IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, )
)
v. )
) Case ID#1803016194
EDWARD W. SZCZERBA, )
)
Defendant. )
Reserved: January 14, 2019
Decided: May 21, 2019
Louis F. D’Onofrio, Esquire Michael W. Modica, Esquire
Deputy Attorney General Attorney at Law
820 N. French Street, 7th Floor 715 N. King Street, Suite 300
Wilmington, DE 19801 Wilmington, DE 19801
Attorney for the State of Delaware Attorney for Defendant

MEMORANDUM OPINION ON
DEFENDANT’S MOTION TO SUPPRESS

MANNING, J.
FACTUAL AND PROCEDURAL HISTORY

On March 25, 2018, Edward Szczerba (hereinafter “Defendant”) was arrested by
Master Corporal Grajewski (hereinafter “Grajewski”) for the offense of Driving a Vehicle
Under the Influence of Alcohol (DUD in violation of 21 Del. C. § 4177. The facts which
gave rise to these proceedings indicate that Patrolwoman Simmons (hereinafter
“Simmons”) of the Kennett Township Police Department observed Defendant traveling at
a “speed [that] was higher than the [posted] 45mph limit.” Simmons began to follow
Defendant whereupon she observed that the rear registration tag was not properly
illuminated. Simmons activated her emergency lights and pursued Defendant. The traffic
stop and all relevant events were recorded on MVR and body camera, both of which were
entered into evidence.' Defendant failed to comply with the lights and sirens and continued
to drive, and at one point, for no obvious reason, applied his breaks and a very sudden and
hard manner. After following Defendant for about a mile, Defendant was forced to come
to a stop in a Wawa parking lot in Hockessin, Delaware. Upon approaching Defendant’s
vehicle and speaking with him, Simmons detected a strong odor of alcohol coming from
Defendant’s breath and person. Simmons testified that Defendant’s speech was slurred
and that he “was having a hard time forming words [and] sentences.” Defendant’s eyes

were also bloodshot. Defendant had a difficult time responding to Simmons’ request that

 

! State’s Exhibits 1 & 2
he produce his license and registration. Additionally, Simmons observed several Miller

Light beer cans in the rear of Defendant’s vehicle cabin.

Based on her training and experience, Simmons testified that she believed Defendant
was driving under the influence of alcohol. However, rather than pursue the investigation
herself, Simmons contacted Delaware police to respond to the scene. Grajewski arrived
on scene and Simmons “advised him of the incident.” Grajewski took over the
investigation and upon making contact with Defendant, detected a “moderate” odor of
alcohol, observed his eyes to be red and bloodshot, and that his speech was slurred.
Grajewski asked Defendant his full date of birth which he was only able to answer correctly
on his third attempt. Upon exiting his vehicle, Defendant was observed to have issues with
his balance and staggered somewhat. Based on his training and experience, Grajewski

testified that he believed Defendant was driving under the influence of alcohol.

Grajewski then had Defendant walk over to the side of the Wawa to conduct field
sobriety tests. Grajewski first attempted to administer the Horizontal Gaze Nystagmus test.
Body camera footage shows Defendant swaying and rocking during the tests and was
unable to comply with Grajewski’s instructions, despite multiple attempts. More
specifically, Defendant was unable to keep his head still and use only his eyes to follow
the tip of the stimulus Grajewski’s was using to administer the test. Defendant became

visibly frustrated when Grajewski repeatedly instructed Defendant to keep his head still,
and at one point pleaded with Grajewski to “work with me.” The test was discontinued

because Defendant could not comply with the basic instructions.

Grajewski then attempted to administer the Walk and Turn test. Again, Defendant
was unable to comply with the test instructions. Defendant was swaying back and forth
and had a difficult time standing. Ultimately, Grajewski was concerned that Defendant
was going to fall over and injure himself so he made the decision to stop the test. Grajewski
then took Defendant into custody and had him sit in the back of his vehicle while waiting

on a tow truck to remove his vehicle.

On December 17, 2018, Defendant filed a Motion to Suppress. The Court held a
hearing on the motion to suppress in conjunction with a bench trial January 14, 2019. Upon
conclusion of the hearing, the trial was adjourned and the Court took the suppression
motion under advisement. At the request of the Court, the State and Defendant both filed

supplemental briefs following the hearing.

LEGAL STANDARD
On a “motion to suppress, the State must establish, by a preponderance of the
evidence, that Defendant’s arrest was supported by probable cause.” 7 To establish
probable cause for a DUI arrest, the state “must present facts which suggest, when those

facts are viewed under the totality of the circumstances, that there is a fair probability that

 

* State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010).
the defendant has committed a DUI offense.” ? This totality consideration is based on “the
factual and practical considerations of everyday life on which reasonable and prudent men,
not legal technicians, act.” 4 “The Court must examine the totality of circumstances
surrounding the situation as viewed through the ‘eyes of a reasonable trained police officer
in similar circumstances, combining the objective facts with the officer's subjective

999 5

interpretation of those facts.
DISCUSSION

Defendant moves to suppress the evidence gathered as a result of his extended

detention and ultimate arrest by Grajewski.° Defendant argues that Simmons failed to

sufficiently communicate her reasonable suspicion of Defendant’s impairment to

Grajewski, and therefore, Grajewski lacked the required reasonable suspicion to conduct

the DUI investigation or probable cause to arrest.’ Defendant relies on State v. Cooley,

 

3 Lefebvre v. State, 19 A.3d 287, 293 (Del. 2011).

4 State v. Cardona, 2008 WL 5206771, at *3 (Del. Super. Dec. 3, 2008) (quoting State v. Maxwell, 624
A.2d 926, 928 (Del. 1993)).

> State v. Kane, No. 1210019022, 2014 WL 12684290, at *4 (Del. Com. Pl. Feb. 12, 2014); See Woody
v. State, 765 A.2d 1257, 1262-64 (Del. 2000).

® Defendant’s motion to suppress based on lack of reasonable suspicion to detain Defendant was
previously denied from the bench. This decision only address Defendant’s motion to suppress for lack
of probable cause to arrest.

7 note the record in the case is not as fully developed as it could have been. This issue was raised
orally by Defendant at the end of the hearing; therefore, the State was not on notice of it when the
officers were questioned on direct examination. Had the State moved to re-open the evidence the Court
certainly would have granted the request.
457 A.2d 352, 355 (Del. 1983), which stated if “no officer connected to the arrest knows
the facts which might justify it, no officer exercises the judgment required as a substitute
for judicial approval.” ® Further, in Cooley, the Court found that the only officer who knew
enough facts to reach a conclusion as to probable cause did not communicate them to the
actual arresting officer.’ Thus, the absence of communication between the officers resulted
in a lack of probable cause to arrest.'° Defendant also relies on State v. Holmes, 2015 WL
5168374, at *4 (Del. Super. 2015), where the Delaware Superior court found “in the
absence of communication amongst a team of officers, the stop or arrest of an individual

by an officer not possessing any such knowledge is improper.”

The State argues Grajewski had reasonable and articulable suspicion to continue the
investigation of Defendant.'' The State asserts that when Grajewski arrived on the scene
Simmons advised him of the facts of the incident. The State maintains Grajewski properly

acted on the information communicated to him by Simmons and his own observations. The

 

* In Cooley, Trooper Shamany responded to the scene of an accident. State Police Corporal McDerby
later arrived at the scene and established radio contact with desk Sergeant Thompson. Sergeant
Thompson acted on the radio conversation with Corporal McDerby, arrested Cooley for driving under
the influence and administered an intoximeter test. Trooper Shamany did not communicate facts
regarding the scene to either Corporal McDerby or Sergeant Thompson.

? Id.
'© Cooley at *356.
'! In the alternative, the State advances Grajewski was permitted to investigate Defendant in pursuant to

Delaware’s Fresh Pursuit Statute governing arrest by out-of-state police, citing to 11 Del.C. § 1932(a).
Based on the facts presented, I do not find it necessary to address this argument.
State distinguishes Cooley and Holmes in that Simmons communicated with Grajewski and

Grajewski used that information to continue the investigation and administer DUI tests.

However, Defendant argues Simmons’ testimony that she advised Grajewski of “the
incident” is vague and lacking sufficient factual detail to support the DUI investigation
because she failed to communicate her knowledge of Defendant’s impairment to

Grajewski.

Simmons testified that she advised Grajewski “of the incident” when he arrived on
the scene. Grajewski testified that based on the totality of “everything,” Defendant was

impaired. Specifically, Grajewski stated:

Grajewski: Ultimately from everything that I observed and was
told by Officer Simmons was that [Defendant] was impaired. He

was highly impaired.
State: And is that based on your observations as well?'”
Grajewski: The totality of everything, yes.'3

The facts adduced during the hearing indicate that Defendant was pulled over for a

motor vehicle equipment violation and erratic driving. It is clear from the testimony that

 

12 Id.

13 Id.
Defendant’s odor of alcohol, slurred speech, poor coordination, and red eyes put both

Simmons and Grajewski on notice that he was impaired.

Simmons conveyed information regarding Defendant’s impartment to Grajewski.
Although Grajewski and Simmons never explicitly testified to exactly what information
was conveyed during their exchange, it is clear from the MVR, body camera footage and
their testimony, that Simmons communicated Defendant’s suspected impairment to
Grajewski once he arrived on scene. Grajewski based his opinion on the information that
was conveyed to him by Simmons and on his own observations when he spoke with the
Defendant. Based on these observations, Grajewski had reasonable suspicion to request
Defendant perform field sobriety tests. It is important to note that up until the time
Grajewski made contact with Defendant, he was actually still in the legal custody of
Simmons and that detention was based on her observations of his driving and suspected
impairment. Because of this, the facts in this case are distinguishable from Cooley and
Holmes. This is not a situation where an officer attenuated from the scene and lacking
independent knowledge made the decision to arrest. In this case, there is sufficient
evidence that both officers communicated with each other at the scene and shared
information prior to Defendant being arrested. Grajewski’s decision to initially conduct a
DUI investigation was reasonable based on what he had been advised by Simmons.

Additionally, this case is distinguishable in light of the fact that Grajewski only made his
decision to arrest Defendant after attempting to conduct multiple field sobriety tests in

conjunction with his own observations.

Thus, under the totality of the circumstance, I conclude the arrest of Defendant was

supported by probable cause and the motion to suppress is DENIED.

The Clerk shall schedule the matter for trial forthwith so counsel may make closing

arguments.
IT IS SO ORDERED.

Bradley V. Manning,
Judge

 
