      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
               IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE                      )
                                       )
                                       )
         v.                            )         Case No.1310011475
                                       )
KIMBERLY S. MAUK,                      )
                                       )
                  Defendant.           )

                                   OPINION


                        Date Submitted: June 27, 2014
                       Date Decided: September 29, 2014

                  Upon Defendant’s Motion to Bar Statements
                 Procured in Violation of Miranda: DENIED
                Upon Defendant’s Motion to Suppress: DENIED

Edmund Daniel Lyons, Esquire, 1526 Gilpin Ave, Wilmington DE 19806, for
Defendant.

Barzilai K. Axelrod, Esquire, Deputy Attorney General, Department of Justice,
Carvel State Office Building, 820 N. French Street, Wilmington, DE 19801, for the
State of Delaware




JURDEN, J.
                                    I. INTRODUCTION

         Defendant Kimberly Mauk is charged with Driving a Vehicle while Under

the Influence of Alcohol (“DUI”), two counts of Vehicular Assault First Degree,

two counts of Vehicular Assault Second Degree, and Driving a Vehicle While

License is Suspended or Revoked, relating to a two-vehicle collision that occurred

on October 18, 2013. Mauk has filed a motion to suppress certain statements she

made to the chief investigating officer and a motion to suppress the results of a

blood test taken at the hospital. For the reasons stated below, Mauk’s motions to

suppress are DENIED.


                                          II. FACTS

         On October 18, 2013, at approximately 6:49 p.m., Delaware State Trooper

Cpl. Scott Mauchin (“Cpl. Mauchin”) was dispatched to a two-vehicle collision at

the intersection of Concord Pike and Fairfax Boulevard in New Castle County

Delaware.1 When Cpl. Mauchin arrived at the scene around 7:18 p.m., emergency

medical technicians, fire department personnel, and two other Delaware State

Troopers were already at the scene. 2 Mauk was the only occupant in her vehicle

and the second vehicle contained a family of four, including two adults and two


1
    Transcript of March 14, 2014 Suppression Hearing at 9–10 (No. 43) (“Tran.”).
2
    Id. at 11–12, 13–14.

                                                 1
children. 3 All of the occupants of both vehicles were transported to Christiana

Hospital by ambulance before Cpl. Mauchin had the chance to speak with any of

them. 4     According to three independent witnesses at the scene, the accident

occurred when Mauk made a left turn across oncoming traffic. 5 A second trooper

at the scene advised Cpl. Mauchin that he had approached Mauk’s vehicle and

could smell alcoholic beverages coming from the front compartment area of the

vehicle.6

       Cpl. Mauchin left the accident scene and went to the hospital, where he

arrived between 8:05 p.m. and 8:10 p.m.. 7 Upon arrival, after securing permission

from Mauk’s treating nurse, 8 Cpl. Mauchin made contact with Mauk to make his

own assessment of her and to determine what happened at the collision scene.9

When Cpl. Mauchin entered Mauk’s hospital room, she was on a gurney with two

IV lines in her arms. 10 The only other person in the room was Nurse Mary

Kathleen Fillingame (“Nurse Fillingame”). 11 Mauk had been administered 0.5

milligrams of Dilaudid, a narcotic pain medication.12 Nurse Fillingame, who


3
  Id. at 18.
4
  Id. at 14.
5
  Id. at 16.
6
  Id. at 15.
7
  Id. at 16–17.
8
  Id. at 65.
9
  Id. at 19–20.
10
   Id. at 20.
11
   Id.
12
   Id. at 113.

                                        2
administered the Dilaudid, testified that 0.5 milligrams is a “very small [dose] for

an adult.”13

        When Cpl. Mauchin began to discuss the accident with Mauk, he noticed

that Mauk was groggy and her speech was slurred and slow, but her eyes were not

dilated or glassy. 14 While talking to Mauk, Cpl. Mauchin also detected a moderate

odor of alcoholic beverage on her breath from about two feet away. 15

        When Cpl. Mauchin asked Mauk what happened, she stated that she was

turning left on a green light and was hit. 16 Cpl Mauchin asked Mauk if she had

consumed any alcohol prior to the collision and Mauk initially said “no.” 17 Upon

being informed that he could smell an odor of alcohol on her breath, Mauk said

“not recently,” and then said that she had two beers at Seasons Pizza.18 Cpl.

Mauchin was familiar with the area, and knew that Seasons Pizza was a few miles

north of where the collision occurred. 19

        At this point, Cpl. Mauchin informed Mauk that he suspected that she was

driving under the influence and wanted to acquire a blood sample from her. 20 Cpl.

Mauchin explained to Mauk that the hospital had an Authorization For Specimen

13
   Id. at 145.
14
   Id. at 21–22.
15
   Id. at 22–23.
16
   Id. at 21.
17
   Id. at 23.
18
   Id. at 23–24.
19
   Id. at 24.
20
   Id. at 25.

                                            3
Acquisition form21 (“Consent Form”) that she “needed to sign . . . in order for one

of the hospital staff to withdraw blood, but that she could refuse it.”22 Cpl.

Mauchin told Mauk that the “alternative to refusing” was that he would obtain a

search warrant. 23

       While Cpl. Mauchin was discussing the Consent Form with Mauk, Chris

Belair, Mauk’s significant other and father of her children, arrived along with their

two children. 24 According to Cpl. Mauchin, he and Belair discussed the situation

outside of Mauk’s hospital room. 25 During their conversation, Cpl. Mauchin stated

that he “had every intention of leaving there with a blood sample.”26 Contrary to

Belair’s testimony, Cpl. Mauchin denied telling Belair that if Mauk did not

consent, “the penalties would be higher.”27

       Following his conversation with Cpl. Mauchin, Belair and Mauk’s children

went into Mauk’s hospital room and Cpl. Mauchin remained outside.28 After a few

minutes, Belair stepped out of Mauk’s hospital room and told Cpl. Mauchin that

“she’ll give you consent.”29 Cpl. Mauchin then entered the room, and Mauk


21
   Joint Exhibit at 12–13.
22
   Id.
23
   Id.
24
   Id. at 26–27.
25
   Id.
26
   Id. at 28.
27
   Id. at 79.
28
   Id. at 28–30.
29
   Id. at 30.

                                         4
signed the Consent Form at 8:51 p.m. 30 By signing the form, Mauk gave

“permission to Christiana Care Health Services to take [blood] . . . for police

purposes.”31 The Consent Form provided that the test was “blood alcohol

determination” and the purpose was “driving under the influence.” 32 In addition to

Mauk, two hospital nurses signed the form as well. 33 At no point in this process

was Mauk handcuffed. 34

       After she signed the Consent Form but before her blood was drawn, Mauk

asked whether the driver of the second vehicle would be giving a blood sample.35

Cpl. Mauchin responded in the negative and explained that the second driver was

not suspected of driving under the influence. 36 Upon hearing this, Mauk became

upset and agitated.37 Cpl. Mauchin advised Mauk that he was aware of Mauk’s

prior DUI’s and she yelled back, “they had nothing to do with this!”38 At no time

during or after this conversation did Mauk withdraw her consent. 39




30
   Id. at 32–33. See Joint Exhibit at 12–13.
31
   Id. at 31–32, 82–83. See Joint Exhibit at 12–13.
32
   Id. at 32.
33
   Id.
34
   Id. at 33.
35
   Id. at 35–36.
36
   Id.
37
   Id. at 97.
38
   Id.
39
   Id. at 56.

                                                 5
       When Nurse Fillingame was unable to draw Mauk’s blood, she called a

phlebotomist who successfully drew Mauk’s blood at 9:10 p.m.. 40 Cpl. Mauchin

noted that Mauk’s demeanor and composure during the blood draw was the same

as it had been prior to the blood draw— Mauk was “lying on the gurney and

seemed relaxed.” 41 Nurse Fillingame testified that had Mauk not provided consent,

she would not have drawn blood. 42 According to Cpl. Mauchin, his interaction with

Mauk at the hospital lasted approximately 35 minutes from first contact to a few

minutes after the blood draw. 43

       After the blood draw, Cpl. Mauchin spent approximately two hours checking

up on the occupants of the other vehicle. Cpl Mauchin said that the purpose of this

part of his investigation was to assess the extent of their injuries and to determine

their vantage point as to the events that had transpired. 44 Cpl. Mauchin noted that

the driver of the second vehicle was conscious, alert, and showed no signs of being

under the influence of any type of alcohol or drug. 45

       Mauk was arrested on October 20, 2013, upon her release from the

hospital. 46


40
   Id. at 53.
41
   Id. at 36.
42
   Id. at 138–39.
43
   Id. at 37.
44
   Id. at 40–42.
45
   Id.
46
   Id. at 38.

                                          6
                            III. STANDARD OF REVIEW

       On a motion to suppress evidence seized during a warrantless search or

seizure, the State bears the burden of “establishing that the challenged search or

seizure comported with the rights guaranteed to . . . [the defendant] by the United

States Constitution, the Delaware Constitution, and Delaware Statutory law.” 47

“The burden of proof on a motion to suppress is proof by a preponderance of the

evidence.”48

                           IV. PARTIES’ CONTENTIONS

       Mauk filed two motions in connection with her October 20, 2013 arrest.

First, Mauk filed a motion to exclude the statements she made to Cpl. Mauchin at

the hospital. Mauk argues that these statements were obtained in violation of

Miranda 49 because she was subject to custodial interrogation but was never

advised of her Miranda rights. The State argues that Mauk was not in custody at

the hospital because routine accident investigation at the scene or at the hospital

does not constitute custodial interrogation.

       Second, Mauk moved to suppress the results of Mauk’s blood testing

conducted at the hospital, arguing that the blood draw was an impermissible search

in violation of the Fourth Amendment of the U.S. Constitution, and Article 1,

47
   State v. Iverson, 2011 WL 1205242, at *3 (Del. Super. 2011) (citing Hunter v. State, 783 A.2d
558, 560–61 (Del. 2001)).
48
   Id.
49
   Miranda v. Arizona, 384 U.S. 436 (1966).

                                               7
Sections 6 and 7 of the Delaware Constitution because there was no warrant or

probable cause. Mauk argues that her consent was not voluntarily given because

she was under the influence of both alcohol and pain medication at the time she

signed the Consent Form and during the blood draw itself. Mauk also argues that

Cpl. Mauchin coerced her into consenting to the blood draw by threatening to get a

warrant if she did not consent.

                                     V. DISCUSSION

1. Admissibility Of Mauk’s Statements

       Miranda warnings are only required when a suspect is both in custody and

subject to interrogation by a State agent. 50 A law enforcement officer becomes

obligated to administer Miranda warnings “only where there has been such a

restriction on a person's freedom as to render him in custody.” 51 The legal standard

used to determine custody is “whether there is a formal arrest or restraint on

freedom of movement of the degree associated with a formal arrest.” 52 “When

determining whether an interrogation has occurred in a custodial setting . . . the

court must review the totality of the circumstances surrounding the interrogation

by applying an objective, reasonable person standard.” 53


50
   Illinois v. Perkins, 496 U.S. 292, 297 (1990).
51
   Stansbury v. California, 511 U.S. 318, 322 (1994).
52
   California v. Beheler, 463 U.S. 1121, 1125 (1983).
53
   DeJesus v. State, 655 A.2d 1180, 1190 (Del. 1995) (citing Marine v. State, 607 A.2d 1185,
1193 (Del. 1992)). See also Stansbury, 511 U.S. at 323 (“Our decisions make clear that the initial

                                                8
       Here, the Court must examine the totality of the circumstances to determine

whether Mauk was subject to custodial interrogation at the hospital. This Court has

held that, “[i]nvestigation at the scene immediately following an accident is

considered routine, initial investigation, even where questioning occurs at the

hospital.” 54 However, there is no per se “hospital rule” in a custody inquiry

because each case must be determined on a case-by-case basis.55


       In DeJesus v. State, investigating officers went to the emergency room to

speak to the defendant who was being treated for a stab wound. 56 The defendant

was “lying on a hospital gurney and appeared to be in great pain,” when an

investigating officer asked the defendant what had happened. 57 After eliciting an

incriminating statement, the defendant was then provided an incomplete recitation

of his Miranda rights. The defendant contended that he was in custody during the

interview at the hospital because he was not free to leave the hospital at any time. 58

The Delaware Supreme Court concluded that:



determination of custody depends on the objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or the person being questioned.”).
54
   Fuentes v. State, 2002 WL 32071656, *2 (Del. Super. 2002); Hammond v. State, 569 A.2d 81
(Del. 1989); Laury v. State, 260 A.2d 907, 908 (Del. 1969). In Hammond, on an appeal following
a conviction of vehicular homicide, the Delaware Supreme Court held that statements made by a
hospitalized defendant to police who were primarily concerned with identifying the victims were
not custodial in nature. Hammond, 569 A.2d at 94.
55
   DeJesus, 655 A.2d at 1191.
56
   Id. at 1186–87.
57
   Id. at 1187.
58
   Id. at 1190.

                                               9
       [w]hile [the defendant’s] freedom of movement was undoubtedly
       restricted throughout his hospitalization, his confinement was caused
       by his own physical incapacity—not police compulsion. At no time
       did the police attempt to physically restrain [the defendant]: he was
       not handcuffed, nor did the police guard his hospital room to prevent
       his escape. Further, the detectives did not impede [the defendant’s]
       release from the hospital. Rather, [the defendant] left on his own
       accord.59

       In State v. Pustolski, a vehicular fatality case, the defendant was transported

to the hospital by ambulance. 60 At the hospital and after the defendant was

prescribed pain medication, the investigating officer spoke to the defendant

without a recitation of the defendant’s Miranda rights.61 The treating nurse also

obtained a sample of the defendant’s blood after the defendant signed a hospital

consent form that noted that the defendant was under arrest. 62 The Court held that

the defendant was not subject to custodial interrogation because the defendant was

not restrained in handcuffs, the defendant was unable to leave as a result of her

medical condition and not police custody, and the officers’ conversation was part

of the reconstruction unit’s investigation.63 Additionally, the Court concluded that

the language on the hospital consent form stating that the defendant was under




59
   Id. at 1191.
60
   State v. Pustolski, No. 0903005777, slip op. at 2 (Del. Super. Ct. Nov. 30, 2009).
61
   Id. at 7.
62
   Id. at 9–10.
63
   Id. at 16–18.

                                                10
arrest was not determinative of custody status, but merely “a fact that the totality of

circumstances suggests the contrary.” 64

          Here, similar to DeJesus and Pustolski, the totality of the circumstances

indicates that Mauk was not formally arrested and any confinement was caused by

her own physical incapacity, not police compulsion. Cpl. Mauchin was unable to

obtain statements at the collision scene because all of the persons involved were

being treated by medical personnel and were transported to the hospital by

ambulance. Upon arriving at the hospital, after first securing permission from

Mauk’s treating nurse, Cpl. Mauchin made contact with Mauk to make his own

assessment of Mauk and to determine what happened at the collision scene. Cpl.

Mauchin was the only trooper present in the hospital room and Mauk’s significant

other and children freely moved throughout the area. There were times when Cpl.

Mauchin left the Mauk’s vicinity and did not stand on guard at Mauk’s door.

Mauk’s freedom was only restricted by her medical condition, and not by

handcuffs or any other police restraint.

          Mauk argues that Cpl. Mauchin’s testimony that if Mauk had attempted to

leave the hospital he probably would not have let her leave before he obtained her

blood sample, demonstrates that Mauk was subject to custodial interrogation.65 A

determination of custody depends on objective circumstances of the interrogation,

64
     Id. at 16.
65
     Tran. at 54.

                                           11
not the subjective views harbored by the police officer. 66 There is no evidence that

Mauk could reasonably believe her freedom or action or movement was restricted

during Mauk’s limited questioning with Cpl. Mauchin.

2. Admissibility Of The Results Of Mauk’s Blood Test

       Mauk claims that the blood draw violated the Fourth Amendment because

there was no probable cause or warrant.

       The Fourth Amendment of the United States Constitution and Delaware

Constitution protects against “unreasonable searches and seizures.” 67 A warrantless

search is deemed unreasonable unless that search falls within a recognized

exception.68 If a search proceeds without a warrant, the State must prove by a

preponderance of evidence that the search fell within an established exception to

the warrant requirement.69 A compelled physical intrusion beneath the skin to

obtain a blood sample for use as evidence in a criminal investigation is considered

a search.”70




66
   Stansbury, 511 U.S. at 323.
67
   U.S. CONST. amend. IV; Del. CONST. art. I, § 6.
68
   Katz v. United States, 389 U.S. 347, 357 (1967); Schneckloth v. Bustamonte, 412 U.S. 218, 219
(1973); Higgins v. State, 89 A.3d 477, *2 (Del. 2014).
69
   Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013); Schneckloth, 412 U.S. at 222; Scott v. State,
672 A.2d 550, 552 (Del. 1996).
70
   McNeely, 133 S. Ct. at 1558.

                                               12
       One recognized exception to a warrantless search is a search conducted with

a person's voluntary consent. 71 “To be deemed ‘voluntary,’ consent need not be

‘knowing and intelligent,’ but it cannot be the product of coercion by threat or

force.”72

       To determine whether consent was given voluntarily, the Court must

examine “the totality of the circumstances surrounding the consent” including: (1)

knowledge of the constitutional right to refuse consent; (2) 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. 73

       It is undisputed that Mauk signed the Consent Form to have her blood

drawn. Mauk argues that her ability to consent was hampered because was under

the influence of both alcohol and the pain medication at the time the Consent Form

was signed and during the blood draw. She further claims that Cpl. Mauchin

coerced her into consenting to the blood draw by threatening to get a warrant if she

did not consent.

       Here, the totality of the circumstances establishes that Mauk voluntarily

consented to the blood draw. Cpl. Mauchin explained to Mauk that she could either

71
   Schneckloth, 412 U.S. at 221–22; Scott, 672 A.2d at 552; Higgins, 89 A.3d at *2.
72
   Higgins, 89 A.3d at *2 (quoting Schneckloth, 412 U.S. at 241, 233).
73
   Cooke v. State, 977 A.2d 803, 855 (Del.2009).

                                               13
consent to the blood draw or he could obtain a search warrant to do so. Outside the

presence of Cpl. Mauchin, Mauk had the opportunity to discuss the Consent Form

with her significant other. The language of the Consent Form makes clear that she

was providing consent for police purposes. Neither Mauk’s age, intelligence, nor

education precluded her voluntary consent. In fact, given Mauk’s previous DUI

convictions, she was not “an ignorant newcomer to the law.”74

       During Cpl. Mauchin’s discussions with Mauk, she was cooperative.

Although Mauk became upset when she learned that the other vehicle driver was

not going to have his blood drawn, Mauk never withdrew consent and remained

relaxed during the blood draw.75 Cpl. Mauchin estimated that his interaction with

Mauk lasted approximately 35 minutes from first contact to a few minutes after the

blood draw. During this time, Mauk was not handcuffed and Cpl. Mauchin was the

only trooper present.

       Under Delaware law, “‘[t]he mere fact that one has taken drugs does not

render consent involuntary,’ nor does intoxication ‘render a confession

involuntary.’” 76 “[T]he use of drugs is just one factor the court must consider while

looking at the totality of the circumstances to decide if a statement is ‘the product



74
   See Higgins, 89 A.3d at *2 (explaining that the defendant who had previously been arrested for
a similar offense was not a newcomer to the law).
75
   Id.
76
   Pustolski, No. 0903005777, slip op. at 19 (quoting State v. Caldwell, 2007 WL 1748663, *3
(Del. Super. May 17, 2007)).

                                               14
of an essentially free and unconstrained choice.’” 77 The relevant inquiry is whether

the person consenting “knew what she was doing and had a reasonable

appreciation of the nature and significance of his or her actions.”78


       The record indicates that Mauk “seemed to be groggy,” but understood and

was able to answer the questions posed to her. Cpl. Mauchin asked Mauk a series

of questions relating to the collision and Mauk was able to tell Cpl. Mauchin that

she was turning left on a solid green light and was hit. Mauk also recalled the

events leading up to the collision. The fact that she was concerned that the other

driver’s blood was not being drawn indicates that she understood the meaning and

implications of her own consent.

       With regard to Mauk’s argument that Cpl. Mauchin coerced her into

consenting to the blood draw, while this Court has in invalidated consent when

officers unlawfully claimed to possess a warrant,79 “Fourth Amendment

jurisprudence does not forbid a law enforcement officer from attempting to

persuade an individual to consent to a search.” 80 In this case, Cpl. Mauchin did not

dishonestly claim to possess a warrant, but only informed Mauk of his lawful

intentions if she refused to consent.

77
   Id.
78
   Id.
79
   Cooke v. State, 977 A.2d 803, 857 (Del. 2009) (distinguishing cases in which consent to search
was invalidated when searching officers represented they had a warrant, when in fact, none
exist).
80
   Higgins, 89 A.3d at *3 (citing Schneckloth, 412 U.S. at 233).

                                               15
      Because the Court has found that Mauk voluntarily consented to the blood

draw, the Court will not address the question of whether probable cause or exigent

circumstances existed. 81


                                VI. CONCLUSION

      For the foregoing reasons, Defendant’s Motions to Suppress are DENIED.


IT IS SO ORDERED.




                                                   ____________________________
                                                   Jan R. Jurden, Judge




81
   See Missouri v. McNeely, 133 S.Ct. 1552 (2013); Schmerber v. California, 384 U.S. 757
(1966).




                                          16
