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

STATE OF DELAWARE )
)
)
v. )
) Cr. A. No.: 1508001383
)
JOSE CRUZ, )
)
Defendant. )
)
Submitted: March l, 2016
Decided: April 27, 2016
Ryan Bounds, Esquire Francis E. Farren, Esquire
Deputy Attorney General Farren-Law
Delaware Department of Justice 24 Prestbury Square
820 N. French Street, 7“‘ Floor Newark, DE 19713
Wilmington, DE 19801 Attorneyfor Defendant
Attorney for the State

=(@NION AND ORDER
ON DEFENDANT’S MOTION TO SUPPRESS_

Defendant, Jose I. Cruz, ("Cruz"), stands charged with Driving a Vehicle Under the
Influence ("DUI"), in violation of 21 Del. C. §4l77(a), and Failure to Remain Within a Single
Lane, in violation of 21 Del. C. §4122(1), following a stop on August 2, 2015. Cruz filed the
present Motion to Suppress (the "Motion"), challenging the legality of the stop. Cruz contends
that all evidence stemming from his arrest should be suppressed because the arresting officer did
not have the probable cause to arrest him for DUl or administer an intoxilyzer test during the
initial stop. On February 1, 20l6, the Court heard Cruz’s Motion, reserved its decision, and

ordered briefing on whether the arresting officer had probable cause. The Court has reviewed

the parties’ submissions on this issue. This is the Court’s Decision on Cruz’s Motion to
Suppress.
FACTUAL AND PROCEDURAL HISTORY

The Court finds the facts as follows: On the evening of August 2, 2015, Corporal Daniel
Carrow ("Cpl. Carrow") was working at Lang Marsh, a state wildlife area, located off Route 9 in
New Castle County, Delaware.l During this shift, Kim List ("List") drove a blue Jeep into the
parking lot and parked behind Cpl. Carrow’s patrol vehicle. Cruz was a passenger in this Jeep.z
Cruz then exited the Jeep, and approached the driver side of Cpl. Carrow’s patrol vehicle.

Cpl. Carrow observed Cruz as he approached his patrol vehicle and found that Cruz
appeared to be intoxicated. While sitting in his patrol vehicle, approximately three feet away,
Cpl. Carrow detected a strong odor of alcohol emanating from Cruz, and observed his eyes to be
glassy.3 Upon his initial contact with Cpl. Carrow, Cruz voluntarily stated that he had been
asked to leave the Port Penn Veterans of Foreign Wars Post ("VFW"), a social club for veterans,
where he had been drinking alcohol. He then began sharing his experience of being a veteran
with Cpl. Carrow. Cpl. Carrow found Cruz to be very talkative and jovial during the entirety of
their conversation.4 After the conversation ended, Cruz walked back to the Jeep and began
arguing loudly with List. Cpl. Carrow then saw Cruz enter the driver’s side of the Jeep, and
drive out of the parking lot. Cpl. Carrow then observed Cruz’s vehicle swerve as he exited the

parking area. Cruz then drove north onto the southbound lane, and then proceeded to correctly

 

1 Cpl. Carrow has been employed as a police officer with the Delaware Department of Natural Resources and
Enviromnental Control since 1982. Currently, he serves as a Fish and Wildlife agent responsible for ensuring
compliance with Delaware’s boating, fishing, and hunting laws. Cpl. Carrow received DUI training and is certified
under the National Highway Traffic Safety Administration ("NHTSA") to administer field sobriety tests as well as
the Intoxilyzer 5000 test. The Court finds Cpl. Carrow to be a credible witness.

2 Cruz disputes this, and maintains that he was driving the vehicle, and that List was the passenger.

3 Cruz contends that while Cpl. Carrow may have smelled an odor of alcohol, such an observation merely indicates

how recent the alcohol was consumed, not the quantity consumed.
4 Cruz contends that his "talkative and jovial” demeanor is not indicative that he was under the influence 0fa1cohol.

2

5 Based on Cruz’s earlier statements and this erratic

drive back onto the northbound lane.
driving, Cpl. Carrow believed that Cruz should not have been driving, and proceeded to follow
him.

Eventually, Cpl. Carrow caught up with Cruz near Delaware City. Due to the heavy flow
of traffic and the narrow shoulders, Cpl. Carrow did not stop Cruz immediately. While Cpl.
Carrow continued to follow Cruz, he observed Cruz drive over the center line of the road and
proceed to correct back into his lane several times. Once it was safe to initiate a stop, Cpl.
Carrow stopped Cruz at the intersection of Route 72 and River Road, just north of Delaware
City.

After approaching Cruz’s vehicle, Cpl. Carrow asked for Cruz’s license, registration, and
insurance. Cruz had difficulty producing these documents.6 Once Cruz produced the documents
requested, Cpl. Carrow asked Cruz to exit the Jeep. At that time, Cruz became argumentative,
stating that "he knew his rights" and wanted to be taken to the hospital to have his "tests."7 In
response, Cpl. Carrow asked Cruz if anything was wrong with him. After Cruz stated that there
was nothing wrong, Cpl. Carrow informed him that he would be taken to Delaware State Police
Troop 9 ("Troop 9") so that he could submit to an intoxilyzer test.$ At Troop 9, Cpl. Carrow
administered an intoxilyzer test. At no point during the initial stop, or while at Troop 9, did Cpl.
Carrow administer any field sobriety tests.

At the end of Cpl. Carrow’s testimony, Cruz moved to suppress the results of the

intoxilyzer test on the grounds that Cpl. Carrow did not have the probable cause to arrest Cruz

for DUI due to the fact that he did not conduct any field sobriety tests. The Court reserved its

  

5 Cruz attributes his vehicle’s swerving to the fact that he was distracted while arguing with List.

6 Cruz maintains he only fumbled to remove the documents from his glove box while trying to opening it.

7 Cpl. Carrow testified that Cruz did not explain what he meant by "tests".

3 The State stipulated, and Cpl. Carrow testif`1ed, once Cruz was placed inside the patrol vehicle he was under arrest.

decision on the Motion pending further briefing from both parties, and proceeded to hear
arguments f`rom both sides concerning the admissibility of the intoxilyzer results. The Court
found that the State laid a proper foundation to admit the intoxilyzer results into evidence,
pending the outcome of the present Motion.g Cruz indicated that he does not intend to produce
any further evidence. Therefore, the results of this Motion will be dispositive.
PARTIES CONTENTIONS

Cruz contends the results of his intoxilyzer test should be suppressed because Cpl.
Carrow failed to administer any Field sobriety tests prior to his detention and transportation to
Troop 9. Cruz argues that without having any field sobriety tests to show that he was driving
under the influence, Cpl. Carrow did not have the requisite probable cause to arrest or administer
an intoxilyzer test. He further argues that Cpl. Carrow’s observations alone do not sufficiently
establish the probable cause needed to arrest Cruz for DUl and subject him to intoxilyzer testing.
Thus, Cruz argues the intoxilyzer results should be suppressed.

In response, the State argues that the results of the intoxilyzer test should not be
suppressed because Cpl. Carrow had probable cause to arrest Cruz for DUl prior to transporting
Cruz to Troop 9, despite the fact that he did not administer any field sobriety tests. In support of
their argument, the State relies on the fact that Cruz admitted to drinking alcohol, prior to being
thrown out of the VFW. The State also contends that Cpl. Carrow detected a strong odor of
alcohol emanating from Cruz, while his eyes appeared glassy. Furthermore, the State relies on
the fact that Cpl. Carrow observed Cruz commit numerous traffic violations. The State also

argues Cruz’s talkative and jovial demeanor turned argumentative once Cpl. Carrow initiated the

 

9 The State established that the intoxilyzer machine was properly calibrated both before and after August 2, 201 5,

that Cpl. Carrow had been trained to administer the test, and that Cpl. Carrow properly administered the test. There
was also no evidence presented indicating that Cruz be1ched, burped, smoked, ate, or drank during the required
observation period.

traffic stop. In considering these facts under the totality of the circumstances, the State argues
that Cpl. Carrow possessed the necessary probable cause needed to arrest Cruz for driving under
the influence of alcohol.
DISCUSSION

On a motion to suppress, the State bears the burden of establishing that the challenged
search or seizure was performed in accordance with the established rights guaranteed to Cruz
under the United States Constitution, the Delaware Constitution, and Delaware statutory law.lo
The State must meet this burden by a preponderance of the evidence.ll

"When a person operates a motor vehicle in Delaware, he is deemed by statute to have
given consent to chemical tests, including a test of the breath to determine the presence of
alcohol or drugs."lz Chemical tests, however, constitute a search, and therefore, any individual
subject to a chemical test is afforded constitutional protections.” Before a police officer can
require a driver to submit to any chemical test, the police officer must first establish that he had
probable cause to believe that the driver was under the influence of drugs or alcohol while
operating a motor vehicle.m Section 4177 (c)(ll) of Title 21 of the Delaware Code defines
"while under the influence" to mean "that the person is, because of alcohol or drugs or a

combination of both, less able than the person would ordinarily have been, either mentally or

physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a

 

‘° See S¢eze v. Me¢es, 2001 wL 1398585, er *2 (Dei.super. Aug. 6, 2001)_
" Beese v. Szere, 884 A.zd 495, 498 (Dei. 2005).

‘2 Id. ar 497-98

" sehmerber v_ celzfernze, 384 U.s. 757, 767 (1966).

"‘ Lefebvre v. Szeze, 19 A.zd 287, 292 (Dei. 201 i).

'5 Dei. code Ann. Tir. 21 §4177(¢)(11).

Probable cause is "an elusive concept which . . . lies somewhere between suspicion and
sufficient evidence to convict."m In a DUI context, probable cause exists when the totality of the
circumstances reveal that the arresting officer possessed a "quantum of trustworthy factual
information," based upon his observation, training, experience, and investigation, sufficient to
warrant a man of reasonable caution to believe a DUI offense has been committed.w The fact
that hypothetically innocent explanations may exist for facts discovered during an investigation

18 A traffic violation combined with the odor of

will not preclude a finding of probable cause.
alcohol, by itself, will not meet the threshold required to establish probable cause for a DUI
offense. 19 However, a traffic violation or accident, combined with the odor of alcohol, as well as
other factors indicating that a person has been drinking alcohol while driving, will meet the
requisite threshold to establish probable cause for DUI.ZO

The Delaware Supreme Court has held that an officer may have probable cause to arrest
an individual for DUI without administering any field sobriety tests.zl ln Bease v. State, the
Delaware Supreme Court affirmed a finding of probable cause when the defendant committed a
traffic violation, spoke in a rapid manner, smelled of alcohol, exhibited bloodshot and glassy
eyes, and admitted to consuming alcohol.zz The Bease court found these factors to be sufficient

in establishing the probable cause needed to arrest the defendant and administer an intoxilyzer,

even when the evidence of the defendant’s failed field sobriety tests were excluded.23

1 _ _ 3-

‘° srare v. Maxwell, 624 A.zd 926, 929 (Del. 1993).

" 1a1. ar 931.

'8 Le/ebvre, 19 A.sd ar 293 (errmg scare v. Maxwezz, 624 A.2d ar 930).

19 Esham v. Voshell, 1987 WL 8277 (Del.Super Mar. 2, 1987).

20 See e.g. Stevens v. State, 129 A.3d 206 (Del. 2015); Lefebvre v. State, 19 A.3d 287 (Del. 2011); Bease v. State,
884 A.2d 495, 500 (Del. 2005); srare v. Maxwell, 624 A.2<1 926 (Del. 1993); srare v. lyer, 2011 wL 976480
(Del.Super Feb. 23, 2011).

2‘ Lefebwe, 19 A.3d ar 293; Bease, 884 A.zd ar 500.

22 Bease, 884 A.2d ar 500.

23 Ia'.

In Lefebvre v. State, the Delaware Supreme Court held that probable cause to arrest for a
DUI offense may be found prior to the administration of any field sobriety tests if the totality of
the circumstances suggests that the defendant was driving under the influence.z‘l In Lefebvre,
before the officers administered any field sobriety tests to the defendant, they observed the
defendant commit a traffic off`ense, detected a strong odor of alcohol, and saw that the defendant

25 The defendant also admitted to consuming

had a flushed face and glassy, bloodshot eyes.
alcohol, and was argumentative with the officers.zé The Court held that these observations alone,
absent any Field sobriety tests, constituted a finding of probable cause that a DUI offense had
been committed.27

In this case, Cpl. Carrow’s observations are analogous to the observations witnessed by
the officers in both Bease and Lefebvre. Cpl. Carrow testified that, upon approaching the patrol
vehicle, Cruz appeared to be intoxicated because he had glassy eyes, and was emanating a strong
odor of alcohol. Cpl. Carrow made these observations while being a mere three feet away from
Cruz. Cruz, who Cpl. Carrow described as being talkative and jovial, then proceeded to
voluntarily tell Cpl. Carrow that he had been thrown out of the VFW, where he had been
drinking alcohol. Af`ter this first encounter, Cruz drove in front of Cpl. Carrow and observed
Cruz commit multiple traffic violations. When asked to produce documents, Cruz had difficulty
doing so. Furthermore, Cruz became argumentative when asked to step out of his vehicle,

requesting that he be taken to a hospital to have his "tests" when there appeared to be nothing

wrong with him.

54 Le,@bvre, 19 A.zd at 293-..
25

1a
26 1a
27 1a

The Court will consider the following factors to determine whether Cpl. Carrow had
probable cause to arrest Cruz: (l) swerving; (2) improper lane changes; (3) an admission to
drinking alcohol; (4) an admission to being asked to leave the VFW; (5) an odor of alcohol; (6)
glassy eyes; (7) speaking in a talkative and jovial demeanor; (8) difficulty producing documents
requested during the traffic stop; and (9) an argumentative attitude during the traffic stop. Based
upon these observations and the rational inferences drawn therefrom, a man of reasonable
caution would conclude that there was a fair probability to believe Cruz was driving under the
influence of alcohol at the time Cpl. Carrow stopped him. Accordingly, under the totality of the
circumstances, these factors amount to the probable cause needed to arrest Cruz for suspicion of
DUI and subsequently subject him to an intoxilyzer test. Thus, Cruz’s motion to suppress is
DENIED.

CONCLUSION

For the forgoing reasons, Defendant Jose I. Cruz’s Motion to Suppress is DENIED. The
State has met its burden of proving beyond a reasonable doubt that Cruz was driving under the
influence of alcohol, in violation of 21 Del. C. § 4l77(a), and failure to remain within a single
lane, in violation of 21 Del. C. §4l22(l). Accordingly, the Court finds Defendant Jose I. Cruz
GUILTY. This Judicial Officer shall retain jurisdiction of this case and will schedule it

forthwith for sentencing.

 
  
 

IT IS SO ORDERED this 27th day of April, 2016.

Robert Surles,
Judge

