Judge rules evidence against Dover drug suspect be suppressed

DOVER — A warrantless search by police during a 2015 traffic stop in Dover has been deemed invalid due to a lack of probable cause.

For that reason, evidence against a man charged with drug dealing will be suppressed, a judge ruled Thursday.

Defendant Marshall L. Rivers III entered a motion to suppress evidence identified as heroin.

The court was “not convinced that an officer would be able to identify bundled wax paper packets in a clear plastic bag in a passenger’s jacket pocket when approaching a full-size pickup truck form behind on the driver’s side in poor lighting conditions.”

Kent County Superior Court Resident Judge William L. Witham Jr. continued that “[a]lthough the court finds it implausible that an officer could identify bundled packets of heroin under these conditions, it does not find it impossible.

Marshall L. Rivers III

Marshall L. Rivers III

“However, in this instance, more facts were needed to carry the argument.”

While a Dover police officer testified that “there was a hole in the jacket pocket through which Mr. Rivers pushed the packets of heroin into his jacket liner, the jacket was not seized as evidence.”

Judge Witham wrote that while police “no doubt … suspected the content of the jacket pocket was heroin, and he most certainly possessed a reasonable suspicion that Rivers had committed a crime, but, based on the foregoing, there was not enough evidence to support probable cause.”

During testimony, according to papers, a Dover police officer said Mr. Rivers “was known to possess weapons, but no testimony was offered as to how (the officer) came into this knowledge.”

The officer was cross examined, documents said, and “asked if he had any suspicion of weapons, and he replied ‘I always do.’ When asked why he performed a pat down of Rivers (the officer replied that heroin dealers commonly use weapons.”

Also, Judge Witham ruled, “There was no bulge to indicate a weapon. There was no bulge to lead (the officer) to believe Rivers was armed.

“The court perceives this testimony as the ‘mere incantation of officer safety’ that (case law) held does not provide the suspicion necessary for a frisk.”

While Mr. Rivers was on Level III probation at the time and Probation and Parole officers had authority to perform a search if a sufficient belief of possession of contraband was suspected, the Dover Police officer “testified that he did not learn Rivers was on probation until some point after the stop was completed.”

Dover Police reported at the time that Mr. Rivers, 30, of the 100 block of Willis Road, was found with 78 packets of heroin in a pocket during a traffic stop at approximately 10 p.m. on Saulsbury Road north of Forrest Avenue in Dover.

Mr. Rivers was held at James T. Vaughn Correctional Center near Smyrna in lieu of $15,500 secured bond and an additional $5,000 cash bond, and was indicted on April 6, 2015.

Attorney André Beauregard represented Mr. Rivers during the motion hearing on April 4, with Deputy Attorney Zachary George arguing for the state. Mr. Rivers filed the motion on June 23, 2015.

At the suppression hearing, according to papers, Mr. Beauregard “produced a jacket that had been given to him by Rivers.

“The jacket was identified by Rivers as the jacket he was wearing on the night of the traffic stop. The jacket produced at the hearing did not have a hole in the left front outside pocket.

“However, the jacket did have a hole in the inside left breast pocket, a pocket that (the Dover Police officer) testified that he could not see when approaching the vehicle.”

Earlier, Judge Witham noted as the officer “approached the vehicle with a flashlight, he saw the passenger, Rivers, placing his hands near his waist area.

“(The officer) testified that he saw Rivers place his hand in his left front outside jacket pocket, and that he observed what appeared to be heroin bundled in blue wax paper inside the pocket.

After Mr. Rivers was removed from the vehicle the officer described his “demeanor as nervous.

“Rivers was staring straight ahead, would not make eye contact, was fidgeting, and was making movements on his left side in the pocket area. Once Rivers was removed from the vehicle, the contents of the left front outside jacket pocket were no longer visible.”

While an officer’s check of the left pocket of Rivers’ jacket located no heroin, according to papers, “A pat down search revealed packages that felt like heroin in Rivers’ jacket liner. (The officer) testified that further investigation revealed a hole in the left front outside jacket pocket through which the heroin may have been pushed in order to hide the heroin in the jacket liner.

“Surprisingly, the jacket was not seized as evidence.”

A jury trial scheduled for April 4 was continued in consideration of the motion. Mr. Rivers is charged with drug dealing, possession of drugs in Tier I quantity, and misdemeanor possession of drug paraphernalia.

Regarding Mr. Rivers, Mr. Beauregard said he was “trying to get a date as soon as possible for his release.”

Reach staff writer Craig Anderson at canderson@newszap.com

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