            IN THE SUPREME COURT OF THE STATE OF DELAWARE


TYRIK A. SPENCER,                        §
                                         §      No. 461, 2017
       Defendant-Below,                  §
       Appellant,                        §      Court Below: Superior Court
                                         §      of the State of Delaware
       v.                                §
                                         §      Cr. ID. No. N1609004631A
STATE OF DELAWARE,                       §
                                         §
       Plaintiff-Below,                  §
       Appellee.                         §

                            Submitted: June 13, 2018
                            Decided:   June 25, 2018

Before STRINE, Chief Justice; VAUGHN, and SEITZ, Justices.

                                    ORDER

       This 25th day of June, 2018, having considered the briefs and the record below,

it appears to the Court that:

       (1)    A Superior Court grand jury indicted Tyrik Spencer for various crimes,

including drug dealing and weapons-related offenses, arising out of a police stop

while Spencer was riding a bicycle on the wrong side of the road while smoking

what the arresting officer called a “marijuana cigar.”1 The State later dropped some

of the charges, and on July 13, 2017, a jury found Spencer guilty of the remaining




1
  App. to Opening Br. at 44 (Search Warrant App. & Aff., Compl. No. 32-16-085604, ¶ 3 (Del.
J.P. Sept. 6, 2016)).
charges. The court declared Spencer an habitual offender and sentenced him to

thirty-seven years at Level V, suspended after thirty-two years with decreasing levels

of supervision. Spencer has appealed his convictions, focusing on the Superior

Court’s refusal to suppress evidence gathered by police incident to arrest. We agree

with the Superior Court that the evidence leading to Spencer’s convictions should

not have been suppressed, and affirm Spencer’s convictions.

       (2)     On September 6, 2016, multiple police officers were patrolling in the

Llangollen area, which includes a development known as Buena Vista. The New

Castle County Police had received multiple complaints about street-level illegal drug

dealing in the area. Around Noon, an undercover officer saw Tyrik Spencer on

Buena Vista Drive riding a bicycle on the wrong side of the road while smoking

what appeared to be a marijuana cigar. He radioed another officer, Andrew Rosaio,

who saw Spencer stop alongside the driver-side window of a vehicle, speak with the

driver, and hand the driver the marijuana cigar. Officer Rosaio approached Spencer

and smelled the “odor of burnt marijuana.”2 He detained Spencer and the driver of

the vehicle, placing them in handcuffs and putting them in the police car. The

Officer later testified that “[it] was a drug investigation from that point forward.”3




2
   Id. at 45 (Search Warrant App. & Aff., ¶ 6); id. at 83 (Tr. Mot. to Suppress, State v. Spencer,
No. 1609004613A, at 12 (Del. Super. June 19, 2017)).
3
  Id. (Tr., at 14).



                                                2
       (3)      The Officer conducted a “probable cause search” and found a bundle

of heroin in the driver’s shoe. The Officer searched Spencer and found two cell

phones and a key to a townhouse at 15 Vista Court in Buena Vista in his pockets.4

The police read the driver his Miranda rights and then questioned him. The driver

first stated that he already had the heroin when he came to speak with Spencer.

Later, still during the stop, he admitted that he came to the neighborhood to purchase

heroin from Spencer, which he then hid in his shoe.5 Spencer told the Officer that

he came from his girlfriend’s house at 15 Vista Court.6 The police contacted

Spencer’s girlfriend, who identified herself as Spencer’s wife and stated that she saw

Spencer leave 15 Vista Court on his bike around noon, which was around the time

the police officers stopped Spencer.7

       (4)      Officer Rosaio applied for a warrant to search 15 Vista Court, and

supported the request with the following facts:

              Spencer contacted the driver through the driver side window, holding

                what appeared to be a marijuana cigar;

              When Officer Rosaio approached the car, he smelled burnt marijuana

                and saw Spencer discretely hand the marijuana cigar to the driver;


4
  Id. (Search Warrant App. & Aff. ¶ 8).
5
  Id. at 87 (Tr., at 16).
6
  Id. at 133 (Tr., at 62).
7
  Id. at 45 (Search Warrant App. & Aff. ¶ 12). She also stated that he lived at 15 Vista Court and
had possessions there; however, his name was not on the lease and his residence was listed as
elsewhere.


                                                3
                The Officer located two cell phones, and he knew drug dealers often

                  used multiple phones to conduct illegal drug transactions;

                He found a white substance that field-tested as positive heroin in the

                  driver’s shoe;

                The driver admitted to the Officer that he came to Buena Vista to buy

                  heroin from Spencer for $35; and

                Spencer had just left 15 Vista Court, had a key to the townhouse in his

                  pocket, and his wife confirmed he had left the townhouse on his bicycle

                  just before being stopped by police.

The court issued the search warrant for the townhouse, which the officers executed

and found cash, guns, ammunition, drugs, and drug paraphernalia.8

         (5)      A New Castle County grand jury indicted Spencer for drug dealing,

aggravated possession, possession of a firearm during the commission of a felony,

possession of a firearm by a person prohibited, illegal possession of a controlled

substance, possession of drug paraphernalia, and endangering the welfare of a child.

The Superior Court denied Spencer’s motion to suppress the evidence seized. At

trial, the State dismissed three charges—drug dealing, possession of a controlled

substance, and endangering the welfare of a child. On July 13, 2017, a jury found

Spencer guilty of the remaining charges. The court declared him an habitual


8
    Id. at 44–46 (Search Warrant App. & Aff.).


                                                 4
offender and sentenced him to thirty-seven years at Level V, suspended after thirty-

two years with decreasing levels of supervision.

       (6)     On appeal, Spencer makes two arguments related to the denial of the

motion to suppress: first, the duration and execution of the stop exceeded the initial

purpose for the stop—wrong direction bike riding and marijuana use; and second,

the search warrant for 15 Vista Court was not supported by probable cause and

lacked a connection between the evidence sought and the place to be searched. The

Superior Court found that the duration and execution of the stop did not extend past

what is permissible, and that the warrant was supported by probable cause.9 We

review the denial of a motion to suppress for an abuse of discretion.10

       (7)     The Fourth Amendment to the United States Constitution and Article I,

§ 6 of the Delaware Constitution protect an individual’s right to be free from

unlawful government searches and seizures.11 Courts apply a two-step inquiry to

determine the lawfulness of the stop—“[f]irst, the stop must be justified at its

inception by reasonable suspicion of criminal activity as defined in Terry v. Ohio.

Second, the stop and inquiry must be reasonably related in scope to the justification



9
  App. to Opening Br. at 152 (Tr., at 81).
10
   Jones v. State, 28 A.3d 1046, 1051 (Del. 2011); State v. Rollins, 922 A.2d 379, 382 (Del. 2007)
(“When reviewing the findings and judgment after an evidentiary hearing on a motion to suppress,
this Court will defer to the factual findings of a Superior Court judge unless those findings are
clearly erroneous.”).
11
   Woody v. State, 765 A.2d 1257, 1262 (Del. 2001); Jones v. State, 745 A.2d 856, 860 (Del. 1999).



                                                5
for their initiation.”12 Whether a detention is reasonably related to the purpose of

the stop “necessarily involves a fact-intensive inquiry in each case.”13

       (8)     Spencer does not challenge the lawfulness of the original stop.14 A

person may be lawfully detained and questioned under 11 Del. C. § 1902 when an

officer has “reasonable ground[s] to suspect [he] is committing, has committed or is

about to commit a crime.”15 The Officer had reasonable suspicion16 to stop and

detain Spencer when he saw Spencer illegally riding his bike on the wrong side of

the road while smoking a marijuana cigar, which he handed to the driver.17 Where

the parties diverge is whether the Officer could then search Spencer for additional

evidence of a crime. Spencer argues that the search should have been limited to

investigating the facts relating to riding his bicycle on the wrong side of the road or

smoking marijuana, which did not require searching his person. The State responds



12
   Caldwell v. State, 780 A.2d 1037, 1046 (Del. 2001) (citing Terry v. Ohio, 392 U.S. 1, 16–19
(1968)).
13
   Id. at 1048.
14
   Opening Br. at 9; 11.
15
   11 Del. C. § 1902(a).
16
   Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989) (stating that reasonable suspicion requires
the officer to “point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant th[e] intrusion” (quoting Terry, 392 U.S. at 21)).
17
   See 21 Del. C. § 4196 (“Upon all roadways of sufficient width a bicycle operator shall travel in
the right half of the roadway . . . .”); 16 Del. C. § 4764(d) (“Any person 18 years of age or older
who knowingly or intentionally uses or consumes up to a personal use quantity of a controlled
substance or a counterfeit controlled substance classified in § 4714(d)(19) of this title in an area
accessible to the public or in a moving vehicle, except as otherwise authorized by this chapter,
shall be guilty of an unclassified misdemeanor and be fined not more than $200, imprisoned not
more than 5 days, or both.”); 16 Del. C. § 4714(d)(19) (listing marijuana as a controlled substance).



                                                  6
that in addition to the marijuana and bicycle violations, the police had reasonable

articulable suspicion that Spencer was engaged in drug dealing, because he stopped

by the driver-side window of a parked vehicle in an area known for drug-dealing and

handed the marijuana cigar to the driver.18 The driver also admitted that he came to

the area to purchase heroin from Spencer.                   Thus, further investigation was

appropriate.

       (9)      “[A]ny investigation of the vehicle or its occupants beyond that

required to complete the purpose of the traffic stop constitutes a separate seizure that

must be supported by independent facts sufficient to justify the additional

intrusion.”19 The Officer testified that after he detained Spencer “[it] was a drug

investigation from that point forward.”20 Thus, we must determine whether that the

drug investigation was supported by independent facts. We agree with the Superior

Court that it was. Spencer was smoking a marijuana cigar and rode up alongside the

driver-side window of a parked car and handed it to the driver. In addition, the

Officer smelled burnt marijuana when he arrived at the car and Spencer admitted


18
   Answering Br. at 10.
19
   Caldwell, 780 A.2d at 1047; see also Florida v. Royer, 460 U.S. 491, 500 (1983) (“An
investigative detention must be temporary and last no longer than is necessary to effectuate the
purpose of the stop.”); Hall v. State, 981 A.2d 1106, 1111 (Del. 2009) (“In determining whether
reasonable suspicion exists, the court looks at the totality of the circumstances, ‘as viewed through
the eyes of a reasonable, trained police officer in the same or similar circumstances, combining
objective facts with such an officer’s subjective interpretation of those facts.’” (quoting Woody,
765 A.2d at 1263)).
20
   App. to Opening Br. at 85 (Tr., at 14).



                                                 7
that he had been smoking marijuana.21 In addition, the driver admitted that he came

to buy drugs from Spencer.22

       (10) Spencer also argues the search exceeded the scope of the reasonable

suspicion justifying the stop because a suspect may only be searched if the Officer

has “a reasonable belief that the detainee is presently armed and dangerous,”23 and

the Officer did not have that fear. The State responds that the police had probable

cause to arrest Spencer “almost immediately,” based on the traffic violation and the

marijuana cigar.24 According to the State, “the marijuana’s strong odor was alone

sufficient to establish probable cause that Spencer possessed the drug.”25 Thus , the

State asserts, because the police had probable cause to arrest him, the search was

lawful.26

       (11) “A warrantless search, to be valid, must fall within a recognized

exception to the warrant requirement of the Fourth Amendment.”27 While Spencer


21
   See Chisholm v. State, 988 A.2d 937, 2010 WL. 424241, at *2 (Del. Feb. 4, 2010) (finding a
search and seizure was lawful based on the “strong odor of marijuana” and the fact the defendant
was clutching his jacket).
22
   See Jenkins v. State, 970 A.2d 154, 158 (Del. 2009) (finding “sufficient justification to conduct
a separate search and seizure beyond the purpose of the initial traffic stop” when a police officer
“smelled a strong odor of marijuana,” which established probable cause to arrest the defendant and
search the car).
23
   Opening Br. at 32 (quoting Caldwell, 780 A.2d at 1051); see also Minnesota v. Dickerson, 508
U.S. 366, 373 (1993) (“If a protective search goes beyond what is necessary to determine if the
suspect is armed, it is no longer valid . . . and its fruits will be suppressed.”).
24
   Answering Br. at 10.
25
   Id. at 9.
26
   Id. at 10.
27
   Coley v. State, 886 A.2d 1277, 2005 WL 2679329, at *1 (Del. Oct. 18, 2005) (TABLE).



                                                 8
is correct that police may search a suspect for weapons if the Officer reasonably

believes the suspect is armed and dangerous, they may also search a suspect incident

to a lawful arrest.28 While a search typically occurs after an arrest, this Court has

held that “where the arrest and search are nearly contemporaneous, the search may

precede the arrest, so long as the police do not use the search to establish probable

cause for the arrest.”29

       (12) Spencer was not under arrest at the time of the search; however, he was

arrested shortly afterwards.30 The police did not use the evidence obtained in the

search—the key and two phones—to establish probable cause to arrest him. Instead,

the police had probable cause to arrest Spencer for the traffic violation and

possession of marijuana alone,31 and once the driver admitted that he bought drugs




28
   Brown v. State, 2014 WL 5099648, at *2 (Del. Oct. 9, 2014) (“In a search incident to arrest, it
does not matter whether the arresting officer believes that the arrestee is armed, dangerous or likely
to destroy evidence.”).
29
   Ortiz v. State, 862 A.2d 386, 2004 WL 2741185, at *3 (Del. Nov. 16, 2004) (TABLE) (citing
Rawlings v. Kentucky, 448 U.S. 98, 111 (1980)); cf. Negron v. State, 979 A.2d 1111, 2009 WL
2581714, at *4 (Del. Aug. 24, 2009) (TABLE) (explaining that when an arrest is lawful, a search
is lawful and evidence obtained from it is admissible).
30
   Coley, 2005 WL 2679329, at *2 (“Here, it is undisputed that [the officer] arrested [the defendant]
immediately following the search or pat-down. The contemporaneity requirement, therefore, has
been satisfied.”).
31
   See State v. Bien-Aime, 1993 WL 138719, at *4 (Del. Super. Mar. 17, 1993) (“The fact that a
defendant was not arrested until after a search revealing contraband does not void the search as
being incident to a lawful arrest if probable cause existed to arrest the defendant before the
search.”).



                                                  9
from Spencer, the police had probable cause to arrest him for drug dealing as well.

Thus, the search was a valid search incident to arrest.32

      (13)     Turning to the validity of the search warrant, Spencer argues it was

invalid because it was not supported by probable cause and there was an insufficient

connection between the evidence sought and the search of the townhouse at 15 Vista

Court.33 As for probable cause, the Superior Court found there was sufficient

probable cause to search the residence based on the driver’s statement that he

purchased drugs from Spencer, Spencer’s statement that he came from 15 Vista Court

just before the stop, Spencer’s wife’s statement that she saw him leave there on his

bike around the time of the stop, and the fact that Spencer had a key to the residence.34

      (14)     On appeal, Spencer argues that “the affidavit did not set forth any facts

that would permit an impartial judicial officer to reasonably conclude that heroin

would be found at 15 Vista Court.”35 To support a search warrant, the police affidavit

must “set forth facts that, within the affidavit’s four corners, are sufficient for a

neutral magistrate to conclude that a crime has been committed and that the property




32
   Cf. Stafford v. State, 59 A.3d 1223, 1232 (Del. 2012), as corrected (Mar. 7, 2013) (“At the time
Santiago searched Stafford, probable cause existed to arrest him and, therefore, Santiago had the
authority to conduct a search incident to an arrest.”).
33
   Opening Br. at 13–16.
34
   App. to Opening Br. at 154–56 (Tr., at 83–85).
35
   Opening Br. at 12, 15.



                                                10
sought to be seized would be found in a particular place.”36 To establish probable

cause, the Magistrate determines, based on the totality of the circumstances, whether

“there is a fair probability that contraband or evidence of a crime will be found in

a particular place.”37 We review the Magistrate’s decision with “great deference” to

determine whether there was a substantial basis for a finding of probable cause.38

      (15)     In looking at the totality of the circumstances within the four corners of

the affidavit, there was a substantial basis to support the magistrate’s finding of

probable cause. The affidavit recited that Spencer was in a high illegal drug area,

rode his bike up to the driver side of a parked car, and handed marijuana to the driver;

the driver had heroin in his shoe and admitted buying it from Spencer; Spencer had

two phones in his pocket; Spencer and his wife confirmed he left 15 Vista Court

around the time of the stop; and 15 Vista Court was just down the street from the

stop. Although we might not come to the same conclusion,39 the record shows

enough of a basis for the conclusion that Spencer left his house with heroin to deliver



36
   Id.; Sisson v. State, 903 A.2d 288, 296 (Del. 2006) (“Moreover, a neutral and detached magistrate
may draw reasonable inferences from the factual allegations in the affidavit.”).
37
   Sisson, 903 A.2d at 296; see also Rivera v. State, 7 A.3d 961, 966 (Del. 2010).
38
    Sisson, 903 A.2d at 296; see also Jensen v. State, 482 A.2d 105, 111 (Del. 1984) (“A
determination of probable cause by the issuing magistrate will be paid great deference by a
reviewing court and will not be invalidated by a hypertechnical, rather than a common sense,
interpretation of the warrant affidavit.”).
39
    Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972) (“If [the court’s findings] are sufficiently
supported by the record and are the product of an orderly and logical deductive process, in the
exercise of judicial restraint we accept them, even though independently we might have reached
opposite conclusions.”).



                                                11
to the driver down the street, and a “fair probability” existed that more drugs were

located at his home.40

      (16)     Lastly, Spencer argues the search warrant was invalid because it did not

establish a sufficient connection between the evidence sought and 15 Vista Court.41

He argues that probable cause to arrest a person does not lead to probable cause to

search someone’s home, and the affidavit did not set forth “specific factual

information” sufficient for probable cause to search his residence.42 The State

responds that there is a sufficient connection based on the Officer’s experience and

knowledge that drug dealers keep drugs in their homes, and that Spencer had just left

15 Vista Court and had a key to the townhouse.43

      (17)     “In determining whether probable cause has been demonstrated, there

must be a logical nexus between the items sought and the place to be searched.”44

“Concrete firsthand evidence that the items sought are in the place to be searched is

not always required in a search warrant. The question is whether one would normally




40
   Cf. Hooks v. State, 416 A.2d 189 (Del. 1980) (finding a residence was a logical place to search
for a weapon and clothing used in a crime based in part on the vicinity of the house to the crime
and the fact the suspects were seen there prior to the crime).
41
   Opening Br. at 13–16.
42
   Id. at 14; see Dorsey v. State, 761 A.2d 807, 813 (Del. 2000) (“[P]robable cause to arrest does
not automatically provide probable cause to search the arrestee’s home . . . .”).
43
   Answering Br. at 16; see App. to Opening Br. at 89 (Tr., at 18) (“Given the close proximity of
Mr. Spencer where we first observed him to where he initially stated that he was coming from, we
believed that there were additional drugs at that particular residence.”).
44
   Dorsey, 761 A.2d at 811 (emphasis in original).



                                               12
expect to find those items at that place.”45 While Spencer is correct that probable

cause to arrest does not establish probable cause to search the arrestee’s home, “the

fact that probable cause to arrest has been established increases the probability that

the defendant is storing evidence of that crime in the defendant’s residence.”46

      (18)     While we would be reluctant to rely exclusively on an officer’s general

knowledge about how drug dealers operate to support a probable cause finding, in

this case, there was sufficient additional evidence to connect the townhouse with the

evidence of crimes gathered at the stop. As we have noted earlier, Spencer was close

to the townhouse and had a key to the door. Spencer also left the townhouse around

the time the driver admitted he came to buy drugs from Spencer and had a substance

hidden in his shoe that tested positive for heroin. This is specific factual information

from which a magistrate could reasonably conclude that Spencer brought drugs to

sell from his home, providing a logical nexus between Spencer and 15 Vista Court.

      (19)     Officer Rosaio lawfully stopped, detained, and searched Spencer. The

search warrant was supported by probable cause and had a sufficient connection to




45
   Hooks, 416 A.2d at 203; see also Morgan v. State, 962 A.2d 248, 253 (Del. 2008)
(“The nexus between the objects to be seized and the premises searched need not, and often will
not, rest on direct observation, but rather ‘can be inferred from the type of crime, the nature of the
items sought, the extent of an opportunity for concealment and normal inferences as to where a
criminal would hide [evidence of a crime] . . . .’” (quoting United States v. Feliz, 182 F.3d 82, 88
(1st Cir. 1999))).
46
   Dorsey, 761 A.2d at 813 (quoting United States v. Jones, 994 F.2d 1051, 1055–56 (3d Cir.
1993)).


                                                 13
the place searched. The Superior Court did not abuse its discretion in denying

Spencer’s motion to suppress.

      NOW, THEREFORE, it is hereby ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                           BY THE COURT:

                                           /s/ Collins J. Seitz, Jr.
                                                  Justice




                                      14
