IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)

)

v. ) I.D. No.: 1804003703

)

)

VINCENT R. LAW, )
)

Defendant. )

M

Submitted: September 1 1, 2018
Decided: October 1 l, 2018

Upon Consia’eratz`on of Defendant ’s Motz'on to Suppress Evidence, and Motl'on to

Supplement the Motion to Suppress Evz`dence,
DENIED.

William L. Raisis, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attomeyfor the State.

Joe Hurley, Esquire, Wilmington, Delaware. Attorneyfor the Defena'ant.

MEDINILLA, J.

AND NOW TO WIT, this llth day of October, 2018, upon consideration of
the Defendant’s Motion to Suppress and his Motion to Supplement Motion to
Suppress, as Well as the record in this case, it appears to the Court that:

l. On April 7, 2018, Defendant Vincent R. LaW (“Defendant”) Was
arrested and stands charged With Felony Driving a Vehicle While Under the
Influence (“DUI”), Vehicular Assault Second Degree, Reckless Driving, Criminal
Mischief, No Proof of Insurance, Driving Without a License, and Failure to Yield
Right of Way. Defendant argues that under a four-corners analysis, the Search
Warrant Affldavit (“Affldavit”) fails to establish probable cause to obtain the search
Warrant that Was issued in this case for Defendant’s blood Withdrawal.l

2. Defendant argues suppression of the evidence is Warranted for What the
Court considers arguments that fall into three categories First, Defendant claims
the Affidavit does not set forth the officer’s knowledge or training to administer pre-
screening arrests tests, fails to identify the tests, and does not adequately state the
reasons Why Defendant Was unable to perform said tests.2 Second, Defendant
suggests that Defendant’s admission to having consumed alcohol is of little Value

Where the admission fails to state the quantity or timeframe of the consumption, and

 

l See Def.’s Am. Mot. 11 4.

2 See id. W 4(b),4(g)-

further challenges the officer’s ability to characterize the strength or the “odor” of
alcohol.3 Finally, although there is no dispute that Defendant was involved in a
motor vehicle accident, he argues that the Affldavit fails to establish that it was
Defendant’s impairment that caused the accident, and thus was not properly before
the Magistrate for a probable cause determination. On this causation issue, he claims
not only that the Magistrate had an insufficient basis to find probable cause, he also
seeks consideration of a supplemental photograph of the Defendant’s vehicle
damage to highlight the Affldavit’s inaccuracies, and argues that a Franks hearing
is required; in the alternative, a correction to the Affidavit.4

3. Corporal K. Diaz (“Diaz”), the affiant from the Delaware State Police
(“DSP”), presented in the Affldavit that he is a sworn member of the DSP and
currently assigned to Troop 2. He stated further that he obtained his bachelor’s
degree in criminal justice at Holy Family University and is a graduate of the
Delaware State Police Academy.

4. The Affidavit provides that on April 7, 2018 at approximately 11127

a.m., Trooper DiaZ responded to the area of Northbound on Market Street just North

 

3 Def.’s Am. Mot. 11 4(f) (“The sum and substance of the remaining content indicated an
admission of consuming alcohol, without there being any indication of quantity consumed or
timing of consumption as well as an odor of what was described as a ‘strong odor of alcohol’.
Of course, alcohol does not have an odor.”).

4 See id. 11 4(a); see generally Mot. to Supplement Mot. to Suppress [hereinafter “Mot. to
Suppl.”].

of Rogers Road in Wilmington, Delaware related to a two-vehicle crash,5 involving
a 2001 BMW with Maryland registration and a Ford van with Delaware registration.6
Major damage was caused to both vehicles.7 The BMW was registered to Vincent
R. Law (“Defendant”).8 Diaz responded to the Christiana Health Care’s Emergency
Room where Defendant was being treated for injuries.9 Diaz made contact with
Defendant and read him his Mz'randa rights. Defendant waived and spoke to the
officer.10

5. The Affldavit continues to describe that Defendant told Trooper Diaz
that he was driving from a casino in Baltimore and traveling to Philadelphia when
he was involved in the accident in Wilmington.ll Defendant admitted that while in
the casino, he was drinking liquor, specifically “Jameson.”12 Diaz stated he “could

smell a strong odor of alcohol coming from Defendant while he spoke.”13 Diaz

 

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stated in the Affidavit also that “[s]everal pre-screening arrests tests were
administered to Law in which he was unable to complete properly.”14 The Diaz
Affidavit states “there is probable cause that the above-named Defendant is presently
under the influence of alcohol and/or drugs and requests a search warrant to
draw. . .defendant’s blood. . . .”15 The Magistrate issued the search warrant.

6. Defendant moves to suppress the blood test results and filed this Motion
on June 29, 2018. Defendant subsequently filed an Amended Motion to Suppress on
July 20, 2018. The State filed a Response to Defendant’s Motion to Suppress on
July 20, 2018. Defendant filed a Reply to State’s Response on August 9, 2018. A
Suppression Hearing (“Hearing”) was held on September 7, 2018. Defendant
subsequently filed a Motion to Supplement Motion to Suppress Evidence on
September ll, 2018. The State filed a Reply to Defendant’s Motion to Supplement
Motion to Suppress Evidence on September ll, 2018.

Standard of Review

7. When the Court is presented with a motion to suppress challenging the

validity of a search warrant, “the defendant bears the burden of establishing that the

challenged search or seizure was unlawful.”]6 Here, a magistrate’s probable cause

 

“Amqr
15 Aff.

16 State v. Sisson, 883 A.2d 868, 875 (Del. Super. 2005), aff’d, 903 A.2d 288 [hereinafter “Si'sson
F}

determination should be reviewed with great deference and should not “take the form
of a de novo review.”l7 A magistrate’s probable cause determination should be
considered “as a whole in a practical, commonsense manner, and not on the basis of
a hyper-technical analysis of its separate allegations.”‘8 This Court’s duty is “simply
to ensure that the magistrate had a substantial basis for concluding that probable
cause existed.”'9 The totality of the circumstances test is used to determine “whether
probable cause to obtain a search warrant exists[.]”zo
Probable Cause Established under the Four-Corners Analysis

8. When determining if there is probable cause to issue a search warrant,
a “magistrate may only consider the information considered within the four-corners
of the affidavit.”z' An “affidavit in support of a search warrant must, within the

four-corners of the affidavit, set forth facts adequate for a judicial officer to form a

reasonable belief that an offense has been committed and the property to be seized

 

'7 State v. Holden, 60 A.3d 1110, 1114 (Del. 2013) (quoting Illinois v. Gates, 462 U.S. 213, 23 8-
39 (1983)). `

'8 Sisson v. State, 903 A.2d 288, 296 (Del. 2006) (citing Sml`th v. State, 887 A.2d 470, 473 (Del.
2005)) [hereinafter “Sisson 11”].

19 Ia'. (citation omitted).

20 Ia’. (citing Fink v. State, 817 A.2d 781, 787 (Del. 2003); Gardner v. State, 567 A.2d 404 (Del.
1989)).

2' Rybl`cki v. State, 119 A.3d 663, 668 (Del. 2015) (citing LeGrande v. State, 947 A.2d 1103,
1107 (Dei. 2008)).

will be found in a particular place.”22 The “magistrate may draw reasonable
inferences from the affidavit’s factual allegations.”23 Although Defendant
challenges various portions of the Affidavit to discount facts in his favor, the
Supreme Court has previously held that “[t]he possibility that there may be a
hypothetically innocent explanation for each of several facts revealed during the
course of an investigation does not preclude a determination that probable cause
exists. . . .”24 The Court addresses Defendant’s challenges in order.

9. First, this Court disagrees that the Affidavit fails to provide
qualifications of the affiant “other than the qualifications of an ordinary
layperson....”25 He is not a layperson. Trooper Diaz sets out that he has an
undergraduate degree in criminal justice and is a graduate of the DSP Academy,
currently assigned as a law enforcement officer to Troop 2. Thus, it was not
unreasonable for the Magistrate to consider that Trooper Diaz carried the requisite
experience to conduct the proper tests to determine Defendant’s impairment or

intoxication. His qualifications were not the problem. More problematic is the

 

22 Sisson II, 903 A.2d at 296 (citation omitted).

23 Lamberz v. sze, 110 A.3d 1253, 1255 (Dei. 2015) (quoting Rivem v. Sm¢e, 7 A.3d 961, 967
(Dei. 2010)).

24 Ia'. at 1256 (quoting State v. Maxwell, 924 A.2d 926, 930 (Del. 1993)).

25 See Def.’s Am. Mot. 11 4(b).

skeletal language in the Affidavit that states “several pre-screening arrest tests were
administered to Law in which he was unable to complete properly.”26

10. The Affidavit does not provide details about what “pre-screening arrest
tests” were administered Also unclear is what is meant by the representation that
Defendant “was unable to perform” these tests. Defendant was in the emergency
room when Trooper Diaz presumably administered these tests. lt is unknown
whether the inability to perform the testing was due to the medical treatment being
rendered or the result of alcohol/drug impairment No test is mentioned by name,
except to say they were administered For example, there is no indication whether
the testing included the Horizontal Gaze Nystagmus (“HGN”), the Walk-and-Turn,
or the One-Leg Stand test.

11. Also, no reference is made as to whether National Highway Traffic
Safety Administration (“NHTSA”) standards were followed when the tests were
given. Nothing is said regarding the officer’s assessment of any clues that would
indicate potential impairment, or that Defendant exhibited any signs related to
intoxication. Although the Affidavit omits whether Diaz had NHTSA training to
conduct the tests in this case, his NHTSA training and experience may have been

more obvious in the Affidavit had he set out the specifics of his findings and the

results of the tests. This was not done. Given the lack of information regarding the

 

26 Aff. 11 7.

testing and what was meant by Defendant’s inability to perform them, the
“magistrate did not have a proper basis upon which to judge the defendant’s
results.”27 Therefore, this Court agrees with Defendant that the affiant’s generic
statement related to Defendant’s inability to perform unknown tests was an
insufficient factor as presented for a proper probable cause analysis.

12. Nevertheless, even excluding the statements regarding the pre-
screening tests, under the totality of the circumstances, and giving deference to the
Magistrate, there is a substantial basis for concluding that probable cause existed
from the remaining facts in the Affidavit to issue a valid search warrant. Thus,
Defendant’s two remaining arguments are without merit.

13. Defendant claims that the Affidavit does not provide information about
the accident that “would attribute fault for the collision on the part of the
defendant.”28 This argument was previously advanced unsuccessfully in Lambert v.
State where Defendant argued that, within the four corners of the Affidavit, there

was nothing to suggest that defendant was at fault for causing the accident.29 The

 

27 State v. Cajthaml, 2013 WL 12201338, at *2 (Del. Com. Pl. Dec. 16, 2013). The affidavit in
Cajtham] set forth that the officer had the defendant “conduct field sobriety tests which she
subsequently failed” and defendant did not correctly perform an intoxilyzer test. Ia’. at *1. The
Court held that this explanation of defendant’s failure to perform the field sobriety tests “does
not provide a sufficient basis for the issuing magistrate to determine the reliability of the tests.”
Ia'. at *2.

28 Def.’s Am. Mot. 11 4(a).

29 Lambert, 110 A.3d at 1256.

Supreme Court held that in order to determine if there was probable cause to believe
that the defendant was under the influence, “the magistrate need only have found
probable cause that ‘because of alcohol or drugs or a combination of both, [Lambert
was] less able than [he] would ordinarily have been, either mentally or physically,
to exercise clear judgment, sufficient physical control, or due care in the driving of
[his] vehicle.”’30 No determination that the defendant was at fault for the accident
was required in Lclmbert.3l

14. This Court finds that determinations of negligence or liability in the
civil context need not be established by law enforcement as factors for the
Magistrate’s consideration to determine whether probable cause exists to proceed
against an individual for criminal conduct. Whether Defendant was at fault does not
change the fact that Defendant was involved in_and unable to avoid_an accident.
That there was an accident is merely but one factor that, albeit standing alone, may
be insufficient for a finding of probable cause.

15. The Delaware Supreme Court has further explained that a “traffic
violation combined with a strong odor of alcohol, standing alone, do not constitute

probable cause to arrest the driver for a DUI offense.”32 Although this may not

 

30 Ia'. (quoting 21 Del. C. § 4177(a); 21 Del. C. § 4177(c)(11)).
31 See id.

32 Lefebvre v. State, 19 A.3d 287, 293 (Del. 2011) (citing Esham v. Voshell, 1987 WL 8277 (Del.
Super. Mar. 2, 1987)); see Rybl`ckl`, 119 A.3d at 671 (citation omitted).

10

constitute probable cause, a finding of probable cause may be established when
additional information is provided in the search warrant affidavit.33 Here, there was
more. These additional factors included an accident that resulted in major damage
to both vehicles, the strong odor of alcohol coming from Defendant while Trooper
Diaz spoke with him, ana’ Defendant ’s admission that he was indeed driving from a
casino in Baltimore to Philadelphia where he had been drinking alcohol, namely
Jameson.

16. That Defendant’s admission to drinking alcohol did not specify the
number of drinks he consumed, or when he had consumed them, is not fatal to the
finding of probable cause, especially where the admission is coupled with the
officer’S ability to detect a strong odor of alcohol. It was not unreasonable for the

officer to consider the strong odor detected in his probable cause calculus. Although

”34

Defendant asserts that “alcohol does not have an odor, magistrates have

considered the odor of alcohol as a factor in its probable cause determination.35

 

33 See State v. Dopirak, 2017 WL 3129234, at *2 (Del. Super. July 24, 2017) (indicating factors
sufficient for probable clause include egregious erratic driving, a strong odor of alcohol, and
defendant’s refusal to submit to intoxilyzer test or blood draw); Rybicki, 119 A.3d at 671
(detailing defendant’s one vehicle accident, defendant’s disorientation, the smell of alcohol, and
defendant’s refusal to submit to field sobriety tests, preliminary breath test, and intoxilyzer test
as sufficient to establish probable cause); Lambert, 110 A.3d at 1256-57 (finding vehicle
collision, watery, bloodshot eyes, and detection of odor of alcohol provided magistrate sufficient
information to support finding of probable cause).

34 Def.’s Am. Mot. 11 4(f).

35 See Dopirak, 2017 WL 3129234, at *2.
ll

Accordingly, reasonable inferences could have been made regarding the time of
when he was drinking when he left the casino in Baltimore until he was involved in
the accident in Wilmington.

17. This Court finds the Magistrate had a substantial basis for concluding
that probable cause existed. The Affidavit set forth facts adequate for the Magistrate
to form a reasonable belief that the offense of DUI had been committed. Where
BAC evidence deteriorates over time, the Magistrate made reasonable inferences
that Diaz had probable cause to believe Defendant had committed the offense of DUI
and that evidence of his intoxication could be found in Defendant’s blood.36

18. Lastly, Defense counsel requests a F ranks hearing, or alternatively, that
the Court reconstruct the Affidavit and make a ruling in his favor by comparing the
language used in the Affidavit and the photographs of the damage to Defendant’s
vehicle made available to defense counsel after the Hearing.37 Defense counsel
asserts that the photographs show that the representation made by the investigating

officer in the Affidavit was “suspect and inaccurate.”38 Specifically, photographs of

 

36 See Rybicki, 119 A.3d at 669-70 (emphasizing statement in affidavit that defendant was
presently under the influence of drugs or alcohol and explaining that blood alcohol content
evidence is “constantly deteriorating and diminishing with time as the body naturally filters
alcohol out of the system”).

37 See generally Mot. to Suppl.

38 Mot. to Suppl. 11 5.
12

Defendant’s vehicle taken the day after the accident suggest it was Defendant who
was hit, not the other way around.

19. A F ranks hearing may be held at a defendant’s request if “the defendant
makes a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the false statement is necessary to a finding of probable
cause[.]”39 ln order to mandate a Franks evidentiary hearing, “the challenger’s
attack must be more than conclusory and must be supported by more than a mere
desire to cross-examine.”40

20. Defendant fails to make the required “substantial preliminary showing”
that the officer knowingly and intentionally or recklessly with disregard relied on
false statements to establish probable cause to obtain a search warrant for
Defendant’s blood sample.4l Defendant’s allegation was merely that the Off`icer’s

representation in the Affidavit Was “suspect and inaccurate.” This does not establish

the requirement of a knowing and intentional falsehood or reckless disregard for the

 

39 Blount v. State, 511 A.2d 1030, 1033 (Del. 1986) (quoting Franks v. Delaware, 438 U.S. 154,
155-56 (1978)).

40 Franks, 438 U.S. at 171.
4' The Court does not analyze the second requirement that requires that such allegations of

deliberate falsehood or reckless disregard for the truth “must be accompanied by an offer of proof,”
where here, none was provided except from defense counsel.

13

truth as required under Franks.42 Furthermore, even if it had been determined to be
a false statement, for the reasons previously stated, clarification regarding which
vehicle was struck first is not required for a finding of probable cause. Thus,
Defendant’s request to “reconstruct the Affidavit” is not necessary.

21. For these reasons, the evidence seized from Defendant will not be
suppressed Defendant’s Motion to Suppress is DENIED. The Motion to

Supplement Motion to Suppress is also DENIED.

IT IS SO ORDERED.

 

 

Vivian;l.. Medi/nilla
Judge

 

42 see Jensen v. sm¢e, 482 A.2d 105, 113-14 (citing Franks, 438 U.s. ar i71-72).

14

