State v. Murray , 213 A.3d 571 ( 2019 )


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  •        IN THE SUPREME COURT OF THE STATE OF DELAWARE
    STATE OF DELAWARE,                   §
    §     No. 414, 2018
    Plaintiff Below,               §
    Appellant,                     §     Court Below: Superior Court
    §     of the State of Delaware
    v.                             §
    §     I.D. No. 1710007866 (N)
    ANDRE MURRAY,                        §
    §
    Defendant Below,               §
    Appellee.                      §
    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.
    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
    2
    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 stop1 and 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.
    3
    “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.).
    4
    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,”9 exited 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. 5 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.
    6
    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.
    7
    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. 8 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.
    9
    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).
    10
    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
    ).
    11
    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.”).
    12
    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).
    13
    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
    ).
    14
    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
    15
    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.”).
    16
    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.
    17
    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).
    18
    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).
    19
    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.
    20
    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.
    21
    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.
    22
    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).
    23
    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.
    24
    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
    25
    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).
    26