     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                       )
                                        )
     v.                                 )     I.D. # 1905015433
                                        )
QY – MERE MADDREY,                      )
                                        )
                 Defendant.             )



                       Submitted: February 10, 2020
                        Decided: February 25, 2020


                       MEMORANDUM OPINION

                   Upon Defendant’s Motion to Suppress:
                               DENIED.


Zachary Rosen, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorney for the State.

Kevin P. Tray, Esquire, Law Office of Kevin P. Tray, Wilmington, Delaware,
Attorney for Defendant.




Adams, J.




                                    1
     Pending before the Court is Defendant Qy-Mere Maddrey’s Motion to Suppress,

filed November 4, 2019. The Motion to Suppress arises out of an approximately

three-minute traffic stop and subsequent arrest of Maddrey. Defendant’s Motion to

Suppress focuses primarily on the issue of whether questions asked of Defendant,

unrelated to the justification for the initiation of the traffic stop, measurably extended

the traffic stop under Arizona v. Johnson.1 For the reasons stated herein, the Court

finds that they do not. Even were the Court to find the stop was measurably

extended, however, the inevitable discovery doctrine applies to prevent the exclusion

of the evidence Maddrey seeks to suppress. Therefore, the Court denies Defendant’s

Motion to Suppress.

     I.      Factual and Procedural Background

          The following facts are taken from the record in this case and the Motion to

Suppress hearing, including testimony from Corporal (“Cpl.”) Kashner and

observation of the dash cam video.

          The traffic stop at issue occurred on May 23, 2019 at 10:32 p.m. Cpl. Kashner

of the Newport Police Department was on routine patrol in a marked car on Route

141 near Newport, Delaware, when he observed Maddrey following too closely and

failing to use a turn signal when he exited Route 141 northbound in violation of 21



1
    Arizona v. Johnson, 555 U.S. 323 (2009).
                                          2
Del. C. § 4155. Shortly after observing Maddrey failing to use his turn signal, Cpl.

Kashner signaled Maddrey to pull over and initiated a traffic stop. Cpl. Kashner

asked Maddrey for his license, registration and insurance. Maddrey provided his

license and registration and told Cpl. Kashner that his insurance card had not yet

arrived in the mail. Maddrey was also asked questions about where he was going,

where he was coming from and where he lives.

      Cpl. Kashner also asked Maddrey about the two cell phones on the passenger

seat. Maddrey responded by asking why he was being pulled over, and Cpl. Kashner

told Maddrey that he had failed to signal a lane change. Cpl. Kashner asked Maddrey

again about where he was coming from and asked to whom the car was registered

and Maddrey responded by stating that the car was registered to his wife.

      Cpl. Kashner asked Maddrey if there were any guns in the car, to which

Maddrey responded that there were not. Cpl. Kashner again asked Maddrey about

the two cell phones in the car. The dash cam video shows the two having a

discussion about the phones, during which Maddrey stated that one was for music

and the other was for calls. Cpl. Kashner also asked Maddrey about the broken

screen on one of the phones and Maddrey stated that his son had damaged the phone

at the beach. The tone of voice for both Cpl. Kashner and Maddrey during this part

of the interaction was non-hostile and casual.




                                         3
         Throughout the stop, Cpl. Kashner was in a crouched position against the

vehicle’s door so that he was at the same level as Maddrey. Cpl. Kashner testified

that positioning himself at driver level was routine for all traffic stops and required

him to adjust his stance based on the size of the vehicle involved. Cpl. Kashner

looked through the window of Maddrey’s car with a flashlight as he was conducting

the stop. Cpl. Kashner acknowledged during his testimony that his hands and

flashlight were partially inside the vehicle at certain points during the stop.

         The time between the initiation of the stop and Cpl. Kashner returning to his

own vehicle was just over three minutes. As Cpl. Kashner was leaving Maddrey’s

vehicle to return to his own vehicle, Cpl. Kashner allegedly saw the butt of a gun

under the driver’s seat with his flashlight. As can be seen in the video, upon seeing

the gun, Cpl. Kashner reached for his own handgun, then proceeded to his vehicle

and called immediately for backup. Cpl. Kashner arrested Maddrey when the other

officers arrived at the scene. After performing a search, police found a gun under

the driver’s seat of the vehicle and drugs on Maddrey’s person.

   II.      Parties’ Contentions

         Maddrey seeks the suppression of all evidence obtained following Cpl.

Kashner’s questions regarding Maddrey’s cell phones, child and the beach.

Maddrey does not challenge the validity of the initial traffic stop. The State argues

that the challenged questions did not create a second detention and that, regardless
                                           4
of the Court’s findings with respect to the challenged questions, the inevitable

discovery doctrine applies to prevent the exclusion of the evidence obtained as a

result of this stop.

    III.   Discussion

       In order to be valid under the Fourth Amendment, “the stop and inquiry must

be justified at its inception by reasonable suspicion of criminal activity.” 2

“Generally, a defendant who moves to suppress evidence bears the burden of

establishing the challenged search or seizure violated his Constitutional rights.”3

“Where, as here, the basis for the motion is a warrantless search, the State bears the

burden of providing the challenged search comported with the defendant’s

constitutional rights.”4 Maddrey argues that, because Cpl. Kashner asked questions

about the cell phones in his vehicle, his child and the beach, and these questions

measurably extended the stop, Maddrey’s rights against unreasonable search and

seizure under the Fourth Amendment have been violated. The Court finds that these

questions did not measurably extend the stop and that, regardless, the inevitable




2
  Caldwell v. State, 780 A.2d 1037, 1046 (Del. 2001).
3
  State v. Medina, 2020 WL 104323, at *3 (citing State v. Dollard, 788 A.2d 1283,
1286 (Del. Super. 2001); State v. McElderry, 2018 WL 4771786, at *2 (Del. Super.
Oct. 1, 2018)).
4
  Id. at *3 (citing Hunter v. State, 783 A.2d 558, 560 (Del. 2001); McElderry, 2018
WL 4771786, at *2).
                                           5
discovery doctrine prevents the exclusion of the evidence Maddrey seeks to

suppress.

    1. Cpl. Kashner’s unrelated questions did not “measurably extend” the
       traffic stop.

      In Arizona v. Johnson, the United States Supreme Court found that it “has

made plain” that “[a]n officer’s inquiries into matters unrelated to the justification

for the traffic stop […] does not convert the encounter into something other than a

lawful seizure, so long as those inquiries do not measurably extend the duration of

the stop.”5 Courts have struggled to define “measurably extend” when applying this

principle to traffic stop cases.6 The Court is required to “recognize the rule of

Arizona v. Johnson” when analyzing this issue.7

      Pursuant to established Delaware law, an officer’s questions do not constitute

a second detention when the questions are either: (1) authorized by statute; or (2)

part of routine police questioning.8 Under 11 Del. C. § 1902, an officer conducting

a traffic stop is authorized to “demand the person’s name, address, business abroad

and destination. Any person so questioned who fails to give identification or explain

the person’s actions to the satisfaction of the officer may be detained and further


5
  Arizona, 555 U.S. at 333.
6
  United States v. Green, 897 F.3d 173, 180 (3d. Cir. 2018) (citations omitted); State
v. Medina, 2020 WL 104323, at *4 (Del. Super. Jan. 7, 2020).
7
  State v. Abel, 68 A.3d 1228, 1241 (Del. 2013).
8
  Pierce v. State, 2011 WL 1631558, at *2 (Del. Apr. 29, 2011).
                                          6
questioned and investigated.”9 The questions at issue here are those which do not

fall under § 1902 and are unrelated to Maddrey’s alleged failure to signal a lane

change.10 As such, the Court must determine whether these questions measurably

extended the traffic stop.

       “Although questions unrelated to the initial justification for the stop might

not per se require reasonable suspicion or consent to further question, the Delaware

Supreme Court has made clear that such inquiries must not measurably extend the

duration of the stop.”11 An officer creates a second seizure requiring additional

reasonable suspicion when “a traffic stop goes beyond fulfilling its initial purpose

and the stop measurably was extended.”12

      A determination of whether a stop has been measurably extended by unrelated

inquiries “necessarily involves a fact-intensive inquiry in each case.”13 The cases

cited in the briefings on this Motion and during oral argument, with regard to



9
  11 Del. C. § 1902.
10
   The State argues that officers are often required to build rapport with the people
they interact with by asking about topics unrelated to the purpose of the interaction.
The Court declines to make a finding as to whether any of the challenged questions
asked by Cpl. Kashner constitute “routine police questioning” under Pierce. Cpl.
Kashner did not provide testimony on this point.
11
   Medina, 2020 WL 104323, at *6 (citing Chandler, 132 A.3d at 143; Murray v.
State, 45 A.3d 670, 675 (corrected) (Del. July 10, 2012)).
12
   Id. at *4 (citing Caldwell, 780 A.2d at 1047; Stanley, 2015 WL 9010669, at *2
(Del. Super. Dec. 9, 2015)).
13
   See Caldwell, 780 A.2d at 1048; Dillard, 2018 WL 1382394, at *5 (distinguishing
Pierce).
                                           7
defining a measurable extension,       present facts that are distinct from those

underlying the present case. In Murray and Winn, the initial stops had concluded

before the officers engaged in additional investigations.14 In Caldwell, the driver

was ordered out of the car, frisked and handcuffed.15 In Dillard, the driver was

ordered out of the car while an officer wrote a citation.16 An officer also called for

a K-9 unit to search the car.17 In Abel, the officer conducted a pat-down of the

driver.18 In Chandler, the officer waited for backup for 18 minutes after returning

to his car to conduct routine computer checks.19 After backup arrived, one of the

officers conducted a pat down of the driver and the officers continued to question

the driver.20 A K-9 unit was called and arrived about 40 minutes after the start of

the traffic stop.21 The State conceded in that case that the investigation “was

extended beyond the traffic stop.”22 The present case requires the Court to determine

whether the challenged questioning during an ongoing traffic stop, alone, constituted




14
   Murray, 45 A.3d at 674 (“This case, then, involves baseless police investigation
after the conclusion of a traffic stop.”); Winn, 2006 WL 2052678, at *1 (Del. Super.
July 3, 2006).
15
   Caldwell, 780 A.2d at 1049.
16
   Dillard, 2018 WL 1382394, at *2 (Del. Super. May 17, 2018).
17
   Id.
18
   Abel, 68 A.3d at 1233.
19
   State v. Chandler, 132 A.3d 133, 137 (Del. Super. 2015).
20
   Id. at 137.
21
   Id. at 138–39.
22
   Id. at 140.
                                            8
a measurable extension of the traffic stop, which lasted         approximately three

minutes.

         Cpl. Kashner testified that he asked Maddrey about the two cell phones on the

passenger seat to determine whether Maddrey was using the phones in connection

with any crimes. Based on his training and experience, Cpl. Kashner found the

presence of multiple cell phones to be “odd” and potentially indicative of drug

dealing, terrorism or other criminal activity. Although Cpl. Kashner’s questions

about Maddrey’s phones, children and the beach were unrelated to Maddrey’s failure

to signal a lane change, Cpl. Kashner did not create a second seizure in asking these

questions.

         The total length of the stop from Cpl. Kashner turning on his flashing lights

to finding the gun and returning to his own vehicle was no more than four minutes.

Cpl. Kashner testified that a normal traffic stop should take seven to twelve minutes

to complete. Cpl. Kashner did not end his traffic violation investigation in order to

begin a second investigation of Maddrey’s possession of multiple cell phones, but

rather continued his investigation of the traffic violation until he saw the gun under

Maddrey’s seat. The Third Circuit in Green points to the United States Supreme

Court’s failure to explain how an officer could possibly do multiple tasks at once

without taking up any additional time.23 Cpl. Kashner’s actions in this case come


23
     Green, 897 F.3d at 180.
                                           9
about as close as physically possible to accomplishing this. The Court finds that the

stop in this case was not measurably extended by the unrelated inquiries that

occurred. Therefore, the State has met its burden to prove that no second seizure

occurred and Cpl. Kashner did not require reasonable suspicion to ask the unrelated

questions.

     2. Even if the Court were to find that the stop was measurably extended, the
        inevitable discovery doctrine applies to Cpl. Kashner’s discovery of the
        gun and prevents the exclusion of the evidence Maddrey seeks to
        suppress.
        Even if the Court were to find that the unrelated questions measurably

extended the stop, the inevitable discovery doctrine applies to prevent the exclusion

of the evidence Maddrey seeks to suppress.24 “Delaware accepts and consistently

applies the inevitable discovery exception to the exclusionary rule,” which provides

that “evidence, obtained in the course of illegal police conduct, will not be

suppressed if the prosecution can prove that the incriminating evidence would have

been discovered through legitimate means in the absence of official misconduct.”25

In the present case, the State must show that the gun was discovered in plain view



24
   For the purpose of analysis under the inevitable discovery doctrine, the Court
assumes that “illegal police conduct” occurred, although this is contrary to the
Court’s findings, as discussed above.
25
   State v. Holmes, 2015 WL 5168374, at *9 (Del. Super. Sept. 3, 2015) (citing State
v. Lambert, 2015 WL 3897810, at *6–7 (Del. Super. June 22, 2015); State v. Parks,
95 A.3d 42, 51 (Del. Super. 2014); Cook v. State, 374 A.2d 264, 267–68 (Del.
1977)).
                                       10
and that the gun would have been discovered even if Cpl. Kashner had not asked the

challenged questions.

         a. Cpl. Kashner discovered the gun in plain view.

      In order for the inevitable discovery doctrine to apply, the State must prove

that Cpl. Kashner used legitimate means to discover the gun.26 Under the plain view

doctrine, “the mere observation of an item in plain view does not constitute a Fourth

Amendment search.”27 “A law enforcement officer may seize, without a warrant,

contraband that the officer observes in plain view, but only if (1) the officer is

lawfully in a position to observe the contraband, (2) the item’s evidentiary value is

immediately apparent, and (3) the officer has a lawful right of access to the item.”28

Maddrey challenges the first prong, arguing that the gun was not in plain view

because Cpl. Kashner required a flashlight to see the gun and Cpl. Kashner’s hand

and flashlight extended into the vehicle during the course of the stop.

      The fact that Cpl. Kashner used a flashlight to facilitate his search of the

vehicle during this stop has no bearing on the plain view analysis.29 It is “beyond

dispute” that Cpl. Kashner’s shining a flashlight to illuminate the interior of


26
   Holmes, 2015 WL 5168374, at *9.
27
   Hardin, 844 A.2d 982, 985 (Del. 2004) (quoting Williamson v. State, 707 A.2d
350, 358 (Del. 1998)).
28
   Id.
29
   Hawkins, 646 Fed.Appx. 254, 257, n. 5 (3d. Cir. Apr. 7, 2016) (citing Texas v.
Brown, 460 U.S. 730, 739–40 (1983)).
                                      11
Maddrey’s car “trenched upon no right secured to the latter by the Fourth

Amendment.”30 There is no expectation of privacy “shielding that portion of the

interior of an automobile which may be viewed from outside the vehicle by either

inquisitive passersby or diligent police officers.”31 An item is in plain view “when

it is discoverable by police officers in the normal course of their investigative

duties.”32 “The plain view doctrine thus is not inconsistent with concealment from

ordinary observation because the latter does not incorporate an investigating police

officer’s range of perceptions.”33

      Maddrey argues that Miller v. State34 and Laws v. State35 prohibit Cpl.

Kashner’s extension of his hand and flashlight through the open window as a breach

of a threshold. Miller involves an officer’s view of a dog house with a flashlight and

provides no guidance on whether Cpl. Kashner’s conduct would constitute such a

breach. The Laws court provided no mention of breaching a threshold and did not

discuss any facts relevant to such an analysis.

      In McDougal v. State,36 an officer involved in a traffic stop “stepped into the

‘V’ area between the open door and the vehicle’s frame” because it was difficult for


30
   Texas, 460 U.S. at 741.
31
   Hardin, 844 A.2d at 985, n. 4 (quoting Texas v. Brown, 460 U.S. 730, 740 (1983)).
32
   Id. (quoting Robertson v. State, 704 A.2d 267, 268–69 (Del. 1997)).
33
   Id.
34
   310 A.2d 867 (Del. 1973).
35
   277 A.2d 676 (Del. 1971).
36
   2015 WL 7272051 (Del. Nov. 16, 2015).
                                          12
the officer to see through the tinted windows to determine whether there were any

additional passengers in the car.37 The officer left the door as it was, remained

outside the vehicle and “did not cross the threshold of the door frame.”38 The

McDougal court found that, therefore, the officer was “lawfully in a position to

observe the contraband.”39

       Cpl. Kashner testified that the position in which he was standing was routine

for traffic stops and was intended to bring him to the driver’s level. In order to be

face-to-face with a driver during a traffic stop, an officer might be required to stand

in different positions depending on the size of the vehicle. In this case, Cpl. Kashner

was in a crouched position leaning against the door of the car because of its smaller

size. Based on the video and Cpl. Kashner’s testimony, it appears that the extensions

of Cpl. Kashner’s hand or flashlight a few inches through the open driver’s-side

window were merely natural consequences of Cpl. Kashner doing a routine scan of

the car’s interior while standing in this particular position.

       Cpl. Kashner’s testimony and the dash cam video indicate that Cpl. Kashner

did extend his hand and flashlight a few inches beyond the door frame at certain

times during the course of the stop. Cpl. Kashner also testified that, at the time he




37
   Id. at *1.
38
   Id. at *2.
39
   Id.
                                           13
saw the gun under the driver’s seat, his hands and flashlight were on the outside of

the vehicle. This is also supported by the dash cam video.

        The Court is not persuaded that Cpl. Kashner’s conduct in looking through

the driver’s-side window in this case was unlawful. The Court finds that Cpl.

Kashner was lawfully in a position to observe the gun in plain view and, thus, the

plain view doctrine applies to Cpl. Kashner’s discovery of the gun under the driver’s

seat.

           b. Cpl. Kashner would have discovered the gun even if he had not
              asked any questions unrelated to the initial purpose of the stop.

        Maddrey argues that Cpl. Kashner used the time taken to ask Maddrey

questions unrelated to the purpose of the stop to further search Maddrey’s vehicle

through the windows with a flashlight. Cpl. Kashner testified that, as a matter of

routine police procedure, he would have scanned the entire interior of the vehicle

just as he did here, regardless of the questions asked or responses to those questions.

Cpl. Kashner testified that the order in which he scans different parts of the vehicle

changes depending on the circumstances or the type of vehicle involved and that,

here, the area near the driver’s seat happened to be the last area he checked. He

would not have walked away from the vehicle without looking at the area under the

driver’s seat and, therefore, would have seen the gun at that point regardless of

whether he had taken the time to ask unrelated questions.

                                          14
      In State v. Holmes,40 the court highlighted the distinction between speculation

and certainty under the inevitable discovery doctrine.41 The Holmes court found that

the officer’s testimony, including statements that the officer “probably would have

watched     [the   defendant]     a   little   bit   longer,”    that   the    officer

might have had someone stop [the defendant],” and that the officer could not

“speculate after the traffic stop,” did not establish that “a plan certain was set in

motion to apprehend the Defendant had the traffic stop not occurred.”42

      In the present case, Cpl. Kashner was able to provide testimony as to routine

police procedure for traffic stops. Cpl. Kashner testified that, in following this

routine police procedure, he would have looked at the area under the driver’s seat

regardless of the questions he asked. This is distinct from the speculative testimony

provided in Holmes. That Cpl. Kashner would have found the gun even if he had

not asked certain questions is not speculation as to what could have happened.43 This

is a matter of routine practice and the State has met its burden in proving that the

gun “would” have been found regardless of any misconduct by the officer, as

supported by Cpl. Kashner’s testimony.44        Therefore, the inevitable discovery



40
   2015 WL 5168374 (Del. Sept. 3, 2015).
41
   Id. at *9–10.
42
   Id. at *10.
43
   See Id. at *9. (“There is a significant difference between what could have happened
and what would have happened.”)
44
   See Cook, 374 A2d. at 268.
                                              15
doctrine applies to Cpl. Kashner’s discovery of the gun under the driver’s seat and,

thus, the evidence obtained following Cpl. Kashner’s discovery of the gun should

not be excluded.

   IV.   Conclusion

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

      IT IS SO ORDERED.




Original to Prothonotary




                                        16
