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Bloomingdale v. State1/2/2004
mixed issue of law and fact. [FN7] In this case there are no significant disputes over the factual issues. Therefore, we review de novo the decision of the Superior Court to determine if there was error in the formulation and application of the law. [FN8]
FN7. Flonnory v. State, 805 A.2d 854, 857 (Del.2001).
FN8. Id.
Waiver
The State's waiver contention is that Bloomingdale did not fairly raise his suppression argument until after he was tried, convicted, and sentenced. The State argues that motions to suppress evidence must be raised before trial [FN9] in order to protect the State's right to appeal any suppression order and then, if successful on appeal, try the defendant on the merits without confronting double jeopardy concerns. The State further argues that failure to raise such a motion before trial constitutes waiver of the issue, unless the court for cause grants relief from the waiver. [FN10]
FN9. See DEL. CT. C.P.CRIM. R. 12(b)(3) (including motions to suppress evidence among motions that must be raised before trial); Mays v. State, No. 391,2002, 2003 WL 231615, 31, 2003 Del. LEXIS 65, 31 (Del. Jan. 31, 2003) (ORDER) ("Motions to suppress evidence must be raised prior to trial.").
FN10. DEL. CT. C.P.CRIM. R. 12(f).
Bloomingdale argues that he demonstrated good cause for raising the suppression issue post-trial. He asserts that the police report supplied by the State during *1216 discovery did not put him on notice of any potential suppression issues [FN11] and that he could not have been aware of the suppression issue until Chief Capriglione testified at trial. Bloomingdale therefore contends that the trial court did not err by ruling that he had not waived his suppression argument by failing to raise it before trial.
FN11. The report simply stated, "General broadcast of defendant and
his vehicle put out on radio by passerby."
Because we hold that the stop was valid in any event, we assume, without deciding, that the Superior Court did not err by upholding the trial court's original order ruling that Bloomingdale had not waived the suppression issue. A trial court has broad discretion to enforce its rules of procedure, [FN12] and the trial court here exercised its discretion in a manner that did not abuse its discretion. We note, however, that the trial court, at minimum, should have afforded the State the opportunity for an evidentiary hearing, given the defendant's failure to make a timely objection. Although the trial court's indulgence of the defendant's tardy objection is perhaps understandable under these particular circumstances, its failure to accord the State the chance to make a record is not justifiable. Nevertheless, the point is moot for purposes of this appeal.
FN12. Barnett v. State, 691 A.2d 614, 616 (Del.1997).
It is true, as the State argues, that competent defense counsel should recognize that a suppression issue is frequently encountered where evidence was obtained as a result of a Terry [FN13] stop. Nevertheless, in this case the State has not demonstrated that Bloomingdale's counsel knowingly relinquished his right to challenge the stop based on all relevant information. Bloomingdale's argument that the suppression issue did not become clear until Chief Capriglione testified at trial is at least plausible.
FN13. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (authorizing brief investigatory stops by law enforcement officers based on reasonable suspicion of criminal activity).
The circumstances of this case may be unique, so it seems to us prudent that this case should not be viewed as a precedent on the waiver issue. We do not wish to condone a practice of post-trial motions to suppress, and we note that
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