       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                         IN AND FOR KENT COUNTY


STATE OF DELAWARE,                       :
                                         :
             v.                          :
                                         :
EZRI TURNER                              :
1502014211                               :
                                         :
            Defendant.                   :

                          Submitted: December 11, 2015
                            Decided: January 5, 2016

                          MEMORANDUM OPINION

                     Upon Defendant’s Motion to Suppress
                                 DENIED

Zachary A. George, Esquire, Department of Justice, for the State.

J’Aime L. Walker, Public Defender’s Office, for the Defendant.


Clark, J.

                               I. INTRODUCTION

      The issues before the Court involve Defendant’s Motion to Suppress evidence

seized after his traffic stop and arrest. Defendant argues that the arresting officer

lacked reasonable suspicion to stop Defendant’s vehicle. Defendant also argues that

the arresting officer lacked probable cause to arrest Defendant and accordingly that

the weapon and ammunition seized pursuant to a search incident to that arrest should
be suppressed. For the following reasons, Defendant’s Motion to Suppress evidence

is DENIED.

            II. FACTUAL AND PROCEDURAL BACKGROUND

      The Court held a suppression hearing on November 30, 2015. The parties then

supplemented the record with written arguments that concluded on December 11,

2015. The following constitute the findings of fact applicable to the suppression

motion.

      On February 24, 2015, Officer Martinek, of the Dover Police Department,

stopped Defendant’s vehicle for failing to signal while changing lanes in violation of

21 Del. C. § 4155. Prior to this traffic stop, Officer Martinek received a tip from a

confidential informant (“CI”) regarding Ezri Turner (“ Defendant”). The CI was a

past, proven and reliable source having previously provided three valid tips resulting

in arrests. The CI told Officer Martinek that a person nicknamed “Izzy” was going

to be in the area of Club Fitness Gym on Bay Road in Dover. The CI identified the

vehicle as a green Nissan Sentra and provided the tag number, 540994. The CI also

informed Officer Martinek that Izzy would be in possession of a firearm.

      Officer Martinek and Probation Officer Stagg drove southbound on Bay Road

toward the identified shopping center. As they approached, the officers noticed a

green Nissan Sentra leaving Club Fitness’s parking lot. The green Nissan’s license


                                          2
plate matched the one provided by the CI.

      Officer Martinek then began to follow the vehicle. As he followed the green

Nissan Sentra northbound on Bay Road, the vehicle traveled in the left lane. The

driver of the Nissan then moved into a left turn lane without using a turn signal.

While stationary and waiting to make his left turn, the Defendant activated his signal

while the officers sat to his rear.

      After this traffic infraction, Officer Martinek activated his emergency

equipment. This also activated the vehicle’s MVR which runs constantly, but does

not preserve a recording until approximately twenty seconds before the emergency

equipment is activated. The camera’s video, which was reviewed in Court, does not

show the traffic infraction. According to Officer Martinek, the infraction occurred

before the start of the video.

      At the direction of the officers, Defendant’s vehicle turned into a Royal Farms

parking lot and stopped. As Officer Martinek approached the vehicle, he noticed that

the Defendant seemed extremely nervous. Officer Martinek testified that at that point

he was on high alert for his safety because of a possible gun in the vehicle. Officer

Martinek then explained to Defendant why he was stopped. Defendant became

argumentative and began raising his window while Officer Martinek’s stood at the

car’s door. Officer Martinek believed, based on his 10 years of experience, that the

Defendant was going to put the car into drive and flee. Officer Martinek did not see

                                          3
a gun and assumed that if there was one, it was hidden.

       At that point, the officer asked Defendant to step out of the vehicle. Defendant

refused. Officer Martinek then opened the vehicle door and removed Defendant from

the vehicle with the assistance of two other officers. At that point, Defendant

attempted to flee. It required four officers wrestling with Defendant, and eventually

tasing Defendant, in order to place him in custody.

       Once Defendant was detained and arrested, the officers searched the vehicle.

The search revealed a black 9mm handgun beneath the driver’s seat with an

obliterated serial number and 6 rounds in a seated magazine. The State indicted the

Defendant for Assault Second Degree, Resisting Arrest with Force or Violence,

Carrying a Concealed Deadly Weapon, Possession of a Weapon with a Removed,

Obliterated, or Altered Serial Number, and Criminal Mischief.1

                              III. STANDARD OF REVIEW

       In a Motion to Suppress, pursuant to a search without a warrant, the State bears

the burden of establishing that the challenged search or seizure complied with the

rights guaranteed by the United States Constitution, the Delaware Constitution, and




       1
         Approximately 21.6 grams of marijuana and a scale were also found in the trunk of the
vehicle. Since Defendant was not indicted for drug related offenses, the seizure of contraband from
inside the trunk was not addressed by the parties. The legality of the search of the trunk, therefore
is not addressed by this decision.

                                                 4
Delaware statutory law.2 The State’s evidentiary burden in a motion to suppress is

to prove the challenged matter by a preponderance of the evidence.3 At a suppression

hearing, the trial judge sits as the trier of fact, and determines witness credibility.4

                                          IV. DISCUSSION

         Defendant argues that the initial stop was not lawful because it was pretextual

and because the tips provided by the CI were not sufficiently reliable or relevant to

justify a stop.         Defendant also argues that the subsequent arrest was illegal.

Accordingly, the Defendant argues that any evidence seized in a search incident to

an illegal arrest is not admissible. The State responds by arguing that the initial stop

was reasonable and justified because Officer Martinek observed a traffic infraction.

Furthermore, the State argues that Defendant’s refusal to exit the vehicle, flight, and

assault of an officer, justified his arrest and the search of the vehicle. The Court finds

that there was probable cause for the initial traffic stop. It also finds that the search

of the vehicle producing the weapon and ammunition was also lawful. Consequently,

suppression of the challenged evidence is not warranted.

A. The traffic stop was justified and reasonable.



         2
             State v. Holmes, 2015 WL 5168374, at *3 (Del. Super. Sept. 3, 2015).
         3
             State v. Darling, 2007 WL 1784185, at *1 (Del. Super. June 8, 2007), as corrected (July 3,
2007).
         4
             Turner v. State, 957 A.2d 565, 570-71 (Del. 2008).

                                                    5
      The Fourth and Fourteenth Amendments of the United States Constitution and

Article I, Section 6 of the Delaware Constitution protect individuals from

unreasonable searches and seizures.5 A stop under the Fourth Amendment “is

reasonable if it is supported by probable cause to believe that a traffic [or pedestrian]

violation has occurred. The standard remains the same regardless of the subjective

intent of the officer at the time of the stop.”6 The Fourth Amendment constitutional

reasonableness standard for a traffic stop does not depend on the actual motivations

of an individual officer. Subjective intentions play no role in probable cause analysis

under the Fourth Amendment.7 Therefore, as long as an officer makes a traffic stop

based on a violation of the traffic code in his presence, any pretextual reasons or

actual motivations that may also be involved in the officer's actions are irrelevant.8

      Defendant argues, citing State v. Heath, that the traffic stop was pretextual in

nature because it was motivated by the CI’s tip. Defendant asserts that the tip

included no allegation of criminal activity. Namely, the reference to “Izzy’s”

possession of a gun involved no criminal conduct. Defendant emphasizes that the

possession of a gun, absent other circumstances, is not criminal. Admittedly, State


      5
          Holmes, 2015 WL 5168374, at *3.
      6
          Darling, 2007 WL 1784185, at *3.
      7
          Id.
      8
          Id.

                                             6
v. Heath held that if a stop is motivated by an unrelated (and unjustified) purpose, and

absent that purpose the stop would not have been made, then that stop is pretextual

and unlawful.9

      However, despite opportunity, the Delaware Supreme Court has declined to

adopt the holding in Heath. Namely, in Turner v. State, the Defendant argued that

the traffic stop was pretextual, and pursuant to the holding in Heath, violated Article

1, Section 6 of the Delaware Constitution. The Supreme Court declined to follow

Heath, however, noting “[t]hat decision was not appealed, and Heath has not been

followed in any other Superior Court decisions.”10 For this reason, the Court does not

rely upon Heath as support that an alleged pretextual reason for the stop rendered it

and the subsequent search unconstitutional.

      Here, Officer Martinek testified that he witnessed a violation of 21 Del. C. §

4155 when Defendant did not use his turn signal to change lanes. Defendant also

contests this, as a factual matter, because the traffic violation was not captured on the

video recording shown in Court. The Court, however, finds Officer Martinek’s

testimony to be credible and finds that a traffic violation in fact occurred. Namely,

the Court is satisfied, by a preponderance of the evidence, that a traffic violation

occurred and the video, during the normal course of its operation, first shows

      9
          State v. Heath, 929 A.2d 390, 402–03 (Del.Super. 2006).
      10
           Turner v. State, 25 A.3d 774, 777 (Del.2011).

                                                7
Defendant’s vehicle after the violation. Accordingly, there was probable cause to

stop Defendant’s vehicle.

B. Officer Martinek had probable cause to arrest Defendant and justifiably
searched the vehicle.

      An arresting officer has probable cause to make a warrantless arrest “whenever

the facts and circumstances within the officers' knowledge and of which they had

reasonably trustworthy information were sufficient to warrant a prudent person in

believing that the arrestee . . . had committed or [was] committing an offense.”11 An

officer must have probable cause to conduct an arrest, under the totality of the

circumstances, as viewed by a reasonable police officer in light of his or her training

and experience.12 The facts must suggest that a fair probability exists that the

defendant has committed a crime.13 Finally, “the passenger compartment of a car may

be searched incident to the lawful arrest of an occupant of that car.” 14 However, “an

officer, lacking reasonable suspicion to effect a stop or search that leads to an illegal

arrest [cannot] contend that evidence seized incident to that illegal arrest is

admissible.” 15

      11
           State v. Manley, 706 A.2d 535, 538-39 (Del. Super. 1996).
      12
           Miller v. State, 4 A.3d 371, 373-74 (Del. 2010).
      13
           Id.
      14
           Ortiz v. State, 2004 WL 2741185, at *2 (Del. Nov. 16, 2004).
      15
           Jones v. State, 745 A.2d 856, 873 (Del. 1998).

                                                 8
       While a great deal of time at the hearing involved testimony regarding the CI’s

tip, this aspect of the case turns on the Defendant’s conduct after being lawfully told

to exit the vehicle. The Delaware Supreme Court has recognized that “[t]he police

may order the driver or a passenger [of a vehicle] to exit the car after a valid traffic

stop.”16 If a Defendant is already lawfully detained as a consequence of a valid traffic

stop, limiting his mobility, and then asking him to exit the vehicle is not considered

a second seizure. It is a legal order from an officer.17 Here, Officer Martinek ordered

Defendant to exit the vehicle after making a lawful traffic stop. The Defendant

refused the lawful order, attempted to flee, and resisted arrest.

       In arguing against the legality of the search, Defendant also relies upon Jones

v. State’s holding that a completely unlawful stop does not justify a search incident

to an illegal arrest. In Jones v. State, however, the defendant was stopped without

reasonable articulable suspicion.18 Namely, the officer in Jones had “no reasonable

and articulable ground to suspect that Jones was committing, had committed, or was

about to commit a crime.”19 During that illegal seizure, the defendant resisted arrest.20


       16
         Loper v. State, 9 A.3d 1169, 1174 (Del. 2014) (citing Pennsylvania v. Mimms, 434 U.S.
106 (1977)).
       17
            Id.
       18
            Jones, 745 A.2d 856, at 863.
       19
            Id.
       20
            Id. at 872

                                              9
Because the initial stop and seizure were not reasonable or justified, the Court ruled

that any evidence seized from a search incident to arrest was inadmissible at trial.21

      In the case at hand, the initial stop was supported by probable cause of a traffic

offense. Officer Martinek had probable cause to stop and then cite Defendant for a

traffic violation. Likewise, he then had lawful authority to order Defendant to step

out of the car. Defendant refused, fled, and then fought the officers. For purposes of

this suppression motion, the Court finds by a preponderance of the evidence that

Defendant assaulted Officer Martinek, resisted arrest, and committed the crime of

criminal mischief by damaging the officer’s property. It therefore follows that there

was probable cause to arrest Defendant at that point and to then search the vehicle

incident to an arrest.

                                V. CONCLUSION

      For the reasons cited, the Defendant’s Motion to Suppress is DENIED.

IT IS SO ORDERED.



                                               /s/Jeffrey J Clark
                                                   Judge




      21
           Id. at 872-73.

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