IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE

IN AND FOR KENT COUNTY
STATE OF DELAWARE )
)
)
)
v. ) Case No.: 1610006797
)
KIMBERLY GILBERT )
)
Defendant. )
)
Nicole S. Hartman, Esq. Stephen W. Welsh, Esq.
Deputy Attorney General P.O. Box 824
Department of Justice Georgetown, DE 19947
102 West Water Street Attorney for Defendant
Dover, DE 19904
Attorney for State

Submitted: April 13, 2017
Decided: May 15, 2017

DECISION ON DEFENDANT’S MOTION TO SUPPRESS

Defendant, Kimberly Gilbert, has been charged with Driving Under the Influence of
Alcohol (“DUI”) in violation of title 21, section 4177(a)(1) of the Delaware Code. Ms. Gilbert
has filed a motion to suppress the evidence obtained as a result of the execution of a search
Warrant for a blood draw upon her on the grounds that the Warrant Was not supported by probable

cause. The Court held a hearing on the motion on April 13, 2017, and reserved decision. This

opinion constitutes the Court’s decision on the motion. Ms. Gilbert’s motion to suppress is

DENIED.

FACTS

On October 12, 2016, at approximately 12:47 a.m., a police officer from the Delaware
State Police Department was on patrol in the area of Smyma, Delaware. While patrolling, the
officer observed Ms. Gilbert commit two minor traffic offenses. The officer thereafter stopped
her. Based on the officer’s training and experience, the officer believed that Ms. Gilbert was
under the influence of alcohol. The officer then obtained a search warrant to extract Ms.
Gilbert’s blood to search for the presence of alcohol. The sole issue in the case is the sufficiency
of the affidavit of probable cause offered by the officer in support of the search warrant. The

pertinent portions of the search warrant affidavit in this case are stated as follows:

1. I, ch. [name omitted], have been employed by the Delaware State Police since
February 2014 and am currently assigned to Troop 9 Patrol.

2. On Wednesday 10/12/16 at approximately 0047 hours, while patrolling NB on US
13 S/O West Glenwood Ave, Smyma, DE, I observed a gray Chevrolet Malibu
traveling NB on US 13 in the right lane.

3. While behind Vl, I observed Vl cross over the white dotted line separating the
left and right NB lanes. Vl then traveled back into the right lane and then crossed
the right fog line off of the right side of the roadway.

4. As Vl approached a red traffic light, Vl stopped at the traffic light approximately
1 car length away from the same. Vl twas [sic] then placed into park at the stop

light.
5. I conducted a traffic stop of Vl and made contact with Sl-Kimberly Gilbert [date
omitted]. Sl was the sole occupant of Vl.

6. Vl’s eyes were glassy and bloodshot. I detected a strong odor of alcoholic
beverages on the breath of Sl.

7. Sl stated that she refused to submit to any field sobriety tests, as well as a breath
test. Sl ’s speech was mumbled and slurred.

burden of proving that the search was valid.1 But, when a warrant has been issued by a
magistrate, the burden shifts to the defendant to show a violation of his or her rights.2 In this

case, the defendant’s motion to suppress challenges a warrant that was issued by a magistrate.

DISCUSSION

If a defendant challenges the propriety of a search without a warrant, the State bears the

Therefore, the burden of proof lies with the defendant

The standard the Court must follow when reviewing the magistrate’s determination of

probable cause is outlined in Rybicki v. State:

establish probable cause to issue a search warrant. In support of her position, Ms. Gilbert relies

A court reviewing the magistrate’s determination has the duty of ensuring that the
magistrate had a substantial basis for concluding that probable cause existed. A
magistrate’s determination of probable cause should be paid great deference by
reviewing courts and should not, therefore, take the form of de novo review.
Notwithstanding this deference, the reviewing court must determine whether the
magistrate’s decision reflects a proper analysis of the totality of the
circumstances

Before issuing a warrant, a magistrate must find that probable cause exists that
evidence of a crime will be found in the place to be searched. The magistrate may
only consider the information contained within the four corners of the affidavit A
neutral and detached magistrate may draw reasonable inferences from the factual
allegations in the affidavit. F or an affidavit to be sufficient, it must set forth facts
permitting an impartial judicial officer to reasonably conclude that the items
sought would be found at the location. The officer is only required to 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
crime. The affidavit need not rule out potentially innocent explanations for a fact.
Probable cause may be found so long as the facts presented in the affidavit are
sufficient themselves to warrant a person of reasonable caution in the belief that
an offense has been or is being committed.3

Ms. Gilbert contends that the officer’s affidavit did not contain sufficient information to

 

1 State v. Adams, 13 A.3d 1162, 1166 (Del. super. 2008).

2 ld.

3 Rybicki v. State, 119 A.3d 663, 668-69 (Del. 2015) (citations and internal quotations omitted).

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on what she contends are similar facts in State v. Mulhollana', State v. Cajthaml, and State v.
Sharp.4 Ms. Gilbert’s reliance on these cases is misplaced.

In State v. Mulholland, the Court determined that the following factors were insufficient
to establish probable cause: (1) minor weaving within a lane; (2) admission to drinking earlier in
the day; (3) a strong odor of alcohol; (4) bloodshot eyes at midnight; and (5) failed one-leg stand
test.5 The Court’s subsequent ruling in State v. Aldossarjy, however, noted that “the events
surrounding the matter [in Mulholland] occurred on an extremely cold night with snow on the
roadway.”6 The Court therefore limited its holding in Mulholland to its facts.7

In State v. Cajthaml, the Court granted the defendant’s motion to suppress because the
officer’s explanation of the defendant’s “failure” of field sobriety tests in the affidavit of
probable cause did not provide a sufficient basis for the issuing magistrate to determine the
reliability of the tests.8 In Delaware, the Horizontal Gaze Nystagmus (“HG ”) is the only field
test recognized to be “scientific,” meaning it is the only test that may properly result in a “pass”
or “failure.”9 Other “non-scientific” field tests are conducted with the purpose of observing “the
quality of the driver’s performance,” not whether the driver passed or failed.10 In sum, the Court
determined that the following factors were insufficient to establish probable cause: (1) summary
Statements that defendant “failed” field sobriety tests; (2) the traffic offense of failure to signal
before turning and (3) odor of alcohol.

Finally, in State v. Sharp, the police officer arrived at the scene of a two-car accident and

noted that Clinton Sharp, one of the drivers involved in the accident, had: (1) slurred speech (2)

 

4 State v. Mulholland, 2013 WL 3131642 (Del. Com. Pl. Jun. 14, 2013); State v. Caj¢haml, c.A. No. 1305015136
(Del. Com. Pl. Dec. 16, 2013); State v. Sharp, 2014 WL 3534945 (Del. Com. Pl. May 5, 2014).
5 Mulholland, 2013 WL 3131642 at *4-5.
6 State v. Aldossary, 2014 WL 12684303, at *4 (Del. Com. Pl. Apr. 10, 2014) (citation omitted).
7 Aldossmy, 2014 WL 12684303, at* 4.
8 cajzhaml, c.A. No. 1305015136 ar *3.
9 State v. Ruthardt, 680 A.2d 349, 355-56 (Del. Super. 1996).
1° Lefebvre v. S¢a¢e, 19 A.3d 287, 293 (Del. 2011) (emphasis added).
4

bloodshot eyes and (3) a strong odor of alcohol.ll The officer noted all these facts in the affidavit
of probable cause.12 The Court held that the mere fact that Sharp had been involved in a two-car
accident provided no weight to a finding of probable cause that Sharp had been driving under the
influence because “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.”13 Having noted Sharp’s involvement in a two-car collision and the
lack of apportionment of blame to Sharp in the affidavit, the court determined that the
combination of slurred speech, bloodshot eyes, and strong odor of alcohol were insufficient for a
finding of probable cause upon which a search warrant could issue.

The facts before the Court in the present case are readily distinguishable from those in
Mulholland, Cajthaml, and Sharp. First, the facts do not indicate that Ms. Gilbert’s encounter
with police occurred on a frigid and snowy evening like that which occurred in Mulholland.
Since Mulholland Was limited to those facts, it cannot apply. Second, unlike in Cajthaml, the
officer’s statements in the affidavit for probable cause in this case are not conclusory. Here, the
officer accurately restated Ms. Gilbert’s absolute refusal to complete any field sobriety tests.
This is sufficiently distinct from an officer’s insufficient description of the results of field
sobriety tests. Cajthaml, therefore does not apply.14 Finally, this case is distinct from Sharp, as
well as the preceding cases, because Ms. Gilbert has presented demonstrably greater indicators
of intoxication sufficient to satisfy probable cause.15

The Court is guided in its determination of probable cause by the analogous case of State

v. Groves.16 Just as in Groves, Ms. Gilbert was stopped after committing a traffic violation.17

 

11 Sharp, 2014 wL 3534945 at *1.
11 1d. 61*1-2.
13 Id. at *5.
14 The Court will not, as Ms. Gilbert suggests, require the officer to include every conceivable field test refused
ins/hen the defendant simply refuses them all.

Id.
16 State v. vaes, 2016 wL 675997 (Del. Super. Feb. 17, 2016).

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Specifically, Ms. Gilbert failed to remain within her lane of travel. She also placed her car in
park at a red light at least an entire car length before the traffic signal. While the Court
acknowledges this second action is not a traffic offense, it does contribute to the officer’s initial
suspicion that Ms. Gilbert may have been intoxicated. Like Groves, upon further investigation,
the officer detected a strong odor of alcohol emanating from Ms. Gilbert.18 Ms. Gilbert’s eyes
appeared both bloodshot and glassy upon observation. Finally, her speech was Slurred and she
refused all field sobriety tests.19

Based on the foregoing analysis, the Court finds that given the totality of the
circumstances, the evidence listed in the affidavit of probable cause for the instant case was
sufficient to issue a search warrant for a blood draw. The observations included (1) a traffic
violation, (2) erratic driving, (3) strong odor of alcohol, (4) glassy and bloodshot eyes, (5) slurred

speech and (6) refusal to perform field sobriety tests. Therefore, Defendant’s Motion to Suppress

 

 

is DENIED.
IT IS SO ORDERED. _».. "jl A/
CHARLES W. WELCH
JUDGE
11 Id. 61*3.

18 Id. at *3; see Higgins v. Shahan, 1995 WL 108699, at *3 (Del. Super. 1995) (an accident combined with the
defendant’s bloodshot and glassy eyes, odor of alcohol emanating from the defendant, his admission of consuming
alcoholic bevarages and refusal to perform field tests were found to establish probable cause).

19 The fact that Ms. Gilbert did not admit to consuming alcohol is insignificant to the Court’s analysis. In Church v.
State, the Delaware Supreme Court made clear that refusal of field sobriety tests “may be used for any relevant
purpose, including to show consciousness of guilt.” Church v. State, 2010 WL 5342963, at *2 (Del. Dec. 22, 2010).
The Court in Rybicki v. State, also confirmed that refusal of field sobriety tests was indicative of intoxication
Rybicki, 119 A.3d at 668-69. As a result, the fact that Ms. Gilbert did not explicitly admit to consuming alcohol is of

little or no consequence
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