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


STATE OF DELAWARE,                  )
                                    )
      v.                            )     Case No. 1310000634
                                    )
DILIP NYALA,                        )
                                    )
      Defendant.                    )


                                  ORDER

      This 11th day of September, 2014, upon consideration of the State’s Motion

for Reargument, Defendant’s opposition thereto, the parties’ arguments at the

hearing, and the record of this case, the State’s Motion for Reargument is

DENIED. It appears that:

      1.    On July 17, 2014, the Court issued a written opinion granting

Defendant Dilip S. Nyala’s (the “Defendant”) Motion to Suppress. The Opinion

was docketed on July 23, 2014.

      2.    On July 30, 2014, the State of Delaware (the “State”) timely filed a

Motion for Reargument, pursuant to Superior Court Criminal Rule 57(d) and

Superior Court 59(e).

      3.    The State’s grounds for reargument are: (1) the Court has previously

upheld traffic stops where an officer, conducting surveillance in an unmarked
vehicle, radios his or her observation of a traffic violation to another officer, (2) the

Court should “reexamine” its interpretation of 21 Del. C. § 701 based on the

decision in State v. Coustenis 1, and (3) the Wilmington Police Department officers

had reasonable suspicion to detain Defendant independent of the traffic stop.

           4.       On August 5, 2014, Defendant filed an opposition to the State’s

Motion. He asserts that the Court did not misapprehend the facts or the law and,

thus, reargument is “wholly inappropriate” in this case. 2

           5.       A hearing was held on September 5, 2014. Following the hearing, the

Court reserved decision and advised the parties that a written decision would be

issued.

           6.       A motion for reargument in a criminal case is governed by Superior

Court Criminal Rule 57(d) and Superior Court Civil Rule 59(e). 3

           7.       The law is well-settled that a motion for reargument will be denied

unless “the Court has overlooked a controlling legal principle or has

misapprehended the law or facts that would have changed the outcome of the


1
    State v. Coustenis, 233 A.2d 449 (Del. Super. 1967).
2
    Def.’s Resp., 5 (Aug. 5, 2014).
3
 See State v. Zachary, 2013 WL 5783388, n. 1 (Del. Super. Dec. 23, 2013). See also Super. Ct. Crim. R. 57(d) (“In
all cases not provided for by rule or administrative order, the court shall regulate its practice in accordance with the
applicable Superior Court civil rule or in any lawful manner not inconsistent with these rules or the rules of the
Supreme Court”).
          Superior Court Civil Rule 59(e) provides, in pertinent part, that:
                   [a] motion for reargument shall be served and filed within 5 days after the filing
                   of the Court’s opinion or decision. The motion shall briefly and distinctly state
                   the grounds therefor. Within 5 days after service of such motion, the opposing
                   party may serve and file a brief answer to each ground asserted in the motion.
                                                           2
underlying decision.” 4                The motion “should not be used merely to rehash

arguments already decided by the Court.” 5 Moreover, the motion cannot be used

to “present new arguments not previously raised.” 6

            8.       In the instant case, the Court previously considered each of the

grounds asserted by the State in support of its Motion for Reargument.

            9.      The Court found that the officer (or officers) who initiated the stop

lacked probable cause to stop Defendant for a traffic code violation. 7 The State did

not present any testimony or other evidence from the officer(s) who stopped

Defendant’s vehicle. Moreover, the officer who testified that he observed a traffic

violation “detached himself from any stop.” 8

            10.     The Court also found that even if the initial stop for a traffic code

violation was arguably valid based on the testifying officer’s observation, there

was no evidence of any facts that developed after Defendant’s vehicle was stopped

which would have enabled the officer(s) to lawfully detain Defendant for further

questioning and investigation in accordance with 11 Del. C. § 1902.9



4
    State v. Abel, 2011 WL 5925284, *1 (Del. Super. Nov. 28, 2011) (internal quotation marks and citation omitted).
5
    Dattanie v. State, 2014 WL 595049, *1 (Del. Super. Jan. 14, 2014).
6
    State v. Zachary, 2013 WL 5783388 at *2.
7
    See Opinion Upon Def.’s Mot. to Suppress, 15 (July 17, 2014) (hereinafter “Opinion at          ”).
8
    Id. at 16.
9
    Id. at 19.
            Title 11, § 1902 of the Delaware Code provides:
                                                              3
           11.      In addition, the Court found that there was no evidence in the record

that the officer(s) who arrested Defendant did so based on a Title 21 violation that

Defendant committed in their presence in accordance with 21 Del. C. § 701(a).10

           12.      Although the State urges the Court to adopt a “liberal view” of 21 Del.

C. § 701(a) based on the 1967 decision in State v. Coustenis, the General Assembly

amended the statute in 1968. The language at issue in the Coustenis decision (that

authorized law enforcement officers to make an arrest for a Title 21 violation

committed “upon view”) was replaced with the current language (authorizing an

arrest for a Title 21 violation committed “in their presence”).11 Furthermore, the

General Assembly has specified only four circumstances under which an “arresting


                  (a) A peace officer may stop any person abroad, or in a public place, who the
                  officer has reasonable ground to suspect is committing, has committed or is
                  about to commit a crime, and may demand the person's name, address, business
                  abroad and destination.
                  (b) Any person so questioned who fails to give identification or explain the
                  person's actions to the satisfaction of the officer may be detained and further
                  questioned and investigated.
                  (c) The total period of detention provided for by this section shall not exceed 2
                  hours. The detention is not an arrest and shall not be recorded as an arrest in any
                  official record. At the end of the detention the person so detained shall be
                  released or be arrested and charged with a crime.
          The two cases cited by the State in support of its assertion that the Court has previously upheld traffic stops
where an officer, conducting surveillance, radios his or her observation of a traffic violation to another officer who
then conducts a traffic stop are distinguishable. See State v. Brown, 2010 WL 2872846 (Del. Super. July 22, 2010);
State v. Brohawn, 2001 WL 1629086 (Del. Super. Mar. 6, 2001). The Court heard testimony from the officers who
conducted the stops in those cases, there is no indication that the State contended that either defendant was arrested
under 21 Del. C. § 701, and the record showed that facts were developed after the vehicles were stopped that
supported the officers’ reasonable, articulable suspicion of illegal activity and their ability to lawfully detain the
defendant for further questioning and investigation in accordance with 11 Del. C. § 1902.
10
     See Opinion at 19.
11
  See State v. Rizzo, 634 A.2d 392, 399 (Del. Super. 1993) (noting that the Delaware Supreme Court “assert[ed] the
necessity of a ‘liberal and reasonable’ interpretation of the phrase ‘upon view’” in 21 Del. C. § 701(a) in State v.
Halko [cited by the Coustenis decision], however § 701(a) was subsequently amended to replace the “upon view”
language with “in their presence”).

                                                           4
officer [may] work[] in conjunction with an observing officer” – speed violations,

red traffic lights, electronic communication devices, and seat belts.12 The State

does not assert, and the record does not reflect, that there is any evidence of a

speed, red traffic light, electronic communication device, or seat belt violation in

this case.13


12
  See Opinion at n. 85.
         The General Assembly amended 21 Del. C. § 701 on August 12, 2014 (after the Court issued the Opinion)
to include § 701(a)(4) – (5). Section 701(a) now provides:
         (a) The Secretary of Public Safety, the Secretary of Safety and Homeland Security’s deputies,
         Division of Motor Vehicles investigators, State Police, state detectives and other police officers
         authorized by the law to make arrests for violation of the motor vehicle and traffic laws of this
         State, provided such officers are in uniform or displaying a badge of office or official police
         identification folder, may arrest a person without a warrant:
                   (1) For violations of [Title 21] committed in their presence; or
                   (2) For violations of § 4169 of [Title 21], relating to speed violations, when the speed is
                   determined by radar, electronic devices, electromechanical devices, audio sensor devices,
                   visual sensor devices or aerial spotting, even though the officer making the arrest did not
                   actually observe the radar speed meter or observe the violation from the aircraft, provided
                   such arresting officer is in a position to observe the vehicle being detected or provided
                   that the officer is working in conjunction with the reading or observing officer and is
                   immediately advised of the violation and that the vehicle being apprehended is the
                   vehicle detected; or
                   (3) For violations of § 4108(a)(3) of [Title 21] relating to red traffic lights, when the
                   violation is determined by personal observation by another law-enforcement officer who
                   communicates the information to the arresting officer by radio or other
                   telecommunications device, provided that the arresting officer is working in conjunction
                   with the observing officer, the arresting officer is immediately advised of the violation
                   and the vehicle being apprehended is the vehicle detected; or
                   (4) For violations of § 4176(C) of [Title 21] relating to electronic communication
                   devices, when the violation is determined by personal observation by another law-
                   enforcement officer who communicates the information to the arresting officer by radio
                   or other telecommunications device, provided that the arresting officer is working in
                   conjunction with the observing officer, the arresting officer is immediately advised of the
                   violation and the vehicle being apprehended is the vehicle detected; or
                   (5) For violations of § 4802(a)(1)(2) or § 4803 of [Title 21] relating to seat belts, when
                   the violation is determined by personal observation by another law-enforcement officer
                   who communicates the information to the arresting officer by radio or other
                   telecommunications device, provided that the arresting officer is working in conjunction
                   with the observing officer, the arresting officer is immediately advised of the violation
                   and the vehicle being apprehended is the vehicle detected.
Section 701(a), as amended, does not change the outcome of the Court’s decision.
13
   See Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1259 (Del. 2011) (“It is beyond the province of
courts to question the policy or wisdom of an otherwise valid law. Rather, we must take and apply the law as we
find it, leaving any desirable changes to the General Assembly”).

                                                         5
           13.      Finally, based on the totality of the circumstances, the Court found

that the Confidential Informant’s (“CI”) tip did not provide reasonable, articulable

suspicion to stop and seize Defendant (or probable cause for his warrantless

arrest).14 The Court acknowledged that the CI was past proven and reliable,

however the CI’s tip lacked detail as to the alleged illegal activity. 15

           14.       Here, the State’s asserted grounds for its Motion for Reargument

merely rehash arguments that have already been decided by the Court. The State

has not established that the Court overlooked a controlling legal precedent or

misapprehended the law or facts such that would change the outcome of the

decision. Therefore, the Court’s decision granting Defendant’s Motion to Suppress

stands.

           Accordingly, the State’s Motion for Reargument is hereby DENIED.

           IT IS SO ORDERED.



                                                                Judge Diane Clarke Streett

oc:        Prothonotary

cc:        Dep. Atty. Gen. Sarita R. Wright
           Patrick Collins, Esquire

14
     See Opinion at 21, 23.
15
  Id. at 22 – 23 (“The CI did not provide any detail regarding the buyers, the location(s) and time(s) of distribution,
or supply Det. Pfaff with any prediction as to Defendant’s future actions”).
          Contrary to the State’s assertion that Lewis v. State is factually similar, the informant’s tip in Lewis
contained specific facts and conditions that existed at the time the tip was made, which were subsequently
corroborated through independent police investigation. Lewis v. State, 2010 WL 4869110 (Del. Nov. 24, 2010).
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