Background
Wilmington Police Sergeant Deshaun Ketler saw Jarrod Penn in a high-crime, high-drug area near an ongoing traffic stop. Penn’s right jacket pocket hung substantially lower than the left, suggesting to Ketler, based on his training and experience, that it contained a handgun. Ketler then watched Penn nervously monitor the traffic stop from a park bench and later attempt to conceal himself near a residence while continuing to observe the officers.
Ketler approached Penn and said he believed Penn had a firearm. After Penn moved a hand toward his pocket, Ketler ordered him to keep his hands at his side. Penn fled when backup arrived, and officers recovered a loaded handgun and crack cocaine. A jury convicted him of felony drug possession, possession of a firearm during the commission of a felony, and carrying a concealed deadly weapon; the Superior Court separately convicted him of firearm- and ammunition-possession charges. Penn received an aggregate 21-year prison sentence, suspended after eight years for probation.
The Court’s Holding
The Delaware Supreme Court affirmed. It held that Ketler had reasonable and articulable suspicion before even the earliest point at which Penn claimed the encounter became a seizure. Viewed together, the sagging pocket, Penn’s nervous surveillance of the traffic stop, his effort to remain out of the officers’ sight, the location, and Ketler’s training and experience supported suspicion that Penn was engaged in or about to engage in unlawful conduct, including carrying a concealed deadly weapon.
The court also held that the State satisfied Delaware’s statutory chain-of-custody requirements without calling Corporal Akil. Although Akil initially found and briefly removed the cocaine, he returned it to Penn’s pocket and never took custody of it as evidence. Detective Moses later collected, field-tested, tagged, and sealed the cocaine, thereby initiating the evidentiary chain of custody. Because Moses and the forensic chemist testified, the Superior Court properly admitted the drug evidence.
Key Takeaways
- Reasonable suspicion existed before any possible seizure because the officer’s observations, considered collectively and through the lens of his training and experience, indicated concealed-weapon and other criminal activity.
- The court did not decide precisely when the encounter became a seizure because reasonable suspicion was already complete at the earliest time Penn proposed.
- Under 10 Del. C. §§ 4331 and 4332, the “seizing officer” is the officer who takes drugs into State custody as evidence and begins the chain of custody, not necessarily the first officer who physically discovers or touches them.
Why It Matters
The decision reinforces that Delaware courts assess investigative stops under the totality of the circumstances rather than evaluating each observation in isolation. It also leaves for another case whether precedent treating a concealed-carry license as an affirmative defense remains viable after New York State Rifle & Pistol Association, Inc. v. Bruen.
For drug prosecutions, the ruling clarifies which witnesses Delaware’s statutory chain-of-custody provisions require: an officer who merely discovers or briefly handles drugs is not the “seizing officer” when another officer later takes the drugs into evidence and initiates the formal chain of custody.