IN THE 'COURT OF COMMON PLEAS FOR THE STATE ()F DELAWARE

IN AND FOR NEW CASTLE C()UNTY

STATE OF DELAWARE, )
)
)
V. )
)
) Cr. A.No. 13ll00l403
)
JONATHAN AZOULAY, )
)
)
Defendaiit. )
Submitted: July 23, 2014
Decided: August 20, 2014
Christina M. Kontis John P. Deckers, P.A.
Deputy Attorney General 800 North King Street
820 N. French Street, 7"' Floor Wilmington, DE 19801
Wilmington, DE 19801 Attorneyjbr Dej%ndant

Attorneyfor the State ofDelaware

MEMORANDUM OPINION ON I)EFENDANT’S MOTION TO SUPPRESS

Defendant Jonathan Azoulay ("Azoulay") was arrested on November l, 2013, and was
subsequently charged with the offense of driving under the influence of drugs or alcohol ("DUI
offense") in violation of ZlDeI. C. Section 4l77(a)(1). An investigation ensued, and a blood
sample was drawn from Azoulay. 0n April 14, 2014, Azoulay timely noticed the present Motion
to suppress the blood draw. A hearing on the motion was held on June 4, 2014, with the State
presenting Corporal Peitlock of the Delaware State Police as the sole witness.

FACTS
At the hearing, Corporal Peitlock testified to the following On November l, 2013,

Corporal Peit1ock was on patrol when he observed a blue Ford Econoline drifting in and out of

its lane of travel on Philadelphia Pike. As the vehicle approached Cauffiel Parkway, it suddenly

braked and turned while in the left hand travel lane and failed to signal within 300 feet of making

the tum. Corporal Peitlock activated his emergency lights and pulled the vehicle over before

approaching.

Corporal Peitlock made contact with the driver and identified him as Azoulay.
Additiona.lly, Corporal Peitlock testified that Azoulay’s body was partially out of the vehicle,
and unprompted, stated that he nearly missed his turn. Corporal Peitlock testified that he
instructed Azoulay to remain in the vehicle. Corporal Peitlock detected an odor of "burnt
marijuana" emanating from the vehicle and observed Azoulay as having bloodshot glassy eyes.
Corporal Peitlock asked Azoulay to exit the vehicle. After asking about any illegal items that
Azoulay might have on him, Azoulay responded that he had a knife in his pocket. Corporal
Peitlock placed Azoulay under arrest and searched Azoulay’s vehicle, whereupon he discovered
marijuana.

While Corporal Peitlock was transporting Azoulay back to Troop l, and without
administering any Mz`randa warnings, he asked Azoulay a series of questions about Azoulay’s
marijuana usage.] This resulted in Azoulay admitting to his consumption of marijuana.
following this, Corporal Peitlock stated, “We’re gonna go back to Troop l and when we get
there I’rn gonna do some field sobriety tests on you and then we’ll take it from there." Corporal
Peitlock later said, "I need to check your level of impairment." After arriving at Troop l and
administering field sobriety tests, Corporal Peitlock told Azoulay that he was "going to draw
blood," and then presented the defendant with a consent form, which Azoulay signed. The form

states in relevant part that the person subject to the search has “knowingly and voluntarily given

l The State has admitted that this was in violation of Azoulay’s Mz'randa rights.
2

[hisfher] consent to search without fear, threat, or promise (express or irnplied). . . . [he/she] ha[s]
been advised by Corporal Peitlock that [he/she] ha[s] the right to refuse giving [his/her] consent
to search." Azoulay signed the form at approximately 3:40 AM, roughly an hour and a half after
the arrest.

Azoulay argues that the violation of his Mz`randa rights, along with the authoritative
nature and phrasing of Corporal Peitlock’s statements surrounding the DUI investigation, render
any consent involuntary by reason of coercion and mere acquiescence to authority. Azoulay
contends that, because consent was not voluntarily given, the resultant blood draw was in
violation of his Fourth Amendment rights to be protected against unreasonable searches and
seizures.

The State argues in response that there is no controlling precedent to suggest that consent
obtained subsequent to a lld'iranda violation is necessarily involuntary. The State further argues
that the blood draw is admissible because there was probable cause and because consent meets
the four Cooke factors.

LEGAL STANDARD

Under the United States and Delaware Constitutions, police officers are prohibited from
effecting any search or seizure without consent, a Warrant, or a recognized exception.z

Drawing blood is protected by the Fourth Amendment of the United States constitution,
as well as Article I, Section Six of the Delaware Constitution. lt is well settled that in the absence
of a warrant, blood may only be drawn for the purposes of a DUI investigation when there is

consent or a very narrow set of exceptions.3 When the State relies on consent, the State must

2 U.S. CoNsT. amend IV; DEL. CoNsT. art I, § 6.
3 Mas@ur: v_ M¢Neezy, 133 s.ci. 1552 (2013).

demonstrate that consent was voluntary.4 To determine whether consent was voluntarily given,
Delaware courts examine four factors under the totality of the circumstances: (l) defendant's
knowledge of the constitutional right to refuse consent; (2) defendant's age, intelligence,
education, and language ability; (3) the degree to which the individual cooperates with police;
and (4) the length of detention and the nature of questioning, including the use of physical
punishment or other coercive police behavior.s This analysis also includes examining whether
there were any "subtly coercive" elements to the police contact prior to the defendant giving
consent.é

The Superior Court has left undecided whether consent obtained following a Ad'iranda
violation is necessarily involuntary as a matter of iaw.? There is no other precedent directly on
point from Delaware courts. However, the United States Supreme Court held that a coerced
statement in violation of Miranda does not create a per se bar against the admission of non-
testimonial evidence resulting from that statements The Court has also held that blood samples
do not provide the State with evidence of a testimonial or communicative nature.g Additionally,
in Patane, the Court held that the subject matter of Mz`randa concerns the Self-Incrimination
Clause of the Fifth Amendment, which provides protection from "making unwarned statements”
to the police, not fruits of the unwarned statement.'o introduction of the non-testimonial fruit of
a voluntary statement...does not implicate the [Self-Incrimination] Clause.l' The Pm‘ane Court

declined to extend Fifth Amendment protection beyond the presumption that statements taken

4 Schneckloth v. Busramonte, 412 U.S. 218 (1973).

5 cooke v. smze, 977 A.zd 303 (oei. 2009).

6 stare v. Harra, 642 A.zd 1242 (Dei. 1993).

’ stare v. coram 2001 WL 1729143 (Del. super. Nov. 29, 2001).
3 us v. Pazane, 542 U.s. 630 (2004).

" schmerber v. carzf@rnza, 334 U.s. 757, 761 (1966).

‘° Parane, 542 U.s. 630 (2004).

“ra. a 643.

without sufficient Mz'randa warnings have been coerced only for certain purposes, and exclusion
of the physical fruit of those coerced statements will occur only when necessary to protect the
privilege against self-incrimination.lz Thus, a failure to give a suspect Miranda warnings does
not require suppression of the physical fruits of the suspect's unwarned but voluntary
statements ‘3
I)ISCUSSION

As stated above, concerning the admissibility of the blood sample, the law is well settled
by the United States Supreme Court that a failure to give a suspect ]Llr`randa warnings under the
Fifth Amendment does not require suppression of the physical fruits of the suspect's unwamed
but voluntary statements under the fourth Amendment." As discussed in Patane, the Fifth
Amendment’s Self-lncrimination Clause "contains its own exclusionary rule that automatically
protects those subjected to coercive police interrogations from the use of their involuntary
statements;[t]his explicit textual protection supports a strong presumption against expanding the

Mz`randa rule any further."l§

In Patane, after the defendant was arrested for violating a
restraining order, defective Miranda warnings were given.lé The arresting officer questioned the
defendant about the location of a firearm he was previously in possession of, and after some
initial resistance by the defendant, he admitted that the firearm was in his bedroom.n The

defendant then gave consent to the arresting officer to enter and retrieve the pistol.ls The Court

held that although the statement was coerced and thus inadmissible, it did not prevent the

'2 1a ar 641.
l$ld
"‘ra.
‘Sra. ar 639.
‘6 1a 31635.
" 1a
" rd.

introduction of the weapon against the defendant in the prosecution’s case-in-chief.lg The instant
case is analogous to Patane because in this case, Azoulay was arrested and interrogated without
the administration of Mz`randa warnings. He admitted to his consumption of marijuana, and just
as the defendant in Patane gave the arresting officer his consent to retrieve the pistol, Azoulay
gave consent to the blood sample

Furthermore, as Schmerber indicates, blood samples are non-testimonial statements, and
consequently do not trigger the Filih Amendment Self-lncrimination Clause.zo Under these facts,
it is clear that the blood sample, as non-testimonial, tangible evidence, is adrnissible, provided
that Azoulay’s consent was both voluntary and valid.

Turning to the issue of whether consent was validly and voluntarily given, under the
first Cooke factor, in determining the depth of the knowledge held by the defendant of his
Constitutional rights, the consent form does state that Azoulay has been informed of his right to
refuse. While the Mz`randa violations might weaken this element, these two issues are not so
closely related that a lack of proper advisement on Constitutional rights for one issue overrides
the advisement of such rights on the other.

On the second factor, pertaining to age, intelligence, education, and language ability,
there is not any evidence that suggests an issue for Azoulay. The brief accompanying this
Motion does not assert any such deficiency or difficulty, and as such there is no basis to find any
such deficiency.

Next, looking at the degree of cooperation given to the police, the testimony of Corporal

Peitlock suggests that Azoulay was cooperative. When asked about any illegal items he had in

‘9 1a ar 630.
10 schmerber, 334 U.s. 757, 761 (1966).

his possession, Azoulay admitted to having a knife. There is no indication that he was
argurnentative, disruptive, or anything else to suggest a lack of cooperation.

O`n the fourth .faetor, regarding length of detention, nature of questioning, or other

coercive police behavior,-the statements made by Corporal Peitlock to Azoulay possess a tenor

“of authority; howeve_r, given the totality of the circumstances, they appear more conversational

than authoritative. There was no command to sign the consent form,.no threat of action if he

failed to_do so, and nothing to suggest even subtle coercion on the part of the officer.

. Furthennore, the length of time was exceedingly short, and the consent came after Azoulay

admitted to marijuana usage. lt is conceivable that, faced with his prior admission, Azoulay
would see no reason to withhold consent, and thus agree to the search of his own free will.
CONCLUSION
For the above reasons, the State has proved by a preponderance of the evidence that

Azoulay’s consent to the blood draw was voluntarily given and that Azoulay’s Constitutional
rights were not violated. Accordingly, Defendant’s Motion to Suppress is hereby DENIED.

IT IS SO ORDERED THISQO DAY OF AUGUST 2014.

\l'

e`flo o he Carl C. D berg,
Ju ge

