           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                        :
                                          :     ID No. 1605005294
                                          :     In and for Kent County
                                          :
      v.                                  :
                                          :
NATHAN H. WARD                            :
                                          :
              Defendant.                  :
                                          :

                            Submitted: August 30, 2016
                            Decided: September 8, 2016

                                      ORDER

      On this 8th day of September, 2016, after consideration of the Defendant’s

Motion to Suppress and the State’s opposition, it appears that:

      1. Defendant Nathan Ward (hereinafter “Ward”) moves to suppress evidence

seized as a result of an allegedly unlawful search and seizure. Ward argues that

Corporal Simms (hereinafter “Simms”), who conducted the search and seizure, lacked

justification to extend the traffic stop beyond its original purpose. The State opposes

Ward’s Motion to Suppress, stating that Simms had reasonable articulable suspicion

of further criminal activity that justified extending the traffic stop for further

investigation. After a hearing on the matter, the Court finds that the State presented

insufficient facts to support a reasonable suspicion of drug or illegal gun activity

sufficient to justify the extended traffic stop in this case. Accordingly, Ward’s
Motion to Suppress is GRANTED.

      2. The facts cited herein are those presented at the August 30, 2016 hearing.

On May 8, 2016, at roughly 3:45 in the afternoon, Simms stopped Ward in Cheswold

while he was driving a red Toyota Camry traveling 41 miles per hour in a 25 miles per

hour zone. This traffic stop was visually recorded on Simms’ MVR. The State played

the video at the hearing during the course of Simms’ testimony. After stopping the red

Toyota Camry, Simms contacted the driver, who Simms stated appeared nervous. The

video corroborated Ward’s agitation. Simms spoke with Ward and asked him where

he was coming from and where he was going. Simms testified that Ward stated he was

coming from Dover and going to see his mother to give her flowers. When Simms told

Ward that he did not see any flowers, Ward pulled flowers from behind his seat and

showed them to Simms. Simms further testified that after asking where Ward’s mother

lived, Ward answered that she lived in Dover. Ward was driving away from Dover at

the time. Additionally, Simms testified that during this inquiry, he noticed three cell

phones on the passenger seat of the vehicle. After this initial contact, Simms took

Ward’s information and ran it through the DelJIS system and found nothing illegal.

There were no warrants for Ward and the vehicle was properly registered.

      3. When Simms returned the documentation to Ward, he asked Ward to step out

of the vehicle. At that time, Simms conducted a pat down search of Ward. During this

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pat down, Simms found forty dollars on Ward’s person. Simms testified that he felt

there was illegal activity afoot because (1) Ward was traveling in the opposite direction

of where he stated he was going, (2) there were three cell phones on his passenger seat,

and (3) Ward was nervous upon initial contact, At that point, Simms requested

backup. During the next approximately twenty minutes, Ward was told to remain

standing outside his vehicle, on camera, until another officer arrived. When an officer

from State Police Troop 3 arrived, Simms requested to search Ward’s vehicle after a

lengthy discussion not audible on the video.

      4. Ward testified that he was going to see his mother and his sister, taking

flowers for both of them. He explained that although his mother lived in Dover, his

sister lived in Clayton and that his mother was there for Mother’s Day dinner. He

testified that he eventually gave his consent to search the vehicle because Simms told

Ward he would simply get a search warrant absent consent. Ward stated he wanted to

avoid the trouble, so he signed a consent form. Simms, however, testified that he did

not have sufficient information to obtain a search warrant, and denied telling Ward that

he would override his decision by obtaining a warrant if Ward refused consent. Upon

a search of the vehicle, Simms located a container on the driver’s side door that

contained crack cocaine. Based upon the discovery of drugs, and the fact that Ward

had forty dollars cash in his pocket, Simms charged Ward with drug dealing and illegal

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possession of a controlled substance, as well as speeding.

       5. In a Motion to Suppress, based on a search without a warrant, the State bears

the burden of establishing that the challenged search or seizure complied with the rights

guaranteed by the United States Constitution, the Delaware Constitution, and Delaware

statutory law.1 The State’s evidentiary burden in a Motion to Suppress is to prove the

challenged matter by a preponderance of the evidence.2 At a suppression hearing, the

trial judge sits as the trier of fact and determines witness credibility.3

       6. The Fourth Amendment of the United States Constitution requires that a traffic

stop and any subsequent police investigation be justified at its inception.4 A traffic stop

by the police is justified where there is a reasonable suspicion of criminal activity, and

the stop must be reasonable in its scope.5 A hunch is not sufficient. Delaware courts

define reasonable suspicion as

       an officer's ability to point to specific and articulable facts which, taken
       together with rational inferences from those facts, reasonably warrant the
       intrusion. A determination of reasonable suspicion must be evaluated in
       the context of the totality of the circumstances 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

       1
          State v. Holmes, 2015 WL 5168374, at *3 (Del. Super. Sept. 3, 2015).
       2
         State v. Darling, 2007 WL 1784185, at *1 (Del. Super. June 8, 2007), as corrected (July
3, 2007).
       3
         Turner v. State, 957 A.2d 565, 570-71 (Del. 2008).
       4
          Dunlap v. State, 812 A.2d 899, at *2 (Del. 2002) (TABLE).
       5
         Stafford v. State, 59 A.3d 1223, 1227 (Del. 2012).

                                               4
       interpretation of those facts.6

       Additionally, “the duration and scope of the traffic stop must last only as long

as reasonably necessary to effectuate the purpose of the stop, at which point the

legitimate investigative purpose of the traffic stop is completed.”7 Therefore, “any

investigation of the vehicle or its occupants beyond that required to complete the

purpose for the [initial] stop constitutes a separate seizure that must be supported by

independent facts sufficient to justify the additional intrusion.”8 Finally, a police officer

may protect himself by patting down the subject of his investigation.9 However, to

justify a pat down

       an officer must have reasonable, articulable suspicion that the person is
       presently armed and dangerous.10 The officer must point to specific and
       articulable facts which, taken together with all rational inferences from
       those facts, reasonably warrant the intrusion. Generally, a pat down is
       justified based on the nature of the suspected crime, a sudden reach by the
       individual, a bulge, or a history with the specific individual.11

       7. Here, Ward acknowledged the reasonable suspicion for the traffic stop, but

argues there was insufficient evidence to extend the stop to further question Ward, pat

him down, or search the vehicle. Ward asserts that the duration and scope of the stop

       6
         State v. Chandler, 132 A.3d 133, 141 (Del. Super. 2015), as corrected (Apr. 14, 2015).
       7
         Id. at 142 (Del. Super. 2015), as corrected (Apr. 14, 2015).
       8
         Caldwell v. State, 780 A.2d 1037, 1047 (Del. 2001).
       9
         State v. Chandler, 132 A.3d 133, 141 (Del. Super. 2015), as corrected (Apr. 14, 2015).
       10
          Id.
       11
          Id.

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exceeded the time reasonably necessary to effectuate the purpose of the stop, a traffic

violation for speeding. Additionally, Ward argues that the pat down was not justified

and was an illegal search and seizure. Finally, Ward argues that the consent to search

the vehicle was unduly influenced by Simms’ threat to obtain a warrant for which the

officer admits there was insufficient evidence to provide probable cause.

      8. The State argues that there were sufficient facts to support reasonable

articulable suspicion to extend the traffic stop for further investigation. The State

asserts that Simms’ observation of Ward’s nervous behavior upon initial contact, the

three cell phones on the passenger seat of the vehicle, and that Ward appeared to be

traveling in the opposite direction of where he stated he was going provided reasonable

suspicion of drug or illegal gun activity. The State contends that under a totality of the

circumstances, with the speeding, there were enough articulable facts to support a

reasonable suspicion to justify the twenty minute extended traffic stop and subsequent

search.

      9. Ward’s argument framed the evidentiary threshold for extending the stop as

one requiring probable cause of additional criminal activity. Based on the authority

cited above, the justification for extension of the stop must be evaluated under a

reasonable suspicion standard rather than probable cause. Nevertheless, here, the

Court does not find reasonable articulable suspicion in this case to warrant an extended

                                            6
investigation after the initial traffic stop for speeding. Namely, under the totality of the

circumstances, there has not been a showing of sufficient articulable facts that would

rise to a level of reasonable suspicion of drug or illegal weapons activity as the State

claims. The testimony regarding nervous behavior is not dispositive of any criminal

wrongdoing, and in fact is a typical reaction for many vehicle operators after being

stopped by a police officer.

       10. Additionally, there seemed to be a misunderstanding regarding Ward’s

destination. The Court finds that upon inquiry, Ward answered the questions that were

asked of him. He stated that he was leaving Dover and he was going to see his mother

to give her flowers for Mother’s Day. When he was asked where his mother lived,

Ward answered honestly and stated that she lives in Dover.               Accordingly, the

misunderstanding regarding direction of travel is understandable. Furthermore, Ward

presented two bouquets of flowers to Simms, upon inquiry, corroborating that he was

in fact on his way to give flowers to someone on Mother’s Day.

       11. Finally, the existence of three cell phones in the vehicle, although not

common, is also not determinative of any wrong doing where no other objective facts

support reasonable suspicion of further criminal activity. All of the facts analyzed

together do not raise a reasonable suspicion that Ward was armed and dangerous or

was engaged in drug activity at the time.

                                             7
      12. Accordingly, the State did not meet its burden to present objective facts

sufficient to justify the detention beyond that of a normal speeding stop in this case.

The Court finds that under the circumstances of this case, the subsequent twenty minute

detention measurably extended the time necessary to conduct the traffic stop without

justification. It therefore follows that evidence secured after Simms patted down Ward

is suppressed from use at trial. The Court need not, and does not, address the validity

of the consent for the officers’ search of the vehicle after this twenty minute extended

detention.

      NOW, THEREFORE, IT IS ORDERED that Defendant Nathan Ward’s Motion

to Suppress must be GRANTED.



                                                /s/Jeffrey J Clark
                                                       Judge




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