SUPERIOR COURT
OF THE
STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
JUDGE l THE CIRCLE, SUITE 2

GEORGETOWN, DE 19947

TELEPHONE (302) 856-5264

September 26, 2016

John F. Kirk, IV, Esquire
Deputy Attorney General
Department of Justice
114 E. Market Street
Georgetown, DE 19947

Eric G. Mooney, Esquire
Mooney & Andrew, P.A.

11 S. Race Street
Georgetown, DE 19947

RE: State ofDelaware v. Theodore B. Revel,
Def. I.D. # 1511014394

Submitted: September 12, 2016
Decided: September 26, 2016

Dear Counsel:

On September 9, 2016 carrying into September 12, 2016, the Court held a suppression
hearing in the case of State of Delaware v. Theoa’ore B. Revel. Three issues Were presented to
the Court. First, Theodore B. Revel (“Revel”) moved to suppress all evidence relating to his
arrest for driving under the influence because the arresting officer, ch. Jones, did not have
probable cause to believe Revel had committed the crime. Second, Revel moved to suppress all
evidence relating to the blood draw that took place While he Was hospitalized because the blood

Was illegally drawn Without his valid consent. Lastly, Revel moved to suppress statements made

after he was advised of his Mirana'a] rights because he did not validly waive his rights. For the
reasons discussed below, the Court denies the first motion to suppress and grants the second and
third motions to suppress.
FINDINGS OF FACT

The evidence presented at the hearing established that on November 22, 2015, Revel was
traveling westbound on Neals School Road in Seaford, Delaware when he veered off the
roadway and collided with a tree. The crash occurred in the yard of Donna Tucker, who
observed the crash and called 911. She stated that there were no obstructions in the road to cause
the accident. Emergency responders reported to the scene and transported Revel to Nanticoke
Memorial Hospital. Sometime after Revel had been taken to the hospital, ch. J ones responded
to the scene where he conducted an inventory search of the vehicle and spoke with emergency
responders. During the inventory search ch. Jones found a total of 3.9 grams of cocaine and
various drug paraphernalia At this time, ch. J ones was informed by emergency responders that
Revel was “incoherent” when he was taken to the hospital and that he had vomited on himself.
Soon after, ch. Jones received a call from his dispatcher informing him that a small baggie of
what appeared to be cocaine had been found in the ambulance that transported Revel to the
hospital ch. J ones went to the hospital for further investigation

Upon arriving at the hospital, ch. J ones located Revel in the emergency room, where he
was receiving medical treatment. He was laying on a hospital gurney, hooked up to an IV, his
neck in a brace, and several medical personnel attending to him. ch. J ones observed that Revel
was excessively talkative, had redness around his nose, and he was confused as to the details of

the accident He further noticed that Revel was aggravated by the medical personnel and took a

 

’ Mimnda v. Arizona, 384 U.s. 436 (1966).

harsh tone with them. ch. Jones also noted that, while Revel was confused about the details of
the accident, he appeared to be clear-headed, aware of the situation, and his speech was fair.

At 1:51 p.m. ch. J ones read Revel the Delaware State Police’s Consent to Search form
and obtained his signature. ch. J ones testified that he told Revel that he would like to draw his
blood “for the case”, that he read Revel the Consent to Search form, handed the form to him to
read, and that Revel signed the form. According to ch. Jones, Revel took time to look at the
document, but did not ask any questions ch. J ones testified that he seemed to understand to
what he was consenting Not until redirect examination did ch. Jones testify that when
discussing consent did Revel state that the testing would not reveal alcohol or drug use.
Furthermore, it should be noted that there is a blank for a witness signature on the for“m, but no
such signature was obtained. After Revel signed the consent form, a phlebotomist drew his
blood.

At 3:13 p.m., while Revel was still in the hospital, ch. Jones read him his Mirana'a
rights. Revel stated that he understood and waived his rights. According to ch. Jones, Revel
was in the same state as when he consented to the blood draw. After the waiver, ch. Jones
began to question Revel about the accident. Revel admitted to having been at a friend’s house in
Federalsburg, Maryland that morning, where he had consumed one can of beer, ingested one line
of cocaine, and taken one and half Percocet pills. Revel also stated that right before the accident
he began to cough excessively and feel strange. While Revel was driving, he thought he saw a
deer in the road. The next thing he recalled was staring at the steering wheel of the vehicle after
the accident, unable to move. Revel thought that he saw his son laying on the ground next to

him, even though his son was not present at the scene of the accident and Revel was still seated

in the vehicle. Revel said that immediately after the accident he felt like he had died and was
reflecting back on his life.

At 4:15 p.m. Revel was discharged from the hospital with no apparent injuries. ch.
J ones transported him to the Troop 5 Police Station where warrants for the charges in the case
were obtained. At 7:04 p.m., the arrest warrants were submitted and approved. Sometime
around 7:04 p.m., Revel was taken to a magistrate for arraignment, where he was deemed to be
too intoxicated for presentment. He was not arraigned until the following moming.

DISCUSSION

I. Motion to Supprcss Evidence Relating to the DUI Arrest due to Lacl< of Probable
Cause

a. Applicable Law
The issue here is whether ch. J ones had probable cause to arrest Revel for driving a vehicle
while under the influence of alcohol or drugs pursuant to 21 Del. C. § 4177.2 The probable cause
standard is explained in Miller v. State:
We determine probable cause by the totality of the circumstances, as viewed by a
reasonable police officer in light of his or her training and experience. To

establish probable cause, the police need only present facts suggesting, in the
totality of the circumstances, that a fair probability exists that the defendant has

 

2 In 21 Del. C. §4177, it is provided in pertinent part as follows:

(a) No person shall drive a vehicle:

(1) When the person is under the influence of alcohol;

(2) When the person is under the influence of any drug;

(3) When the person is under the influence of a combination of alcohol and any drug;

(4) When the person's alcohol concentration is .08 or more; or

(5) When the person's alcohol concentration is, within 4 hours after the time of driving .08 or more. Notwithstanding
any other provision of the law to the contrary, a person is guilty under this subsection, without regard to the person's
alcohol concentration at the time of driving, if the person's alcohol concentration is, without 4 hours after the time of
driving .08 or more and that alcohol concentration is the result of an amount of alcohol present in, or consumed by

the person when that person was driving.
* »l= >i<

(c) For purposes of subchapter III of Chapter 27 of this title, this section and § 4177B of this title, the following

definitions shall apply:
* * *

(5) “While under the influence” shall mean that the person is, because of alcohol or drugs or a combination of both,
less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment,
sufficient, physical control, or due care in the driving of a vehiclel [Emphasis added.]

4

committed a crime. A finding of probable cause does not require the police to

uncover information sufficient to prove a suspect’s guilt beyond a reasonable

doubt or even to prove that guilt is more likely than not.3

b. Motion to Suppress is Denied for Lack of Probable Cause for DUI Arrest

Examining the totality of the circumstances leads to the conclusion that ch. Jones had
probable cause to arrest Revel for DUI. Based upon the circumstances of the situation, a
reasonable police officer could conclude that Revel was less capable than the ordinary person of
exercising clear judgment to operate a vehicle as a result of intoxication The collision itself is
evidence that Revel was driving erratically. When that fact is combined with the discovery of
cocaine and drug paraphernalia in Revel’s vehicle, his excessive talkativeness, the redness
around his nose, and his confusion at the scene of the accident and the hospital, it becomes clear
that ch. J ones had probable cause to arrest Revel for DUI. This is further bolstered by the fact
that Revel was hostile toward the medical personnel treating him at the hospital Revel’s
hostility was indicative of intoxication A police officer may take into account a person’s
“irrational, erratic, or belligerent behavior in making his or her probable cause deterrnination.”4
lt is irrational to become easily and unjustifiably agitated by those offering help. This is
comparable to the defendant in State v. Trager who irrationally fought a police canine rather than
submitting to the dog, leading the police office to conclude that the defendant was intoxicated5
The facts that no field tests were given and that Revel’s speech was “fair” do not undermine this

probable cause analysis. When considering the totality of the circumstances, there was probable

cause to arrest Revel for this offense.

 

3 Miller v. State, 4 A.3d 371, 373 (Del. 2009) (citations omitted).
4 State v.Trager, 2006 WL 2194764, at *6 (Del. Super. Ct. July 28, 2006).
s

Id.

II. Motion to Suppress Evidence Relating to the Lack of Consent for Blood Draw
a. Applicable Law
The Fourth Amendment to the United States Constitution and Article I, Section 6 of the
Constitution of the State of Delaware are designed to protect the citizenry from unreasonable

searches and seizures.6 Any search conducted without a warrant is “per se unreasonable subject

7

to only a few specifically established and well-delineated exceptions.” One of the long

recognized exceptions to the warrant requirement is the ability to consent to a search.8 Anyone
who has “common authority over. . .the place or effects being searched,” may consent to a search
so long as it is voluntary.9 The burden of proving consent by a preponderance of the evidence
rests squarely with the State.10 Some of the factors to be considered in this determination are
listed in McVaugh v. State:

“(1) 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

nature of questioning, including the use of physical punishment or other coercive

police lJ<-:liavior."`II

b. Motion to Supm'css is Granted for Lack of`Voluntarv Consent

Under the circumstances of this case, it is unnecessary to analyze the Mc Vaugh factors.
The fact that Revel was incoherent as a result of his intoxication and/or the effects of the
accident immediately stands out as problematical Revel’s incoherency indicates that he did not

have the necessary mental capacity to consent to the blood draw. It is appropriate for the Court

to consider the defendant’s intoxication when determining whether he or she had the requisite

 

6 U.S. Const. amend. IV; Del. Const. art. I, § 6.
;McVaugh v. State, 2014 WL 1117722, *2 (Del. Mar. 19, 2014) (citation omitted).
Id.
9 Id. Whether the standard is simply “voluntary” or includes a higher showing such as “intelligently” or “knowingly”
is irrelevant here. Revel did not voluntarily consent, so it is impossible that consent would be found when the
validity of the consent is held to an even higher standard.
*° Id.
“ Id.

mental capacity to consent12 Two cases are particularly instructive. For example, the Court in
State v. Gibbs explained “Mr. Gibbs either had a head injury or he was intoxicated or both and
this led to a reduced mental capacity. The State cannot show that Mr. Gibbs had the mental
capacity to consent”13 Moreover, the Court in State v. Dempsey held that “Dempsey was
impaired and exhausted and realized that he was in a very difficult situation that would
potentially affect both his job and f`reedom...[U]nder the circumstances, the Court cannot find
that Dempsey had freely and intelligently and in an unequivocal manner waived a constitutional
right.”14 Using these cases for guidance, the Court believes that it is appropriate to consider the
mental state of the defendant, especially when the mental impairment is so severe as to render
the person incoherent

Extensive testimony was given regarding Revel’s state of mind at the time of consent,
nearly all of which points to his diminished mental capacity. First, emergency responders who
transported Revel to the hospital informed ch. J ones that Revel was “incoherent” and that he
had vomited on himself. Upon meeting Revel, ch. J ones also concluded in the Narrative Report
that Revel “. . .appeared confused, initially asking this writer [ch. Jones] without being prompted
where he was when the accident occurred.” Furthermore, according to Revel, after the accident
he had a hallucination of his son laying on the ground next to him at the scene of the collision
and felt that he had died and was reflecting back on his life. Revel was also very talkative at the
hospital and had redness around his nose, both indications of recent drug use. Most importantly,
ch. Jones noted in his Narrative Report that Revel was too intoxicated to be presented for

arraignment Arraignment was set to take place sometime around 7:04 p.m. If Revel was

 

12 State v. Dempsey, Del. Super., I.D. NO.: 12121117, Carpenter, J. (Aug. 30, 2013) (Letter Op.); State v. Gibbs,
Del. CCP, Case No. 136012943, Reigle, J. (June 24, 2014) (“Delaware courts have considered head injuries and
intoxication as factors in determining whether a defendant’s consent to a blood test was voluntary.”).

'3 State v. Gibbs, Del. CCP, Case No. 136012943, Reigle, J. (June 24, 2014) at 6.

14 State v. Dempsey, Del. Super., I.D.# 12121117, Carpenter, J. (Aug. 30, 2013) (Letter Op.) at 4.

7

incoherent at the time of the accident, around 12:00 p.m., and still not sufficiently coherent to be
arraigned at 7:04 p.m., it seems highly improbable that he had the requisite mental capacity to
consent at 1251 p.m. In light of Revel’s incoherent mental state, as evidenced by the above
testimony, the Court concludes that he did not have the capacity to consent to the blood draw.
ch. J ones should have obtained a warrant for Revel’s blood.

ch. Jones’ testimony that Revel was clear-headed and appeared to be fully capable of
giving voluntary consent was not persuasive. The contradictions in the Narrative Report
compared to the hearing testimony could not be ignored. ln what appeared to be a last minute
addition to his testimony, ch. J ones added on redirect examination that Revel stated that he had
nothing to lose because blood testing would not reveal incriminating evidence. There was no
mention of this statement earlier in the hearing or in any reports. Also, ch. Jones testified that
he was unable to give any of the field sobriety tests to Revel because he was being treated at the
hospital, not because he was injured. In fact, ch. Jones testified that Revel did not appear to
have any injuries. However, in the Narrative Report it is stated that the
“walk and turn” test was not given because Revel was injured. Finally, ch. J ones wrote in the
Narrative Report that Revel “appeared confused”, even if only with regard to the circumstances
of the accident, and that he was unable to be arraigned due to his “intoxicated stated [sic].” This
is incongruent with his hearing testimony that Revel was clear-headed and did not seem
intoxicated The reliability of ch. Jones’ testimony is suspect and, therefore, unpersuasive

Furthermore, the unpersuasiveness of ch. Jones’ testimony is underscored by the

likelihood that Revel was in custody at the time of consent15 When a person is in custody, even

 

15 Miranda v. Arizona described a person as being in custody when he or she has been “otherwise deprived of his
freedom of action in any significant way.” Miranda, 384 U.S 444. Thus, the central inquiry is whether a person
would have felt free to leave the police encounter. ch. Jones testified that Revel would not have been free to leave
the hospital Also, all parties agree that Revel was in custody at 3: 13 p.m. when his Miranda rights were

8

if not under arrest, he or she is more susceptible to police coercion which, if present, will negate
voluntary consent.16 There is no direct testimony that ch. Jones coerced Revel, but the
circumstances of this case and ch. Jones’ unreliable testimony do not inspire confidence in the
legality of the consent The failure to obtain witness signatures only heightens the Court’s

concem.17 Had this check on police coercion been utilized, the Court would be able to more

1.18

confidently rule that the circumstances of the consent were lega Further, if a witness had

signed the Consent to Search Form, then the concerns overs Revel’s mental capacity would be
assuaged. However, the Court is unable to utilize this safeguard because the proper procedures
were not followed Upon consideration of the unique circumstances of this case, the Court finds
that the State has failed to meet its burden The consent was inadequate. Therefore, all evidence

stemming from the illegal blood draw will be suppressed

III. Sum)l'ession of Evidence Rclating to the lnvalid Waivcr of Miranda Riglits

a. Applicable Law

The issue here is whether Revel’s admission that he had consumed one can of beer, ingested
one line of cocaine, and taken one and half Percocet pills prior to the accident should be
suppressed This statement was made after Revel had waived his Miranda rights. A defendant
may waive his or her Miranda rights as long as the State can prove by a preponderance of the

evidence that the waiver was knowing and intelligent19 In order for the Court to address

administered There is nothing in the testimony to indicate that circumstances changed between 1:51 p.m., when the
consent was obtained, and 3 : 13 p.m., when all parties agree Revel was in custody. Therefore, the logical conclusion
is that Revel went into custody at some point before 1:51 p.m.

16 Jimmie E. Tinsley, J.D., Consent to Search Given Under Coercive Circumstances, 26 Am. Jur. Proof of Facts 2d
465, §4 (2016).

17 Consent forms and witness signatures are used to document a person’s consent “The purpose of documentation is
to provide a record of informed consent in the event a question is later raised.” Timothy B. Adelman, 1 Health. L.
Prac. Guide §12:15, (2016), Additionally, the presence of a witness will ensure that the consent was obtained in the
proper way and that the police officer did not resort to coercion

18 The Consent to Search form expressly called for a witness signature. The witness signature safeguard immediately
loses its value if ignored by the police.

19 Marine v. state, 607 A.zd 1185, 1195 (De1. 1992) (citation emitted).

9

whether Revel’s waiver was valid, it must engage in a two-step inquiry into the totality of the
circumstances20 The process was laid out in Moran v. Burbine:

First, the relinquishment of the right must have been voluntary in the sense that it
was the product of free and deliberate choice rather than intimidation, coercion, or
deception Second, the waiver must have been made with a full awareness of both
the nature of the right being abandoned and the consequences of the decision to
abandon it. Only if the “totality of the circumstances surrounding the
interrogation” reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights have been
waived

b. Motion to Suppress is Granted for Lack of Knowing and Intelligent Waiver of
Miranda Rights

The question here is whether Revel was able to understand his rights and the
consequences of their waiver. Revel argues that his incoherency made it so he was unable to
appreciate his actions. Hubbard v. State is instructive:

This Court has recognized that prior intoxication does not, per se, invalidate an

otherwise proper waiver of Miranda rights. lnstead, the appropriate inquiry is

“whether defendant had sufficient capacity to know what he was saying and to

voluntarily intend to say it.”22

Revel’s incoherent state extends beyond mere intoxication His capacity was diminished
to the point that he was incoherent and unaware of what he was saying. Thus, he did not truly
intend to make the waiver. This finding is supported by the totality of the circumstances,
including Revel’s incoherent state, his excessive talkativeness, the redness around his nose, the
presence of cocaine and drug paraphernalia in the car and ambulance, as well as the delay in his

arraignment due to intoxication Thus, the waiver does not pass the Moran test, so the statement

must be suppressed

 

20 Id. The totality of the circumstances analysis includes the “behavior of the interrogators, the conduct of the
defendant7 his age, his intellect, his experience, and all other pertinent factors.” Whalen v. State, 434 A.2d 1346,
1352 (Del. 1981).

21 ld. (citing Momn v. Burbme, 475 U.s. 412, 421 (1986).

22 Hubbard v_ state, 16 A.3d 912, 919 (Del. 2011) (citarions omitted).

10

For the foregoing reasons the first motion to suppress regarding probable cause for arrest
is denied, but the second motion to suppress regarding consent to the blood draw and the third
motion to suppress regarding waiver of Miranda rights are granted

IT IS SO ORDERED.

     

\____ /s/ ic)'mrd F. Stokes
Richard F. Stokes

cc: Prothonotary’s Office

ll

