            IN THE SUPREME COURT OF THE STATE OF DELAWARE

TRACEY WEST,                                  §
                                              §    No. 504, 2015
      Defendant Below,                        §
      Appellant,                              §    Court Below: Superior Court
                                              §    of the State of Delaware
      v.                                      §
                                              §    Cr. ID No. 1406017464
STATE OF DELAWARE,                            §
                                              §
      Plaintiff Below,                        §
      Appellee.                               §

                              Submitted:   May 11, 2016
                               Decided:    July 6, 2016

Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN and SEITZ,
Justices; constituting the Court en banc.

Upon appeal from the Superior Court. AFFIRMED.


Santino Cecotti, Esquire, and James O. Turner, Jr., Esquire, Office of the Public
Defender, Wilmington, Delaware, for Defendant Below, Appellant Tracey West.

Sean P. Lugg, Esquire, Delaware Department of Justice, Wilmington, Delaware, for
Plaintiff Below, Appellee State of Delaware.




SEITZ, Justice, for the Majority:
                                    I. INTRODUCTION

       At about two o’clock in the morning police officer Thomas Gaul followed a car

for three or four miles as it drifted back and forth in its lane. As the car entered a ramp to

join S.R. 1, Officer Gaul saw the car swerve sharply to avoid hitting a concrete island.

He turned on the emergency lights and signaled for the car to stop. After the car pulled

over, Officer Gaul approached the car’s driver, Tracey West, and smelled alcohol. West

staggered out of the car and failed field sobriety tests. Gaul arrested West and charged

her with an illegal lane change and driving under the influence.

       Before trial, West moved to suppress the evidence that she was intoxicated. She

claimed that Officer Gaul lacked the reasonable suspicion required by the Fourth

Amendment to make an investigative stop of her car.             Thus, any evidence of her

intoxication gathered after the stop should be suppressed. After hearing testimony from

the officer and reviewing the video from the police car camera, the Court of Common

Pleas trial judge dismissed the lane change charge, but denied the motion to suppress.

The court ruled that the community caretaker doctrine permitted the stop so the officer

could check on the welfare of the driver. The State then introduced at trial the evidence

of her intoxicated state, and a jury convicted West of drunk driving.

       West appealed her conviction to the Superior Court, which affirmed the trial

court’s ruling on the community caretaker doctrine, and also found that Officer Gaul had

reasonable suspicion to stop West for driving while intoxicated. West then appealed to

our Court. She claims the community caretaker doctrine did not apply, and Officer Gaul



                                              2
lacked reasonable suspicion as required by the Fourth Amendment for an investigatory

stop of her car.

         After a careful review of the record on appeal, we affirm the judgment of the

Superior Court. It is unnecessary to decide whether the community caretaker doctrine

should be extended to the facts of this case. Instead, we agree with the Superior Court

that Officer Gaul had reasonable and articulable suspicion to make an investigatory stop

of West’s car. Her erratic driving culminating in almost crashing into a concrete island

and swerving sharply before entering the highway provided reasonable suspicion for

Officer Gaul to stop her car to investigate whether she was driving while impaired.

               II. STATEMENT OF FACTS AND PROCEDURAL HISTORY

         In the early morning hours of June 22, 2014, Officer Gaul was on routine patrol

traveling on Route 273 westbound toward S.R. 1 in New Castle County, Delaware. He

noticed a vehicle in front of him, which “was kind of driving a little bit erratically.”1

When asked what he meant by “erratically,” he testified that it was “just kinda drifting

back and forth in the lane,” and that this occurred several times over a distance of three to

four miles.2 According to Officer Gaul, at one point the tires hit the shoulder and then

came back into the lane. When the vehicle reached the ramp leading onto Route 1

northbound, it turned to get on the ramp and then narrowly avoided colliding with a

concrete island. According to the officer, the driver of the vehicle had to make a “sharp



1
    App. to Opening Br. at 15.
2
    Id. at 16.


                                             3
turn of the wheel to maintain the lane.”3          At that point, the officer turned on his

emergency lights and pulled the vehicle over.

       When the officer initially observed the vehicle drifting back and forth in its lane,

his subjective thought was that the operator may have been “tired or whatever, so that’s

what drew [his] attention to it.”4 On cross-examination, the officer agreed that initially

he did not have sufficient cause to stop the appellant, but as his observations increased,

“there was reasonable suspicion.”5 The Court of Common Pleas judge asked Officer

Gaul why he stopped the car. He said “basically safety of the operator,” and that it was

“more of a welfare check at that point, check on her.”6 He further stated that when he

pulled her over, it was not his intention to write her a ticket.

       When the officer made direct contact with West after stopping her car, he noticed

a “very strong odor of alcohol.”7 After further investigation, the officer arrested West for

making an illegal lane change and for driving under the influence.              The Court of

Common Pleas dismissed the charge of making an illegal lane change, finding that no

lane change occurred.       But the court denied her motion to suppress evidence of

intoxication because the stop was justified under the community caretaker doctrine. The

jury then convicted West of driving under the influence.




3
  Id. at 17.
4
  Id. at 16.
5
  Id. at 31.
6
  Id. at 34.
7
  West v. State, 2015 WL 5121059, at *2 (Del. Super. Aug. 20, 2015) (quotations omitted).


                                               4
       West appealed her conviction and the denial of her motion to suppress evidence to

the Superior Court. The Superior Court affirmed on the grounds that the stop was

justified under the community caretaker doctrine and also on the alternative ground that

West’s erratic driving gave rise to a reasonable and articulable suspicion that she was

impaired and therefore driving under the influence of alcohol.8 This appeal followed.

                               III.    STANDARD OF REVIEW

       We review the grant or denial of a motion to suppress for abuse of discretion.9 We

review the trial judge’s factual findings to determine whether there was sufficient

evidence to support the findings and whether those findings were clearly erroneous.10 To

the extent that we examine the trial judge’s legal conclusions, we review them de

novo for errors in formulating or applying legal precepts.11 “Where, as here, we are

reviewing the denial of motion to suppress evidence based on an allegedly illegal stop

and seizure, we conduct a de novo review to determine whether the totality of the

circumstances, in light of the trial judge’s factual findings, support a reasonable and

articulable suspicion for the stop.”12


8
   Id. at *4 (“[A]n officer’s observation of a vehicle weaving from side to side, albeit within a
lane, and making sharp corrective turns to maintain the lane, for a distance of three to four miles
at 2:00 a.m. could give rise to reasonable suspicion that the driver is impaired, and would justify
initiating a traffic stop on the vehicle.”).
9
  Lopez-Vazquez v. State, 956 A.2d 1280, 1284 (Del. 2008).
10
    Id. at 1285.
11
    Id. at 1284–85.
12
    Id. at 1285. In the Court of Common Pleas, the State raised the argument that Officer Gaul
had a reasonable and articulable suspicion to make the investigatory stop to determine whether
West was driving while impaired. App. to Opening Br. at 40–41. Although the Court of
Common Pleas did not decide the motion to suppress on this basis, the Superior Court and this
Court can affirm on an alternative argument raised in the court below. See RBC Capital


                                                5
                                        IV.    ANALYSIS

       The Fourth Amendment to the United States Constitution, which applies to the

states through the Fourteenth Amendment, guarantees “the right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures . . . .”13 The “essential purpose” of Fourth Amendment proscriptions “is to

impose a standard of ‘reasonableness’ upon the exercise of discretion by government

officials, including law enforcement agents, in order ‘to safeguard the privacy and

security of individuals against arbitrary invasions . . . .’”14

       When law enforcement directs a driver to stop her car, the State has “seized” the

car and its occupants, and the protections of the Fourth Amendment apply. But it is only

those searches and seizures that are “unreasonable” that run afoul of the Fourth

Amendment. In the traffic stop context, under established law since Terry v. Ohio, a

seizure is reasonable when a law enforcement officer conducts a brief investigatory

traffic stop based on reasonable and articulable suspicion of criminal activity.15


Markets, LLC v. Jervis, 129 A.3d 816, 849 (Del. 2015). We also note that like the trial court we
have the benefit of a video of much of the encounter, and thus the trial judge was not called upon
to make credibility determinations.
13
   U.S. Const. amend. IV. West also brings her claims under Article I, § 6 of the Delaware
Constitution, analogous to the Fourth Amendment to the United States Constitution. While the
Delaware Constitution’s search and seizure provision in some instances provides broader
protections than the Fourth Amendment, see Jones v. State, 745 A.2d 856, 866 (Del. 1999), the
broader protections have no application here.
14
   Delaware v. Prouse, 440 U.S. 648, 653–54 (1979) (quoting Marshall v. Barlow’s, Inc., 436
U.S. 307, 312 (1978)).
15
   Terry v. Ohio, 392 U.S. 1, 20–21 (1968); see also 11 Del. C. § 1902(a) (“A peace officer may
stop any person abroad, or in a public place, who the officer has reasonable ground to suspect is
committing, has committed or is about to commit a crime, and may demand the person’s name,
address, business abroad and destination.”). The statutory authorization to stop based on


                                                6
Reasonable and articulable suspicion of criminal activity includes not just traffic

offenses, but criminal activity such as drunk driving.16

       As a court reviews the reasonableness of the officer’s suspicion of criminal

activity, “it is imperative that the facts be judged against an objective standard: would the

facts available to the officer at the moment of the seizure or the search ‘warrant a

[person] of reasonable caution in the belief’ that the action taken was appropriate?”17

The subjective good faith of the arresting officer is not controlling because “[i]f

subjective good faith alone were the test, the protections of the Fourth Amendment would

evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’

only in the discretion of the police.”18 In Delaware, the court can also “combin[e]

objective facts with such an officer’s subjective interpretation of those facts.”19 When

considering the objective facts, the limited consideration of an officer’s subjective

thoughts allows the court to accord weight to an officer’s training and experience in



reasonable grounds equates to reasonable and articulable suspicion under the common law. See
Jones v. State, 745 A.2d 856, 861 (Del. 1999); see also Coleman v. State, 562 A.2d 1171, 1174
(Del. 1989); Malloy v. State, 462 A.2d 1088, 1091 (Del. 1983) (“Before stopping [a suspect’s]
car, the police [have] to have a particularized and objective basis for suspecting that he [is]
violating the traffic laws.”).
16
   See Navarette v. California, 134 S. Ct. 1683, 1687 (2014) (“The Fourth Amendment permits
brief investigative stops—such as the traffic stop in this case—when a law enforcement officer
has a particularized and objective basis for suspecting the particular person stopped of criminal
activity.” (internal quotations omitted)); United States v. Cortez, 449 U.S. 411, 417 (1981) (“An
investigatory stop must be justified by some objective manifestation that the person stopped is,
or is about to be, engaged in criminal activity.” (citations omitted)); Malloy, 462 A.2d at 1091
(driving away from a tavern, making wide turns, and driving erratically created reasonable
articulable suspicion to make investigatory stop on suspicion of DUI).
17
   Terry, 392 U.S. at 21–22 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).
18
   Id. at 22 (quoting Beck v. Ohio, 379 U.S. 89, 97 (1964)).
19
   Jones, 745 A.2d at 861.


                                               7
detecting criminal activity.20 In other words, the objective facts are viewed through the

lens of a reasonable, trained police officer.

       Whether reasonable and articulable suspicion of criminal activity exists depends

on the totality of the circumstances and “the factual and practical considerations of

everyday life on which reasonable and prudent [people], not legal technicians, act.”21

The Supreme Court of the United States recently observed that we should use a

“commonsense approach” when evaluating the Fourth Amendment’s reasonable

suspicion requirement.22 The reviewing court should “appropriately recognize certain

driving behaviors as sound indicia of drunk driving.”23

       Here, the objective facts establish reasonable and articulable suspicion that West

might have been driving while impaired. We have the advantage of a video from Officer

Gaul’s patrol car recording some of the events leading to West’s stop. The video shows

West drifting back and forth in her lane. Officer Gaul confirmed that he followed West

for three or four miles while she drove “kind of erratically.” Although weaving within a


20
    See Lopez-Vazquez, 956 A.2d at 1287 (“[T]he court ‘must consider the inferences and
deductions that a trained officer could make which might well elude an untrained person.’”
(quoting Riley v. State, 892 A.2d 370, 375 (Del. 2006))); see also Robertson v. State, 596 A.2d
1345, 1350–51 (Del. 1991) (“Although we give due deference to an officer’s experience and
knowledge, the facts which form the basis of the reasonable suspicion must be capable of
measurement against an objective standard.”).
21
   Ornelas v. United States, 517 U.S. 690, 695 (1996) (quoting Illinois v. Gates, 462 U.S. 213,
231 (1983)).
22
   Navarette, 134 S. Ct. at 1690.
23
   Id. (citing People v. Wells, 136 P.3d 810, 811 (2006) (“weaving all over the roadway”); State
v. Prendergast, 83 P.3d 714, 715–716 (2004) (“cross[ing] over the center line” on a highway and
“almost caus[ing] several head-on collisions”); State v. Golotta, 837 A.2d 359, 361 (2003)
(driving “all over the road” and “weaving back and forth”); State v. Walshire, 634 N.W.2d 625,
626 (Iowa 2001) (“driving in the median”)).


                                                8
lane by itself may be insufficient to establish reasonable suspicion of impaired driving, as

the video shows, West then nearly crashed into a concrete island and swerved sharply

while entering the ramp to a major highway.                Looking at the totality of the

circumstances—the erratic driving for three or four miles followed by a near crash into a

concrete island and sharp turn correction—leads us to conclude that Officer Gaul had

reasonable and articulable suspicion to stop West’s car and investigate whether she was

driving while impaired.

       We acknowledge the ambiguity in the evidentiary record about Officer Gaul’s

subjective beliefs. At one point Officer Gaul testified to his belief that reasonable

suspicion existed, while at another point he stated his subjective view that he did not

intend to write West a traffic ticket when pulling her over. But Officer Gaul’s subjective

belief about whether reasonable suspicion existed is not controlling. As noted previously,

it is the objective facts that control the outcome, not the officer’s subjective beliefs about

reasonable suspicion.24 And while West’s conduct might be explained by another cause


24
   In Terry, the United States Supreme Court emphasized the importance that the facts and
inferences from them form an objectively reasonable basis for the official conduct triggering
Fourth Amendment scrutiny:
        The scheme of the Fourth Amendment becomes meaningful only when it is
        assured that at some point the conduct of those charged with enforcing the laws
        can be subjected to the more detached, neutral scrutiny of a judge who must
        evaluate the reasonableness of a particular search or seizure in light of the
        particular circumstances. And in making that assessment it is imperative that the
        facts be judged against an objective standard: would the facts available to the
        officer at the moment of the seizure or the search warrant a [person] of reasonable
        caution in the belief that the action taken was appropriate?
392 U.S. at 21–22 (internal quotations omitted)); see also Whren v. United States, 517 U.S. 806,
813 (1996) (“We think these cases foreclose any argument that the constitutional reasonableness
of traffic stops depends on the actual motivations of the individual officers involved.”). This


                                               9
such as driver distraction or tiredness, reasonable suspicion “need not rule out the

possibility of innocent conduct.”25

       We agree with other courts that “if failure to follow a perfect vector down the

highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of

driving while impaired, a substantial portion of the public would be subject each day to

an invasion of their privacy.”26 Not all driver conduct is indicative of intoxication.27 But

what happened here is much more than weaving within the same lane.28 Taking a



Court’s decisions are consistent with an objective view of the facts justifying the investigative
stop, rather than the subjective beliefs of the individual officers executing the searches and
seizures. See Lopez-Vazquez, 956 A.2d at 1287 (“[R]easonable suspicion . . . requires ‘some
objective manifestation that the person stopped is, or is about to be, engaged in criminal
activity.’” (quoting Cortez, 449 U.S. at 417); Jones, 745 A.2d at 861 (“A determination of
reasonable suspicion must be evaluated in the context of 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 [a reasonable, trained police officer’s]
subjective interpretation of those facts.”); see also Quarles v. State, 696 A.2d 1334, 1337 (Del.
1997) (“[T]he court must consider the totality of the circumstances, the ‘whole picture,’ as
viewed through the eyes of a police officer who is experienced in discerning the ostensibly
innocuous behavior that is indicative of narcotics trafficking.”).
25
   Moore v. State, 997 A.2d 656, 667 (Del. 2010) (quoting United States v. Arvizu, 534 U.S. 266,
277 (2002)).
26
   United States v. Lyons, 7 F.3d 973, 976 (10th Cir. 1993), overruled on other grounds by
United States v. Botero-Ospina, 71 F.3d 783, 786–87 (10th Cir. 1995).
27
   See Navarette, 134 S. Ct. at 1691 (“Of course, not all traffic infractions imply intoxication.
Unconfirmed reports of driving without a seatbelt or slightly over the speed limit, for example,
are so tenuously connected to drunk driving that a stop on those grounds alone would be
constitutionally suspect.”).
28
   The Court of Common Pleas dismissed the charge against West for improperly changing lanes.
An observation of an actual violation of a traffic law would likely have been necessary to give
Officer Gaul probable cause, and would additionally sustain the lesser standard for reasonable
suspicion. Eskridge v. Voshell, 593 A.2d 589 (Del. 1991) (Table) (“There is reasonable
suspicion, and hence probable cause, when a police officer observes a driver committing a traffic
violation.”). But the fact that Officer Gaul observed no specific traffic violation does not speak
to whether he had reasonable suspicion to make an investigative stop, which requires only that
there be some “particularized and objective basis” for suspecting criminal activity. Navarette,
134 S. Ct. at 1687; Malloy, 462 A.2d at 1091.


                                               10
commonsense view of the facts, and with the benefit of the video evidence, the weaving,

coupled with the sharp swerve to avoid hitting a concrete island is easily recognized as

driving behavior indicative of drunk driving.

                                       V.    CONCLUSION

         As we emphasized in Bloomingdale v. State, the clearance to conduct an

investigative stop “does not mean that the officer can go further and require a sobriety

test in the absence of additional evidence that provides a reasonable basis for that action.

It simply means that the officer ought to be able to make a brief stop to inquire about the

driver’s fitness to operate a vehicle, given the public interest in ensuring that unsafe

drivers be taken off the road promptly.”29

         Officer Gaul’s care to avoid concluding that the dangerous driving he saw on the

road was for certain caused by the driver’s impairment enhances, rather than detracts

from, the reasonableness of his actions. The officer acted on circumstances that give rise

to a reasonable suspicion that someone was driving under the influence, and took

reasonable steps to protect the public without getting ahead of himself. He made the stop

to protect the public and to inquire, and only after further objective circumstances were

observed that suggested that the cause of the danger was drunk driving, did he proceed

further to investigate whether that was in fact the case. The Superior Court correctly held

that reasonable suspicion existed to stop West for possible driving under the influence.

The judgment of the Superior Court is affirmed.


29
     842 A.2d 121, 1222 (Del. 2004).


                                              11
VALIHURA, Justice, concurring in the judgment:

        The Court holds that “Officer Gaul had reasonable and articulable suspicion to

stop West’s car and investigate whether she was driving while impaired.” It reasons that

“weaving, coupled with the sharp swerve to avoid hitting a concrete island is easily

recognized as driving behavior indicative of drunk driving.” I respectfully disagree.

Rather, I believe that the stop was justified based upon Officer Gaul’s reasonable mistake

of fact in suspecting that West had failed to remain within a single lane multiple times

over the course of traveling three to four miles on Route 273. Thus, I concur in the result

only because it was objectively reasonable for a law enforcement official in Officer

Gaul’s position to think that West violated Delaware law by failing to remain within her

lane.

        We are in agreement that a traffic stop is a “seizure” of the occupant of the vehicle

and must be conducted in accordance with the Fourth Amendment to the United States

Constitution.1 We also agree that in order to justify such a seizure, “officers need only

‘reasonable suspicion’—that is, ‘a particularized and objective basis for suspecting the

particular person stopped’ of breaking the law.”2 But the Majority and I differ as to

which suspected violation of law should be the basis for the stop. This matters because it

affects the nature of the investigation that can be performed thereafter. Here, Officer

Gaul had a reasonable, but mistaken, belief that West had failed to remain within her

lane.

1
  Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (citing Brendlin v. California, 551 U.S.
249, 255-59 (2007)).
2
  Id. (quoting Navarette v. California, 134 S. Ct. 1683, 1687-88 (2014)).
                                              1
       In Heien v. North Carolina,3 Chief Justice Roberts, writing for the United States

Supreme Court, stated:        “We have recognized that searches and seizures based on

mistakes of fact can be reasonable.”4 Officer Gaul’s reasonable mistake of fact gave him

“a particularized and objective basis for suspecting” West of breaking the law and,

therefore, justified the traffic stop.5

       My view is that a reasonable suspicion of driving under the influence did not

develop until after Officer Gaul made contact with West.6 The Majority holds that a

reasonable suspicion of driving under the influence existed prior to the stop. I believe

that my reasoning is more closely tethered to what actually happened in this case. If

West had not shown signs of intoxication upon being stopped, her detention would have

been limited constitutionally to addressing the lane violation—a DUI-focused detention

would have been unreasonable,7 since a traffic stop must be “reasonably related in scope


3
  135 S. Ct. 530 (2014).
4
  Id. at 536.
5
  Navarette, 134 S. Ct. at 1687 (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981))
(internal quotation marks omitted).
6
  See Florida v. J.L., 529 U.S. 266, 271 (2000) (“The reasonableness of official suspicion must
be measured by what the officers knew before they conducted their search.” (emphasis added)).
7
   The Majority appears to go even further than the arguments advanced by the State in its
answering brief submitted to this Court. See Ans. Br. 15 (“Thus, immediately after the lawful
stop, [Officer] Gaul was presented with additional facts supporting a reasonable belief that West
was operating her motor vehicle while under the influence of alcohol. The continued
investigation resulting in her arrest was justified.” (emphasis added)). The State seems to refrain
from collapsing the pre- and post-stop events, and thus avoids the conclusion reached by the
Majority that, prior to the stop, there was a reasonable basis to believe that West was impaired by
alcohol. The State’s appropriately restrained position is also evident from its closing argument
at trial, during which it stated: “Also[,] Corporal Gaul’s testimony wasn’t necessarily that he
believed she was under the influence at that time. He just believed that there was something
wrong and so he stopped in order to lend assistance. And at that point[,] once he spoke to the
[d]efendant[,] it progressed into the DUI investigation.” Transcript of Trial at 114, State v. West,
Cr. ID. No. 1406017464 (Del. Com. Pl. Jan. 13, 2015) (emphasis added) (alterations added).
                                                 2
to the circumstances which justified” the initial stop.8 Neither the arresting officer nor

the trial court went as far as this appellate court in finding that the observable facts

preceding the initial traffic stop provided a particularized and objective basis for

suspecting West of the more serious crime of driving under the influence.9

       I see several problems arising from the Majority’s reasoning. The Court’s holding

sets a new and very low bar to justify a traffic stop for driving under the influence. It

appears to conflict with other decisions of this Court that say more is needed to seize a

citizen for reasonable suspicion of driving under the influence. For example, in Lefebvre

v. State10 this Court observed:

       [T]he commission of a traffic offense combined with an odor of alcohol,
       standing alone, do not constitute probable cause to arrest for a DUI offense.
       Nevertheless, those two facts may give rise to a reasonable suspicion of
       DUI and justify a request that the driver perform some field sobriety tests.
       The driver’s performance on those tests may give rise to facts that either

8
   Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177, 188 (2004) (quoting Terry v.
Ohio, 392 U.S. 1, 20 (1968)) (internal quotation marks omitted). The State acknowledges that
“[t]he duration and execution of a traffic stop is necessarily limited by the initial purpose of the
stop.” Ans. Br. 14 (quoting Caldwell v. State, 780 A.2d 1037, 1047 (Del. 2001)) (internal
quotation marks omitted) (alteration added).
9
  The Superior Court found that “reasonable suspicion arose to justify continuing the traffic stop
beyond the initial contact with [the d]efendant.” West v. State, 2015 WL 5121059, at *4 (Del.
Super. Aug. 20, 2015) (emphasis added). Thus, its decision is more appropriately read to mean
that a DUI investigation encompassing field sobriety tests was not justified based on the events
leading up to the stop. Referring to West’s glassy, bloodshot eyes and the odor of alcohol when
she spoke, the Superior Court concluded that “there was reasonable suspicion of [driving under
the influence] to justify extending the stop to administer field sobriety tests.” Id. (emphasis
added). I would not give its subsequent “note” that West’s conduct “could give rise to
reasonable suspicion that the driver [wa]s impaired” such weight as to undercut its earlier,
above-quoted analysis. Id. (citations omitted).
10
   19 A.3d 287 (Del. 2011); see also id. at 293 (holding that an odor of alcohol and a traffic
violation, standing alone, do not constitute probable cause for a DUI). Here, we have no actual
traffic violation, but rather weaving within a marked lane and a mistaken view that West had
failed to maintain that lane. This conduct violated no Delaware law, as the State ultimately
agreed.
                                                 3
       elevate what was only a suspicion into probable cause, or dispel the
       suspicion and result in no DUI arrest.11

Here, the odor of alcohol and other signs of intoxication were not apparent until after

West was stopped.

       The practical difference between my view and that of the Majority concerns the

nature of the investigation that can be performed after the traffic stop. An investigative

detention must be delineated in time and scope to effectuate the purpose of the stop.12 If

a citizen is suspected of a traffic violation—for example, failing to maintain a single

lane—the detention must be limited to addressing that violation (presumably by issuing a

ticket, a warning, or letting the operator go).13 Thus, under my reasoning, based upon the

observable events leading to the stop in this case, a driver would not be subject to a DUI-

related investigative detention, including field sobriety tests—unless, as in the instant

matter, there were signs of intoxication that became evident after the stop. But under the

Majority’s reasoning, a driver would be subject to field sobriety tests based upon legal

conduct occurring prior to a stop. The Majority and I agree on the result only, because if

a citizen is pulled over for failure to maintain a lane and the officer thereafter notices an

11
   Id. at 295 (citation omitted).
12
   See Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015) (“Like a Terry stop, the tolerable
duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—
to address the traffic violation that warranted the stop and attend to related safety concerns.”
(internal citations omitted)); id. (“Because addressing the infraction is the purpose of the stop, it
may last no longer than is necessary to effectuate th[at] purpose.” (internal quotation marks
omitted) (internal citation omitted) (alteration in Rodriguez)); see also Florida v. Royer, 460 U.S.
491, 500 (1983) (plurality opinion) (“The scope of the detention must be carefully tailored to its
underlying justification.”).
13
    The officer may also check the driver’s license, determine whether there are outstanding
warrants against the driver, and inspect the vehicle’s registration and proof of insurance.
Rodriguez, 135 S. Ct. at 1615 (citing Delaware v. Prouse, 440 U.S. 648, 658-60 (1979)) (internal
citations omitted).
                                                 4
odor of alcohol, then, as we said in Lefebvre, those facts might give rise to a reasonable

suspicion that the operator is driving under the influence. That is what happened here.

         The Majority attempts to cabin the effects of its holding by stating that if suspicion

of driving under the influence is the basis for the stop, that does not mean the officer can

conduct field sobriety tests. It states:

         As we emphasized in Bloomingdale v. State, the clearance to conduct an
         investigative stop “does not mean that the officer can go further and require
         a sobriety test in the absence of additional evidence that provides a
         reasonable basis for that action. It simply means that the officer ought to be
         able to make a brief stop to inquire about the driver’s fitness to operate a
         vehicle, given the public interest in ensuring that unsafe drivers be taken off
         the road promptly.” The Superior Court correctly held that reasonable
         suspicion existed to stop West for possible driving under the influence.

Bloomingdale supports my view. The suspected violation there was not driving under the

influence, but rather “moving violations.”14 As the Bloomingdale Court said, “once [the

defendant] stopped his car, [the officer] quickly developed reasonable suspicion

supporting his administration of sobriety tests. He smelled alcohol emanating from the

vehicle, he observed empty alcohol containers in the car, and [the defendant] admitted

that he had been drinking.”15         There, we held that a reasonable suspicion that the

defendant was driving under the influence developed after the stop for moving violations.

In the instant matter, the Court concludes, based upon conduct that was not a violation of

law, that there was reasonable suspicion of driving under the influence prior to the stop.

          By attempting to avoid the undesirable result of its conclusion—that a reasonable

suspicion of driving under the influence justifies a more intrusive DUI-related

14
     Bloomingdale v. State, 842 A.2d 1212, 1219 (Del. 2004).
15
     Id. at 1222 (emphasis added).
                                                 5
investigative detention—the Majority runs head-first into the long line of cases that say

that the scope of the detention and investigation must be tailored to the purpose of the

stop. The Majority’s attempt to soften that blow is inconsistent with this established case

law, as well as Bloomingdale. Instead, it is more consistent with the application of the

community caretaker doctrine, permitting an officer to seize a driver simply to inquire

about his or her fitness to operate an automobile.16

                        A.      Factual and Procedural Background

       In my view, justifying the stop based upon Officer Gaul’s mistaken belief that

West had committed a moving violation is more consistent with what happened in this

case. At approximately 2:00 a.m. on June 22, 2014, Officer Gaul observed a vehicle

traveling westbound on Route 273 that “was kind of driving a little bit erratically.” The

vehicle was “drifting back and forth in the lane.” In the course of traveling toward Route

1, the vehicle tagged the fog and center lines on multiple occasions. The vehicle,

16
   I nonetheless agree with the Majority’s apparent reluctance to affirm on the basis of the
community caretaker doctrine. That doctrine, prior to this case, has never been applied in
Delaware to justify a stop of a moving vehicle. The community caretaker function, as described
by the United States Supreme Court in Colorado v. Bertine, 479 U.S. 367 (1987), South Dakota
v. Opperman, 428 U.S. 364 (1976), and Cady v. Dombrowski, 413 U.S. 433 (1973), did not
involve investigative stops and seizures. Rather, those cases involved the admissibility of
incriminating evidence discovered during a standard police procedure of inventorying property
that had been properly taken into custody. A majority of States appear to have adopted the
community caretaker doctrine in some form. Many recognize, however, that the community
caretaking function must be cautiously applied to minimize the risk of pretextual traffic stops.
See, e.g., Trejo v. State, 76 So.3d 684, 689 (Miss. 2011) (quoting State v. Rinehart, 617 N.W.2d
842, 844 (S.D. 2000)) (“[C]ourts must carefully analyze the totality of the circumstances, so that
the community caretaking function is cautiously and narrowly applied in order to minimize the
risk that it will be abused or used as a pretext for conducting an investigatory [stop and] search
for criminal evidence.” (internal quotation marks omitted) (alterations in Trejo and added)); State
v. Rincon, 147 P.3d 233, 237 (Nev. 2006) (“In adopting the community caretaking doctrine, we
reiterate that the exception will be narrowly applied and an inquiry stop is justified only where
there are clear indicia of an emergency.” (citations omitted)).
                                                6
according to the officer, weaved within its lane “[s]everal times over a distance of three

to four miles” and, at one point, struck the shoulder of the roadway. When it reached an

on-ramp to enter Route 1 northbound, it made a sharp turn to avoid colliding with a

concrete island in the roadway. Officer Gaul then activated his emergency equipment

and conducted a traffic stop.

       At the time when Officer Gaul pulled West over, it was not his intention to write

her a ticket. Rather, according to the officer, the purpose of the stop was to perform “a

welfare check,” in part because it was 2:00 a.m. and “operators are tired or whatever.”

Upon making contact with West, and after further investigation, Officer Gaul arrested her

for driving under the influence and for making an illegal lane change.17

       At the hearing on West’s motion to suppress, Officer Gaul testified that he

believed that West had failed to maintain her lane when she narrowly avoided colliding

with the median adjacent to the Route 1 on-ramp.18 While the video of the incident


17
   See, e.g., Charge History Record, State v. West, Cr. ID. No. 1406017464 (Del. Com. Pl. Mar.
31, 2015) (identifying June 22, 2014 charge for failing to remain within a single lane);
Information by the A.G., State v. West, Cr. ID. No. 1406017464 (Del. Com. Pl. Aug. 22, 2014)
(“TRACEY N [sic] WEST, on or about the 22nd day of June, 2014, in the County of New
Castle, State of Delaware, did operate a vehicle upon a public roadway which has been divided
into two or more clearly marked lanes of traffic, and did fail to remain in her lane of travel until
movement to another lane could be made with safety.”); Court Transfer Letter, State v. West, Cr.
ID. No. 1406017464 (Del. J.P. Ct. July 9, 2014) (“Failed to remain within a single lane[.]”).
18
   A23; see also id. (Q. “Did she leave her lane [when attempting to merge onto Route 1]?” A.
“Yes, I believe she did.”); A24 (Q. “Is it your position that she leaves her lane as she’s turning
onto the ramp?” A. “Well, it’s a single lane, so, yes; I would say yes.”); A27 (Q. “Now is it
your contention that she drove on the line or over the line?” A. “You know, from what I saw, I
saw the spontaneous jerking back into the lane. I would say, you know, she came close to the
line if not crossing it.”); A28 (Q. “Can we agree that the video shows that there’s a gap between
the markings on the lane and that concrete median?” A. “Yes.” Q. “Based on, if you can
remember, on your knowledge and experience as a state trooper for ten years, can you tell us
approximately how far away from the center median that line would be?” A. “I do not -- you
                                                 7
captured by the officer’s patrol vehicle did not actually show that West had failed to

maintain her lane, Officer Gaul testified that there were also lane violations that preceded

the video recording, as the video only captured a portion of the time he followed West.

When asked whether the video indicated that West drove on the shoulder of the roadway,

Officer Gaul testified as follows:         “Well, as I testified[,] there’s actually[] what I

observed before the video started. ‘Cause when I activated my emergency equipment[,]

that’s when the video came back.” Further, he testified that when he began following

West, he did not have reasonable suspicion to stop her, “[b]ut as distance increased, yes,

there was reasonable suspicion.”

       After viewing the video recording of the incident during the hearing on the motion

to suppress, Officer Gaul could not say for sure that West had failed to maintain her lane.

The Court of Common Pleas found that the evidence did not support a conviction for

improper lane change, and the State entered a nolle prosequi on the charge. The case

proceeded to trial solely on the basis of the DUI charge. A jury then convicted West of

driving under the influence.

                   B.     Officer Gaul’s Mistake of Fact was Reasonable




know, I can’t be exact. In an area like that[,] it’s maybe three or four feet. It’s not far.” Q. “Far
enough for a tire to cross over without breaking the --” A. “Yes.”); A35 (The Court: “Did you
observe her actually depart from her lane of travel?” A. “Well, from what I saw when the [sic]
merging onto Route 1 there and the turn which is in, I guess, dispute here, the sudden jerking
because it was two lanes there where they came in, the turn lane from 273 westbound and also
eastbound had merged. It appeared that when she made that turn she turned a lot and then came
back into her lane, almost striking the median.”).
                                                 8
       The “ultimate touchstone of the Fourth Amendment is reasonableness.”19 West’s

seizure comports with the Constitution only if Officer Gaul had a reasonable and

articulable suspicion that West was breaking the law when operating her vehicle. The

“principal components” of that determination “will be the events which occurred leading

up to the stop or search, and then the decision whether these historical facts, viewed from

the standpoint of an objectively reasonable police officer, amount to reasonable suspicion

or to probable cause.”20 Therefore, in evaluating a traffic stop, a reviewing court is not

permitted to consider post-seizure facts. As this Court made clear in Jones v. State,21

what transpires after the stop “is not a proper factor in assessing the validity of a

seizure.”22

       When determining the constitutional reasonableness of a traffic stop the “actual

motivations of the individual officers involved” are of no moment.23 “[T]he fact that the

officer does not have the state of mind which is hypothecated by the reasons which

provide the legal justification for the officer’s action does not invalidate the action taken

as long as the circumstances, viewed objectively, justify that action.”24 Accordingly,

“[t]he foremost method of enforcing traffic and vehicle safety regulations . . . is acting


19
   Riley v. California, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 547 U.S.
398, 403 (2006)) (internal quotation marks omitted); see also Wheeler v. State, 135 A.3d 282,
296 (Del. 2016).
20
   Ornelas v. United States, 517 U.S. 690, 696 (1996).
21
   745 A.2d 856 (Del. 1999).
22
   Id. at 862.
23
   Whren v. United States, 517 U.S. 806, 813 (1996); see also Heien, 135 S. Ct. at 539 (citing
Whren, 517 U.S. at 813) (“We do not examine the subjective understanding of the particular
officer involved.”).
24
   Whren, 517 U.S. at 813 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)) (internal
quotation marks omitted).
                                              9
upon observed violations, which afford the quantum of individualized suspicion

necessary to ensure that police discretion is sufficiently constrained.”25

        But “[t]o be reasonable is not to be perfect, and so the Fourth Amendment allows

for some mistakes on the part of government officials, giving them ‘fair leeway for

enforcing the law in the community’s protection.’”26 As the United States Supreme

Court observed in Heien, “[t]he Fourth Amendment tolerates only reasonable mistakes,

and those mistakes—whether of fact or of law—must be objectively reasonable. We do

not examine the subjective understanding of the particular officer involved.”27

“Reasonable suspicion arises from the combination of an officer’s understanding of the

facts and his understanding of the relevant law. The officer may be reasonably mistaken

on either ground” when seizing an individual.28 “The limit is that ‘the mistakes must be

those of reasonable men.’”29

       In my view, it would be objectively reasonable for a law enforcement official in

Officer Gaul’s position to think that West had failed to remain within a single lane in

violation of 21 Del. C. § 4122(1).30 At a minimum, the record evidence, including the

video recording of the incident, indicates that West tagged the fog and center lines on

multiple occasions when traveling on Route 273. Prior to stopping West, the officer
25
   Id. at 817-18 (quoting Prouse, 440 U.S. at 654-55, 659) (internal quotation marks omitted)
(internal citations omitted) (alterations in Whren).
26
   Heien, 135 S. Ct. at 536 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).
27
   Id. at 539 (citing Whren, 517 U.S. at 813) (emphasis in original).
28
   Id. at 536.
29
   Id. (quoting Brinegar, 338 U.S. at 176).
30
   21 Del. C. § 4122(1) provides that, “[w]henever any roadway has been divided into 2 or more
clearly marked lanes for traffic,” “[a] vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane until the driver has first ascertained
that such movement can be made with safety.”
                                               10
believed that he observed the vehicle leave its lane before making the sharp, corrective

turn to avoid the median. Moreover, Officer Gaul testified that the video recording

captured only a portion of the observable facts he relied upon in forming a reasonable

suspicion that West had violated the law.

C.        Reasonable Suspicion of Driving Under the Influence is Found by the Appellate
                                       Courts Only

         The Superior Court affirmed the decision of the Court of Common Pleas on the

basis of the community caretaker doctrine, but commented that West’s driving could give

rise to a reasonable suspicion that a driver was impaired.31               The Majority, without

addressing the community caretaker doctrine, adopts the Superior Court’s reasonable

suspicion of impairment comment and affirms on that basis.32



31
     The Superior Court commented that:

         Although the Court [of Common Pleas] . . . based its opinion on the community
         caretaker doctrine, we note that an officer’s observation of a vehicle weaving
         from side to side, albeit within a lane, and making sharp corrective turns to
         maintain the lane, for a distance of three to four miles at 2:00 a.m. could give rise
         to reasonable suspicion that the driver is impaired, and would justify initiating a
         traffic stop on the vehicle.

West, 2015 WL 5121059, at *4 (citations omitted).
32
   The Superior Court’s comment contains a footnote citing eleven cases. None is a decision by
a Delaware court. Rather, they are decisions from Alaska, Arizona, Kansas, Minnesota,
Nebraska, North Dakota, California, Florida, Illinois, Missouri, and Oregon. The decisions from
other States generally support the proposition that weaving within a lane could justify an
investigatory stop of a vehicle. But other cases hold that more is needed to justify an
investigatory stop. See, e.g., Amundsen v. Jones, 533 F.3d 1192, 1199 (10th Cir. 2008) (“There
are limits, however, on the extent to which weaving can serve as a factor creating reasonable
suspicion of driving under the influence. For instance, an isolated incident of crossing into
another lane will not ordinarily create reasonable suspicion of driving while impaired. Nor will
weaving within a lane, without more, ordinarily create reasonable suspicion of driving under the
influence.” (internal citations omitted)); Rowe v. State, 769 A.2d 879 (Md. 2001) (reversing
lower court decision that upheld a traffic stop where driver was “weaving off the highway” and
                                                  11
       Although it does not factor into our objective reasonableness assessment, Officer

Gaul never testified that he suspected West of driving under the influence. His testimony

was that he suspected West was tired or otherwise in need of assistance. To date, this

Court and the Superior Court have found weaving within one’s own lane sufficient to

justify a stop, but only in combination with other observable facts, such as weaving

across lanes, drifting onto the shoulder, committing multiple traffic violations, or nearly

causing a collision with another motorist.33 The Majority’s decision, therefore, breaks

new ground in holding that weaving within a lane, accompanied by a sharp, corrective

turn, can justify a traffic stop and investigation of the driver for driving under the

influence.

       Police officers have the expertise to “draw[] inferences and make[] deductions”

that “might well elude an untrained person.”34 In my view, Officer Gaul’s judgment,

based on the observable facts preceding the seizure, that there was no reasonable



where the officer stated that the incident occurred when it was late and at a time when “people
are coming home from bars and are getting tired”).
33
   See, e.g., Malloy v. State, 462 A.2d 1088 (Del. 1983) (upholding an investigatory stop where
police officers observed a “possible equipment defect” and saw the driver leave a tavern, make a
“wide turn onto the road[,]” drive “erratically[,]” weave “across lanes and within [his] own lane
for 1 ½ miles”); State v. McNeil, 2012 WL 3834902 (Del. Super. Aug. 21, 2012) (finding that
officers had reasonable suspicion that the driver of a vehicle was impaired where the officers
observed the driver commit several minor traffic violations, but decided to stop the vehicle after
it swerved within its lane three to four times and drove with its turn signal on “for an extended
period of time”); State v. Anderson, 2010 WL 4056130 (Del. Super. Oct. 14, 2010) (holding that
an officer had a reasonable and articulable suspicion that a driver was engaged in conduct that
could constitute a traffic offense where the driver, within the span of a one-and-a-half mile
distance, “modestly” drifted out of his lane on at least two occasions, made “several ‘sharp’
corrections in order to keep his vehicle within the designated lane markings[,]” and narrowly
avoided striking another vehicle). Opinions of the Court of Common Pleas vary as to whether
fact patterns involving weaving within a lane would support reasonable suspicion.
34
   Cortez, 449 U.S. at 418.
                                               12
suspicion of criminal conduct at the time of the stop—other than West’s failure to

maintain her lane—was correct. The trial court similarly concluded that there was no

basis for concluding prior to the stop that West was driving while intoxicated. The

Majority states that our standard of review is de novo “to determine whether the totality

of the circumstances, in light of the trial judge’s findings, support a reasonable and

articulable suspicion for the stop.” But the trial judge’s findings do not support the

conclusion that there was reasonable suspicion that West was driving under the influence

at the time of the stop.

                                      D.     Conclusion

       Does a jerking of the wheel accompanied by some weaving within a lane now

provide reasonable suspicion of driving under the influence? Are we now at risk of being

stopped and investigated for driving under the influence if we weave within our lane

while trying to find the defroster and jerk the wheel, or if we spill coffee on ourselves and

swerve within our lane? Are we then subject to being pulled over and having to recite the

alphabet from “E” to “P,” count backwards from 69, walk in a straight line while

touching the heel of one foot to the toe of the other, and balance on one foot while

keeping our hands at our sides?35




35
  See Transcript of Trial at 33-39, State v. West, Cr. ID. No. 1406017464 (Del. Com. Pl. Jan. 13,
2015) (indicating that Officer Gaul required West to recite the alphabet from “E” to “P,” count
backwards from 69, walk in a straight line while touching the heel of one foot to the toe of the
other, and balance on one foot while keeping her hands at her sides).
                                               13
       “The States and the Federal Government have a ‘paramount interest . . . in

preserving the safety of . . . public highways.’”36 “Alcohol consumption is a leading

cause of traffic fatalities and injuries.”37 Balancing these important interests against our

freedom to come and go without unreasonable interference is difficult, as this case surely

illustrates. I believe that the officer’s instincts were correct and that his mistake of fact

that West failed to remain within a single lane was reasonable, and I would affirm on that

basis—not on the grounds of reasonable suspicion of driving under the influence.

Unfortunately for West, the result is the same because, once she was stopped, there were

indicia of her intoxication that justified extending the investigation for driving under the

influence. Accordingly, I concur in the judgment only.




36
   Birchfield v. North Dakota, 2016 WL 3434398, at *19 (June 23, 2016) (quoting Mackey v.
Montrym, 443 U.S. 1, 17 (1979)) (alterations in Birchfield).
37
   Id.
                                             14
