. IN THE COURT OF COMMON PLEAS FOR THE STA'I`E OF DELAWARE
` IN-AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,
v.
ALEXANDER L. MURRAY ,

Defendant.

Submitted:

Decided:

Danielle J. Brennan
Deputy Attorney General
820 N. French srreei, 7“‘ Fioor
Wilrnington, DE 19801
Attorney for the State of Delcrware

Case No. 1306022016

\.J\q.d\_/\.y'\/‘~J\./

July 24, 2014
August 22, 2014

James M. Stil1er, Jr.
Schwartz & SchWartz
1140 South State Street
Dover, DE 19901
Attorney for Defendant

OPINION AND ORDER ON L)EFENDANT’S MOTION TO SUPPRESS

On June 24, 2013, Defendant Alexander L. Murray (hereinai°cer "Defendant") was arrested
and charged with Driving Under the influence of Alcohol pursuant to 21 Del. C. § 4177 and with
Fai1ure to have Insurance Identification in Possession pursuant to 21 Del C. § 21 18. 0n October 2,
2013, Defendant timely filed a Motion to Suppress all evidence gathered subsequent to the initial
stop on the basis that the arresting officer lacked both reasonable articulable suspicion for the stop

and probable cause for the arrest. The Court held a hearing on the Motion on April 17, 2014, and

reserved decision. This is the Court’s decision on Defendant’s Motion.

- `- FACTS AND PR()CE_DURAL HIS'I`ORY' '
The State’s sole witness at the hearing  Trooper Kevin Backer (“Trooper Backer") of the
Delaware State Police. The following are the facts as the Court finds them. 0n June 24, 2013, at

approximately 8:55 p.m., Trooper Backer was directing traffic and had closed off a turn lane by

parking his marked patrol car in the lane. .Trooper_ Backer activated his emergency lights, and

placed multiple flares in the lane. As Trooper Backer was moving to replace some of the flares, a
2010 Volkswagen drove into the closed turn lane and came to a sudden stop. Trooper Backer
approached the vehicle and identified the driver as Defendant, who stated, "Sorry, I f----d up."
Trooper Backer immediately detected a strong odor of alcohol coming from Defendant, and noticed
that Defendant had bloodshot, glassy eyes and a flushed face. Trooper Backer directed Defendant
to pull into the nearby Exxon gas station, because there was heavy traffic on the street.

Once at the station, Trooper Backer instructed Defendant to exit the vehicle. Defendant
used his vehicle door for balance, but otherwise complied with instructions Trooper Backer had
Defendant perform multiple field sobriety tests, beginning with an alphabet test. Defendant recited
the letters quickly and was swaying during the test, but Trooper Backer did not notice any other
issues with his performance N-ext, Trooper Backer administered a counting test, instructing
Defendant to count backward from 68 to 53. Defendant skipped 61 and 60, counted to 50, and then

stated the number 48. Following that test, Trooper Backer administered the one-leg stand and walk-

and-tum tests. Trooper Backer noticed that Defendant had significant balance issues and performed

poorly on both tests. At the conclusion of the tests, Trooper Backer took Defendant to the police

station. 1

1 AlthoughvDefendant’s post-hearing brief references an intoxilyzer test, which is impliedly one
element of the present Motion, there was no testimony elicited at the hearing pertaining to any
events following the field sobriety tests.

2

rational inferences from those facts', reasonable warrants the intrusion."

`LEGAL STANDARD
 ~ On. a Motion to Suppress, the State bears the burden to prove the legality and the
reasonableness of .the underlying stop and subsequent arrest by a preponderance of the cvidence.z

To justify an initial stop, a police officer must have a reasonable articulable suspicion that the

defendant "is comrnitting, has cornmitted, or is about to 'commit.a crime.\”3 "Reasonable suspicion '

is-defined'as the 'officer’s ‘ability to point to specificand articulable facts, which taken together with
14 l

In order to arrest an individual, a police officer must be able to demonstrate probable cause,
which exists in the totality of the circumstance in accordance with the experience and training of the
arresting officer.s "An officer has probable cause when he has information which would cause a

reasonable person to believe that such a crime has taken place."°

DISCUSSION

REASONABLE ARTICULABLE Susr>icrou
An officer who witnesses a traffic violation has met the threshold for a finding of reasonable
articulable suspicion."' "A traffic violation combined with odor of alcohol does not alone constitute
probable cause to arrest for DUI, but may amount to reasonable suspicion of DUI and justify a

request to perform [field] tests."s ln this matter, Defendant entered into a lane that had been clearly

2 State v. Anderson, 2010 WL 4056130 at *3 (Del. Super. Oct. 14, 2010).

3 State v. Babb, 2012 WL 2152080 at *2 (Del. Super. Jun. 13, 2012).

4 Id. (citing Holden v. State, 23 A.3d 843, 847 (Del. 201l)(quoting State v. Henderson, 892 A.2d

1061, 1064-65 O)el. 2006)).

5 Miz.'er v. Srare, 4 A.sd 371 (Del. 2010).

6 Evon v. State, 1999 WL 743435, at *3 (Del. Super. Jul. 26, 1999).

’ Bmwn v. srare, 2009 WL 659070 (Del. Super. Mar. 13, 2009). -

8 Mulholland, 2013 WL 3131642, at *4 (Del. Com. Pl. June 14, 201~3); see Lefebvre v. State, 19

A.3d 287, 293 (Del. 2011). - '
- 3

closed to trafl‘ic. Trooper Backer, as a result, app`roached»the vehiole'and detected a strong odor of

alcohol emanating from Defendant. .` Although Defendant argues that Trooper Backer could not

discem the odor of alcohol in the presence of heavy,~slow-moving traffic, the Court disagrees.g- The _ t

State has therefore demonstrated that 'l`roope`r.Backer had the necessary reasonable articulable
suspicion to perforrna traffic~stop and subsequent DUI investigation. ;
PRosnBLE CIJ.AuSE

- In his Motion, Defendant contends that the Court should not give weight to certain factors
when determining whether probable cause existed. The Court will review each of Defendant’s
contentions in turn.

Defendant first argues that the Court cannot consider his erratic driving as a factor in the
Court’s probable cause analysis because Defendant’s driving was merely a mistake. The Court
disagrees and finds that Defendant’s inability to recognize a lane closure marked by emergency
lights on Trooper Backer’s vehicle and flares is a factor to be given weight.

Second, Defendant contends that Trooper Backer could not have detected a strong odor of
alcohol while surrounded by the exhaust emitted by a large quantity of slow-moving vehicles. The
Court does not find this argument persuasive and will thus give weight to Trooper Backer’s
detection of a strong odor of alcohol.

Next, Defendant argues that the Court should not give weight to-his bloodshot and glassy

eyes because Defendant made contact with Trooper Backer at 8:55 p.m., and under Mulholland,

9 Ir1 his closing argument, defense counsel admitted that if the Court finds that Trooper Backer was
able to detect a strong odor of alcohol, then reasonable articulable suspicion has been met. "If the
Court determines that Backer did actually and correctly smell the strong odor of an alcoholic
beverage'on Defendant’s breath upon first encountering him, Defense acknowledges that that factor a
alone would have established RAS to investigate Defendant for DUI."t. Def. Br. p 3.
. 4

"bloodshot eyes at midnight” do not support a finding of probable cause.w While bloodshot eyes on
their own may simply indicate a lack of sleep or other innocent factors, the police and the Court are
not required to disregard the condition of Defendant’s eyes just because it may be nighttime. The
Court will therefore give weight to this factor.

The Court will give weight to Defendant’s speech. Defendant’s speech was slurred and it
was rapid when he was attempting to complete the alphabet test. The Court will also give weight to
Defendant’s failure to maintain his balance when he got out of his vehicle and when he participated
in the field tests.

With respect to Defendant’s performance on the counting, walk-and-turn, and one-leg stand
tests, the Court will consider the results in its probable cause analysis. The Court will also consider
Defendant’s passing performance on the alphabet test. Whether the results of the tests may be
entered into evidence at trial is not at issue in this Motion.“

The Court will therefore consider the following factors, within the totality of the
circumstances, to determine whether Trooper Backer had probable cause to obtain a breath sample
to determine Defendant’s blood alcohol during his arrest for DUI: 1) erratic driving; 2) strong odor
of alcohol; 3) bloodshot, glassy eyes; 4) rapid and slurred speech; 5) lack of balance; and 6)

performances on the alphabet, counting, walk~and-tum, and one-leg stand tests.

10 Mulholland, 2013 WL 3131642, at *5.

ll When testifying, Trooper Backer had significant difficulties recounting the clues and the
scientific percentages associated with the clues. His testimony also indicates that he did not follow
all NHTSA standards for administering these tests. See State v. Lanouette, 2012 WL 4857820, at
*8 (Del. Com. Pl. Aug. 27, 2012) ("While the Court recognizes that there may be deficiencies in the
way Corporal Lafate either performed the tests or recalled in his testimony how the tests were
perforrned, the Court finds that these deficiencies are not enough to disqualify the tests’ results from
consideration in the probable cause deterrnination"); see State v. Minfstero, 2006 WL 3844201, at
*2 (Del. Com. Pl. Dec. 21, 2006).

5

_' .»Alone, the factors _do not` amount to `~probable causey but`under the' totality -- of'-the 1 t

circumstances, the six factors combined with Trooper Backer’s experience, observations; and

training, provided sufficient support for a finding of probable cause in this matter.m

t CONCLUSION ~

For the forgoing reasons, I find that the State has proved,~'by' a preponderance ~of -'the

-evidence, that Trooper Backer had reasonable articulable suspicion to stop Defendant and that

Trooper Backer furthermore had probable cause to obtain a breath sample and to arrest Defendant.

Accordingly, Defendant’s Motion to Suppress is DENIED.

IT IS SO ORDERED THIS 22'"1 DAY OF AUGUST 2014.

w rey s»<¢
Th onorab CarlC.Danberg,
Jud c

12 The Court reviewed other decisions relating to probable cause for a DUI offense, and determined
that the factors present here fall within the boundaries of a finding of probable cause. See, e.g.,
Miller v. State, 4 A.3d 371,, 374-75 (Del. 2010) (probable cause existed where there was an odor of
alcohol, glassy and watery_ eyes, failed walk-and-turn and one-leg stand tests, and defendant
admitted to drinking); Bease v. State, 884 A.2d 495, 498 (Del. 2005) (Court found probable cause 8
with factors such as failure on the alphabet test, traffic violation, odor of alcohol, rapid speech,
admission to drinking, and bloodshot and glassy eyes); State v. Lanouerre, 212 WL 4857820, at *9

(Del. Com. Pl. Aug. 27, 2012) (probable cause existed when there was a traffic violation, bloodshot

and glassy eyes, an odor.vof alcohol, an admission to drinking, and failed field tests. t
6 v

