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

STATE OF DELAWARE, )
)
v. ) Case No. 1807018283
)
MARCO RIZZO )
)
Defendant. )
Submitted: February 1 5 , 2019
Decided: April 12, 2019
Anthony J. Hill, Esq. Joseph Hurley, Esq.
Deputy Attorney General Attorney at Law
820 N. French Street 1215 King Street
Wilmington, DE 19801 Wilmington, DE 19801
Al‘tomeyfor the State of Delaware Attorneyfor Defendant

MEMORANDUM OPINION AND ORDER

ON DEFENDANT’S MOTION TO SUPPRESS AND MOTION TO STRIKE

The defendant, Marco Rizzo (hereinaf`ter the “Defendant”), brings this Motion to Suppress
and Motion to Strike. Defendant Was arrested for Driving Under the Influence (“DUI”) and Failure
to Remain in a Single Lane for Which he now stands trial. Defendant alleges that the Warrant
affidavit used to obtain Defendant’s blood Was insufficient to establish probable cause, that the
officer administering the Horizontal Gaze Nystagmus (“HGN”) test is not credible and that
Defendant’s deficiencies in the English language negates probable cause. The State opposes
Defendant’s Motion arguing that the Warrant for Defendant’s blood collection contained probable

cause and that the officer administering the HGN test is qualified and credible. Alternatively, the

State argues that absent the HGN test, the officer’s warrant still contained probable cause to believe
Defendant was impaired based on his observations during the traffic stop.

On November 27, 2018, the suppression hearing was held. At the conclusion of the
hearing, the Court ordered supplemental briefing on the issues. This is the Final Decision and
Order of the Court on Defendant’s Motion to Suppress and Motion to Strike.

FACTUAL AND PROCEDURAL HISTORY

On July 27, 2018, Defendant was arrested for DUI, in violation of 21 Del. C. §4177(a)(1),
and Failure to Remain in a Single Lane, in violation of 21 Del. C. §4122(1). On the evening of
July 27, 2018, Delaware State Trooper Duane Freeman (hereinafter “Trooper Freeman”) was on
patrol in Bear, Delaware, when he pulled behind a black Maserati Gran Turismo (“Maserati”) in a
lane on Route 40 turning left onto Frazier Road. The traffic signal to turn was green and Trooper
Freeman observed the Maserati remaining stationary at the light for approximately eight seconds
before proceeding through the turn. After the Maserati turned onto Frazier Road, Trooper Freeman
witnessed the Maserati veering from the right lane of travel into the left lane. Trooper Freeman
then proceeded to conduct a stop of the Maserati at which time Trooper Freeman made contact
with Defendant. Trooper Freeman observed Defendant’s eyes to be red and glassy and detected a
strong odor of alcohol emanating from Defendant. Trooper Freeman proceeded to ask Defendant
how much alcohol he had consumed which Defendant replied that he had one beer at a bar prior
to the traffic stop. Trooper Freeman then asked Defendant to exit the vehicle for sobriety testing.
Trooper Freeman conducted the HGN test but was unable to complete the Walk-and-Turn test and
the One-Leg-Stand test due to a language barrier between Trooper Freeman and Defendant.
Thereafter, a Portable Breathalyzer Test (“PBT”) was refused by Defendant but Defendant stated

that “he was not drunk but may be intoxicated.” At that time, Defendant was arrested for DUI and

transported to Troop 2 where a search warrant was executed to collect Defendant’s blood for
testing.

On October 8, 2018, Defendant filed the instant Motion to Suppress. A motion hearing
was held on November 27, 2018, at Which time the Court ordered briefing.

On December 20, 2018, the State filed an Opening Brief on the Motion to Suppress issue.
On December 28, 2018, Defendant filed a Brief in Support of the Motion to Suppress. On January
15, 2019, Defendant filed a Motion to Strike and a Rebuttal Response. On February 15, 2019, the
State filed a Response to Defendant’s Rebuttal Response and Motion to Strike.

PARTIES’ CONTENTIONS

Defendant argues the search warrant authorizing the collection of Defendant’s blood does
not contain probable cause to suspect alcohol impairment. Defendant contends that the Court
should not consider the time it took Defendant to accelerate at the green light, the odor emanating
from Defendant nor the appearance of Defendant’s red, glassy eyes as factors amounting to
probable cause. Further, Defendant argues the affiant failed to indicate any indicia of DUI training
in conducting the (“HGN”). Defendant avers there is a “total absence” of any information
regarding the training, education, experience or circumstances that would lend credibility to the
affiant’s statements Defendant contends that it is insufficient for the affiant to merely state that
he is a “TFC” with a Delaware Police agency.1 Additionally, Defendant argues his abilities were
compromised by a language barrier such that he could not understand the directions for various
field sobriety tests. As a result, Defendant argues that his statement that “he was not drunk but
may be intoxicated” is of little value to the probable cause analysis.2 Therefore, Defendant moves

to suppress all evidence obtained as a result of his arrest including the collection of Defendant’s

 

1 Def.’s Mot. to Suppress at 2.
2 ld at 4.

blood and the HGN results. Lastly, Defendant moves to strike certain language used by the State
in its Opening Brief which Defendant alleges attempts to use verbiage as a “grooming” agent to
support probable cause.3

The State argues that the warrant possesses sufficient facts to establish probable cause
under a totality of the circumstances analysis. Further, the State contends that the probable cause
determination does not require any type of specialized training within the affidavit to indicate a
fair probability that Defendant was under the influence of alcohol.4 The State asserts that the
affiant’s notation that he is a trooper was sufficient to show that he possesses the necessary training
and certifications to administer field sobriety tests. The State avers that the probable cause
indicators include: 1) Defendant’s failure to proceed through a green light for nearly eight seconds;
2) Defendant’s inability to remain within one lane; 3) Defendant’s red, glassy eyes and odor of
alcohol; 4) Defendant’s admission to having consumed an alcoholic beverage prior to driving; 5)
Defendant’s refusal of the PBT; and 6) Defendant’s admission that he was not drunk, but that he
may have been intoxicated.5 As to the refusal of the PBT, the State argues that a refusal to submit
to testing may be used to show consciousness of guilt and is to be considered when examining
probable cause to arrest for DUI.6 As to the Motion to Strike, the State avers that the observations
of Defendant’s driving are relevant facts for the Court’s consideration and not an attempt to

improperly influence the Court. The State requests that Defendant’s Motion to Suppress be denied

since there are adequate facts on the face of the affidavit to establish probable cause.

 

3 Def.’s Mot. to Strike at 3.
4 State’s Br. at 2.

5 Id at 3.

6 State’s Br. at 4.

DISCUSSION

On a “motion to suppress, the State must establish, by a preponderance of the evidence,
that Defendant’s arrest was supported by probable cause.”7 To establish probable cause for a DUI
arrest, the state “must present facts which suggest, when those facts are viewed under the totality
of the circumstances, that there is a fair probability that the defendant has committed a DUI
offense.”8 This totality consideration is based on “the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act.”9 “The Court must
examine the totality of circumstances surrounding the situation as viewed through the ‘eyes of a
reasonable trained police officer in similar circumstances, combining the objective facts with the
officer's subjective interpretation of those facts.”’lo

Court of Common Pleas Cz'vil Rule 1209 states in relevant part that “the Court may order
to strike from any pleading any insufficient defense or any redundant, immaterial, impertinent, or

”" “Because motions to strike are disfavored in Delaware, they are granted

scandalous matter.
sparingly and only where “clearly warranted.”’12 “The applicable test in determining whether to

strike is Whether the challenged averment is relevant to an issue in the case and whether the

averment is unduly prejudicial.”13

 

7 State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010).

8 Lefebvre v. State, 19 A.3d 287, 293 (Del. 2011).

9 State v. Cardona, 2008 WL 5206771, at *3 (Del. Super. Dec. 3, 2008) (quoting State v. Maxwell, 624 A.2d 926, 928
(Del. 1993)).

10 State v. Kane, No. 1210019022, 2014 WL 12684290, at *4 (Del. Com. Pl. Feb. 12, 2014); See Wooaj/ v. State, 765
A.2d 1257, 1262-64 (Del. 2000).

“ CCP Civ. R. 12(f).

12 Hiller & Arban, LLC v. Reserves Management, LLC, 2016 WL 3678544, at *6 (Del. Super. Jul. 1, 2016) (internal
citations omitted).

13 The Data Centers, LLC v. 1743 Holdl`ngs LLC, 2015 Wb 6662107, at *3 (Del. Super. Oct. 27, 2015) (intemal
citations omitted).

Probable Cause

Delaware case law follows that probable cause shall be viewed under a totality of
circumstances standard based upon the police officers training and experience.14 In considering
whether probable cause has been shown, the Court must evaluate Defendant’s assertion that
Trooper Freeman should have detailed his training in the warrant to establish an opinion on
Defendant’s impairment The Defense has not provided the Court with Delaware law that
mandates officers to do so. Trooper Freeman wrote that the affiant was “TFC Freeman of DSP
Troop 2,” showing that he is a duly authorized police officer who has been trained in his duties.15
The reviewing Court is to ensure the magistrate had a substantial basis for concluding that probable
cause existed and give great deference to that determination.16 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.17

Regarding the HGN evidence, the Delaware Supreme Court held that “prior to the
admission of HGN evidence the State must provide [a] proper foundation by presenting
testimony from an expert with specialized knowledge and training in HGN testing and its
underlying principles....”18 Here, Trooper Freeman has not had an opportunity to testify about the

standards set forth in the NHTSA training manual or whether the HGN test was performed in

 

14 State v. Wise, 2016 WL 7468058, at *4 (Del. Super. Dec. 22, 2016); See also State v. Reilly, 2018 WL 7049372, at
*3 (Del. Com. Nov. 30, 2018) (Court of Common Pleas found probable cause existed based on officer’s observations
alone).

15 State’s Br. at Ex. l.

16 State v. Hola’en, 60 A.3d 1110, 1114 (Del. 2013) citing lllinois v. Gates, 462 U.S. 213, 237, 103 S.Ct. 2317, 76
L.Ed.2d 527 (U.S.1983).

17 Bease v. State, 884 A.2d 495, 498 (Del. 2005) citing State v. Maxwell, 624 A.2d 926, 928 (Del.l993); Brinegar v.
United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)

18 Miller v. State, 4 A.3d 371, 374 (Del. 2010), citing Zimmerman v. Stale, 693 A.2d 31 l, 314 (Del.1997) (citing State
v. Ruthardt, 680 A.2d 349, 351¢52 (Del.Super.l996)).

accordance with NHTSA standards.” Trooper Freeman will have an opportunity to testify as to
his training qualifications at trial.

The State’s contention that Defendant’s refusal to submit to sobriety testing is admissible
to show consciousness of guilt at trial has been found relevant for a Court to consider when

9 Further, the totality of circumstances standard applies to the

examining probable cause.1
indicators present, not what was missing and therefore, Defendant’s assertion that the Court should
take into consideration the absence of other indicators of impairment is not the standard by which
probable cause is evaluated.

As to Defendant’s lack of proficiency in English, the Court does acknowledge Defendant’s
apparent confusion as to the Walk-and-Tum test and One-Leg-Stand test, and the potential that the
language issues caused the comment regarding intoxication. Defendant’s nonperformance of these
tests will not be considered in the probable cause analysis; nor will the Court consider the
comments on intoxication Contrary, Defendant’s language barrier does not negate his refusal to
submit to the PBT because Defendant’s actions showed he was aware of what the PBT test
entailed. The defendant in Zarco v. State, submitted to the PBT even though “due to a language
barrier, [the officer] was unable to perform standard field sobriety tests.20 In another Delaware
case, the defendant advised the trooper that he could not perform the alphabet test due to a language

barrier but he did perform the HGN, Walk-and-Tum, One-leg Stand and PBT.21 Accordingly,

Defendant’s refusal to submit to the PBT test is included in the probable cause analysis.

 

19 Church v. State, l 1 A.3d 226 (Del. 2010) (A defendants refusal to submit to testing may be used for any relevant
purpose, including to show consciousness of guilt).

20 Zarco v. State, No. NONE SUPPLIED, 2014 WL 2111696, at *l (Del. Super. Ct. May 15, 2014), affd, 106 A.3d
1050 (Del. 2015).

21 Ortiz-Bernal v. Shahan, No. CIV.A. 2001-09-409, 2002 WL 32070727, at *2 (Del. Com. Pl. Apr. 16, 2002).

7

For the aforementioned reasons, the Court concludes probable cause existed based upon
the following observations of Trooper Freeman: 1) Defendant’s failure to proceed through a green
light for nearly eight seconds; 2) Defendant’s inability to remain within one lane; 3) Defendant’s
red, glassy eyes and odor of alcohol; 4) Defendant’s admission to having consumed an alcoholic
beverage prior to driving; and 5) Defendant’s refusal of the PBT. Here, there was a substantial
basis for the magistrate to conclude that probable cause existed and therefore, the warrant is valid.

Lastly, the Court does not agree with Defendant’s assertions in the Motion to Strike, as the
State’s recitation of the facts are neutral and do not provide a different understanding of the
contents of the affidavit The State’s verbiage is merely a summarization of the facts and the Court
does not find that it was an attempt to influence the Court, groom the existence of probable cause,
or that it results in undue prejudice to Defendant.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED this 12th day of April, 2019, that

Defendant’s Motion to Suppress and Motion to Strike be DENIED. The matter is scheduled for

ajury trial on April 30, 2019.

 

cc: Shawn Johnson, Judicial Case Manager

