IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE

I.D. No. 1810006157
v.

MATTHEW D. FROST,
Defendant.
Submitted: March 25, 2019
Decided: April 2, 2019
ORDER
Upon the State’s Motion for Reargument

Granted.

Lindsay A. Taylor, Esquire of the Department of Justice, Dover, Delaware; attorney

for the State of Delaware.

Stephanie H. Blaisdell, Esquire of the Offlce of the Public Defender, Dover,
Delaware; attorney for the Defendant.

WITHAM, R.J.

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

INTRODUCTION

Before this Court is the State of Delaware Department of J ustice and its Motion
for Reargument pursuant to Superior Court Rule of Civil Procedure 59(e) Which
applies under Superior Court Rule of Civil Procedure 57(d). After considering the
motion, and the Defendant’s response in opposition, it appears to the Court that:

FACTUAL AND PROCEDURAL HISTORY

l. This Court incorporates factual and procedural findings from its order dated
March 13, 2019.1

2. This Court granted Defendant Matthew Frost’s (hereinafter “Defendant”)
Motion to Suppress on March 13, 2019.2 The Court granted the Defendant’s motion
based on its belief that the State had not demonstrated that the Delaware State Police
had probable cause to believe that the Defendant was in possession of drug
paraphernalia and drugs.

PARTIES’ CONTENTIONS

3. The State moves for reargument regarding that order and bases its argument
on three grounds. First, the State contends that the Court misapprehended the
appropriate standard for probable cause and the facts of the case in a manner that
changed the result of the case. Second, the State contends the Court erred in admitting
certain evidence, Which it claims Was not properly authenticated Finally, the State

argues that the Court misapplied the doctrine of inevitable discovery.

 

lState v. Frost, 2019 WL1200331, at *1-3.

2 Ia'. at *9.

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

4. In response to the State’s motion for reargument, the Defendant argues in
opposition that the State has not met its burden to “demonstrate newly discovered
evidence, a change in the law, or manifest injustice.” The Defendant further argues
that the Court correctly applied the legal principles of the inevitability doctrine and
that ch. Holl’s abandonment of seeking verification of the defendant’s insurance,
establishes only speculation on behalf of the State that the Defendant would not have
been able to produce proof of insurance.

STANDARD OF REVIEW

5. Where the Superior Court Rules of Criminal Procedure provide no rule
governing a particular practice, that practice is governed by the Superior Court Rules
of Civil Procedure.3 As a result, a motion for reargument in a criminal case is
governed by Superior Court Rule of Civil Procedure 59(e).4

6. A motion for reargument pursuant to Rule 59(e) will be granted only if “the
Court has overlooked a controlling precedent or legal principles, or the Court has

misapprehended the law or facts Such as would have changed the outcome of the

 

3 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.”).

4 Super Ct. Civ. R. 59(e) (“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. The Court will determine from the motion and
answer whether reargument will be granted. A copy of the motion and answer shall be furnished
forthwith by the respective parties serving them to the Judge involved.”).

3

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

underlying decision.”5 A motion for reargument is not an opportunity for a party to
rehash arguments already decided by the Court or to present new arguments not
previously raised.6 In order for the motion to be granted, the movant must
“demonstrate newly discovered evidence, a change in the law, or manifest injustice.”7
DISCUSSION

7. One of the purposes of a Rule 59(e) Motion for Reargument is to provide
the Court “with an opportunity to reconsider a matter and to correct any alleged legal
or factual errors prior to an appeal.”8 Here, after considering the parties’ contentions,
the Court agrees with the State that sufficient grounds exist that warrant reargument

8. The Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures by state agents. Searches are presumptively
unreasonable unless they are supported by a valid warrant obtained on a showing of
probable cause.9 The automobile exception, however, permits the police to search a

vehicle without a warrant if probable cause exists to believe the vehicle contains

 

5 State v. Brinkley, 132 A.3d 839, 842 (Del. Super. 2016) (emphasis added).
6 Id.
7 Id.

8 State v. Abel, 2011 WL 5925284, at *1 (Del. Super. Nov. 28, 2011) (citing Bowen v. E.I.
duPont de Nemours and Co., lnc., 879 A.2d 920, 921 (Del. 2005)).

9 State v. Pinkston, 2011 WL 7051406, at *3 (Del. Super. Dec. 29, 2011); see also Williams
v. State, 962 A.2d 210, 216 (Del. 2008).

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

contraband.lo Police officers may arrest individuals if the officer has probable cause
to believe that the individual has committed a crime.ll

9. An officer has probable cause when he or she has information which would
cause a reasonable person to believe that such a crime has taken place.12 Probable
cause is measured “not by precise standards, but by the totality of the circumstances
through a case by case review of the ‘factual and practical considerations of everyday
life on which reasonable and prudent men, not legal technicians, act. ”’13 To establish
probable cause, the police need only present facts which suggest, when those facts are
viewed under the totality of the circumstances, that there is a fair probability that the
defendant has committed a crime.14 The objective facts available to an officer, not his
subjective thoughts, control whether he had the power to arrest an individual and

conduct a search incident to the arrest.15

 

10 Pinkszon, 2011 wL 7051406, at *3 (citing Ta¢man v. sta¢e, 494 A.2d 1249, 1251
(Del.l985)).

11 Staford v. State, 59 A.3d 1223, 1228 (Del. 2012) (citing 11 Del. C. § 1904(a)(l) (allowing
officers to make warrantless misdemeanor arrests “whenever the officer has reasonable ground to
believe” that the arrestee has committed a misdemeanor “[i]n the officer's presence”). The Delaware
Supreme Court has interpreted “reasonable ground” to mean probable cause. T olson v. State, 900
A.2d 639, 642-43 (citing Thompson v. State, 539 A.2d 1052, 1055 (Del.l988)).

12 state v. schletfer, 2004 wL 343967, at *7 (Del. super. Feb. 19, 2004) (citing stare v_
Maxwell, 624 A.2d 926, 929-30 (De1.1993).

13 Schleifer, 2004 WL 343967, at *7 See also Maxwell, 624 A.2d at 928 (emphasis added).
14 Id. at *7 (citing Maxwell, 624 A.2d at 930).

15 Stajj'ord, 59 A.3d at 1228-29; see also Maryland v. Pringle, 540 U.S. 366, 372 (2003)
(noting that courts determine whether probable cause existed based on the facts as “viewed from the

5

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

10. The police do not need to prove guilt beyond a reasonable doubt, nor even
prove guilt is more likely than not.16 Additionally, the possibility there may be
hypothetically innocent explanations for facts revealed during a police investigation
does not preclude a determination that probable cause exists for an arrest.17

ll. First, the Court finds that it held the State to an impermissible standard
regarding probable cause. In the March 13, 2019 order, the Court stated:

while the Court would not characterize the nail file as in pristine condition, it

can not definitively state that the nail file, as presented, is covered partially by

heroin residue. F or all the Court knows, there could be another substance on

the nail file such as rust or dirt.”18

12. In this case, the Court disagrees with the State that it did not base its
determination as to the lack of probable cause pursuant to the totality of the
circumstances standard that is mandated by Maxwell and its progeny. On the other
hand, however, the Court agrees with the State that it misapplied the law as it pertains
to certain portions of its analysis. Specifically, it appears that the Court, in its March
13, 2019 order, precluded ch. Holl’s probable cause to search the Defendant’s
vehicle based, in part, on the possibility that the nail file was covered in rust or dirt.

This innocent explanation for the condition of the nail file is an impressible basis to

preclude probable cause.

 

standpoint of an objectively reasonable police officer”).
16 Schleifer, 2004 WL 343967, at *7 (citing Jarvis v. State, 600 A.2d 38, 43 (Del.1991)).
11 Id. (citing Maxwell, 624 A.2d at 930).

18 Frost, 2019 WL1200331, at *6.

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

13. Likewise, the Court also finds that it held the State to an improper burden

of proof again when it further stated:

...it does not appear to the Court, either from the State’s submissions, nor ch.
Holl’s testimony, that any scientific analysis of the alleged heroin residue was
conducted. While the Court does not intend to discount ch. Holl’s training
and experience, the condition of the blade presented to the Court prompts the
Court to question why the blade was not analyzed. For no other reason, the
nail file should have been tested to verify ch. Holl’s suspicions;19 and

[t]he Court would still find, based on the totality of the circumstances, that the

nail file, in itself, without confirmation of the presence of heroin residue, was

not enough to demonstrate probable cause to search the Defendant's vehicle for

other drugs and drug paraphemalia.20

14. The Delaware State Legislature passed 16 Del. C. § 4772 that provides
thirteen factors that this Court shall evaluate, in addition to other logically-relevant
factors, to aid in its determination of Whether an object is drug paraphemalia. Those
factors are: (1) statements by an owner or by anyone in control of the object,
concerning its use; (2) the proximity of the object, in time and space, to a direct
violation of this chapter; (3) the proximity of the object to controlled substances; (4)
the existence of any residue of a controlled substance on the object; (5) direct or
circumstantial evidence of the intent of an owner, or of anyone; (6) instructions (oral
or written) provided with the object, concerning its use; (7) descriptive materials

accompanying the object which explain or depict its use; (8) national and local

 

19 Frost, 2019 WL 1200331, at *7 (emphasis added).

20 Id.

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

advertising concerning its use; (9) the manner in which the object is displayed for
sale; (10) whether or not the owner, or anyone in control of the obj ect, is a legitimate
supplier of like or related items to the community, such as a licensed distributor or
dealer of tobacco products; (l l) direct or circumstantial evidence of the ratio of sales
of the suspect object to the total sales of the business enterprise; (12) the existence
and scope of legitimate uses for the object in the community; and (13) expert
testimony concerning its use.21

15. In this case, ch. Holl stated, based on his training and experience, that he
believed the substance he observed on the tip of the file was in fact heroin residue.
The Court evaluated the nail file based on section 4772(4) only because at the time
that ch. Holl observed the nail file in plain view, none of the other drugs and drug
paraphernalia had been discovered, which would preclude section 4772(2).
Additionally, the Defendant had not confessed any possession of additional drugs
and/ or drug paraphernalia to ch. Holl, which would further preclude section 4772(1).
Furthermore, the Court noted in its March 13, 2019 order that it questioned ch.
Holl’s credibility.22 Keeping these facts in mind, the Court disagrees with the State
that it should have, but did not, consider other facts and factors in determining
whether the totality of the circumstances demonstrated probable cause.

16. Nevertheless, the State is correct in its assertion that neither ch. Holl nor

the State was required to prove, beyond a reasonable doubt, nor by the preponderance

 

21 16 Del. C. § 4772 (emphasis added).

22 Frost, 2019 WL1200331, at *6.

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

of the evidence, that the nail file definitively contained heroin at this stage of the
criminal proceedings The Court, by stating that the nail file should have been tested,
improperly held the State to an impermissible burden of proof and misapplied well-
settled Delaware case law that, as previously discussed, states the exact opposite. In
light of this, the Court finds additional grounds to grant the State’s motion for
reargument

17. The State next argues that the Court impermissibly admitted evidence in
the form of a picture of a nail file that it claims did represent a fair and accurate
depiction of the item. To satisfy the requirement of authenticating or identifying an
item of evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.23 Testimony that an item is what it is
claimed to be would satisfy the authentication requirement.24

18. The State cites Lobianco v. State25 and Floudiotis v. State26 in support of
its assertion that the evidence was not properly authenticated before it was admitted
into evidence,

19. In Lobianco, the appellant, on appeal, argued that the lower court had

abused its discretion by allowing into evidence photographs supplied to local law

 

23 D.R.E. 901(3).
24 D.R.E. 901(b)(1).
25 894 A.2d 407, 2006 wL 520015 (Dei. Mar. 3, 2006).

26 726 A.2d 1196 (Del. 1999).

State v. Matthew D. Frost
I.D. No. 1810006157
Apn`l 2, 2019

enforcement by her husband.27 The Delaware Supreme Court found no merit to her
argument because the husband had testified at trial that the photos were an accurate
depiction of his injuries, and this testimony served to sufficiently authenticate the
photographs before they were admitted into evidence.28 Additionally in Floudiotis,
the Supreme Court found a police officer’s testimony that the photographs were a
“pretty accurate depiction” was sufficient to support a finding that they were what
they were purported to be, thereby satisfying the authenticity requirement.29

20. ln this case the Court finds that the photograph submitted by the Defendant
was not properly authenticated before it was admitted into evidence. At the
suppression hearing, the Court allowed the photo of the nail file to be admitted into
evidence, notwithstanding the cropping of the nail file’s tip, only after ch. Holl had
both positively identified it as the nail file he observed and testified that heroin

30 However, as the State

residue was visible on the visible portions of the blade.
correctly points out, ch. Holl never stated that the picture of the nail file fairly or
accurately depicted the nail file:

Q: Officer, does that appear to be the small metal blade that was on the

 

27 Lobianco, 2006 WL 520015, at *2.
28 Lobianco, 2006 WL 520015, at *2.
29 Floudiotis, 726 A.2d at 1208 (emphasis added).

30 Suppress Hearing Tr. at 26:8 (The Court notes that the State initially objected to the exhibit
being admitted because it was not a fair and accurate depiction of the nail file. See Id. at 25:6-7.
However, the State did not renew its objection further upon the Defendant’s request to have the
picture admitted into evidence.).

10

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

passenger seat of the vehicle?

A: Yes.31
And on re-direct examination, ch. Holl testified that the picture of the nail file was
not complete:

Q: ch. Holl, I have handed you what’s been previously marked as

Defendant’s Exhibit l. You identified that as the small metal blade on the seat.

A: Yes.

Q: Is that the entire thing?

A: No.

Q: What is different about it?

A: The tip is cut off and the handle is cut off in the picture, crop.32

21. Because the picture of the nail file Was missing the tip, it was not
established by the Defendant that the picture was a fair and accurate depiction of the
nail file in question. As a result, the Court, upon further reflection, finds that the
evidence should not have been admitted as presented and provides further grounds

for granting the State’s motion for reargument33

 

311d. at 26:5-8.
32 Suppress Hearing Tr. at 29:15-23.

33 Assuming arguendo, that the Court denied the State’s motion f`or reargument, and the State
appealed to the Supreme Court, the Court finds it is likely that despite the State not renewing its
objection to the admittance of` Defense Exhibit l, our Supreme court would reverse due to plain
error. See Wright v. State, 980 A.2d 1020, 1023 (Del. 2009) (citing Tucker v. State, 564 A.2d 1110
(Del. 1989) (A party who fails to raise timely objections to evidence in the trial court [risks] losing
the right to raise evidentiary issues on appeal, in the absence of plain error affecting substantial

ll

State v. Matthew D. Frost
I.D. No. 1810006157
April 2, 2019

22. Finally, the State argues that the Court improperly held the State to a
higher standard than has been articulated by the Delaware Supreme Court regarding
inevitable discovery. However, because the Court has found that it misapplied the
law regarding probable cause and allowed Defense Exhibit l to be admitted
improperly, there is no need to address the issue regarding the inevitable discovery
doctrine today. The Court will hear the State’s contentions regarding that, and
presumably, the Defendant’s response, upon reargument

CONCLUSION

23. Therefore, for the afore mentioned reasons, and in the interests of justice,

the State’s Motion for Reargument is GRANTED. A hearing will be scheduled as

soon as time permits.

 

IT Is so oRDEREl).
Hon. william L. witham, Jr. "
Resident Judge

WLw/dmh

oc: Prothonotary
cc: Lindsay A. Taylor, Esquire
Stephanie H. Blaisdell, Esquire

 

rights.”)).
12

