IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE )
)
)
v. ) C1‘.A. No: 1105006045
)
)
ANTONIO CAMACHO, )
)
Defendant. )
)
Submitted: January 8, 2015
Decided: February 3, 2015
Christopher Marques, Esquire Brian F. Rick, Esquire
Deputy Attorney General Ofﬁce of the Public Defender
820 N. French Street, 7th Floor 900 N. King Street
Wilmington, DE 19801 Wilmington, DE 19801
Altorneyfor the State of Delaware Al'tomeyfor Defendant

MEMORANDUM OPINION AND ORDER
ON DEF ENDANT’S MOTION TO DISMISS

On May 8, 2011, Defendant Antonio Camacho (“Camacho”) was subjected to a trafﬁc
stop and subsequently arrested. Camacho was charged with Driving Under the Inﬂuence of
Alcohol, in violation of 21 Del. C. § 4177 and Driving Vehicle While License
Suspended/Revoked, in violation of 21 Del. C. § 2756. On September 30, 2014, Defendant
noticed the present motion to suppress, challenging the legality of the arrest.

On December 2, 2014, the Court held a hearing on the motion, and heard testimony from
three witnesses: Ofﬁcer Joshua Stafford of the Middletown Police (“Ofﬁcer Stafford”); Master

Corporai Mark Miller of the Middletown Police (“Cpl. Miller”), and; Camacho. During the

hearing, Camacho motioned to strike the testimony of and to disquaiify Cpl. Miller as a witness.
At the conclusion of the hearing, the Court reserved decision and allowed the parties to brief the
issue regarding Cpl. Miller’s testimony. This is the Court’s Decision on Camacho’s motion to
strike and motion to suppress.

FACTS

At the hearing on the motion to suppress, the State presented Ofﬁcer Stafford and Cpl.
Miller as witnesses. First, the State called Ofﬁcer Stafford. The Court allowed Cpi. Miller to
remain in the courtroom during Ofﬁcer Stafford’s testimony because the State asserted that Cpl.
Miller was the chief investigating ofﬁcer.

Officer Stafford offered the following testimony: on May 8, 2011, at approximately 12: I 9
am, he was patrolling on E. Lake Street when he observed a silver Infiniti parked directly in
front of a “No Stopping, Standing, or Parking” sign (the “No Parking Sign”). Camacho was
sitting in the driver’s seat. Officer Stafford circled the block, and when he drove back a few
minutes later, he saw that the vehicle was still parked in front of the No Parking Sign. Officer
Stafford puiled up behind the car, and exited his patrol vehicle in order to advise Camacho that
he was parked illegally. Ofﬁcer Stafford claimed that when he approached Camacho, he
observed keys in the ignition and a beer can in the center consoie. Camacho stated that he
decided to pull over and wait for his wife to pick him up because he had been drinking and
driving. Shortly thereafter, Cpl. Miller arrived at the scene, and Officer Stafford advised
Camacho to turn off the vehicle. On cross—examination, Ofﬁcer Stafford couid not describe the
keys to the vehicle.

After Officer Stafford testified, Camacho objected to having actual, physical controi of

the car at the time of the stop, and offered the following testimony: on the night of May 8, 201 l,

Camacho’s sister drove him to a party. At one point during the party, Camacho went to his
sister’s car to get paperwork. Although Camacho was in the vehicle when Ofﬁcer Stafford
approached him, he was not Operating the vehicle, nor was the vehicle running. Speciﬁcally,
Camacho stated that his sister owned an Infiniti G35, which was a “keyiess” vehicle that
Operated by the push of a button, and did not require a key in order to start. Camacho did not
recall telling Ofﬁcer Stafford that he was driving, or that he was drinking and driving.

The State then presented its second witness, Cpl. Miller, who testiﬁed to the following:
on May 8, 2011, he was on duty, supervising ofﬁcers. Cpl. Miller arrived at the scene, and
Officer Stafford quickly briefed him on the facts of the stop. At the time, Camacho was in the
driver’s seat, and the vehicle was running. Ofﬁcer Stafford asked Camacho to step outside of the
vehicle. As Camacho was walking toward Miller, who was standing toward the back of the
vehicle, Cpl. Miller smelled a strong odor of alcohol, and saw that Camacho had glassy eyes, a
flushed face, and disheveled clothes. Cpl. Miller then conducted three National Highway 'l‘rafﬁc
and Safety Administration (“NHTSA”) field sobriety tests.1

Cpl. Miller stated that during the HGN test, Camacho showed six of the six possible
clues, which Cpl. Miller considered a failure. Next, Cpl. Miller administered the walk-and-turn
test. Cpl. Miller stated that during this test, Camacho showed two out of a possible eight clues,
which Cpl. Miller considered to be a failure. Following the walk—and-turn test, Cpl. Miller
conducted the one—leg-stand test. Cpl. Miller noted that Camacho did not present any significant
balancing issues, and determined that Camacho passed this test. After conducting the tests, Cpl.

Miller concluded Camacho was impaired, and placed Camacho under arrest.

' Cpl. Miller administered all three tests in compliance with NHSTA standards, and is certiﬁed to conduct
all three tests.

During the hearing, Camacho timer objected to Cpl. Miller’s testimony, after reaiizing
that Cpl. Miller’s “AIR” police report designated Ofﬁcer Stafford as the primary investigating
ofﬁcer. Camacho argued that it was improper for Cpl. Miller to be present while Ofﬁcer
Stafford testiﬁed. The State argued that while the paperwork indicated that Ofﬁcer Stafford was
the investigating ofﬁcer, Cpl. Miller was the primary investigating ofﬁcer because he conducted
the ﬁeld tests.

DISCUSSION

The Court is cailed upon to decide whether it was a fatal error to allow Cpl. Miller to

remain in the courtroom during Ofﬁcer Stafford’s testimony, and if it was not a fatal error,

whether Camacho had physical control of the motor vehicle to support a ﬁnding of probable

cause.

I. Motion to Strike

Under the Delaware Rules of Evidence 615, the court, at the request of a party or acting
sua sponte, “may order witnesses excluded so that they cannot hear the testimony of other

witnesses.” However, D.R.E. 615(2) provides “[t]his rule does not authorize exclusion of . . . an

ofﬁcer or employee of a party which is not a natural person designated as its representative by its

2

attorney.” A chief investigating ofﬁcer, who acts as an ofﬁcer of the State, may not be

sequestered in a criminal case because he ﬁts squarely within the exception under D.R.E.
615(2).3 The rule speciﬁcally allows counsel to designate who will be the representative. As

such, it is not material that the reports purport to list another ofﬁcer as the chief investigative

2 13.12.13. Rule 6 t 5(2) (emphasis added).
3 Burke v. Slate, 484 A.2d 490, 497—98 (Del. Super. 1984).

4

ofﬁcer. The Court does not have discretion in applying this exemption, and therefore, the State’s

chief investigating ofﬁcer cannot be excluded from the trial.4

In the matter at hand, the Deputy Attorney General representing the State has designated
Cpl. Miller as the State’s representative in accordance with D.R.E. 615(2). Therefore, Cpl.
Miller’s presence during Ofﬁcer Stafford’s testimony was not a fatal error because he is exempt
from sequestration. Defendant’s motion to strike the testimony of and disqualify Cpl. Miller as a

witness is denied, and the Court will now consider whether Camacho had physical control of the

motor vehicle to support a ﬁnding of probable cause.
II. Motion to Suppress
On a Motion to Suppress, the State bears the burden of proving the legality of the
underlying stop and subsequent arrest by a preponderance of the evidence:5 In the instant case,

Camacho challenges the legality of the arrest.6

An arrest made subsequent to a trafﬁc stop must be supported by probable case.7

“Probable cause exists where the facts and circumstances within the police officer’s knowledge,
and of which the police ofﬁcer had reasonably trustworthy information, are sufﬁcient in
themselves to warrant a person of reasonable caution to believe that an offense has been or is

being committed.”8 ln establishing probable cause, a police ofﬁcer must be able to Show that
under the totality of the circumstances, there is a fair probability that criminal activity is

occurring or has occurred.9

 

4 Davis v. State, 945 A.2cl l i67at *2 (TABLE) (Del. 2008) (citing Hamamr v. State, 565 A.2d 924, 929-
30 (Del. 1989)).

5 Slate v. Anderson, 2010 WL 4056130 at *3 (Del. Super. Oct. 14, 2010).
6 It is undisputed that Camacho was stopped initially for committing a trafﬁc violation, and that Ofﬁcer
Stafford had reasonable articuable suspicion to stop Camacho for parking illegally.

7 Lefebvre v. State, 19 A.3d 287, 293 (Del. 20] l); Stale v. Maxwell, 624 A.2d 926, 928 (Del. 1993).
8 133056 v. State, 884 A.2d 495, 498 (Del. 2005).

9 Miller v. State, 4 A.3d 371 , 373 (Del. 2010).

In arrests made pursuant to 21 Del. C. § 4177, the arresting ofﬁcer must be able to
demonstrate that he relied on facts that would support a ﬁnding of probable cause to believe that
the defendant drove a motor vehicle while under the inﬂuence of alcohol.EO Probable cause to

arrest for driving under the inﬂuence (“DUI”) “rests upon the observations of the arresting
ofﬁcer, which includes the driver’s performance on ﬁeld sobriety tests.”11

An officer may have probable cause to arrest for DUI prior to administering ﬁeld sobriety
tests when there is “a quantum of trustworthy factual information” that would “warrant a man of
reasonable caution” to conclude that he had probable cause to believe that the driver was driving

under the influence of alcohol at the time of the stop.12 Although certain factors by themselves

might not establish probable cause, in considering the totality of the circumstances, multiple

]3

factors may, in the aggregate, establish probable cause. In addition, once probable cause is

established, even subsequent adequate performance on ﬁeld sobriety tests do not undermine the

probable cause.14

In his Motion, Camacho argues that the Court should not give weight to two factors when

determining whether probable cause existed: (I) Camacho having control of the motor vehicle
and; (2) Cpl. Miller’s determination with respect to the walk and turn test.

A. Physical Control of the Motor Vehicle

First, Camacho argues that the Court cannot consider that Camacho was in control of the
motor vehicle as a factor in its probable cause analysis because Camacho did not have actual

physical control of the motor vehicle. Under 21 Del. C. § 4177(c)(4), driving a motor vehicle

13

includes “driving, operating, or having actual physical control of a vehicle. The Delaware

5“ State v. lelholland, 2013 wr. 3131642, at *4 (Del. Com. PE. June 14,2013).

II
Id. at *4.
'2 Beans-e, 884 A.2d at 500 (quoting State v. Maxwell, 624 A.2d 926, 931. (Del. 1 993) (citations omittecl)).

'3 State v. Breza, 2011 WL 6946980 at *5 (Del. Com. P1. Dec. 20,2011).
’4 Id. (citing Lefebvre, l9 A.3d at 293).

Supreme Court has noted that “[i]nsofar as ‘physicai control’ refers to something other than
‘driving’ or ‘operating,’ . . . physical control is meant to cover situations where an inebriated
person is found in a parked vehicle under circumstances where the car, without too much
difﬁculty, might again be started and become a source of danger to the Operator, to others, or to

“'5 Moreover, “[a] person can have actual physical control of a motor vehicle without

property.
either driving or operating the vehicle.“6 In determining whether Camacho had physical control
of the motor vehicle, the Court may consider a number of factors, including the location of the
defendant, the location of the ignition keys, the owner of the vehicle, and the extent to which the
vehicle was operable. 17

Here, the State has met its burden in establishing, by a preponderance of the evidence,
that Camacho had physical control of the vehicle. The State has presented uncontested evidence
that Camacho was in the driver’s seat of an illegally parked vehicle, with a beer in the center
console. The State produced additional contested but credible testimony that the vehicle was
running, that Camacho admitted to drinking and driving, and that he was in possession of the
ignition key or key fob.

Ofﬁcer Stafford and Cpl. Miller both testiﬁed that the motor vehicle was running when
Cpl. Miller arrived at the scene, although neither witness was able to clearly describe the ignition
keys or the location of the ignition keys. Both Ofﬁcers saw a beer can in the center console.

During direct examination, Ofﬁcer Stafford was certain that the keys were in fact in the ignition

of the vehicle. On cross examination, however, Ofﬁcer Stafford was unable to describe the keys

 

'5 Bodner v. State, 752 A.2d 1169, 1173 (Del. 2000) (citing State v. Siaijﬁeld 481 N.W.2d 334, 337

(Minn. 1992)).
‘6 Slate v. Meaty, 2010 WL 175623 at *3 (Del. Com. Pl. Jan. 20, 2010) (citing Bodnar, 752 A.2d at 1173).

” Bodner, 752 A.2d at 1173.

or the keychain. Cpl. Miller was certain that the car was running, and recalled seeing the

9,]

“key, 8 however he was unable to recall where the key was during his investigation.

Evidence of the location of the ignition keys is only one factor that the Court may
consider when determining whether Camacho had physical control of the vehicle. The absence
of this factor does not discredit the essentially uncontested evidence that Camacho admitted to
drinking and driving, and was sitting in the driver’s seat of an illegally parked vehicle, which
was running, with a beer in the center console. Therefore, the Court ﬁnds that the State has met
its burden in establishing, by a preponderance of the evidence, that Camacho was in physical
control of the motor vehicle as provided by 21 Del. C. § 4177(c)(4), and the Court will consider
this factor in its probable cause analysis.

3. The Walk and Turn Test

Next, Camacho challenged Cpl. Miller’s determination with respect to the walk and turn
test. Cpl. Miller considered Camacho’s performance on the walk-and-turn test a failure after
ﬁnding that Camacho showed two clues including: he stopped at the turn and was unsure of how
to proceed and, he did not turn as directed. By Cpl. Miller’s own test, he counted two clues on
the turn. The Court ﬁnds however, that under Nl-ITSA standards, Camacho’s poor performance

during the turn constitutes only one clue.19 Therefore, the Court will not consider Cpl. Miller’s

determination with respect to the walk and turn test in its probable cause analysis.

 

‘8 The Court will note that the 2007 Inﬁniti G35 was available with a traditional key and ignition, and also
with a “keyless” fob and no ignition. Camacho has testiﬁed that this particular car was keyless.

:9 During the hearing, the Court tookjudicial notice of the NTSA standards, which provide that under the
Walk and Turn test, an ofﬁcer looks for the following clues: if the suspect cannot keep balance while
listening to the instructions; begins before the instructions are finished; stops while walking to regain
balance; does not touch heel—to—toe; steps off the line; uses arms to balance; makes an improper turn, or;
takes an incorrect number of steps.

C. T he Court’s Probable Cause Analysis

The Court will consider the following factors, in the totality of the circumstances, to
determine whether Cpl. Miller had probable cause to arrest Camacho for DUI: (1) a trafﬁc
violation; (2) Camacho seated in the driver’s seat with the car running; (3) an admission to
drinking and driving; (4) the plain View of alcohol in the center console; (5) glassy eyes; (6)
strong odor of alcohol; (7) disheveled clothes; (8) ﬂushed face; (9) no balancing issues; and (10)
performances on the HGN, walk and turn, and one-leg stand tests.

These factors, when considered in the totality of the circumstance, amount to probable
cause. In the aggregate, Cpl. Miller’s observations prior to administrating the ﬁeld sobriety tests
are sufficient to establish probable cause to arrest for a DUI. Since Cpl. Miller had probable
cause before administering the ﬁeld tests, Camacho’s “favorable or mixed results on the ﬁeld

tests do not negate probable cause.”20

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Strike the Testimony of and to
Disqualify Cpl. Miller as a witness is DENIED, and Defendant’s Motion to Suppress is
DENIED. The matter will now be set for trial. This Judicial Ofﬁcer retains jurisdiction.

IT IS SO ORDERED THIS 3rd Day of February 2015.

 

2° Breza, 20] 1 WL 6946980 at *5 (citing Lefebvre, 19 A.3d at 293).
9

