      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                  IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE                         )
                                          )
                                          )
       v.                                 )
                                          ) I.D. No. 1310001662
                                          )
BOB MUGO                                  )




                 On Defendant’s Motion to Suppress Evidence

                                  DENIED


                          OPINION AND ORDER

                         Submitted: September 5, 2014
                         Decided: September 23, 2014



Michael B. DegliObizzi, Esquire, Deputy Attorney General, 820 North French
Street, 7th Floor, Wilmington, DE 19801; Attorney for State of Delaware.


Joseph A. Hurley, Esquire, 1215 King Street, Wilmington, DE 19899; Attorney for
Defendant.




WHARTON, J.
                                I. INTRODUCTION

          Defendant Bob Mugo was arrested and subsequently indicted on the charge

of Driving a Vehicle While Under the Influence of Alcohol or With a Prohibited

Alcohol Content. He filed a Motion to Suppress Evidence on June 24, 2014.1 The

State submitted its Response on July 3rd. 2 A suppression hearing was held on

August 22nd. Following the hearing, the Court requested that the parties submit

simultaneous memoranda on an issue regarding a discrepancy between certain

language in the Delaware State Police’s (DSP) sobriety checkpoint guidelines and

those of the Office of Highway Safety (OHS). The parties have submitted those

memoranda. The Court did not request memoranda on other issues raised by the

motion.

          Upon consideration of the Motion to Suppress Evidence, the State’s

Response, the evidence presented at the suppression hearing, the arguments of

counsel and the parties’ post-hearing submissions, the Court finds that the

language of the DSP checkpoint guidelines, taken as a whole, requires reasonable,

articulable suspicion of driving under the influence before a police officer may

detain a driver for purposes of conducting a further investigation. The Court also

finds that the Defendant’s other complaints about the execution of the guidelines



1
    D.I. #13.
2
    D.I. #14.
                                          2
are without merit. Accordingly, the Defendant’s Motion to Suppress Evidence is

DENIED.

                                          II. FACTS

       The basic facts are not in material dispute.               DSP Lt. Michael Wysock

testified that he requested and received approval to conduct a sobriety checkpoint

at Salem Church Road at Adel Drive in New Castle County on September 20,

2013. The location was selected because it met certain criteria regarding alcohol

related crashes and alcohol related arrests during the previous three years. The

checkpoint was approved for the hours of 10:00 p.m. to 2:00 a.m. Lt. Wysock’s

testimony touched on each of the guidelines set out for requesting and conducting

the checkpoints. The State introduced, through Lt. Wysock, a copy of the sobriety

checkpoint guidelines, 3 the 2013 DUI Checkpoint Grid,4 Lt. Wysock’s memo

requesting approval for the September 20th checkpoint containing Capt. Benson’s

approval5 and a statistical report of the results of the checkpoint. 6

        DSP Lt. Roger Davis was the officer who made contact with the Defendant

as one of the officers working the line of vehicles stopped at the checkpoint on

September 20th. Lt. Davis testified the he detected a strong odor of alcohol

coming from the Defendant’s person and breath to the point where the Defendant
3
  State’s Ex. 1. Exhibits refer to exhibits admitted into evidence at the suppression hearing.
4
  State’s Ex. 2. The grid listed possible DUI checkpoint locations for 2013 based on alcohol
related crash and arrest statistics for the previous three years.
5
  State’s Ex. 3.
6
  State’s Ex. 4.
                                                 3
reeked of alcohol.       Lt. Davis also testified that the Defendant’s eyes were

bloodshot and appeared glassy and that the Defendant’s speech was slurred. At

that point Lt. Davis asked the Defendant to pull into a parking lot for further

investigation.

                         III. THE PARTIES’ CONTENTIONS

        The Defendant raises several issues in support of his motion. First, he

argues that there is a fatal discrepancy between the DSP checkpoint guidelines and

the OHS guidelines used for checkpoints conducted by Delaware municipal police

officers. 7 Specifically, the Defendant asserts that the DSP guidelines require only

“articulable suspicion”8 before an officer may undertake further investigation,

while the OHS guidelines require “reasonable, articulable suspicion.”9          The

difference is important, he argues, because “reasonable, articulable suspicion” and

“articulable suspicion” are not the same thing and every stop must be based on

reasonable, articulable suspicion under the Fourth Amendment, not merely

articulable suspicion. 10   The Defendant also argues that the September 20th

checkpoint failed to comply with the DSP guidelines because Lt. Wysock did not




7
  Def’s. Ex. 1.
8
  State’s Ex. 1 at ¶7.
9
  Def’s. Ex. 1 at ¶6.
10
   D.I. #24.
                                         4
request approval for the checkpoint at least one week in advance and because there

was insufficient proof of advance publicity of the checkpoint. 11

      The State, citing United States v. Henson, 12 argues that there are essentially

three factors for the Court to consider in determining whether a checkpoint

complies with the Fourth Amendment: (1) the checkpoint must be clearly visible;

(2) it must be part of a systematic procedure that strictly limits the discretion of

police officers; and (3) drivers are detained no longer than reasonable to

accomplish the purpose of checking license and registration, unless other facts

establish a reasonable suspicion of criminal activity. 13 The State also argues that

the testimony of Lt. Wysock together with the request for authorization to conduct

the checkpoint supports the conclusion that the request was timely. Additionally,

the State contends that the testimony of Lt. Wysock establishes that the checkpoint

was publicized in advance.

                                   IV. DISCUSSION

       On a motion to suppress, the burden is on the State to prove, by a

preponderance of the evidence, that a warrantless search of a vehicle did not

violate the Defendant’s constitutional rights. 14 It is by now beyond dispute that

sobriety checkpoints are not, in and of themselves, violative of the Fourth
11
   The Defendant has abandoned equal protection/due process arguments raised at the
suppression hearing based on differences between the DSP and OHS checkpoint guidelines.
12
   United States v. Henson, 351 F. App’x 818 (4th Cir. 2009).
13
   Id. at 821; D.I. #23.
14
   Hunter v. State, 783 A.2d 558, 561 (Del. 2001).
                                             5
Amendment’s protections against unreasonable searches and seizures. 15                     In

upholding the constitutionality of such checkpoint programs, the Supreme Court

held, “…the balance of the State’s interest in preventing drunken driving, the

extent to which this system can reasonably be said to advance that interest, and the

degree of intrusion upon individual motorists who are briefly stopped weighs in

favor of the state program.” 16         Checkpoint programs are not without their

limitations, however.      Frequently cited is the Fourth Circuit’s formulation of

factors to be considered in determining the reasonableness and, hence, the

constitutionality of a checkpoint stop, found in United States v. Henson:

              Factors to weigh intrusiveness include whether the checkpoint:
              (1) is clearly visible; (2) is part of some systematic procedure
              that strictly limits the discretionary authority of police officers;
              and (3) detains drivers no longer than is necessary to accomplish
              the purpose of checking a license and registration, unless other
              other facts come to light creating a reasonable suspicion of
              criminal activity. 17

        A substantial amount of suppression litigation seems to have focused on

how checkpoints were established and whether there was compliance with the

checkpoint guidelines. 18 In determining the relationship between checkpoint



15
   Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 447 (1990).
16
   Id. at 455.
17
   Henson, 351 F. App’x at 821.
18
   See, eg., Bradley v. State, 2004 WL 1964980 at *1 (Del. Aug. 19, 2004); State v. McDermott,
1999 WL 1847364, at *3-4 (Del. Com. Pl. Apr. 30, 1999); State v. Connell, 2013 WL 6634000 at
*3 (Del. Com. Pl. 2013); State v. Terry, 2013 WL 3833085, at *3-6 (Del. Super. Jul. 18, 2013);
State v. Cook, 2013 WL 1092130 at *5-6 (Del. Super. Feb. 13, 2013).
                                              6
guidelines and the Fourth Amendment, the court finds State v. Cook 19 helpful.

Simply put, a list of procedures adopted by either DSP or OHS is not synonymous

with the Fourth Amendment. The determination of rights protected by the Fourth

Amendment cannot be outsourced to the multitude of state law enforcement and

regulatory agencies across the country because the Fourth Amendment must be

applied uniformly. 20 Rather, the existence of a set of systemic procedures is but

one component, albeit a necessary one, to ensure Fourth Amendment compliance. 21

It follows then, that the degree of compliance with the procedures must be

sufficient so as not to make the search unreasonable under the Fourth

Amendment. 22

A. The Reasonable, Articulable Suspicion Standard Was Not Violated.

        Defendant points out that Paragraph 7 of the DSP sobriety checkpoint

guidelines reads, “… if the driver’s appearance or actions arouse articulable

suspicion, they should be detained for further investigation.” 23 In contrast,

Paragraph 6 of OHS’s sobriety checkpoint guidelines reads, “…if the driver’s

appearance or actions arouse reasonable, articulable suspicion, they may be

detained for further investigation.” 24 It is the absence of the word “reasonable”


19
   2013 WL 1092130 (Del. Super. Feb. 13, 2013).
20
   Id. at *5.
21
   Id.
22
   Id. at *6.
23
   State’s Ex. 1.
24
   Def’s. Ex. 1.
                                             7
before the word “articulable” in the DSP checkpoint guidelines which causes the

DSP guidelines to contravene the Fourth Amendment in the Defendant’s view. In

support of that position, the Defendant has provided citations to dozens of cases

where the words have appeared together. 25

       The Court agrees with the Defendant that “reasonable” and “articulable”

speak to different concepts and that any suspicion warranting further detention of a

suspect must be reasonable as well as articulable. The Court further agrees with

the Defendant that the reasonableness of a detention is not subsumed in the

officer’s ability to articulate a reason for that detention. 26 The Defendant’s

argument fails, however, when the entirety of DSP’s Paragraph 7 is examined:

                   7. This introduction should give the officer ample time to
              observe the driver and detect the odor of alcoholic beverages
              emanating from the vehicle. If the driver does not display
              visible signs of driving under the influence of alcohol or drugs,
              the driver shall immediately be released. However, if the
              driver’s appearance or actions arouse articulable suspicion,
              they should be detained for further investigation. At this time,
               it will be permissible to ask the driver for his license, registration,
               and insurance card. If the driver still appears under the influence,
               the officer may ask the driver to exit the vehicle and perform the
               normal field coordination tests. These tests should be conducted
               in an area separated from the roadblock itself. Thereafter,
               standard operating procedures for DUI enforcement shall be
               followed.27


25
   D.I. #24 at 2-4.
26
   For example, a decision to detain a defendant determined by a Ouija board may be articulable,
but it is not reasonable.
27
   State’s Ex. 1.
                                                8
        The first point to note is that, while the officer is introducing himself to the

driver, he is to be observing the driver and detecting if the odor of an alcoholic

beverage is emanating from the vehicle.28 If the driver does not display visible

signs of driving under the influence, the driver shall immediately be released.29

The obvious corollary to that directive is that only those drivers who do display

visible signs of driving under the influence are subject to further detention. Then,

only if the officer can articulate his suspicions may the driver be detained for the

limited purpose of obtaining license, registration and insurance information. 30

Finally, only if the driver still appears to be under the influence is further detention

permitted to administer the standard field coordination tests.31 In sum, the DSP

procedure only allows for the detention of drivers stopped at a checkpoint where

the driver displays visible signs of being under the influence of alcohol or drugs

and the officer is able to articulate those visible signs.

        The Court finds that the requirement of articulable, visible signs of being

under the influence set forth in the DSP guidelines is in no material way different

from the requirement of reasonable, articulable suspicion set forth in the OHS

guidelines. Accordingly, the DSP procedures do not violate the requirement that




28
   See id.
29
   See id.
30
   See id.
31
   See id.
                                             9
the police have reasonable articulable suspicion before detaining a driver stopped

at a checkpoint.

B. The Manner in Which the DSP Guidelines Were Executed Did Not Violate
the Defendant’s Fourth Amendment Rights.

           The Defendant takes issue with the manner in which the DSP guidelines

were executed in two respects. He alleges that the amount of time between when

the checkpoint was requested and when it was approved did not comport with the

guidelines. He also alleges that there was insufficient proof of advance publicity

of the checkpoint. Specifically, with respect to the timing of the request for

approval of a checkpoint, Paragraph 3 of the DSP checkpoint guidelines requires

that a request for approval be made at least one week in advance. 32 The Defendant

argues that the State has not proven compliance with that requirement. The State

asserts that it has proven compliance. With respect to publicizing the time and

location of the checkpoint in advance, the Defendant again argues that the state has

provided insufficient proof of publication. The State responds that Lt. Wysock’s

testimony that checkpoints are always publicized in advance; that he always gets

an email confirming publication; and that he does not remember not getting a

confirmatory email for this checkpoint is sufficient proof of advance publicity.

          The Court finds that the State has established by a preponderance of the

evidence that the request for approval was made at least one week prior to the

32
     See id.
                                            10
checkpoint. The State offered into evidence a memo addressed to Lt. Wysock

from Capt. Benson that approved the September 20, 2013 checkpoint.33 The memo

is captioned with the date “September 3, 2013” and Capt. Benson’s signature is

dated “9/17/13.”34 Whether the memo is a form initiated by Lt. Wysock on

September 3rd or that date is when the process of approval began with Capt.

Benson, it is more than one week before the date the checkpoint was conducted.

       Similarly, the Court also finds by a preponderance of the evidence that the

checkpoint was publicized in advance based on the testimony of Lt. Wysock. The

Court notes, however, that no requirement for publicizing the location and time of

checkpoints in advance appears in either the DSP 35 or OHS 36 guidelines admitted

into evidence.

       The above discussion is a bit academic, however, because the DSP

guidelines that mandate the length of time required to obtain advance approval for

a checkpoint and the publication of the time and location of a checkpoint do not

have much, if anything, to do with the Fourth Amendment. The primary purpose

of the requirement that there be a set of procedures established to conduct

checkpoints is to strictly limit the discretionary authority of police officers.37

Whether the request for approval is made one week or three days in advance of the
33
   State’s Ex. 3.
34
   Id.
35
   State’s Ex. 1.
36
   Def’s. Ex. 2.
37
   Henson, 351 F. App’x at 821.
                                           11
checkpoint has no bearing on that purpose. Similarly, whether or not a checkpoint

is publicized in advance, neither enhances, nor diminishes the discretionary

authority of police officers.

                                V. CONCLUSION

      For the foregoing reasons, Defendant’s Motion to Dismiss Evidence is

DENIED.

      IT IS SO ORDERED.



                                      _____________________

                                        /s/ Ferris W. Wharton, Judge




                                        12
