him to stop and show his hands. At 

 

6 App. to Appellant’s Opening Br. at A33.

7

Id. at A34.

8

Id. at A34-35.

9

Id. at A44.

10 Id. at A36.

11 Id.

12 Id.

13 Id.
6

that point, Murray “began reaching for the lower . . . waistband area.” 14 In 

response, Officer Rosaio raised his service revolver, pointed it in Murray’s direction, 

and said, “[d]on’t reach for your waistband. Get on the ground.” 15 Murray 

complied and got on the ground. When asked if he had anything on him, Murray 

replied, saying “I have a handgun in my waistband.”16 Officer Rosaio then rolled 

him to his left side, revealing that a handgun was located on the “front right portion 

of his waistband.”17 Officer Rosaio secured the handgun and placed Murray under 

arrest.

Officer Rosaio also testified that he has received training on characteristics of 

armed gunmen at the Wilmington Police Academy and at sessions hosted by the

Federal Bureau of Alcohol, Tobacco, Firearms and Explosives and the U.S. 

Department of Justice. These characteristics include “things that people display 

when they are attempting to conceal firearms from the police and from the public.”18 

He also explained that for about the last four years he has taught elements of 

characteristics of armed gunmen in police academies.

 

14 Id. at A37.

15 Id. at A37-38.

16 Id. at A38.

17 Id.

18 Id. at A27.
7

Following the hearing, the Superior Court granted the motion in a written 

opinion, which noted several reasons for its decision. First, the court found that 

although at some point the encounter was a Terry stop, once Officer Rosaio drew his 

firearm “an arrest was effectuated,” thus requiring there to have been probable cause 

to believe that Murray was committing a crime.19 Notwithstanding this finding,

and perhaps given the way the parties’ presented their arguments, the court’s 

analysis was not clearly tied to either the reasonable, articulable suspicion standard

for a Terry stop or the probable cause standard for an arrest.

20

The court then discussed, and dismissed, the State’s argument that the court 

should give deference to the officer’s training and experience to determine whether 

the objective facts, paired with the officer’s subjective interpretation of those facts, 

justified the intrusion. According to the court, the Stated relied “almost exclusively 

on two objective facts: 1) the defendant’s swinging of one arm while holding the 

other close to his side and 2) his ‘blading’ or moving his body sideways when he 

and his walking partner stopped.”21 Although the court noted the other factors 

referenced by Officer Rosaio—“the high crime neighborhood, the apparent ‘stutter 

step’ and his ‘looking around’ as the officer was getting out of the car”—it dismissed 

 

19 State v. Murray, 2018 WL 1611268, at *1 (Del. Super. Apr. 2, 2018).

20 E.g., id. at *3 (“The handgun seized as a result of the stop/arrest of the defendant will be 

suppressed.” (emphasis added)).

21 Id. at *2.
8

these as “essentially chaff, thrown off by the essential facts that the officer advises 

his training and experience teach that the defendant was carrying a concealed 

weapon.”22 In support of its rejection of Officer Rosaio’s testimony, the court cited 

a number of hypothetical innocent explanations for why someone might walk with 

one arm held close to the body.

In addition, while the court noted that the rules of evidence do not apply to 

preliminary questions of fact governing admissibility, it determined that “the ‘armed 

gunman’ testimony in which we are asked to have faith is certainly not a ‘lay 

opinion’ under D.R.E. 701 as it is professed to be based on ‘scientific, technical, or 

other specialized knowledge’ and therefore, it is within the scope of D.R.E. 702.”23 

“In order to qualify for admissibility under Rule 702,” the court continued, “such 

testimony would necessarily be ‘based on sufficient facts or data’ and ‘the product 

of reliable principles and methods’ that have been ‘reliably applied’ to the facts.”24 

Concluding that “[n]one of these criteria have been met here,” the court explained 

that although “the officer had some sort of ‘training,’ it cannot be said to have 

qualified as ‘science’—junk or otherwise. On this record, the Court cannot assign 

it the weight it was obviously accorded by the officer on the night in question.”25

 

22 Id.

23 Id. at *3.

24 Id. (quoting D.R.E. 702).

25 Id.
9

Following the court’s grant of Murray’s motion to suppress, the State moved 

for reargument, requesting that the court reconsider its ruling. In denying the 

State’s motion, the court expanded on its earlier remarks, but its ultimate conclusion 

remained unchanged.26 Although the court reiterated that the seizure of Murray 

was an arrest governed by the probable cause standard, 27 its analysis included 

references to both the probable cause standard and the lesser reasonable articulable

suspicion standard required for an investigatory stop.28

The State argues on appeal that the Superior Court erred by finding that 

Murray’s arrest without probable cause occurred when Officer Rosaio drew his 

firearm, before he located the firearm in Murray’s waistband. Under the State’s 

theory, Murray’s detention was a Terry stop that did not become an arrest until after

the firearm was found. The State also argues that under a Terry-stop analysis, the 

officer had a reasonable articulable suspicion that Murray was carrying a concealed 

deadly weapon. Murray opposes both arguments and argues that the Superior 

Court’s reasoning and result were correct.

 

26 See State v. Murray, 2018 WL 3629150, at *1 (Del. Super. July 26, 2018).

27 Id. (“[T]he question was—and we suppose, remains—was there probable cause to point a gun 

at the suspect, order him to the ground, and take him into custody?”).

28 See id. at *2-4.
10

III. DISCUSSION

“We review the grant or denial of a motion to suppress for an abuse of 

discretion.”29 Although “this Court will defer to the factual findings of a Superior 

Court judge unless those findings are clearly erroneous,” 30“[e]mbedded legal 

conclusions are reviewed ‘de novo for errors in formulating or applying legal 

precepts.’” 31 Accordingly, we review de novo whether the police possessed 

reasonable, articulable suspicion to stop a person.32

We will first address the State’s argument that the Superior Court erred by 

finding that an arrest lacking probable cause occurred before Murray’s firearm was 

found in his waistband. Second, we will address whether the stop was justified 

under the appropriate standard.

A.

There is a difference between an arrest and a Terry stop. “An arrest occurs 

when a reasonable person in the suspect’s position would have understood the 

situation to constitute a restraint on freedom of movement of the degree which the 

law associates with formal arrest.”33 By contrast, a Terry stop or seizure occurs 

 

29 Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del. 2008).

30 State v. Rollins, 922 A.2d 379, 382 (Del. 2007).

31 Flowers v. State, 195 A.3d 18, 23 (Del. 2018) (quoting Lopez-Vazquez, 956 A.2d at 1285).

32 Rollins, 922 A.2d at 382.

33 Sornberger v. City of Knoxville, 434 F.3d 1006, 1017 (7th Cir. 2006) (internal quotation marks 

omitted).
11

when “under all of the circumstances surrounding the encounter, the police conduct 

would have communicated to a reasonable person that he/she was not free to 

terminate the encounter with the officers.” 34 For example, the United States 

Supreme Court has found that the line between a Terry stop and an arrest is crossed

when the police “forcibly remove a person from his home or other place in which he 

is entitled to be and transport him to the police station, where he is detained, although 

briefly, for investigative purposes.”35

The Superior Court’s ruling on arrest versus Terry stop is as follows:

To be sure, there was perhaps a moment, as the officer was 

exiting his vehicle and before he drew his service revolver, 

where this was a “Terry” stop, requiring reasonable 

articulable suspicion that criminal activity is afoot and the 

subject is armed and dangerous. But upon seeing the 

defendant turn his body, and before any “real” contact was 

made, the officer candidly testified that he was convinced 

the defendant was indeed armed and may be reaching for 

his pistol and thus, an arrest was effectuated which, as we 

all know, must be preceded by probable cause to believe a 

crime is being committed and the suspect committed it.36

 

34 Quarles v. State, 696 A.2d 1334, 1336-37 (Del. 1997) (en banc) (citing Florida v. Bostick, 501 

U.S. 429, 439 (1991)). This Court expressly refused to adopt the stricter test, created in California 

v. Hodari D., 499 U.S. 621, 626 (1991), for determining when a Fourth Amendment seizure has 

begun. See Jones v. State, 745 A.2d 856, 863-64 (Del. 1999) (en banc) (“Hodari D. is not 

consistent with our view of when a person is ‘seized’ within the meaning of Article I, § 6 of the 

Delaware Constitution in that Hodari D. would allow a police officer lacking reasonable suspicion 

to create that suspicion through an unjustified attempted detention.”); id. at 869 (holding that 

whether “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”).

35 Hayes v. Florida, 470 U.S. 811, 816 (1985).

36 Murray, 2018 WL 1611268, at *1 (footnote omitted) (citing Terry, 392 U.S. at 30).
12

Our view is that an arrest did not occur until after the officer found the weapon

in Murray’s waistband. The officer testified that after Murray bladed his body, he

was confident that Murray possessed a firearm, but that confidence remained a 

suspicion until Murray admitted he had a firearm, after which the officer

immediately found the firearm on his person. It was only then that Officer Rosaio 

placed Murray into custody and an arrest occurred, at which point there was clear 

probable cause to believe that a crime was being committed—carrying a concealed 

deadly weapon.

In addition, Officer Rosaio’s actions in drawing his weapon and forcing 

Murray to the ground at gunpoint did not convert the encounter into an arrest. 

Although “[a]n unreasonably intrusive stop may constitute a de facto arrest requiring 

probable cause,” a “Terry stop does not turn into a full arrest merely because the

officers use handcuffs and force the suspect to lie down to prevent flight, so long as 

the police conduct is reasonable.” 37 “During a Terry stop, officers may take 

measures that are reasonably necessary to protect themselves and maintain the status 

quo.” 38 Specifically, an officer is empowered “to take necessary measures to 

 

37 Flowers, 195 A.3d at 25 (internal quotation marks omitted).

38 Id. at 28 (quoting United States v. Goode, 309 F. App’x 651, 654 (3d Cir. 2009)); see also 

United States v. Hensley, 469 U.S. 221, 235 (1985) (“When the Covington officers stopped 

Hensley, they were authorized to take such steps as were reasonably necessary to protect their 

personal safety and to maintain the status quo during the course of the stop.”).
13

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.”39

Although Officer Rosario began drawing his weapon after Murray engaged in 

a blading movement, he testified that it was only after he saw what appeared to be 

Murray reaching for his waistband that he pointed his weapon at Murray and told 

him to get on the ground. These were reasonable defensive measures that the 

officer took for his own safety under the circumstances.40

Because Officer Rosaio was engaged in a Terry stop at the time he discovered 

the gun, the gun was lawfully seized provided the stop was supported by a

reasonable, articulable suspicion that Murray was engaged in criminal activity, 

specifically, carrying a concealed deadly weapon.41

B.

The police may “‘restrain an individual for a short period of time’ to 

investigate where officers have ‘reasonable articulable suspicion that the suspect has 

 

39 Terry, 392 U.S. at 24; see also Flowers, 195 A.3d at 28.

40 See Flowers, 195 A.3d at 28-29 (“Generally, a show of force, including the use of drawn 

weapons, does not render an investigative stop unreasonable if the police determine that it is 

reasonably necessary to protect themselves and maintain the status quo. . . . Similarly, forcing a 

detainee to lie down to prevent flight might be justified under the circumstances.” (internal 

quotation marks omitted)).

41 See, e.g., id. at 23-24 (citing Terry, 392 U.S. at 30-31).
14

committed or is about to commit a crime.’”42 Although reasonable, articulable

suspicion requires less than probable cause and “considerably less than 

preponderance of the evidence,”

43 the officer “must be able to point to specific and 

articulable facts which, taken together with rational inferences from those facts, 

reasonably warrant that intrusion.” 44 “[A] vague hunch or feeling that the 

defendant ‘looked suspicious’ will not do.”45 “A determination that reasonable 

suspicion exists, however, need not rule out the possibility of innocent conduct.”46 

To determine whether reasonable suspicion exists, courts “must examine the totality 

of the circumstances surrounding the situation ‘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.’”

47

 

“In determining whether there was reasonable suspicion to justify a detention, the 

court defers to the experience and training of law enforcement officers.”48

Officer Rosaio was able to point to specific and articulable facts giving rise to 

his suspicion that Murray was carrying a concealed deadly weapon. These facts 

 

42 Id. at 24 (quoting Quarles, 696 A.2d at 1337).

43 Woody v. State, 765 A.2d 1257, 1263 (Del. 2001) (en banc) (quoting Illinois v. Wardlow, 528 

U.S. 119, 123 (2000)).

44 Terry, 392 U.S. at 21.

45 Robertson v. State, 596 A.2d 1345, 1350 (Del. 1991) (quoting Brown v. Texas, 443 U.S. 47, 52 

(1979)).

46 United States v. Arvizu, 534 U.S. 266, 277 (2002) (citing Wardlow, 528 U.S. at 125).

47 Woody, 765 A.2d at 1263 (quoting Jones, 745 A.2d at 861).

48 Flowers, 195 A.3d at 27 (quoting Woody, 765 A.2d at 1262).
15

included the high crime area, stutter-stepping, the unnatural canting and blading that

the officer described as well as Murray scanning the area and looking back upon 

seeing the officer. A fair reading of the officer’s testimony creates an inference 

that the occurrence of unusual canting and blading movements has risen to such a

level that these movements are discussed in officer training as being indicators that

a person is carrying a concealed weapon. The officer reasonably explained the 

process by which he combined the objective facts he observed with his subjective 

interpretation of those facts, based upon his training and experience, to arrive at a 

reasonable and articulable suspicion that Murray was carrying a concealed deadly 

weapon. Indeed, the fact that Officer Rosaio honed in on Murray and not his 

companion—who was, by Officer Rosaio’s account, walking normally at the same 

time of night in the same high crime area—lends further support to Officer Rosaio’s 

reasonable suspicion that Murray had a weapon. In other words, Officer Rosaio 

did not simply stop two people walking late at night in a high crime area 

indiscriminately; instead, he focused his attention specifically on one of them who 

engaged in behavior that was indicative of the possession of a deadly weapon. 

We think the Superior Court failed to give due deference to the training and 

experience of the police officer. The court described the officer’s suspicion as a 
16

hunch and “bereft of any scientific support.” 49 It also asked a number of 

unanswered questions:

What percentage of armed gunmen walk swinging one 

arm but not the other? What percentage of citizens who 

walk swinging one arm but not the other are armed 

gunmen? How, if at all, do these percentages change 

based upon the time of day or the fact that it is a high crime

neighborhood? Similarly, in a police encounter with a 

citizen, what percentage of the citizens turn their bodies 

away from the policeman? And of those that do, what 

percentage are hiding something? And of those that are 

hiding something, what percentage of them are hiding 

firearms?50

In addition, the court stated, or at least suggested, that the officer’s testimony was 

not admissible under Delaware Rule of Evidence 702 because it was not “based on 

sufficient facts or data” or “the product of reliable principles and methods.”

51

 

When an officer testifies about something he has learned through his police training 

or through his police experience, however, a court cannot expect the testimony to be 

supported by a statistical analysis or a scientific study where there is no evidence 

that such an analysis or study exists. 52 “[T]he determination of reasonable 

suspicion must be based on commonsense judgments and inferences about human 

 

49 Murray, 2018 WL 1611268, at *3.

50 Id.

51 Id. (quoting D.R.E. 702).

52 See Wardlow, 528 U.S. at 124-25 (“In reviewing the propriety of an officer’s conduct, courts 

do not have available empirical studies dealing with inferences drawn from suspicious behavior, 

and we cannot reasonably demand scientific certainty from judges or law enforcement officers 

where none exists.”).
17

behavior,”

53 and such a determination “need not rule out the possibility of innocent 

conduct.”54

Our good friend in dissent contends that an officer who sees someone 

engaging in furtive, odd behavior indicative of carrying a weapon cannot make a 

stop unless the officer has a reasonable suspicion that the person does not have a 

license to carry. But, of course, if a person has a legal right to carry a concealed 

weapon, that person has no need to act like someone in possession of illegal 

contraband. If police officers are to help protect the public from gun violence, they 

must be able to make reasonable inferences from unusual, awkward behavior 

uncharacteristic of people who have a legal right to possess a gun.55

IV. CONCLUSION

For the foregoing reasons, the judgment of the Superior Court is reversed, and 

the case is remanded to the Superior Court for further proceedings consistent with 

this opinion.

 

53 Id. at 125 (citing United States v. Cortez, 449 U.S. 411, 418 (1981)).

54 Arvizu, 534 U.S. at 277 (citing Wardlow, 528 U.S. at 125).

55 It has long been the law in Delaware that “[t]he burden is upon the defendant to establish that 

he had a license to carry a concealed deadly weapon.” Lively v. State, 427 A.2d 882, 884 (Del. 

1981) (quoting Modesto v. State, 258 A.2d 287, 288 (Del. Super. 1969)); see also State v. Sockum, 

99 A. 833 (Del. Ct. Gen. Sess. 1917). Establishing that a person does not have a license to carry 

a concealed deadly weapon, therefore, is not an element of the offense that must be proved beyond 

a reasonable doubt by the prosecution. Lively, 427 A.2d at 844. Because the lack of a license is 

not an element of the offense, the presence or absence of a license need not, and should not, be 

considered in determining whether there was reasonable, articulable suspicion to stop the suspect.
18

TRAYNOR, Justice, dissenting:

This case requires us to balance the rights of our citizens to be “secure in their 

persons . . . against unreasonable searches and seizures” 56 against the difficult 

burden we entrust to law enforcement officers to keep those same citizens safe on 

our streets. As part of that balancing, our constitutional law tolerates certain 

warrantless seizures that are less intrusive than full-fledged arrests on a lower level 

of suspicion than we require for an arrest. Thus, an investigative detention requires 

the detaining officer to have a reasonable articulable suspicion that the person 

stopped is, or is about to be, engaged in criminal activity,57 while a full-fledged 

arrest must be supported by probable cause. Here, I agree with the Majority that 

Rosaio, in the first instance—that is, when he first approached Murray—was in the 

process of detaining him for investigatory purposes and therefore the detention at 

issue is subject to the reasonable-articulable-suspicion standard. But because 

Rosaio’s basis for detaining Murray did not, in my view, rise to the level of 

reasonable articulable suspicion that Murray was subject to seizure for violating the 

law, I would affirm the Superior Court’s order suppressing the evidence Rosaio 

seized as a direct result of his encounter with Murray. Therefore, I respectfully 

dissent.

 

56 U.S. CONST. amend. IV.

57 Terry v. Ohio, 392 U.S. 1, 22 (1968).
19

I disagree with the Majority in two respects. First, I do not believe that on 

this record the trial judge was required to defer absolutely to Rosaio’s testimony 

merely because he purported to ground it upon his “training and experience.” 

Second, I question the constitutionality of Rosaio’s seizure of Murray based on his 

suspicion that Murray was carrying a concealed weapon absent a legitimate 

suspicion that Murray was doing so unlawfully.

After hearing all that Rosaio had to say about his training in the “the 

characteristics of an armed gunman”58 as it applied to the facts of this case, the 

Superior Court found his testimony wanting. This constituted, in the Majority’s 

view, a “fail[ure] to give due deference to the training and experience of the police 

officer.”59 To be sure, we have recognized that, in this field, “we give due deference 

to an officer’s experience and knowledge.” 60 But where, as here, the officer’s 

testimony is vague and fails to inspire confidence, I cannot say that the Superior 

Court’s failure to give the officer’s testimony as much weight as the Majority would 

give was an abuse of discretion. 

To expand on this last point, there was scant evidence in the record about the 

extent and reliability of the training upon which Rosaio claims to have relied when 

he formed the belief that Murray unlawfully possessed a firearm. When asked at 

 

58 A26.

59 Majority Op. at 14.

60 Robertson v. State, 596 A.2d 1345, 1350–51 (Del. 1991).
20

the suppression hearing about what he learned during his “training on the 

characteristics of an armed gunman,” Rosaio replied:

I mean, everything. There’s several characteristics 

involving people’s behavior and the geographical 

locations that they are in. I mean, a lot of it is 

observations, and there are elements that -- certain things 

that people display when they are attempting to conceal 

firearms from the police and from the public. They’re 

just things that we’re aware of and that we can use as a 

tool.61

The Superior Court was skeptical of Rosaio’s testimony,62 and the Majority 

holds that the Superior Court’s skepticism constituted error. According to the 

Majority, the Superior Court should have deferred to Rosaio and, in any case, should 

not have demanded that Rosaio’s testimony “be supported by a statistical analysis 

or a scientific study where there is no evidence that such an analysis or study 

exists.”63 But I do not read the Superior Court’s decision as hinging upon the 

absence of such analyses or studies. Rather, taken as a whole, the ruling below 

appears to be the product of the trial judge’s legitimate testing of the prosecution’s 

assertion “that the Courts are required to simply ‘trust’ the training and experience 

of a police officer to make findings as to the appropriate balance between individual 

 

61 A27.

62 During the argument that followed Rosaio’s suppression hearing testimony, the Superior Court 

remarked that it “didn’t hear much about the training, except [that] he’s trained.” A51.

63 Majority Op. at 15.
21

liberties and legitimate law enforcement.”64 In my view, it was appropriate for the 

Superior Court to push back against this notion and within its discretion to conclude, 

based upon the totality of the circumstances, that Rosaio was not in fact acting upon 

reasonable articulable suspicion but rather only upon a mere hunch. 

Rosaio also offered that his training and experience enabled him to use 

Murray’s turning away from him as Rosaio exited his vehicle to infer Murray’s 

possession of a concealed gun because Murray’s turn shows that he was “someone 

who’s placing the side that the gun was on in a position where the police or the public 

can’t see it.”65 But this assumes that the turning away is designed to conceal 

something and that the thing must have been an unlawfully concealed firearm or 

another illicit item. In order to escape this fallacy, Rosaio should have—but did 

not—offer testimony showing why turning away is solely or at least substantially 

linked to illegal activity, such as unlawful concealed weapon possession, as opposed 

to lawful activity.

It is also significant that Murray was free to leave until Rosaio detained him. 

In light of that fact, the trial court’s skeptical reaction to Rosaio’s reliance on 

Murray’s turning away from him was fully justified. As the Court of Appeals of 

 

64 State v. Murray, 2018 WL 1611268, at *2 (Del. Super. Apr. 2, 2018). This comment appears 

to be in response to the prosecutor’s argument that “in situations such as this, all the Court does is 

defer to the police officer.” A52.

65 A36.
22

Wisconsin, when confronted with similar testimony, pondered:

[H]ow does a person walk away from another as [the 

Defendant] had the right to do without turning his or her 

body to some degree? Calling a movement that would 

accompany any walking away “blading” adds nothing to 

the calculus but a false patina of objectivity.66

Likewise, Rosaio’s description of how Murray’s arms were positioned in 

relation to his body—the so-called “canting” motion—and the “stutter step” Murray 

took does little to persuade me that Murray had done anything to arouse a reasonable 

suspicion that would justify his detention. As the Majority points out, Murray was 

“walking late at night in a high crime area”67 as Rosaio and his companions observed 

him from their unmarked lights-on Chevrolet Tahoe full-size sport utility vehicle. 

It does not strike me as inherently suspicious that anyone, including Murray, might 

react cautiously or defensively in such a situation.68 

I also part with the Majority’s conclusion that Murray’s detention was 

justified because “Officer Rosaio was able to point to specific and articulable facts 

giving rise to his suspicion that Murray was carrying a concealed deadly weapon.”69 

Because Terry stops are permissible only upon suspicion of criminal activity, 

 

66 State v. Pugh, 826 N.W. 2d 418, 424 (Wisc. App. 2012).

67 Majority Op. at 14.

68 See City of Cambridge, Basic Street Safety Tips (“If the person following you is in a car, turn 

and walk in the opposite direction.”), available at 

https://web.archive.org/web/20170211070557/http://www2.cambridgema.gov/CityOfCambridge

_Content/documents/street%20saftety.pdf.

69 Majority Op. at 13.
23

implicit in this part of the Majority’s analysis is the premise that carrying a concealed 

deadly weapon is forbidden by our criminal code and therefore constitutes “criminal 

activity,” the reasonable suspicion of which justifies an investigative detention. 

But carrying a concealed deadly weapon is not in and of itself against the law. 

The Delaware statute that prohibits carrying a concealed deadly weapon, 11 Del. C.

§ 1442, provides that:

A person is guilty of carrying a concealed deadly weapon 

when the person carries concealed a deadly weapon upon 

or about the person without a license to do so as provided 

by § 1441 of this title.

As I read this statute, the absence of a license is an element of the offense that the 

State would be required to prove beyond a reasonable doubt in a prosecution under 

§ 1442. It follows then that a police officer’s suspicion that a citizen is unlawfully

carrying a concealed deadly weapon would depend in part on the officer’s ability to 

articulate the reason or reasons why he believed that the citizen was unlicensed. 

A very recent Pennsylvania Supreme Court opinion is instructive on this 

point. In Commonwealth v. Hicks,

70 the court rejected the notion that a police 

officer may infer criminal activity merely from an individual’s possession of a 

concealed firearm in public. As the Hicks court wrote:

We find no justification for the notion that a police officer 

may infer criminal activity merely from an individual’s 

 

70

---A.3d---, 2019 WL 2305953 (Pa. May 31, 2019); see also United States v. Ubiles, 224 F.3d 

213, 218 (3d Cir. 2000), as amended (Sept. 28, 2000).
24

possession of a concealed firearm in public. . . . Although 

the carrying of a concealed firearm is unlawful for a 

person statutorily prohibited from firearm ownership or 

for a person not licensed to do so, there is no way to 

ascertain an individual’s licensing status, or status as a 

prohibited person, merely by his outward appearance. 

As a matter of law and common sense, a police officer 

observing an unknown individual can no more identify 

whether that individual has a license in his wallet than 

discern whether he is a criminal. Unless a police officer 

has prior knowledge that a specific individual is not 

permitted to carry a concealed firearm, and absent 

articulable facts supporting reasonable suspicion that a 

firearm is being used or intended to be used in a criminal 

manner, there simply is no justification for the conclusion 

that the mere possession of a firearm, where it lawfully 

may be carried, is alone suggestive of criminal activity.71

Admittedly, my objection based on the Pennsylvania Supreme Court’s 

reasoning in Hicks is problematic; after all, Murray did not make this argument in 

the trial court or before us. Besides that, contrary to my understanding that the 

absence of a license is an element of our carrying-a-concealed-deadly-weapon 

statute, we held in Upshur v. State that licensure is not an element but rather an 

affirmative defense.72 But if I am correct—and I dissent only because I humbly 

 

71 Hicks, 2019 WL 2305953, at *14 (internal footnotes and citations omitted) (emphasis added).

72 Upshur v. State, 420 A.2d 165, 169 (Del. 1980); see also Lively v. State, 427 A.2d 882, 884 

(Del. 1981). The cases cited by the Majority that place the burden of proving licensure on the 

defendant trace their lineage back to the trial court’s opinion in State v. Sockum, 99 A. 833 (Del. 

Ct. Gen. Sess. 1917). But Sockum was decided prior to the enactment of the modern Delaware 

Criminal Code, which abolished common law crimes. 11 Del. C. § 202. Moreover, the Sockum 

opinion does not even attempt to articulate a rationale for its holding. For these reasons, I am not 

satisfied that Sockum and its progeny should govern our interpretation of 11 Del. C. § 1442.
25

believe that I am—Murray’s failure to raise the issue should not stop us from 

vindicating his Fourth Amendment rights.73

And I respectfully suggest that we should reconsider Upshur. Upshur 

involved, among other things, a prosecution for carrying a concealed deadly weapon 

of 11 Del. C. § 1442. On appeal, Upshur argued that the State had failed to meet 

its burden of proof that he did not have a license to carry the concealed weapon. In 

a one-sentence ruling, we rejected Upshur’s claim, stating that he had “ignore[d] the 

clear import of 11 Del. C. § 305, which places the burden of proving that he was 

legally entitled to carry to deadly weapon (by virtue of a license) on the defendant.”74 

11 Del. C. § 305 provides that:

[w]hen this Criminal Code or another statute specifically 

exempts a person or activity from the scope of its 

application and the defendant contends that the defendant 

is legally entitled to be exempted thereby, the burden is on 

the defendant to prove, as an affirmative defense, facts 

necessary to bring the defendant within the exemption.

But § 1442’s licensure requirement is not an “exemption” within the meaning of 

§ 305.75 This conclusion is supported by the 1973 Commentary to the Delaware 

 

73 As Hicks itself notes, some courts have analyzed the question of whether suspicion of mere 

possession of a concealed weapon will justify a Terry stop with reference to whether licensure 

serves as an affirmative defense, in which case a Terry stop is deemed lawful. Hicks, 2019 WL 

2305953, at *13.

74 Upshur, 420 A.2d at 169.

75 Cf. Delaware v. Prouse, 440 U.S. 648 (1979) (holding that that “except in those situations in 

which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an 

automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure 
26

Criminal Code, which contains an appendix (Appendix E) that lists the statutory 

exemptions referred to in § 305. 11 Del. C. § 1442 is not on the list of exemptions, 

and, moreover, is dissimilar in phrasing to the exemptions that are listed.76 Put 

simply, licensure should not be considered an affirmative defense to a charge of 

carrying a concealed deadly weapon; rather, its lack should be considered an element 

of the offense.

For all these reasons, I would affirm the judgment of the Superior Court.

 

for violation of law, stopping an automobile and detaining the driver in order to check his driver's 

license and the registration of the automobile are unreasonable under the Fourth Amendment”); 

21 Del. C. § 2701(a) (“No person shall drive a motor vehicle on a public street or highway of this 

State without first having been licensed . . . .”); 24 Del. C. § 1766(a) (criminalizing practicing 

medicine without a license).

76 Compare 11 Del. C. § 1442 to 11 Del. C. §§ 1321, 1325, 1335(6), 1403, 1408, 1444, and 1445. 

See also 11 Del. C. § 780B(b) (exemption for doctors and officers who have sexual contact with a 

person in custody where the doctor or officer was acting in the course of their duties); 11 Del. C.

§ 910 (exemption for debt adjustments incurred incidentally to the practice of law); 11 Del. C.

§ 1327 (exemption to Maintaining a Dangerous Animal for law enforcement and licensed private 

security agencies); 11 Del. C. § 1405(b) (exemptions to Possessing a Gambling Device).