                             SUPERIOR COURT
                                       OF THE

                          STATE OF DELAWARE
Jeffrey J Clark                                                 Kent County Courthouse
Judge                                                              38 The Green
                                                                 Dover, DE 19901
                                                                   302-735-2111
                                 July 24, 2017


Gregory Babowal, DAG                          Gary E. Junge, Esq.
Department of Justice                         Schmittinger & Rodriquez, P.A.
102 West Water Street                         414 South State Street
Dover, DE 19904                               P. O. Box 497
                                              Dover, DE 19903

       RE: IN THE MATTER OF: Omar Holloman - $10,000 in U.S. Currency
           C.A. No. K17M-01-013 JJC

                              Submitted: July 21, 2017
                               Decided: July 24, 2017

Counsel:
           This letter sets forth the Court’s decision, after a bench trial, regarding
Petitioner Omar Holloman’s (hereinafter “Mr. Holloman’s”) petition for return of
property, consisting of $10,000, seized by the Harrington Police Department on
November 1, 2016. The police seized the money from a backpack in his vehicle’s
trunk. Prior to the seizure, a Harrington officer stopped Mr. Holloman for a seat belt
violation. The officer suspected that Mr. Holloman was engaged in drug activity and
accordingly requested that a canine officer come to the scene to screen his car for
drugs. Thereafter, the dog alerted for the presence of drugs. After searching Mr.
Holloman’s car, officers found money, but found no drugs or drug paraphernalia.
An ion scan of the money revealed cocaine residue, thus engendering this forfeiture
action pursuant to 16 Del. C. § 4784.
      The primary dispute at trial was whether the allegedly prolonged detention at
the scene constituted a separate seizure apart from the initial stop for the seat belt
violation. Mr. Holloman argues that United States Constitutional Fourth
Amendment Search and Seizure analysis applies in the context of civil forfeiture
actions and should be considered in this context pursuant to his motion in limine in
the same vein as the Court would consider a motion to suppress in the criminal
setting. The parties identified no Delaware case law examining this issue and the
Court located none.
      In this case, the Court elects not to address Mr. Holloman’s argument that, at
the outset, all evidence in this matter be excluded. The Court declines to do so
because the statute separately and organically provides for a search and seizure
analysis that permits a petitioner to recover seized property if he or she establishes
that a seizure was illegal. The Court finds, after considering all of the evidence
presented at trial, that Mr. Holloman met the statutory burden of demonstrating an
illegal seizure. After considering the evidence presented at trial, the Court also finds
that Mr. Holloman had a lawful possessory interest in the property at issue.
Accordingly, the State must return the $10,000 in seized funds to him.


                                  Findings of Fact
      The Court finds the following facts, presented at trial, to a preponderance of
the evidence. On November 1, 2016, Mr. Holloman drove his Virginia registered
vehicle through Harrington and was stopped by a Harrington officer for not wearing
his seat belt. The officer noticed he was in a Virginia tagged vehicle, and that there
was no luggage in his back seat. Furthermore, the officer asked Mr. Holloman about


                                           2
his destination, and he responded that it was “up the road” but then refused to provide
additional information.
      At that point, the officer returned to his vehicle for a few minutes to run Mr.
Holloman’s information. Upon concluding what, in the officer’s concession, was a
sufficient inquiry to issue the seat belt violation, the officer returned to Mr.
Holloman’s car and told him to exit the vehicle. Mr. Holloman complied but then
the officer and Mr. Holloman argued about the purpose of his continued detention.
The officer informed Mr. Holloman that he had called for a K-9 unit to screen his
vehicle and, in the officer’s words, told Mr. Holloman that he was now being
detained “on my time.”
      Within a few additional minutes, the K-9 unit appeared on site and the dog
alerted twice on the vehicle. A search ensued and revealed no drugs or drug
paraphernalia. Additionally, the State presented no evidence that Mr. Holloman was
charged with any criminal activity other than the seat belt violation.     The police,
however, located $10,000 in cash in a backpack in Mr. Holloman’s trunk.
Thereafter, the Harrington police department transported the cash to a Delaware
National Guard non-commissioned officer who performed an ion scan. The scan
revealed that the money was contaminated with cocaine.
      At trial, Mr. Holloman testified that his mother gave him the money for
purposes of investing in property and that he was in the process of looking for
properties in Philadelphia when the police officer stopped him. His mother also
testified and corroborated his testimony. However, the Court finds that statements
in his petition were somewhat inconsistent because he wrote that he earned the
money through other legitimate means.




                                          3
                      Standards for this Civil Forfeiture Proceeding
          This civil forfeiture matter is governed by the provisions of 16 Del. C. § 4784.
In a civil forfeiture proceeding, the State has the initial burden of proving probable
cause.1 If the State meets this burden, then the burden shifts to the petitioner to rebut
the presumption of forfeiture.2 To rebut this presumption, the petitioner must prove
that (1) he or she has a possessory interest in the property, and (2) the property was
unlawfully seized or was not subject to forfeiture pursuant to this section. 3
          Mr. Holloman incorrectly argues that the “probable cause” burden placed
upon the State refers to the State’s burden to show that there was probable cause for
the search. The probable cause reference, however, as far as the initial burden is
concerned focuses on whether the State has established probable cause, meaning a
fair probability, that one of the itemized purposes for forfeiture outlined in
subsection (a) are met.4         Separately, the reference to “unlawfully seized” in the
portion of the statute placing the burden upon the petitioner to prove an illegal
seizure cannot be reasonably read to reference anything other than an analysis
regarding Fourth Amendment search and seizure law, as well as that of Article I,


1
    Brown v. State, 721 A.2d 1263, 1265 (Del. 1998).
2
    Id.
3
    16 Del. C. § 4784(j).
4
  The Court acknowledges the authority cited by Mr. Holloman regarding the applicability of
search and seizure law, and as a consequence the application of the exclusionary rule regarding
any evidence supporting forfeiture that followed the search. See One 1958 Plymouth Sedan v.
Pennsylvania, 380 U.S. 693, 702 (1965) (holding that the exclusionary rule is applicable to civil
forfeiture proceedings because they are quasi-criminal in nature). The Court, however, declines
to address the issue in the pre-trial context. There is a notable inconsistency regarding search and
seizure analysis in the pre-trial criminal context compared to the requirements of the relevant
statute. Namely, the burden of proof is on the State for a warrantless seizure. On the other hand,
16 Del.C. § 4784(j) squarely places the burden on the petitioner to show that the seizure was
unlawful. For the reasons that follow, Mr. Holloman met the burden placed upon him by the statute
for showing the seizure was unlawful, and therefore, the Court declines to further address the
constitutionality of the statute’s burden shifting.

                                                 4
Section 6 of the Delaware Constitution and other Delaware statutes applicable to
searches and seizures.


                                       Discussion
         At the outset, the Court finds that the State presented sufficient evidence to
meet its initial burden regarding probable cause that the money was subject to
forfeiture because it was found to contain “trace amounts of controlled substances .
. .”5 The State presented expert testimony from the operator of an ion scanner, and
presented a report indicating the same. While Mr. Holloman argued, after his cross-
examination of the expert, that the Court should strike his opinion and report, both
the expert’s testimony and the ion scan report had already been admitted into
evidence without objection. The expert was somewhat unfamiliar with aspects of
the equipment and aspects of the report other than the test’s conclusions. However,
when evaluating probable cause to believe that trace amounts of cocaine were found
on the money, the Court is satisfied that the results of the ion scan establish that there
was at a minimum, probable cause to believe that the money contained trace amounts
of cocaine.
         With regard to the whether Mr. Holloman had a lawful possessory interest in
the property, the Court finds that he has met his burden by a preponderance of the
evidence. The Court acknowledges the partial inconsistency in his testimony
regarding whether the money came from his mother or his various business interests.
Nevertheless, the only testimony regarding its origin came from Mr. Holloman and
his mother. The money was located in a backpack in his car, and that he professed
two overlapping origins for the money, does not lead the Court to conclude anything
other than that he had a lawful possessory interest in the money seized.


5
    16 Del. C. § 4784(a)(7)b.

                                            5
           The central issue in this case involves Mr. Holloman’s argument that the
seizure was unlawful. Primarily, he challenges the length of the stop arguing that it
exceeded the length necessary to conclude a seat belt violation investigation. A
traffic stop by the police is justified where there is a reasonable, articulable suspicion
of criminal activity, and the stop must be reasonable in its scope. 6 Delaware courts
define reasonable, articulable 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 interpretation of those
facts. 7
           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.”8 Accordingly,
“any investigation of the vehicle or its occupants beyond that required to complete
the purpose of the [initial] stop constitutes a separate seizure that must be supported
by independent facts sufficient to justify the additional intrusion.”9
           Here, the parties did not dispute the legality of the initial stop of the vehicle
for a seat belt violation. In evaluating the matter after that point in time, the Court
reviewed the videotape and considered the testimony of the officer. Namely, the
arresting officer testified that he received all the information necessary to issue a


6
    State v. Ward, 2016 WL 4717983, at *2 (Del. Super. Ct. Sept. 8, 2016) (citation omitted).
7
    State v. Chandler, 132 A.3d 133, 141 (Del. Super. Ct. 2016).
8
    Id. at 142.
9
    Caldwell v. State, 780 A.2d 1037, 1047 (Del. 2001).

                                                  6
seat belt violation and then returned to Mr. Holloman’s vehicle. At that point, he
ordered Mr. Holloman out of his vehicle, and detained him for several more minutes,
patted Mr. Holloman down, and then directed him to await the arrival of the K-9
officer. Accordingly, the Court finds that, in this case, the officer measurably
extended the stop beyond that which was necessary to complete the traffic violation
investigation, which violated Mr. Holloman’s constitutional rights.10
       The Court has considered the argument of the State that overlapping
investigations can occur, which, given the right circumstances, can be valid.
Namely, a contemporaneous K-9 screen can be valid if it is done within the time
frame of a valid Title 21 stop. This case, however, turns on the fact that the officer
measurably extended the stop at issue here beyond the time necessary for the officer
to write a seat belt citation. The officer testified that, after leaving his car the second
time, he possessed all the information necessary to write the seat belt citation.
Despite this, he ordered Mr. Holloman out of his car and stated that “you are on my
time.” The officer’s time standard, however, was not in accordance with Federal or
State constitutional requirements unless supported by a reasonable, articulable
suspicion of criminal activity other than the seat belt violation.
       Since the officer measurably extended the stop, for it to be lawful, it must have
been supported by reasonable, articulable suspicion of additional criminal activity.
The State argues that the officer did in fact have reasonable, articulable suspicion to
extend the scope of the investigation and cites the following facts in support of this
argument: Mr. Holloman was (1) vague regarding his destination; (2) his car was
registered in Virginia; and (3) the officer could see no luggage in the passenger
compartment of the car.         No other facts were cited in support of reasonable

10
  See Rodriguez v. United States, 135 S.Ct. 1609, 1612 (2015) (holding that when a traffic stop
exceeds the time ordinarily needed to complete the matter of the stop, it is a constitutional
violation).

                                              7
articulable suspicion of additional criminal activity. In this case, this evidence leads
the Court to conclude that the investigating officer did not have reasonable,
articulable suspicion to extend the stop and instead acted on no more than a hunch.
Mr. Holloman accordingly has met the statutory burden of proving to a
preponderance of the evidence that the stop was unlawful. It therefore follows that
his petition to recover the $10,000 seized in this case should be granted. Mr.
Holloman’s petition is GRANTED, and the State shall return the funds to him as
soon as practicable. Since Mr. Holloman is the prevailing party, costs are awarded
to him as the Petitioner.
      IT IS SO ORDERED.

                                                      /s/Jeffrey J Clark



JJC:jb
Via File & Serve Xpress




                                           8
