            IN THE SUPREME COURT OF THE STATE OF DELAWARE

LAMONT VALENTINE,                          §
                                           §
              Defendant Below,             §   No. 15, 2018
              Appellant,                   §
                                           §   Court Below—Superior Court
      v.                                   §   of the State of Delaware
                                           §
STATE OF DELAWARE,                         §
                                           §   Cr. ID. N1603014628
              Plaintiff Below,             §
              Appellee.                    §

                           Submitted: January 9, 2019
                           Decided:   March 12, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

                                         ORDER

      This 12th day of March 2019, after careful consideration of the parties’ briefs

and the record on appeal, it appears to the Court that:

      (1)     Lamont Valentine was pulled over on March 19, 2016 by Delaware

State Police Trooper Chase Lawson for speeding. Upon approaching Valentine’s

Dodge Challenger, Lawson smelled marijuana, although Lawson could not tell if it

was burnt or raw marijuana.

      (2)     Lawson asked Valentine for his license and registration, returned to his

patrol car, and called for backup. Once backup arrived, Lawson asked Valentine to

exit his car while police searched it.
         (3)     As a result of their search, police found a 9mm pistol and 34 rounds of

ammunition in Valentine’s car. Police did not find any marijuana.

         (4)     Valentine moved to suppress evidence of the pistol and ammunition,

arguing that the smell of marijuana did not provide probable cause to search his car.

The Superior Court denied that motion.

         (5)     After a bench trial, the Superior Court found Valentine guilty of one

count of possession of a firearm by a person prohibited.1 He was sentenced to a ten-

year minimum mandatory sentence as a repeat offender. Valentine timely appealed

to this court.

                                           ***

         (6)     Valentine first appeals his sentencing as a repeat offender. Valentine

has two prior felony convictions, both from Pennsylvania.

         (7)     Valentine’s first conviction occurred after a jury found him guilty of

violating 35 PA. CONS. STAT. § 780-113(30), which prohibits “the manufacture,

delivery, or possession with intent to manufacture or deliver, a controlled substance

. . . or knowingly creating, delivering or possessing with intent to deliver, a

counterfeit controlled substance.”

         (8)     Valentine’s second conviction occurred after he pleaded guilty to

violating 18 PA. CONS. STAT. § 6106(a)(1), which prohibits “carr[ying] a firearm in


1
    11 Del. C. § 1448.

                                             2
any vehicle or any person who carries a firearm concealed on or about his person . . .

without a valid and lawfully issued license.”

          (9)    The State sought to have Valentine sentenced pursuant to 11 Del. C.

§ 1448(e)(1)(c), which provides for enhanced sentencing for those who have been

previously convicted of two or more violent felonies, a term defined in 11 Del. C.

§ 4201(c).       Defendants with out-of-state convictions that are “the same as or

equivalent to” a Delaware violent felony are also subject to enhanced sentencing.2

          (10) Neither 35 PA. CONS. STAT. § 780-113(30), nor 18 PA. CONS. STAT.

§ 6106(a)(1), however, are “the same as or equivalent to” a Delaware violent felony

statute. As mentioned, 35 PA. CONS. STAT. § 780-113(30) criminalizes, among other

things, manufacturing, delivering, or possessing with intent to deliver controlled

substances and counterfeit controlled substances. Although 16 Del. C. §§ 4754(1)

and 4758 collectively criminalize the acts in 18 PA. CONS. STAT. § 6106(a)(1),

16 Del. C. § 4758—the statute that covers counterfeit controlled substances—is not

a violent felony. And as mentioned, 18 PA. CONS. STAT. § 6106(a)(1) criminalizes

carrying a firearm in a vehicle without a license and carrying a concealed weapon

without a license. Although 11 Del. C. § 1442 criminalizes carrying a concealed

weapon without a license, it does not otherwise criminalize possessing a firearm in

a vehicle if that firearm is not concealed.


2
    11 Del. C. § 1448(e)(3).

                                              3
       (11) But statutes need not be identical for us to find that a defendant

committed an offense that is “the same as or equivalent to” an offense specified

under Delaware law. If a jury has found facts or the defendant has pleaded guilty to

facts that establish that a defendant committed an offense specified under Delaware

law, then § 1448 will also act to enhance a defendant’s sentence.3

       (12) Thus, in addition to statutory definitions, a sentencing court may look

“to a limited class of documents (for example, the indictment, jury instructions, or

plea agreement and colloquy) to determine what crime, with what elements, a

defendant was convicted of.”4 These documents are called Shepard documents after

Shepard v. United States.5

       (13) With respect to Valentine’s conviction under 35 PA. CONS. STAT. § 780-

113(30), the jury verdict sheet, a Shepard document, indicated that he was convicted

of possession with intent to distribute of marijuana specifically.6 Consequently, this

offense is the “same as or equivalent to” a Delaware violent felony.

       (14) With respect to Valentine’s conviction under 18 PA. CONS. STAT.

§ 6106(a)(1), however, no Shepard document indicates that Valentine was convicted

for possessing a concealed weapon on his person. The only document in the record




3
  See Mathis v. United States, 136 S. Ct. 2243, 2249–52 (2016).
4
  Id. at 2249.
5
  544 U.S. 13 (2005).
6
  App. to Op. Br. A16 (hereafter “A__”).

                                               4
indicating that Valentine had a weapon on his person as opposed to in a vehicle is

the arrest report. But Valentine’s written plea colloquy does not incorporate this

arrest report and only indicates that Valentine pleaded guilty to 18 PA. CONS. STAT.

§ 6106(a)(1).7

       (15) Accordingly, Valentine’s conviction under 18 PA. CONS. STAT.

§ 6106(a)(1) is not an offense that is the “same as or equivalent to” any Delaware

violent felony so defined by 11 Del. C. § 4201, and Valentine is not subject to

enhanced sentencing under 11 Del. C. § 1448(e)(1)(c), which requires Valentine to

have been convicted on two or more separate occasions of a violent felony.

                                               ***

       (16) Valentine also appeals the denial of his motion to suppress. Under the

Fourth Amendment and under Article I, § 6 of the Delaware Constitution, police may

search a car without a warrant if they have probable cause to believe that the car

contains contraband or evidence of criminal activity.8

       (17) Probable cause determinations are made by evaluating the totality of

the circumstances, but Valentine argues that the circumstances here did not add up

to probable cause. According to Valentine, a traffic violation and the odor of

marijuana—without a determination of whether the odor was that of raw or burnt


7
 A229–30.
8
 Tann v. State, 21 A.3d 23, 27 (Del. 2011); State v. Prouse, 382 A.2d 1359, 1363 (Del. 1978), aff’d,
440 U.S. 648 (1979).

                                                 5
marijuana—are insufficient to create probable cause justifying a motor vehicle

search.

       (18) Valentine argues that although the odor of marijuana gives a police

officer probable cause under the Fourth Amendment, recent changes to Delaware

law and public attitudes mandate a different result under Article I, § 6 of the

Delaware Constitution.           In particular, Valentine cites the Delaware Medical

Marijuana Act9 and House Bill 39, which decriminalized personal use quantities of

marijuana.10      Valentine also cites a number of surveys and events indicating

widespread support for marijuana legalization among Delawareans.

       (19) We disagree. Marijuana was, and remains, contraband subject to

forfeiture.11     Use or consumption of marijuana in a moving vehicle is a

misdemeanor.12 That possession of personal uses of marijuana is not a criminal

offense does not render marijuana odors, raw or burnt, irrelevant to determinations

of probable cause. The totality of the circumstances, including Valentine’s speed (32

miles per hour above the speed limit), the time of day (1 a.m.), and the odor gave

Lawson probable cause to believe that Valentine’s car contained contraband, in

particular, marijuana.


9
  16 Del. C. §§ 4901A–28A.
10
   80 Del. Laws ch. 40 (2015), codified at 16 Del. C. §§ 4701(33), 4764, 4771, 4774, 4795.
11
   16 Del. C. § 4764(c); see Florida v. White, 526 U.S. 559, 561 (1999) (warrant not required to
seize an automobile for purposes of civil forfeiture; probable cause is sufficient); Carroll v. United
States, 267 U.S. 132, 150–52 (1925) (discussing searches and seizures by customs officers).
12
   16 Del. C. § 4764(d).

                                                  6
                                     ***

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED as to Valentine’s convictions and the denial of his motion to

suppress, VACATED as to Valentine’s sentence, and REMANDED for resentencing.

                                    BY THE COURT:


                                    /s/ Gary F. Traynor
                                    Justice




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