        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                        :         ID No. 1610011768
                                         :         In and for Kent County
                v.                       :
                                         :
ALAN DEWITT                              :
                                         :
                Defendant.               :
                                         :

                                     ORDER

                             Submitted: April 28, 2017
                              Decided: May 18, 2017

      On this 18th day of May 2017, having considered Defendant Alan Dewitt’s
(hereinafter “Mr. Dewitt’s”) motion to suppress, and the State’s response, it
appears that:
   1. The State charged Mr. Dewitt with drug dealing, aggravated possession of
marijuana, possession of drug paraphernalia, and driving a vehicle under the
influence of drugs. In this motion, Mr. Dewitt seeks to suppress evidence seized
from his vehicle during a search following a traffic stop and his arrest for driving
under the influence.
   2. The facts recited are those as found by the Court after the suppression
hearing of April 28, 2017. Shortly before midnight on October 18, 2016, Trooper
Nefosky of the Delaware State Police was on routine patrol when he observed Mr.
Dewitt’s vehicle change lanes without signaling properly. Trooper Nefosky then
initiated a traffic stop. He approached Mr. Dewitt’s vehicle and directed him to
roll down his window so that he could speak with him. At that point, he smelled
fresh marijuana in Mr. Dewitt’s vehicle. He also observed Mr. Dewitt’s eyes to be
bloodshot and his speech to be slow. Trooper Nefosky then returned to his patrol
vehicle to radio for another unit to assist him in a search of the car. He then
returned to Mr. Dewitt’s vehicle to direct Mr. Dewitt to perform some verbal
sobriety tests to determine if he was impaired. He passed those tests.
   3. Other officers soon arrived and searched the vehicle’s passenger
compartment. In that search, the police found a small pipe with black residue in the
driver’s side door and then searched no further. When confronted with the pipe,
Mr. Dewitt admitted to smoking marijuana approximately six or seven hours
earlier. At that point, the trooper told Mr. Dewitt that if he was found not to be
under the influence of marijuana after field sobriety tests, he would be charged
with a civil violation and would then be free to go. After administering the field
sobriety tests, the trooper arrested Mr. Dewitt for driving under the influence.
Officers then resumed the search of Mr. Dewitt’s vehicle and took an inventory of
its contents. In the trunk, the officers discovered currency and other drug related
evidence.
   4. Mr. Dewitt contends that Trooper Nefosky lacked both probable cause to
search his vehicle and to separately arrest him for driving under the influence. The
State counters that because the odor of marijuana was detected in the vehicle,
Trooper Nefosky had probable cause to search the vehicle. Additionally, the State
contends that because of Trooper Nefosky’s observations and Mr. Dewitt’s
performance on the field sobriety tests, the State had probable cause to arrest him
for driving under the influence, thus permitting the legal search and inventory of
his vehicle.




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      5. Probable cause is evaluated based on the totality of the circumstances. 1 The
burden is on the State to justify a warrantless search or seizure.2 In a suppression
hearing, the Court sits as the finder of fact and evaluates the credibility of the
witnesses.3 The party with whom the burden rests must persuade the Court by a
preponderance of the evidence. 4
      6. An officer performing a lawful traffic stop may not deviate into the
investigation of other offenses, unless the officer observes independent facts
sufficient to justify an additional intrusion. 5 When an officer detects an odor of
contraband coming from a vehicle, an officer has probable cause to believe that the
vehicle contains evidence of criminal activity, and a warrantless search is proper. 6
The odor of “marijuana alone, if articulable and particularized, may establish . . .
probable cause for officers to believe that contraband is present in the area from
which the scent emanates.”7 Pursuant to the vehicle exception to the warrant




1
    State v. Maxwell, 624 A.2d 926, 928 (Del. 1993).
2
 State v. Holmes, 2015 WL 5168374, at *3 (Del. Super. Ct. Sept. 3, 2015)(citation admitted) aff’d 149 A.3d 227
(Del. 2016).
3
    State v. Hopkins, 2016 WL 6958697, at *2 (Del. Super. Ct. Nov. 28, 2016).
4
    State v. Lambert, 2015 WL 3897810, at *3 (Del. Super. Ct. June 22, 2015).
5
    Caldwell v. State, 780 A.2d 1037, 1047 (Del. 2001).
6
  Chisholm v. State, 988 A.2d 937 (Table) 2010 WL 424241 at *2 (Del. Feb. 4, 2010) (holding that officer had
probable cause, having smelled strong odor of marijuana while approaching passenger side of vehicle and observed
individual behaving suspiciously); Hall v. State, 981 A.2d 1106, 1114 (Del. 2009) (recognizing that “[t]he strong
odor of PCP establishes probable cause to believe the vehicle occupied by [defendant] contained evidence of
criminal activity. Thus, the warrantless search of the [vehicle] was proper.”); Jenkins v. State, 970 A.2d 154, 158–59
(Del. 2009) (holding that defendant's suspicious behavior and the strong odor of marijuana established probable
cause to search defendant’s car).
7
 Fowler v. State, 148 A.3d 1170 (Table) 2016 WL 5853434 at *2 n. 5 (Del. Sep. 29, 2016) (citing United States v.
Ramos, 443 F.3d 304, 308 (3d Cir. 2006)); see also United States v. Simmons, 2007 WL 3122169, at *3 (3d Cir.
2007).
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requirement, such probable cause “justifies the search of every part of the vehicle
and its contents that may conceal the object of the search.”8
      7. Here, the parties do not dispute the lawfulness of the initial traffic stop for
failing to signal a lane change.                     Furthermore, the Court finds that Trooper
Nefosky’s testimony that he detected a fresh marijuana odor in Mr. Dewitt’s
vehicle to be credible. This odor, when combined with the driver’s slow speech
and blood shot eyes, provided probable cause to search Mr. Dewitt’s vehicle
pursuant to the vehicle exception, which included the trunk of the car. 9
      8. In this case, however, the Court’s focus turns from the vehicle exception to
the warrant requirement to the evaluation of a driving under the influence
investigation. While the search of the vehicle was based on what the Court finds to
be probable cause for the officer to believe contraband was in the car, Trooper
Nefosky voluntarily terminated the search through his actions and statements.
Namely, he told Mr. Dewitt, after finding the pipe, that if he passed the field
sobriety tests, he would be free to go with only a civil violation. By terminating the
search of the car and making this statement, Trooper Nefosky turned his
investigation in a different direction. At that point, the further detention and later
inventory search would require independent justification. This follows directly
from the premise that further prolonging a “road side detention in order to
investigate other possible crimes, [constitutes] a second detention.”10 That second



8
 Henry v. State, 588 A.2d 1142 (Table) 1991 WL 12094 at *4 (Del. Jan. 15, 1991) (quoting US v. Ross, 456 U.S.
798, 825 (1982)).
9
    Henry, 588 A.2d at *4.
10
   State v. Chandler, 132 A.3d 133, 143 (Del. Super. Ct. Apr. 2, 2015), as corrected (Apr. 14, 2015); see Rodriguez
v. United States, 135 S.Ct. 1609, 1614 (2015) (holding that “[t]he scope of the detention must be carefully tailored to
its underlying justification.”) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)).
                                                          4
detention must be further justified by facts that independently warrant additional
investigation. 11
       9. Notwithstanding the need for a separate analysis, the Court cannot ignore all
the facts available to the trooper prior to the changed focus of the investigation.
These cumulative facts must be appropriately considered when evaluating the
totality of the circumstances.
       10. Given the presentation of the evidence at the hearing, the Court affords no
weight in its analysis of probable cause, to the results of the field sobriety tests in
this case. Apart from the results of the field sobriety tests, Delaware law prohibits
citizens from operating a vehicle when their blood contains “any amount of an
illicit or recreational drug.”12 Mr. Dewitt’s admission to having smoked marijuana
mere hours beforehand is particularly supportive of a finding of probable cause.
Under the totality of the circumstances, the Court finds that Trooper Nefosky had
probable cause to arrest Mr. Dewitt for driving under the influence of marijuana
based upon: (1) the strong odor of marijuana detected in his vehicle; (2) the
discovery of a pipe with residue in his driver’s side door; (3) his admission to
having smoked marijuana earlier that day; (4) his glassy, blood shot eyes; and (5)
his slowed speech. 13
       11. Given this legal arrest for driving under the influence, the search of the
trunk for the purpose of conducting an inventory constituted a valid independent



11
     Caldwell v. State, 780 A.2d 1037, 1047 (Del. 2001).
12
     21 Del. C. § 4177(a)(6).
13
   Bease v. State, 884 A.2d 495 (Del. 2005) (finding probable cause based on odor of contraband, bloodshot eyes,
altered speech, and admission to prior consumption of intoxicant); Jenkins v. State, 970 A.2d 154, 158–159 (Del.
2009) (holding police had probable cause to arrest defendant based on suspicious conduct of defendant and “the
strong marijuana odor”); see State v. Peabody, 1975 WL 168708 (Del. Super. Ct. Feb. 19, 1975).
                                                           5
source for the discovery of contraband in Mr. Dewitt’s trunk.14 Namely, the search
of the trunk was necessary and justified as part of an inventory performed pursuant
to Mr. Dewitt’s arrest for driving under the influence, and did not violate his
rights.15
         For the foregoing reasons, Mr. Dewitt’s motion to suppress is DENIED.
         IT IS SO ORDERED.




                                                                         /s/Jeffrey J Clark
                                                                             Judge




14
   State v. Bradley, 2011 WL 1459177, at *14 (Del. Super. Apr. 13, 2011), aff'd 51 A.3d 423 (Del. 2012) (citing U.S.
v. Burton, 288 F.3d 91, 100–01 (3d Cir. 2002) (applying the independent source doctrine in the inverse of the
situation at hand by declining to suppress evidence from the search of the trunk of a vehicle because, even assuming
defendant's arrest was unlawful, police had a lawful independent source under the automobile exception: they had
probable cause to conclude the vehicle was involved in an illegality)).
15
   State v. Gwinn, 301 A.2d 291, 293 (Del. 1972) (The overwhelming weight of authority supports the
reasonableness and the lawfulness of [an] inventory search, and the admissibility of any evidence of crime that
comes into the ‘plain view’ of the inspecting officer in the course thereof, whether or not related to the offense for
which the arrest has been made.”); State v. Stallings, 60 A.3d 1119, 1127–28 (Del. Super. Dec. 24, 2012)
(recognizing that “[t]owing a vehicle is permitted when the operator is arrested . . . . [o]nce that decision was made,
the inventory became necessary.”).


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