   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
             IN AND FOR NEW CASTLE COUNTY

      STATE OF DELAWARE,                )
                                        )
                  v.                    )        ID. No. 1403018567
                                        )
      DEON B. BLACK.                    )
                                        )


                                  ORDER

      On this 6th day of October, 2014, IT IS ORDERED as follows:

Defendant’s Motion to Suppress is DENIED.



Cynthia L. Faraone, Esq., Deputy Attorney General, Delaware Department
of Justice, Wilmington, Delaware. Attorney for State of Delaware.


Joseph M. Leager, Esq., Assistant Public Defender, Public Defender’s
Office, Wilmington, Delaware. Attorney for Defendant.




Scott, J.
                                    1
                               Introduction

      Before the Court is Defendant Deon Black’s (“Defendant”) Motion to

Suppress, brought by counsel. Defendant argues that there was no reasonable

suspicion for a pat down. Defendant also argues that the evidence found on his

person should be suppressed because the search incident to arrest was invalid, as it

was a result of an improper pre-textual stop that exceeded the scope of a traffic

stop. The Court has reviewed the motion and the State’s response and held a

suppression hearing.    For the following reasons, the Defendant’s motion is

DENIED.

                              Findings of Fact

      On March 25, 2014, at around 9:00p.m., Detective Leary and Probation

Officer Sweeney were on preventive patrol in the area of 8th and North Monroe

Street when they observed a Jeep parked on the corner. As the vehicle began to

travel, the driver failed to use a turned signal on two occasions. Detective Leary

also observed the driver failed to come to a complete stop at a stop sign. Upon

observing the traffic violations, Detective Leary activated the emergency

equipment in his police vehicle to conduct a motor vehicle stop.          The Jeep

continued for a short distance before coming to a complete stop. Prior to the Jeep

stopping, Detective Leary observed the vehicle passenger, Defendant Deon Black

(“Defendant Black”), moving around in the vehicle and turning toward the center

console.
                                      2
      Detective Leary approached the vehicle and made contact with the driver,

Matthew Norwood (“Norwood”). Detective Leary asked Norwood for his license,

registration and proof of insurance. The vehicle was registered to Norwood, but

Norwood was unable to provide a license or insurance card. Detective Leary

returned to his police vehicle to check Norwood’s information and prepare a

summons for multiple traffic violations. Detective Leary then asked Norwood to

step out of the vehicle so that he could explain the summons and have Norwood

sign it.   Prior to having Norwood sign the summons, Detective Leary asked

Norwood general questions about who he was with in the vehicle and where they

were heading. Norwood told Detective Leary that he was giving his buddy –

Defendant Black – a ride to Newark to see his kids. Norwood said he didn’t know

his buddy’s name, but that he had met him in AA. Detective Leary also asked

Norwood whether he had anything illegal in the car or on his person. Norwood

responded that he did not and volunteered his consent for Detective Leary to search

the vehicle. Prior to searching the vehicle, Detective Leary frisked Defendant

Black. A cell phone and money were found on Defendant Black’s person. These

items were returned to Defendant Black after the pat down.

      After the pat down of Defendant Black, Detective Leary searched the

vehicle. During his search, Detective Leary found several chunks of an off-white

chunky substance on the driver’s side floor board, two pipes near the driver’s seat

and door, and a blue digital scale in the center console. Both Norwood and
                                     3
Defendant Black were placed under arrest and transported to the City of

Wilmington Police Department for further investigation.

           Once at Wilmington Police Department, both Norwood and Defendant

Black were also searched incident to arrest. Nothing was found on Norwood. A

search of Defendant Black’s person revealed several chunks of suspected crack

cocaine in the front pouch of Defendant Black’s hoodie. There was also $147 cash

found in Defendant Black’s pants’ pocket, though Defendant Black said that it was

only $100. Pursuant to filling out the defendant history form at intake, Detective

Leary learned that Defendant Black was unemployed at that time. Defendant

Black chose not to offer information as to how or why he was in possession of the

money.

           Defendant Black was subsequently indicted on charges of Drug Dealing and

Possession of Drug Paraphernalia. On July 30, 2014, Defendant Black filed a

Motion to Suppress Evidence.

                                       Discussion

      I.      Defendant has no standing to challenge the search of the vehicle
              because he was the passenger.

           A person only has standing to challenge evidence seized as a result of a

violation of one's own constitutional rights. 1 The petitioner must demonstrate his

own “legitimate expectation of privacy in the invaded place” before he may


1
    Mills v. State, 2006 WL 1027202 (Del. Super. Apr. 17, 2006).
                                             4
challenge the validity of a search or seizure. 2 For purposes of protection under the

Fourth Amendment, automobiles are treated differently than houses. 3 A passenger

who does not own or exercise control over a vehicle does not possess a reasonable

expectation of privacy in the vehicle in which he is traveling. 4 Therefore, a mere

passenger in a vehicle does not have standing to challenge a search. 5

      With respect to the evidence discovered as a result of the vehicle search,

Defendant Black lacks standing to seek suppression of the evidence. Here, the

vehicle was driven by and registered to Norwood. The search of the vehicle was

conducted because of Norwood’s offer and consent. There is no evidence that

Defendant Black owned the vehicle or exercised control over it. Defendant Black,

as a passenger in the vehicle, had no reasonable expectation of privacy inside the

vehicle, where the crack cocaine substance and drug paraphernalia were found.4

“Absent other factors that are not present here, any reasonable expectation of

privacy in the car belongs to its owner or driver, but not a mere passenger.”6

Accordingly, Defendant Black has no standing to suppress evidence obtained from

the search of Norwood’s vehicle.




2
   Wilson v. State, 812 A.2d 225 (Del. 2002) (citing Rakas v. Illinois, 439 U.S. 128
(1978)).
3
  Rakas, 439 U.S. 128.
4
  See Mills, 2006 WL 1027202; see Rakas, 439 U.S. 128.
5
  Id.
6
  Mills, 2006 WL 1027202.
                                         5
    II.      The evidence will not be suppressed because it was found as a
             result of a valid traffic stop, consensual vehicle search and valid
             search incident to arrest.


          Police officers may stop an individual for investigatory purposes if they have

a reasonable articulable suspicion that the person is committing, has committed, or

is about to commit a crime. 7 To demonstrate reasonable suspicion, the officer

must be able “to point to specific and articulable facts, which taken together with

rational inferences from those facts, reasonably warrants the intrusion.” 8                 In

determining whether reasonable articulable suspicion exists, the Court “must

examine the totality of the circumstances surrounding the situation as viewed

through the eyes of a reasonable, trained police officer in the same or similar

circumstances, combining objective facts with such an officer's subjective

interpretation of those facts.” 9


          A police officer that observes a traffic violation has probable cause to

stop the vehicle and its driver.10 The scope and duration of the detention

must be reasonably related to the initial justification for the traffic stop. 11 A

police officer may not conduct a pat down search of a person during a traffic


7
  11 Del. C. § 1902; see also State v. Henderson, 892 A.2d 1061, 1064 (Del.2006) (citing Terry
v. Ohio, 392 U.S. 1, 30 (1968)).
8
  Henderson, 892 A.2d at 1064-65.
9
   Jones v. State, 745 A.2d 856, 861 (Del. 1999) (citing United States v. Cortez, 449 U.S. 411,
417–18 (1981)).
10
    Whren v. United States, 517 U.S. 806, 810 (1996).
11
    Caldwell v. State, 780 A.2d 1037, 1046 (Del. 2001).
                                           6
stop unless the officer has reasonable suspicion that the person subject to the

frisk is armed and dangerous. 12 This reasonable suspicion standard is the

same standard that is applied to a pedestrian reasonably suspected of

criminal activity under Terry v. Ohio.13

          a. Valid Traffic Stop

       “Under the Fourth Amendment, a traffic stop is reasonable if it is supported

by reasonable suspicion or probable cause to believe that a traffic violation has

occurred.”14 The subjective intent of the officer at the time of the stop does not

affect this standard. 15 In other words, the constitutional reasonableness of the

traffic stop does not depend on the actual motivations of the individual officer

involved because subjective intentions play no role in ordinary probable cause

analysis under the Fourth Amendment. 16 “Therefore, as long as the officer is

making the traffic stop based on a violation of the traffic code that he has observed,

any pretextual reason or actual motivations that might also be involved in the

officer’s actions are irrelevant.” 17

       The only support that Defendant Black offers for his argument that the

traffic stop was invalid because it was purely pretextual is the reasoning in State v.


12
   Arizona v. Johnson, 555 U.S. 323 (2009).
13
   Terry, 392 U.S. at 30.
14
   State v. Rickards, 2 A.3d 147, 151 (Del. Super. 2010), aff’d 30 A.3d 782 (Del. 2011)
(citations omitted).
15
   Rickards, 2 A.3d at 151 (Del. Super. 2010).
16
   Id.
17
   Id. at 151-152.
                                          7
Heath. 18    To determine the validity of a pretextual stop under the Delaware

Constitution the Heath court developed a three-part, burden-shifting test. 19 The test

requires first that the State show that there was probable cause or reasonable

suspicion of a traffic violation such that a reasonable officer could have made the

stop. 20    “If the court finds that there was not probable cause or reasonable

suspicion, the analysis ends because the stop was unreasonable regardless of any

underlying motivation.” 21 However, if probable cause or reasonable suspicion for

the stop is found, the burden shifts to the defendant to show that an unrelated

purpose motivated the stop and that absent such a purpose the stop would not have

been made. 22 Pretextualism is presumed if this burden is met. 23 The State then has

the opportunity in rebuttal to demonstrate that a non-pretextual rationale existed for

the stop. 24 In evaluating the State’s rebuttal, the court should consider the officer's

subjective intent as well as objective factors relating to reasonable suspicion of an

underlying criminal offense.25

       The Court rejects Defendant Black’s argument that the traffic stop was

purely pretextual.      Moreover, this Court -- along with other Superior Court

decisions -- declines to follow the decision in Heath.                   The initial stop of

18
   Def. Mot. to Suppress.
19
   State v. Heath, 929 A.2d 390 (Del. Super. 2006); see Rickards, 2 A.3d at 151.
20
   Id.
21
   Rickards, 2 A.3d at 151.
22
   Heath, 929 A.2d 390.
23
   Id.
24
   Id.
25
   Id.
                                            8
Norwood’s vehicle was reasonable and not purely pretextual. Detective Leary

observed Norwood fail to use a turn signal twice and fail to come to a complete

stop at a stop sign, in violation of Delaware law. Upon witnessing these traffic

violations, Detective Leary had both reasonable suspicion and probable cause to

stop Norwood’s vehicle. For these same reasons, the traffic stop was not purely

pretextual. Accordingly, Defendant Black’s argument fails and the Court finds that

the traffic stop was valid.

            b. The Search of the Vehicle was Consensual

       As a general rule under the Fourth Amendment, a search requires a warrant

and probable cause. However, “it is well settled that a search conducted pursuant

to a valid consent is an exception to the requirements of a warrant and probable

cause.”26

       Here, Norwood consented to a search of the vehicle during the course

of a legal detention. While explaining the summons to Norwood, Detective

Leary asked Norwood some routine questions. 27 Detective Leary asked

Norwood if he had anything on his person or in the vehicle. Norwood

responded, “no, feel free to check.” 28 This is valid consent for the officers to

search the vehicle because it was given voluntarily, within minutes of the
26
   State v. Huntley, 777 A.2d 249, 257 (Del. Super. 2000) (citations omitted).
27
   “During a valid investigatory stop, an officer ‘may ask the detainee a moderate number
of questions to determine his identity and to try to obtain information confirming or
dispelling the officer's suspicion. But the detainee is not obliged to respond.’” Mills, 2006
WL 1027202.
28
   Detective Leary’s testimony at Suppression Hearing.
                                             9
initial stop and during the course of Norwood’s discussion with Detective

Leary regarding the traffic stop and the summons issued. For these reasons,

the officers did not exceed the scope and duration of the traffic stop with

further interrogation and searches. The Court finds that Detective Leary

obtained a valid consent to search the vehicle from Norwood, the vehicles

owner and operator, during the ordinary scope and duration of the original

traffic stop. Accordingly, the search of the vehicle was valid because it was

conducted pursuant to the valid consent of the owner and operator of the

vehicle.

           c. Valid Pat-Down

       A frisk of an individual is justified when “a reasonably prudent man in the

circumstances could be warranted in the belief that his safety or that of others was

in danger.”29 The “officer need not be absolutely certain that the individual is

armed; the issue is whether a reasonably prudent man in the circumstances would

be warranted in the belief that his safety or that of others was in danger.” 30 “[D]ue

weight must be given ... to the specific reasonable inferences which he is entitled to

draw from the facts in light of his experience.” 31 The Court must examine the

totality of the circumstances “as viewed through the eyes of a reasonable, trained


29
   State v. Burton, 2013 WL 4852342, at *3 (Del. Super. Jun. 3, 2013) (citing Holden v.
State, 23 A.3d 843, 850 (Del. 2011)).
30
   Terry, 392 U.S. at 27.
31
   Id.
                                          10
police officer in the same or similar circumstances, combining objective facts with

such an officer's subjective interpretation of those facts.” 32

         In this case, the pat down of Defendant Black was reasonable in light of the

totality of the circumstances. Defendant Black was only removed from the vehicle

in order to conduct the search of the vehicle. The officers properly conducted a pat

down for officer safety after Defendant Black was removed from the vehicle and

prior to conducting the search of the vehicle. Detective Leary testified that before

stopping the vehicle, he observed the passenger, Defendant Black, turn toward the

center console. Detective Leary also testified that the location were the vehicle

was stopped was a high crime area. Moreover, when asked to exit the vehicle,

Defendant Black was not restrained in handcuffs or in the squad car. Detective

Leary wanted to make sure that Defendant Black did not have any weapons on his

person before turning his back to Defendant Black to conduct the vehicle search.

For these reasons and together with Detective Leary’s field experience, the pat

down of Defendant Black for officer safety prior to conducting the vehicle search

was reasonable and valid.

         Furthermore, the only items found on Defendant Black as a result of

the pat down were the cash and a cell phone. Detective Leary testified that

these items were returned to Defendant Black and the vehicle search was

conducted.        The additional crack cocaine was not found on Defendant

32
     Burton, 2013 WL 4852342, at *3 (citing Jones, 745 A.2d at 861).
                                            11
Black’s person until the search incident to arrest that was conducted at

Wilmington Police Department. The cash and cell phone were also only

seized as part of that valid search incident to arrest after the drugs and drug

paraphernalia were found as a result of the consensual vehicle search.

             d. Valid Search Incident to Arrest

          A search can be justified as a search incident to an arrest, but only if the

arrest, or seizure, was lawful. 33 Reasonable suspicion supports only a limited

search and seizure. The police must have probable cause to justify an arrest.34

          Detective Leary had probable cause to arrest Defendant Black and Norwood

because of the crack cocaine and drug paraphernalia found in the vehicle as a result

of the consensual search. The discovery of these items in the vehicle in which

Defendant Black was a passenger as well as the cash found on Defendant Black’s

person provided Detective Leary probable cause to arrest Defendant Black.

Moreover, Detective Leary knew from his knowledge and experience as an officer

that drug dealers will also accept transportation as payment for drugs. The fact that

both Norwood and Defendant Black had told the officers that Norwood was giving

Defendant Black a ride also added to the probable cause that Detective Leary had

to arrest Defendant Black after the vehicle search. For these reasons, Defendant

Black was properly arrested based on sufficient probable cause. Accordingly, the


33
     United States v. Edwards, 415 U.S. 800, 802 (1974).
34
     See 11 Del. C. § 1904(b)(1); Thompson v. State, 539 A.2d 1052 (Del. Super. 1988).
                                            12
cell phone, cash, and crack cocaine substance found on Defendant Black’s person

at Wilmington Police Department as a result of a valid search incident to arrest are

not suppressed.

      III.   Any reference to alleged omissions by Defendant Black
             regarding the money found on his person is suppressed.

          It does not appear to the Court that Defendant Black made any statements at

Wilmington Police Department that could be suppressed. However, the Court

finds that Defendant Black did not affirmatively fail to explain how or why he was

in possession of the cash found on his person at Wilmington Police Department. In

fact, Defendant Black chose to remain silent and did not offer any information

regarding how or why he was in possession of the cash. The only information

Defendant Black offered regarding the cash was that it totaled $100. Therefore,

any reference that the State has made or plans to make at trial regarding how

Defendant Black “could not explain how he got the money” is suppressed.35


                                   Conclusion

          For the aforementioned reasons, Defendant’s Motion to Suppress is

DENIED.

          IT IS SO ORDERED.

                                                   /s/Calvin L. Scott
                                                   Judge Calvin L. Scott, Jr.


35
     State’s Response at 2.
                                        13
