       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                        :
                                         :        ID No. 1808005494
                 v.                      :        In and For Kent County
                                         :
RONNIER HENRY,                           :
                                         :
                  Defendant.             :


                      MEMORANDUM OPINION & ORDER

                           Submitted: February 13, 2020
                             Decided: April 29, 2020

                   Upon the State’s Appeal of a Suppression Decision
            of the Court of Common Pleas – REVERSED & REMANDED



Christel Duff, Deputy Attorney General, Department of Justice, Dover, Delaware,
Attorney for the State.

Ronnier Henry, Seaford, Delaware, Pro Se Defendant




Clark, J.
      An on-duty paramedic discovered Defendant Ronnier Henry’s car sitting at
the intersection of State and Loockerman Street during the early morning hours of
August 9, 2018. As the paramedic approached his car, he observed Mr. Henry lying
unconscious across the front seat. He remained unconscious through multiple green
light cycles. When he finally awoke, the paramedic instructed him to wait until the
police arrived. An officer arrived shortly thereafter.
      After a suppression hearing, the Court of Common Pleas held that because the
paramedic was not a law enforcement officer, he lacked authority to instruct Mr.
Henry to wait at the scene. On that basis alone, the court suppressed evidence that
Mr. Henry was under the influence. It did so, notwithstanding its independent
finding that the paramedic (and later the officer) possessed probable cause to believe
that Mr. Henry had committed the crime. Pursuant to 10 Del. C. § 9902(b) and (c),
the State appealed the trial court’s suppression order.
      In this case, the Court of Common Pleas erred. It incorrectly held that when
the paramedic instructed Mr. Henry to remain at the site without law enforcement
authority, it triggered the exclusionary rule’s remedy. Here, the Court of Common
Pleas need not have addressed the difficult issue of the paramedic’s status in search
and seizure analysis. Rather, because the court found that the paramedic had
probable cause to believe that Mr. Henry was under the influence, it should not have
applied the exclusionary rule regardless of his status. For these reasons and those
that follow, the trial court’s decision must be REVERSED and REMANDED. A
trial in this matter shall proceed as provided by 10 Del. C. § 9902(c).

                                  Facts of Record
      The facts referenced herein are those found by the Court of Common Pleas
after a suppression hearing. On the morning of the offense, Lieutenant McMillon
was an on-duty paramedic in Kent County. After accompanying a patient to Kent

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General, he left the hospital and proceeded onto Loockerman Street. While stopped
at a traffic light, he noticed that a car to his right remained stopped despite a green
signal.   After the green light cycled through two times, Lieutenant McMillon
maneuvered his vehicle to look into the car. He thought he could see a body in the
front seat. He then maneuvered his vehicle behind the car and parked. When doing
so, he activated his vehicle’s emergency lights to warn vehicles approaching from
the rear that both vehicles sat just before the intersection.
       Lieutenant McMillon then approached the driver’s side of the car. There, he
saw Mr. Henry lying in the front seat, either asleep or unconscious. At first, he tried
to wake Mr. Henry by shouting but received no response. At that point, the
Lieutenant called for police assistance. He testified that his training as a paramedic
required him to first call for police assistance in the event that the unconscious
person awoke and became violent. He also testified that he remained on the scene,
in such cases, to render any necessary medical assistance.
       Prior to the officer’s arrival, Mr. Henry awoke. He appeared glassy-eyed and
confused. He also had slurred speech. The Lieutenant asked Mr. Henry if he knew
where he was and if he needed medical help. Mr. Henry responded that he did not
know where he was. At first, Mr. Henry said he felt fine, but then told the paramedic
that he may need medical help.
       At some point during this assessment, Lieutenant McMillon instructed Mr.
Henry to remain on the scene until the police arrived. He did so for two reasons: he
remained unsure about whether there was a medical emergency,1 and he believed
Mr. Henry would be a danger to others if he left the area.2

1
  State’s App’x to Opening Br., Ex. 5, at A12.
2
 Id. at A16 (explaining, through Lt. McMillon’s testimony during cross-examination by Mr.
Henry, that “the reason why I asked you to wait, sir, is because I felt you were impaired and wasn’t
sure if it was medically impaired or whatever it was, but I felt that you would be a danger if you
continued on; therefore, I asked you to wait”).
                                                 3
        Dover Police Officer Hudson then arrived at the scene. Lieutenant McMillon
relayed his observations to the officer. The officer then approached Mr. Henry. He
observed that he had glassy and watery eyes, was argumentative, and was extremely
talkative. Mr. Henry informed him that he had recently taken oxycodone and drank
alcohol. At that point, Officer Hudson asked Mr. Henry to complete field sobriety
tests. Mr. Henry refused. Based upon the information Lieutenant McMillon relayed
to him, Mr. Henry’s bloodshot and glassy eyes, his admission to taking oxycodone
and consuming alcohol, and his argumentative demeanor, Officer Hudson arrested
Mr. Henry. He charged him with Driving under the Influence of a Combination of
Alcohol and any Drug.

                                    Procedural Background
        On May 14, 2019, the Court of Common Pleas held a suppression hearing at
Mr. Henry’s request. At the close of the hearing, it granted Mr. Henry’s suppression
motion. The trial court held that the on-duty paramedic was a state actor because he
worked for a government agency.3 While focusing on Mr. Henry’s perception of the
paramedic, it found that Mr. Henry reasonably mistook the paramedic for a police
officer.4 Finally, the court found that the paramedic illegally detained Mr. Henry
without law enforcement authority.5 As a result, it suppressed all evidence after the
point of detention. Given the court’s ruling, the State orally certified that it could



3
  Id. at A31.
4
  Id. at A30 (comparing the paramedic’s appearance to a police officer because (1) he had a badge
and labeled as Kent County Public Safety and a uniform, and (2) he activated the emergency lights
on his vehicle. See also id. at A33 (describing Lt. McMillon’s appearance and reasoning that he
had “a badge on his chest, a patch on his arm that says Kent County Public Safety and he has lights
on his vehicle behind the car saying they’re on and he walks up and says you got to wait, that’s a
detention by a State agent, State actor . . . all appearances he’s a police officer and as a result, when
he tells him to wait, he’s not going anywhere, he had no reason to believe he could leave.”).
5
  Id. at A29.
                                                   4
not prosecute Mr. Henry without the suppressed evidence. The court then dismissed
Mr. Henry’s charges. 6
       Thereafter, the State filed a motion for reargument. In it, the State argued that
the court “misapprehended the law or facts such as would have changed the outcome
of the underlying decision.” 7 Namely, the State argued that (1) it did not receive
proper notice of the suppression issue, (2) Lieutenant McMillon acted as a private
citizen during the encounter, and (3) the exclusionary rule does not apply to the
action of private citizens.
       In a written decision, the trial court denied the State’s motion. It recognized
that Delaware courts have not addressed the issue of whether the exclusionary rule
should apply to similar actions taken by an on-duty paramedic.8 In denying the
State’s motion, the court reasoned that Lieutenant McMillon was a state actor while
on duty. 9 It also reasoned that while the Lieutenant’s motivation may have been
public safety, a reasonable person in Mr. Henry’s position would have believed
Lieutenant McMillon to be a police officer because of his uniform, his emergency
lights, and his failure to identify himself as a paramedic. 10
       The State then filed this appeal. It submitted its opening brief on November
20, 2019. Thereafter, Mr. Henry failed to file an answering brief. At that point, the
Court issued a delinquent brief notice. On February 10, 2020, after Mr. Henry failed
to participate in the appeal, the Court deemed the appeal to be submitted for decision
without Mr. Henry’s brief.



6
  Id.
7
   State’s Mot. for Reargument, at 2 (citing Kennedy v. Invacare, 2006 WL 488590, at *1 (Del.
Super. Jan. 31, 2006) (quoting Bd. Of Mgrs. of the Criminal Justice Info Sys. v. Gannett Co., 2003
WL 1579170, at *1 (Del. Super. Jan. 17, 2003)).
8
  State’s App’x to Opening Br., Ex. 4, at 3.
9
  Id.
10
   Id. at 5.
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                                    Standard of Review
       This matter involves the State’s appeal of an adverse suppression decision.
When material evidence is suppressed or excluded before trial, and the State certifies
that the evidence is essential to prosecute the case, the court “shall dismiss the
complaint, indictment or information or any count thereof to the proof of which the
evidence suppressed or excluded is essential.”11 In that event, “[t]he State shall have
an absolute right of appeal to an appellate court . . . and if the appellate court upon
review of the order suppressing evidence shall reverse the dismissal, the defendant
may be subjected to trial.”12 The appeal is on the record.13
       The standard of review on appeal includes deciding whether there was legal
error and whether the trial court’s decisions were the product of an orderly and
logical deductive process.”14        The Superior Court must accept the trial court’s
factual findings supported by the record, even if it would have made contrary
findings or conclusions.15 As part of its appellate function, however, the Superior
Court reviews questions of law de novo. This case involves a question of law.

                                         Discussion
       The Court must first address the State’s appeal in the context of Mr. Henry’s
failure to submit an answering brief. Pursuant to Superior Court Civil Rule 107(f),
when a party fails to participate in appellate briefing, the Superior Court may take
action necessary to expedite the disposition of the case.16 The Rule provides broad


11
   10 Del. C. § 9902(b).
12
   Id. at § 9902(c).
13
   Super. Ct. Crim. R. 37(f).
14
   Onkeo v. State, 957 A.2d 2, 2008 WL 3906076, at *1 (Del. 2008) (TABLE).
15
   Id.
16
   Sup. Ct. Civ. R. 107(f) (explaining “[i]f any brief, memorandum, deposition, affidavit, or any
other paper which is or should be a part of a case pending in this Court, is not served and filed
within the time and in the manner required by these Rules or in accordance with any order of the
Court or stipulation of counsel, the Court may, in its discretion, dismiss the proceeding if the
                                               6
discretion that permits the Court to dismiss the proceedings, to consider the filing or
its opposition abandoned, or to summarily grant or deny the filing.17
       Here, the State filed a timely notice of appeal and an opening brief. When
Mr. Henry failed to file his answering brief, the Court sent him a delinquent brief
notice. After thirty days with no response, the Court considered Mr. Henry to have
waived his right to file a brief. It then considered the appeal to be submitted for
decision based upon the State’s opening brief, the trial court’s written decision, and
the remainder of the record.18
       Next, the Court turns to the merits of the State’s appeal. In its brief, the State
focused on the paramedic’s status when instructing Mr. Henry to remain on site,
because the Court of Common Pleas focused on that in its decision. Accordingly,
this Court must address this threshold issue to a certain extent in order to explain
why its decision turns on a different issue: the trial court’s probable cause finding.
       When addressing this alleged seizure,19 the Court must consider basic
principles of Fourth Amendment law that apply to Delaware through the Fourteenth
Amendment to the United States Constitution. The Delaware Constitution’s search
and seizure provision is substantially similar to the federal provision and protects the
same interests.20      Namely, Article I, Section 6 of the Delaware Constitution




plaintiff is in default, consider the motion as abandoned, or summarily deny or grant the motion,
such as the situation may present itself, or take such other action as it deems necessary to expedite
the disposition of the case”).
17
   Id.
18
   See Case No. 1808005494, Dkt. 08, Order (directing the case to be decided on the record and
the pleading filed).
19
   For purposes of the appeal, the Court accepts the lower court’s finding that the paramedic
detained Mr. Henry. The lower court did not address whether the detention constituted (1) a Terry
level detention or (2) an arrest. Because the Court of Common Pleas found probable cause, a
sufficient quantum of evidence justified both.
20
   State v. Vouras, 1980 WL 336623, at *2 (Del. Com. Pl. July 29, 1980) (citing State v. Moore,
187 A.2d 807 (Del. Super. Jan. 9, 1963)).
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guarantees that “[t]he people [of Delaware] shall be secure in their persons, houses,
papers and possessions, from unreasonable searches and seizures[.]” 21
       Fourth Amendment guarantees apply to government action.22 They generally
do not apply to searches and seizures conducted by a private person. 23 Accordingly,
purely private conduct triggers no search and seizure analysis.24 On the other hand,
police conduct that violates United States or Delaware Constitutional protections
trigger both search and seizure analysis and the exclusionary rule’s remedy.                  The
analysis is more complicated regarding what falls in between. Examples of such
matters include, on one side of the spectrum, private actor conduct intended to help
law enforcement. On the other side of the spectrum, an example includes the
conduct of non-police government actors. The paramedic’s action in this case falls
in the latter category. When a government employee such as a paramedic or a school
principal is involved, the threshold issue of government action is met.25 As non-
police actors, however, their involvement requires a second level of inquiry.
Namely, a court must analyze the nature of the non-police government conduct and
weigh the future deterrent effect of excluding the evidence. 26
       Here, Lieutenant McMillon, as an on-duty paramedic, was a government
actor. Accordingly, the Fourth Amendment applies to his conduct. 27 However, the


21
   Del. Const., Art. 1, § 6. See also U.S. Const., amend. IV (guaranteeing the right of the people
to be “secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures”).
22
   State v. Onumonu, 2001 WL 695539, at *2 (Del. Super. June 18, 2001) (citing United States v.
Jacobsen, 466 U.S. 109, 113 (1984)).
23
   Virdin v. State, 780 A.2d 1024, 1030 (Del. 2001).
24
   Id.
25
   See New Jersey v. T.L.O., 469 U.S. 325 (1985) (explaining that government actors for purposes
of the Fourth Amendment are not limited to the police and include government officials generally).
26
   See Arizona v. Evans, 514 U.S. 1 (1995) (explaining that the issue of exclusion is separate from
the consideration of whether the Fourth Amendment has been violated, and that the exclusionary
rule should only be applied if it effectively serves its deterrent purpose by the exclusion).
27
   Virdin, 780 A.2d at 1030.
                                                8
questions of (1) whether the Fourth Amendment applies to certain non-police
governmental activity, and (2) whether the exclusionary rule applies to that same
conduct are not one in the same. 28 Namely, “the issue of exclusion is separate from
whether the Fourth Amendment has been violated . . . and exclusion is appropriate
only if the remedial objectives of the [exclusionary] rule are thought most
efficaciously served.”29
       In its decision, the Court of Common Pleas erred when concluding that
Lieutenant McMillon’s status, in and of itself, triggered the exclusionary rule. At
the outset, it correctly found that he was a government actor, but then did not address
the second part of the inquiry. It instead applied an evidentiary sanction because a
governmental actor, with no actual police authority, told Mr. Henry to remain on
site.30 It supported this analysis by focusing only on the reasonableness of Mr.
Henry’s perception that Lieutenant McMillon was a police officer.
       The exclusionary rule’s remedy does not extend to the deterrence of
individuals (whether purely private or government employed) that have no law
enforcement authority from behaving as though they do. Likewise, it does not
extend to situations where a defendant reasonably believes that the non-police
government employee is a police officer. When the Court of Common Pleas so held,
it cited no authority justifying an application of the exclusionary rule on that basis.

28
   Lafave 1 Search and Seizure § 1.8(e) (5th ed).
29
   Evans, 514 U.S. at 13–14 (citing United States v. Leon, 468 U.S. 897, 906 (1984) and United
States v. Calandra, 414 U.S. 338, 348 (1974)). See also Lafave 1 Search and Seizure § 1.8(e) (5th
ed.) (explaining that “the T.L.O. case made it abundantly clear that the question of whether the
Fourth Amendment is applicable to certain non-police governmental activity and the question of
whether the Fourth Amendment's exclusionary rule is applicable to that conduct are not one and
the same and might not inevitably be answered in the same way”).
30
   The Court of Common Pleas found this action to constitute a “detention” and then found there
to be probable cause to support the detention. The Court need not address whether reasonable
suspicion would be the floor necessary to justify the detention in this case. The trial court found
probable cause which subsumes any requirement that the detention be justified by reasonable
articulable suspicion.
                                                9
          It would be inappropriate to create such a rule because the exclusionary rule
emerged as a judicially created response to Fourth Amendment violations. 31 The
rule is “designed to safeguard Fourth Amendment rights generally through its
deterrent effect.”32 In performing its function, it is a court-imposed exception to
what otherwise is a presumption of admissibility. Expanding the exclusionary rule’s
remedy to encompass a defendant’s reasonable perception that a non-police actor
exercised non-existing law enforcement authority is incorrect. It would serve no
defined Fourth Amendment purpose to do so.
          Civil and criminal law already provide remedies and penalties to address
concerns generated by persons acting as police officers without authority.       To be
clear, Lieutenant McMillon’s actions in this case were completely reasonable. He
appropriately requested Mr. Henry to remain on site for public safety purposes
(whether for Mr. Henry’s health or for the safety of others on the roadway).
          However, other civil and criminal remedies and penalties address situations
unlike the one at hand. For instance, tort actions for invasion of privacy or false
imprisonment exist to address when an actor’s conduct constitutes a wrongful search
or detention. These torts may also encompass someone’s improper assumption of
police authority when he or she takes the wrongful action. Likewise, a private party
or a non-police governmental actor that improperly detains a person or wrongfully
searches their property may also be criminally liable for unlawful imprisonment or
criminal trespass.
          In any event, Mr. Henry’s reasonable misunderstanding that Lieutenant
McMillon was a police officer did not require exclusion of evidence on search and
seizure grounds. Applying the exclusionary rule’s remedy in this instance, (1) in



31
     Herring v. United States, 555 U.S. 135, 139 (2009).
32
     Id. at 139–40 (quoting Calandra, 414 U.S. at 348).
                                                 10
the absence of a full analysis regarding the paramedic’s status, (2) where probable
cause was available to both the paramedic and the arresting officer, was legal error.
          Here, the case turns on the trial court’s probable cause finding; the trial court
found that Lieutenant McMillon had probable cause to detain Mr. Henry. It also
found that when Officer Hudson arrived, he likewise possessed probable cause to
believe Mr. Henry was under the influence. The record evidence easily supports
those findings. Namely, the Lieutenant observed Mr. Henry remain unconscious
through multiple green light cycles at an intersection. Mr. Henry did not know where
he was when he awoke. He also exhibited other indicia of being under the influence.
          Given the trial court’s finding of probable cause, it was immaterial whether
the Lieutenant was (1) a private actor, (2) a non-police governmental actor, or (3) a
law enforcement officer. Both the paramedic and the arresting officer detained Mr.
Henry based facts that provided probable cause that he had driven under the
influence. Such a finding obviated the need to identify Lieutenant McMillon’s
status.

                                        Conclusion
          For the reasons discussed, the Court of Common Pleas erred when
suppressing the evidence in this case.             As a result, the dismissal must be
REVERSED. The matter is REMANDED and will be subject to trial pursuant to
10 Del. C. § 9902(c).


                                                                /s/Jeffrey J Clark
                                                                    Judge




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