           IN THE SUPREME COURT OF THE STATE OF DELAWARE

KENNETH FOWLER,                       §
                                      §      No. 595, 2015
      Defendant Below,                §
      Appellant,                      §      Court Below—Superior Court
                                      §      of the State of Delaware
      v.                              §
                                      §
STATE OF DELAWARE,                    §      Cr. ID No. 1212003101
                                      §
                                      §
      Plaintiff Below,                §
      Appellee.                       §


                         Submitted: September 28, 2016
                         Decided:   September 29, 2016

Before STRINE, Chief Justice; HOLLAND and VALIHURA, Justices.

                                    ORDER

      This 29th day of September 2016, it appears to the Court that:

      (1)    This is a criminal case that resulted in Kenneth Fowler‘s conviction

for Drug Dealing and Conspiracy. The police arrested Fowler on an unrelated

outstanding warrant after stopping the car in which he was riding, and, after

smelling marijuana on the driver—Leroy Taylor—and from the car, conducted a

warrantless search of the vehicle where they found six baggies of cocaine. The

Superior Court tried Fowler with Taylor as codefendants. This is Fowler‘s appeal.

      (2)    Fowler‘s first argument is that evidence from the warrantless search of

the vehicle he was riding in should be suppressed because the Delaware
Constitution provides a narrower automobile exception for warrantless searches

than does the U.S. Constitution. Here, the car he was riding in was searched after a

police officer—Sergeant Rieger—smelled marijuana coming from Taylor (who

had stepped out of the car) and from the car itself. The Superior Court allowed the

evidence after a suppression hearing. This Court reviews constitutional questions

de novo.1 But, this Court also requires arguments that the Delaware Constitution

has been violated to include ―a discussion and analysis of one or more of the

following non-exclusive criteria: ‗textual language, legislative history, preexisting

state law, structural differences, matters of particular state interest or local concern,

state traditions, and public attitudes.‘‖2 Here, Fowler failed to discuss or analyze

the assertions he makes about the Delaware Constitution—both before the Superior

Court and also before this Court. Thus, his argument on Delaware constitutional

grounds is waived.

       (3)    Alternatively, Fowler argues that, under Delaware‘s current law, the

police lacked probable cause to search the vehicle he occupied. The Superior

Court disagreed, finding that the smells of marijuana constituted probable cause.




1
 Ploof v. State, 75 A.3d 811, 820 (Del. 2013).
2
 Wallace v. State, 956 A.2d 630, 637 (Del. 2008) (citing Ortiz v. State, 869 A.2d 285, 291 n.4
(Del. 2005), overruled on other grounds by Rauf v. State, No. 39,2016, 2016 WL 4224252 (Del.
Aug. 2, 2016)).


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This Court reviews questions of law de novo.3 In the past, this Court has found

strong odors of other illegal drugs, by itself, to be sufficient to constitute probable

cause.4      Federal precedent also suggests the sensible idea that the smell of

marijuana—a typically illegal substance particularly when used in a moving

vehicle—alone is sufficient to constitute probable cause.5 Thus, the Superior Court

did not err.

       (4)     Next, Fowler argues for the first time that the State did not establish

the qualifications to detect marijuana of Sergeant Rieger, who smelled marijuana

on Taylor and coming from the car. Because the issue was not raised before the

Superior Court, this Court reviews for plain error. At the suppression hearing,

Sergeant Rieger testified to his almost-fifteen years experience as a police officer

generally, long involvement in marijuana investigations more particularly, and his

knowledge of how marijuana is typically consumed. Not only that, it does not take




3
  Lopez-Vazquez v. State, 956 A.2d 1280, 1284 (Del. 2008); Donald v. State, 903 A.2d 315, 318
(Del. 2006).
4
  Hall v. State, 981 A.2d 1106, 1108–09, 1114 (Del. 2009).
5
  E.g., U.S. v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006) (―It is well settled that the smell of
marijuana alone, if articulable and particularized, may establish not merely reasonable suspicion,
but probable cause.‖); U.S. v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004) (―We have
repeatedly held that the odor of marijuana alone can provide probable cause to believe that
marijuana is present in a particular place.‖); U.S. v. Winters, 221 F.3d 1039, 1042 (8th Cir. 2000)
(holding that the smell of raw marijuana ―created probable cause to search [a car]‖); U.S. v.
Parker, 72 F.3d 1444, 1450 (10th Cir. 1995) (―If an officer smells marijuana in the passenger
compartment of a vehicle, he has probable cause to search the passenger compartment.‖).


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a drug dog to know the distinct smell of marijuana and to distinguish it from

cigarette smoke. Thus, no plain error occurred.

       (5)    Fowler also argues that the Superior Court erred when it failed to, of

its own accord, sever the trial so he could be tried separately from his

codefendant—Leroy Taylor—because Taylor‘s defense strategy was hostile to

Fowler‘s own. Taylor was driving the car when Fowler was arrested. During the

trial, the judge raised the possibility of severance but neither party expressed an

interest in it. Fowler failed to take the Superior Court up on what was in essence

an offer to sever the trial. It thus comes with little grace to accuse the Superior

Court of plain error when Fowler effectively waived any right to severance.

Regardless, if this Court reviews for plain error,6 the outcome is the same.

Although Fowler and codefendant Taylor had defenses that were at least partially

at odds, those tensions did not rise to the level of mutually exclusive defenses that

this Court has found require severance in the past.7 Here, the jury could have




6
 Wainwright v. State, 504 A.2d 1096, 1100 (Del.1986); Supr. Ct. R. 8.
7
 Compare Bradley v. State, 559 A.2d 1234, 1241–42 (Del. 1989) (finding an abuse of discretion
where the Superior Court did not sever a trial where the codefendants repeatedly attempted to
directly incriminate each other both by direct testimony and calling witnesses who claimed that
one defendant or the other had confessed the crime to the witness), with Outten v. State, 650
A.2d 1291, 1298 (Del. 1994) (upholding Superior Court‘s decision not to sever when neither
codefendant took the stand, their defenses were not mutually exclusive, and neither codefendant
presented evidence directly implicating the other).


                                              4
found one, both, or neither of Fowler and Taylor guilty,8 and so the Superior Court

did not commit plain error by failing to unilaterally sever the trial.

       (6)    Fowler also argues, for the first time, that the Superior Court erred

when it failed to suppress expert testimony from Corporal Silvers—a member of

the Wilmington police force. Corporal Silvers testified at trial that the evidence

found by searching the car Fowler was riding in, including the drug packaging and

text messages, suggested an intent to deliver drugs, as opposed simply to an intent

on Fowler‘s part to use the drugs personally.9 This Court reviews for plain error.

In his argument, Fowler takes the testimony in question out of context and tries to

apply New Jersey cases that do not fit with this state‘s precedents. This Court has

previously held that establishing an intent to deliver drugs requires ―something

else‖ beyond proving possession, quantity, or packaging.10 That ―something else‖

can be credible evidence such as a defendant‘s admission or expert testimony. 11

Here, Corporal Silvers‘s testimony played that role. Fowler‘s reliance on New

Jersey law is not persuasive because New Jersey has a more restrictive use for

experts in this context. Under Delaware law, Corporal Silvers was qualified by


8
   See 650 A.2d 1291 at 1298 (observing that no severance necessary because the jury ―easily‖
could have found one, both, or neither codefendant guilty).
9
  Appellant‘s App. Opening Br. at A-49–A-50.
10
    Hardin v. State, 844 A.2d 982, 988 (Del. 2004) (quoting Cline v. State, 720 A.2d 891, 892
(Del. 1998)).
11
   Id. (collecting cases).


                                             5
experience and training to give reliable and relevant testimony, which are the

critical factors under our law.12 Because our law provides a role for testimony like

what is at issue here, and Fowler failed to make an argument in the context of

Delaware‘s decisions about expert testimony, this Court affirms the Superior Court

on this point as well.

       (7)    Finally, Fowler argues that the Superior Court erred in failing to

instruct the jury that a possession presumption, repudiated by this Court in 200913

and which was not specifically raised at trial, does not apply in this case. Before

2009, this Court recognized a presumption that the custodian of a vehicle was

presumed to have dominion and control over contraband found in a vehicle. In

Lecates, this Court adopted a three-part constructive possession test instead that is

still used today. Because this argument was not made before the Superior Court,

this Court reviews for plain error. Fowler argues that our decision overturning the

presumption that the custodian of a vehicle had dominion and control over

contraband found in the vehicle also required an affirmative instruction that the

custodian did not presumptively have dominion and control. Our decision in

Lecates, though, does not require such an instruction—it only requires the


12
   See M.G. Bancorporation v. Le Beau, 737 A.2d 513, 521 (Del. 1999) (stating expert testimony
must be ―not only relevant, but reliable‖ (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 594–95 (1993))).
13
   Lecates v. State, 987 A.2d 413 (Del. 2009).


                                               6
application of a three-part constructive possession test,14 which the Superior

Court‘s jury instructions properly demanded of the jury.15

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

Court is AFFIRMED.



                                                BY THE COURT:
                                                /s/ Leo E. Strine, Jr.
                                                Chief Justice




14
     Id. at 426.
15
     Appellant‘s App. Opening Br. at A-55(a).


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