IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

STATE OF DELAWARE )
)
)
)
v. ) Case No.: 1305022458
)
CLINTON SHARP, )
)
Defendant. )
)
John R. Garey, Esq. D. Benjamin Snyder, Esq.
48 The Green Deputy Attorney General
Dover, DE 1990] Department of Justice
Attomey for the Defendant 103 West Water Street
Dover, DE l990l
Attorney for the State

Subinitted: April 17, 2014
Decided: May 5, 2014

DECISI(}N 0N DEFENDANT’S MOTION TO SUPPRESS
Defendant, Clinton Sharp, has been charged with Driving Under the Intluence ("DUI") in
violation of title 2], section 4177(21)(1) of the Delaware Code and Failure to Stop at a Red Light

in violation of title 21, section 4108(21)(3) of the Delaware Code. Counsel for the defendant has

filed a motion to suppress the results of a blood draw taken during the execution of a search
warrant on the grounds that such warrant is not supported by probable cause, 'l`liis
correspondence constitutes the Court’s decision on the inotion. The defendant’s rnotion to

suppress is granted

FACTS

On or about l\/lay 26, 2013, at approximately 8:53 p.in., a police officer front the Dover
Police Department was notified of a iiiotor vehicle accident on South State Street at the
intersection of South DuPont Highway. The officer conducted an investigation of the accident
scene and based on his training and experience, believed that the defendant appeared totbe under
the influence of alcohol. The sole issue in this case is the sufficiency of the affidavit of probable
cause offered by the officer in support of a search warrant to extract the defendant’s blood. The
inrobable cause affidavit in this case states:

1. That your Affiant, PFC {nanie oinitted], has been a member of the Dover Poiice
Departinent since Sept. ll, 2006. That your affiant graduated from the Delaware State
Police Acadeiny. Your affiant has been through several DUI detection classes certified
by NH'I`SA at the Delaware State Police Acadeiny and Dover Police Departinent which
places an emphasis on the detection of operators driving under the influence of alcohol.
Your affiant is a certified collision reconstructionist graduating from Collision
Recoiistructioii and Analysis at the Virginia State Acadeniy in Sept. 201().

2. Tliat on May 26, 2013 at approximately 2053 hrs the Dover Police Departinent was
iiotified of a serious personal injury accident having just occurred on South State Street at
the intersection of S. Dupont l~~lwy.

3. 'i"liis location is within the incorporated city limits of Dover.

4. 'l`hat upon arrival your affiant located Ciinton Sharp seated in the driver’s seat of a 1998
oldsmobile [sic] 88 bearing Delaware registration [iiurnber ornitted] and appeared to be

injured as a result of the accident.

5. "l`iiat your affiant was able to determine that Sharp was the operator of this vehicle prior
to the accident

6.

l0.

ll.

12.

'l`hat David Davis J`r [sic_'] had to be immediatefy transported by ainbulaiice froin the scene
to Bayhealth l\/ledical Center for treatment

Upon contact with the [sic] Sharp affiant smelled a strong odor of alcoholic Bevei'age
f_sic] corning fi'oiii his breath.

Sharp also had slurred speak [sic] and blood shoot [sic] eyes.

That based on your affiant’s training and experience your affiant believes that Sharp
appeared to be under the influence of intoxicating beverages

That your affiant wishes to have medical personnel attenipt to remove an amount of
blood, of sufficient quantity for later testing, from the body of Clinton Sharp DOB [date
omitted] for which recovery of this evidence is necessary to further the State’s pending
criminal investigation against Clinton Sharp DOB ldate oinitted].

That Clinton Sharp did provide affiant with a breath sample in affiants PBT which
provided a reading of O.l36% BAC.

Based upon your affiants training, experience and participation in other driving under the
influence investigations particularly aicohol and illegal and/or prescribed drugs your
affiant knows that:

a. that when operators of motor vehicles consume various amount of alcohol prior to
and during the operation of a motor vehicle their ability to safely operate a motor
vehicle is impaired thereby endangering the citizens of the State of Delaware,

b. that when operators of motor vehicles consume various amounts of illegal and/or
prescription drugs prior to and during the operation of a motor vehicle their ability
to safely operate a motor vehicle is impaired thereby endangering the citizens of
the State of Delaware.

c. that these various aniounts of alcohol and illegal and/or prescription drugs will
dissipate over time from within the bloodstreani of the operator if a sample of the
operator’s blood is not recovered within a sufficient amount of time.

d. that the facts in the above listed probable cause sufficiently establish Clinton
Sharp DOB [date omitted] was operating a motor vehicle in violation of Title 21,
Chapter 41, Section 4177 of the Delaware Code and a search of Clinton Sharp
DOB {date omitted] is necessary to recover additional evidence that would
otherwise be lost or destroyed.

Wlierefore, these affiants pray that a search warrant may be issued authorizing a search of
the aforesaid: Clinton Sharp DOB [date omitted], of [address omitted] driver’s license

number [nuinbcr oniitted], and the blood of Clinton Sharp being in the City of Dover,
County of Kent, State of Delaware, in the manner provided by law.
ARGUMENTS

The defendant contends that the four corners of the ofticer’s affidavit fails to establish
probable cause to issue a search warrant to draw the defendant’s blood. l~~le argues that the
ofiicer’s inclusion of the actual reading of the defendant’s performance on the I’B'l` was
inadmissible and should have been excluded from the magistrate’s probable cause analysis. 'l`lie
defendant relies on Pri`ce v. Voshe.ll, arguing that "[f]rom an evidentiary standpoint, it is the
better practice to have the preliminary screening test result expressed only in terms of passiiig,
incoriclusiveiiess or failing and not in terms of an actual reading." 1991 WL 89866, at *4 (Del.
Super. l\/lay lO, 1991). The defendant contends that with the exclusion of the PB'I` results, the
affidavit fails to set forth sufficient probable cause for the magistrate to issue a search warrant for
the defendant`s blood.

T he State counters that while the best practice may be to express the defendant’s
performance as pass or fail, the actual results of a PBT may be used to establish probable cause.
Fiirtlicriiiore, the State argues that the defendant’s performance on the I’B'l` may bc considered
regardless of whether the affidavit contains the protocols adopted by the officer in administering
the PBT. Relyiiig on iS'i‘czle v. Holn'eii, the State contends that probable cause affidavits are tested
under less rigorous standards then those governing the admissibility of evidence at trial. 60 A.3d
lllO, l 115 (Del. 2011). The State also counters that the officer’s affidavit establishes probable
cause even if the results of the PBT are omitted from the Court’s analysis. 'l` he State relies on
Si'ciie v_ Wi'i.'liciiii.s‘, arguing that probable cause has been established where there is evidence of

erratic driving, odor of alcohol, bloodshot and glassy eyes, and admission to consuming alcohol

2012 Wl,, 6738546, at *2 (Del. Com. Pl. Oct. 25, 2012) (citing Beci.s'e v. Sla/e, 884 A.Zd 495__ 498

(i)@i_ 2005)).

DISCUSSI()N

"'li`lie Fourth Aineiidineiit of the U.S. Constitution requires that a search warrant be issued
only upon a finding of probable cause, which must be premised on the information within the
four-corners of the affidavit in support of a search warrant." Stciie v. f]o.e’ci'eii, 60 A.3d 1110,
1 114 (Del. 2013). Probable cause is based on an analysis of the totality of the circumstances. [d.
'l`liis Court inust determine whether the requesting officer’s affidavit gave the issuing magistrate
a "siibstantial basis" to conclude probable cause existed. Sici!e v. Rybi`cki', 2014 WL 637004, at
”"1 (Dei. Super. Jan. 14_. 2014). A iiiagistrate’s finding of probable cause should be accorded
great deference; however, the reviewing court rnust determine whether the iiiagistrate’s decision
reflects a proper analysis of the totality of the eircumstances." ]a'.

l. PBT Results

A defendant’s performance on a PBT may be used for purposes of establishing probable
cause to require the defendant to undergo chemical tests or to arrest the defendant for DUl. Siaie
v. Blcilce, 2009 WL 3043 964, at *4 (Del. Com. Pl. Sept. 14, 2009). While "it is the better practice
to have the preliminary screening test result expressed only in terms of passing, iiiconclusiveness
or failing and not in terms of an actual reading," there is no prohibition on iiitroduciiig the actual
reading of the PBT for purposes of establishing probable cause. Price v. l/o.s'hell, 1991 WL
89866, at *4 (Del. Super. l\/lay 10, 1991) (quoting Tr"ie New DUI Lai»i); A Jiia'ge ’s Bencli Mci)=iiici!,
Secoiid Edition, Oct. 1983, pp. 25, 26.)', see Maii!o v. Si‘ate, 27 A.3d 55l, 2011 WL 3849498, at
’*‘2 (Del. Aug. 30, 2011) (TABLE) (discussing that the defendant was administered a PB'I` which

revealed that that the defendant had a blood alcohol content of 0.147). llowever_, "[o]ur courts

have held that before admitting PBT results [for purposes of probable causej, the State must lay a
proper foundation, by establishing that the police officer properly calibrated the PBT inachiiie,
and that the officer had been trained to operate the test." Mz'ller v. iS`l'al'e, 4 A.3d 371, 374 (Del.
2010). "[A]iiy question as to the PBT’s proper foundation may only go to the weight placed on
the test result, rather than its admissibility. Slcile v. Bcfielci‘, 2010 WL 2195978, at "‘4 (Del.
Com. Pl. Apr. 22, 2010) (quoting B[ake, 2009 WL 3043964_. at ’*‘4) (interiial quotation marks
oniitted).

ln this ease, the officer included the actual result of the defendant’s performance on the
PBT in his affidavit of probable cause. The Court disagrees with the defendant that the officer
was precluded from referencing the actual results of the defendant’s PBT performance in the
affidavit Whether expressed in terms of a pass, failure or the actual numerical score, a
defcndant’s performance on a PBT may be used for purposes of establishing probable cause
However, the Court does find that the defendant’s l’B'l` results should be accorded little weight in
the totality of the circumstances analysis pursuant to the lack of foundation for the PBT. The
affidavit did not include any information regarding the calibration of the PBT or whether the
officer observed the defendant for the requisite time prior to the test.

The Court acknowledges that "affidavits of probable cause are tested by much less
rigorous standards than those governing the admissibility of evidence at trial." fi’ola'eii, 60 A.3d
at 1 l 15 (quoting .Sji)ii:ielff v. limited Slcates', 393 U.S. 410, 4l9 (1969)). However, a blood draw is
an "iiivasion of bodily integrity [that] implicates an individual’s ‘most personal and deep-rooted
expectations of privacy."’ Mi'.s'.s'otiri` v. McNeely, 133 S. Ct. 1552, 1558 (2013) (quoting Wi'ii.rton
v. Lee, 470 U.S. 753, 760 (1985)). While the Court agrees that the results_of the PBT are

admissible for purposes of establishing probable cause, the weight assigned to those results

depends on the reliability of the evidence Hola’en, 60 A.Bd at lll5-l6 (stating that an
informant’s tip may provide probable cause if the totality of the circumstances indicates that the
information is reliable.). lt is weil-established that without establishing the proper foundation,
the results of a PBT are accorded little weight in the totality of the circumstances analysis
Mz`ller, 4 A.3d at 374. Therefore, the Court concludes that while the numerical results of the
PBT are c:a’rnz`.s'.s'fble, they should have been accorded little weight by the issuing inagistrate due
to the oflicer’s failure to establish the proper foundation to prove the results reliable
II. Probable Cause

The issue reniainiiig before the Court is whether, after according the appropriate weight
to the evidence in the four corners of the aflidavit, the inagistrate had a substantial basis to find
that there was probable cause to believe that the defendants "blood would yield evidence of
consumption of alcohol beyond the legal liinit, or sufficient alcohol content to support a charge
of driving while under the influence of alcohol." Ryl)i`c!ci`, 2014 WL 637004, at * I. ln this case,
in addition to the results of the PB'I`, the affidavit states that: (l) the defendant was involved in a
traffic accident with another vehicle; (2) the defendant emitted a strong odor of alcohol; (3) the
defendant had blood shot eyes', and (4) the defendant’s speech was slurred. Based on the totality
of the circuinstances, the Court does not believe that the affidavit denionstrates the requisite
probable cause to issue a search warrant for the defendant’s blood.

Where an officer arrives at the scene of an accident without having the opportunity to
observe an individual driving erratically or coinmitting a traffic violation, evidence indicating the
nature of the accident or that the accident was the fault of the defendant is given weight in the
Court’s probable cause analysis. See Srafe v. Bevelhei`rrrer, 2012 WL 2064604, at *2 (Del. Coni.

Pl. June 8, 2012) (holding that "[i]t appears that where someone runs into the rear of a stopped

vehicle at a red light on a iiia_joi' liigliway, with an odor of alcohol, slurred speech, and bloodshot
eyes, any reasonable officer could fairly conclude that is probable cause to take [the personl into
custody for further testing."); State v. Rc)l)z`nson, 2006 WL ll48477, at °*‘5 (I\/lay l, 2006)
(concludin g that probable cause for a search warrant was established where the ofl'icer’s affidavit
stated that "the [def`eridaiit’s] vehicle had been traveling at a high rate of speed and had hit a
second car, the guardrails several times, and two different trees."). ln Sl'ate v. Ryl)z'ckz`, the
Superior Court found that the four corners of an officer’s affidavit demonstrated that the issuing
niagistrate had a substantial basis to conclude that the defendant was driving under the irilltierice.
2014 WL 637004 (Del. Super. Jan. l-¢l, 2014). Tlte officer’s affidavit stated that the defendant
was involved in a sirrgle-car accident The defendant "went up and over a grass ernbanknieiit
from the park and ride parking lot striking the curb and corning to rest facing [westbound] across
the [northbound] lanes. . . ." Id. at ‘*‘l. Upon contacted with the defendant, the officer detected
an odor of alcoholic beverage. ]ci. 'l`he Court held that:
[t:|he rictfure of the accidenl, combined with the officer’s personal observation of an odor of
alcohol on Defendant’s breath, constitute probable cause to believe that De'l"eiidant was under
the influence of alcohol at the time of the accident, and that evidence of alcohol consumption
could be obtained from a test of Defeiidant’s blood.
Ia’. (einphasis added).
ln this case, the affidavit stated that the defendant was involved in a two-car accident
llnlil<e the accidents in Bevelheirner, Ryl)z`cki and Rc)bins'oii, the affidavit does not assign fault to
the defendant, nor does it include a description of the accident that would lead a reasonable

person to believe that the accident was attributable to the defendant.' The affidavit does not

contain any evidence indicating the nature of the accident. The State argues that probable cause

l Furtherinore, the State notes in its reply brief that the officer "was called out to a serious
personal injury accident of ima'elernir`ned cau.s'e." State’s Reply Br. l (einpliasis added)_

has "been found where the driver was driving erratically, smelled of alcohol, had bloodshot and
glassy eyes, and admitted he had consumed alcohol the night before." Smte v. W:'H:`cr)ii.s', 2012
Wl, 6738546, at *2 (Del. Com. Pl. Oct. 25, 2012) (eitiiig Bectse v. Sl'are, 884 A.2d 495, 498 (Del.
2005)). However, the affidavit does not contain any information regarding the officer’s
observations of the defendant’s driving and the defendant did not admit to consuming alcohol.
The affidavit merely states that the defendant was involved in an accident with another vehicle

where both the defendant and the other driver sustained injuries

C()NCLUSION
Based on the foregoing arlalysis, the Court finds that the iriagistrate did not have a
substantial basis to conclude that there was probable cause to believe that the defendant was
driving under the influence based on the information contained within the four corners of the
oflicer’s affidavit. 'flierefore, the results of the defendant’s blood draw rnust be suppressed. The

defendant’s l\/lotion to Suppress is GRANTED.

IT IS SO ORDERED this __S_t_h_ day of l\/IAY, 2014.

faa/l /lM

C]BIARLES W. WELCH
JUDGE

