    IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                              )
                                               )
                                               )
           v.                                  )       Cr.A. No. 1112010628
                                               )
                                               )
MARISSA FERNANDES,                             )
                                               )
                Defendant.                     )

Allison J. Abessinio, Esquire                                  Jonathan Layton, Esquire
Department of Justice                                          Layton & Associates, P.A.
Carvel State Office Building                                   1832 West 16th Street
820 N. French Street, 7th Floor                                Wilmington, DE 19806
Wilmington, DE 19801                                             Attorney for Defendant
  Attorney for the State of Delaware

                        MEMORANDUM OPINION AND ORDER ON
                         DEFENDANT’S MOTION TO SUPPRESS

       Defendant Marissa Fernandes (“Fernandes”) was subjected to a traffic stop and

subsequently arrested on December 15, 2011. Fernandes was charged with Driving Under the

Influence of Alcohol, in violation of 21 Del. C. § 4177, and Driving Vehicle While Licenses

Suspended/Revoked, in violation of 21 Del C. § 2756. On November 13, 2013, Fernandes

timely noticed the present motion to suppress, challenging the legality of the initial traffic stop.

       A hearing on the motion was held on March 19, 2013. At the hearing, the Court heard

testimony from one witness, Delaware State Police Officer Michael Ripple (“Officer Ripple”).

At the conclusion of the hearing, the Court reserved decision.1 This is the Final Decision of the

Court on Defendant’s motion to suppress.



1
  The Court planned to proceed with trial as scheduled on March 19, 2013; however, trial was ultimately
rescheduled by the Court, and the Court subsequently determined that Defendant’s motion to suppress
would be best addressed by a written opinion.
                                                 FACTS

        At the hearing on the motion to suppress, Officer Ripple offered the following testimony:

around 12:30 a.m. on December 15, 2011, he was traveling westbound on Kirkwood Highway,

approaching Possum Park Road when he came upon a black vehicle traveling in front of him in

the right-hand lane. Officer Ripple noticed that the vehicle crossed entirely over the right fog

line.2 Within one-fourth to one-third of a mile thereafter, Officer Ripple observed the vehicle

cross the fog line a second time. After the vehicle crossed the fog line for a third time, Officer

Ripple activated his lights and stopped the vehicle in a business parking lot.3

        Officer Ripple testified that he followed the vehicle for a total of roughly one mile. Each

time the vehicle crossed over the fog line, it was not for a long period of time; each crossing

spanned “only a second or so” before the driver self-corrected. However, on all three occasions

the vehicle crossed fully over the fog line, as opposed to merely “riding” along the line. Officer

Ripple described the crossing movement as a “drift” rather than a “swerve,” and noted that the

movement was not sudden or jerky.

        Officer Ripple testified that traffic was very light, and he did not observe any pedestrians

in the vicinity. When Officer Ripple stopped the vehicle, he did not do so with the intent to cite

the driver for unsafe lane change in violation of 21 Del. C. § 4122. Officer Ripple testified that

in deciding to stop the vehicle, his primary concern was the driver hitting the curb; there was a

very narrow shoulder between the fog line and the curb, roughly two feet in width.

        Fernandes argues that the stop was not based on a suspected violation of 21 Del. C. §

4122, thus Officer Ripple lacked reasonable articulable suspicion to stop the vehicle. The State,



2
 Officer Ripple clarified that the “fog line” was the far right line along the shoulder, not the center line.
3
 Officer Ripple testified that he ultimately stopped the vehicle in a McDonalds parking lot for safety
purposes, in light of the narrow shoulder of the road.
                                                     2
on the other hand, contends that reasonable suspicion existed in that Officer Ripple was

concerned the vehicle would collide with the curb.



                                           DISCUSSION

    A. Standard of Review

       On a motion to suppress, the burden is on the State to prove that the challenged search or

seizure conformed to the rights guaranteed by the United States Constitution, the Delaware

Constitution, and Delaware statutory law.4 The burden of proof on a motion to suppress is proof

by a preponderance of the evidence.5

       A traffic stop is reasonable under the Fourth Amendment where it is supported by

reasonable suspicion to believe that a traffic violation has occurred.6            It is the objective

circumstances, not the officer’s subjective intentions, which serve as a barometer for the legality

of a search or seizure under the Fourth Amendment.7 “[T]he actual or ulterior motives of an

officer do not invalidate police action that is justifiable on the basis that a violation of law has

occurred.”8 “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.”9




4
  State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010) (citation omitted).
5
  Id. at *3.
6
  State v. Rickards, 2 A. 3d 147, 151 (Del. Super. 2010).
7
  Wren v. U.S., 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d. 89 (1996); see also State v. Karg, 2001 WL
660014, at *2 (Del. Super. May 31, 2001) (holding that in Delaware, the constitutional reasonableness of
a traffic stop does not depend on the actual, subjective motives of a police officer).
8
  Rickards, 2 A. 3d 147, 150 (Del. Super. 2010).
9
  Id. (citing State v. Minaya, 1997 WL 855705 (Del. Super. Dec. 13, 1997).
                                                   3
   B. The Vehicle Stop Was Supported by Probably Cause

   The sole question before the Court at this stage is whether Officer Ripple possessed the

requisite reasonable articulable suspicion to lawfully stop the vehicle driven by Fernandes. The

Court concludes that he did.

   Over a distance of approximately one mile, Officer Ripple observed the vehicle drift entirely

over the fog line on three separate occasions. Officer Ripple testified that the shoulder on the

roadway was very narrow, and that vehicle risked hitting the curb. Title 21, Section 4122(1) of

the Delaware Code provides:

       Whenever any roadway has been divided into 2 or more clearly marked lanes for
       traffic, the following rules in addition to all others consistent herewith shall apply:

       (1) 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.

       Fernandes contends that Officer Ripple lacked reasonable suspicion that a traffic

violation was committed because a de minimis crossing of lanes is not a violation of § 4122, as

the statute does not prohibit needless crossing of lanes. However, Officer Ripple made no

suggestion that the vehicle was stopped for “needless” lane crossing; rather, Officer Ripple

stopped the vehicle based on reasonable suspicion that the crossing of the fog line was unsafe.

Officer Ripple had reasonable suspicion that a traffic violation occurred based on his observation

of the vehicle traveling out of its lane and over the fog line in a manner that gave rise to safety

concerns.

       The Court need not determine whether Fernandes, if charged, could ultimately be found

guilty of violating § 4122; for on a motion to suppress, the burden on the State is to prove by a

preponderance of the evidence, that Officer Ripple “pointed to ‘specific and articulable facts




                                                 4
which, taken together with rational inferences from those facts, reasonably warrant th[e]

intrusion [of a vehicle stop].’”10 The Court finds that the State has met its burden.



                                            CONCLUSION

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

be set for trial before this judicial officer.

        IT IS SO ORDERED this 7th day of May, 2014.




                                                     _____________________________________
                                                          The Honorable Carl C. Danberg
                                                                     Judge




cc:     Diane Healy, Judicial Case Manager




10
  Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010) (quoting Jones v. State, 745 A.2d 856
(Del. 1999)).
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