      IN THE SUPREME COURT OF THE STATE OF DELAWARE

ROBERT POTTS,                          §
                                       §     No. 611, 2018
      Defendant Below,                 §
      Appellant,                       §     Court Below–Superior Court
                                       §     of the State of Delaware
      v.                               §
                                       §     Cr. ID No. 1709011232 (N)
STATE OF DELAWARE,                     §
                                       §
      Plaintiff Below,                 §
      Appellee.                        §

                    Submitted: October 11, 2019
                     Decided: December 30, 2019

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

                                  ORDER

      Upon careful consideration of the parties’ briefs and the record below,

it appears to the Court that:

      (1)    In 2018, a Superior Court jury found the appellant, Robert Potts,

guilty of possession of a firearm by a person prohibited (“PFBPP”),

possession of ammunition by a person prohibited (“PABPP”), carrying a

concealed deadly weapon (“CCDW”), drug dealing, and possession of a

firearm during the commission of a felony (“PFDCF”). On appeal, Potts

claims that the Superior Court erroneously denied his suppression motion.

We find no error and affirm.
       (2)     At approximately 10:30 p.m. on September 16, 2017,

Wilmington Police Detective Matthew Rosaio was on routine patrol in an

unmarked police vehicle in the City of Wilmington. As he waited at the red

light controlling the intersection of Seventh and Washington Streets,

Detective Rosaio observed a black Chrysler cross his line of sight, heading

southbound on Washington Street. Detective Rosaio noted that the vehicle’s

registration plate did not appear to be illuminated as required by Delaware

law.1 Detective Rosaio made a right-hand turn onto Washington Street and

began following the Chrysler. After Detective Rosaio confirmed that the

Chrysler’s tail lamp was not illuminated, he stopped the vehicle.

       (3)     As Detective Rosaio approached the stopped car, the driver—

later identified as Potts—thrust his head out of the driver’s side window and

shouted something to the effect of, “Why are you pulling me over?” Detective

Rosaio advised Potts that he had stopped Potts for an equipment violation.

Potts responded that he could not be detained “for that.” After Detective

Rosaio asked Potts for his license, registration, and proof of insurance, Potts

stated he “had all that” and reached into the back seat area toward a duffle bag



1
  21 Del. C. § 4334 (c) (“Either a tail lamp or a separate lamp shall be so constructed and
placed as to illuminate with a white light the rear registration plate and render it clearly
legible from a distance of 50 feet to the rear. Any tail lamp or tail lamps, together with any
separate lamp for illuminating the rear registration plate, shall be so wired as to be lighted
whenever the head lamps or auxiliary driving lamps are lighted.”)
                                              2
that lay on the floorboard. Potts pulled the opaque bag into his lap and opened

it. As Potts reached into the bag—and before he handed Detective Rosaio any

identifying documentation—Detective Rosaio asked if Potts had a weapon on

him. Potts answered in the affirmative and stated that he was going to hand

the weapon to Detective Rosaio. Detective Rosaio ultimately seized Potts’

weapon as well as a large quantity of heroin from the vehicle.

      (4)    Potts was thereafter indicted by a Superior Court grand jury for

PFBPP, PABPP, CCDW, drug dealing, PFDCF, illegal possession of a

controlled substance, and resisting arrest.     Potts moved to suppress the

evidence seized from his vehicle on the grounds that Detective Rosaio’s

inquiry regarding the presence of weapons in the vehicle improperly exceeded

the scope of the traffic stop.

      (5)    At a suppression hearing held on February 2, 2018, the Superior

Court heard testimony from Detective Rosaio and Potts. At the conclusion of

the hearing, the Superior Court issued an oral ruling denying Potts’ motion.

Although Potts had presented some evidence that the vehicle’s tail lamp had

been functioning three weeks earlier when it was inspected at the Division of

Motor Vehicles, the trial judge found Detective Rosaio’s testimony that the

vehicle’s registration plate was not illuminated to be credible. The trial judge

noted that Detective Rosaio had later inspected the Chrysler and found that

                                       3
the tail lamp was damaged, and documented this damage in a supplemental

police report.     Accordingly, the trial judge found that the officer had

articulated probable cause for stopping the vehicle because the vehicle’s

registration plate was not illuminated.2 The trial judge next found that,

whether Detective Rosaio’s question about Potts’ possession of a weapon

constituted routine questioning or not, the question was justified by the totality

of the circumstances.

       (6)    The case proceeded to a jury trial. Prior to trial, the State

dismissed the charge of illegal possession of a controlled substance and,

during the trial, the Superior Court granted Potts’ motion to dismiss the

resisting arrest charge. The jury found Potts guilty of the remaining charges

and he was sentenced to an aggregate of twelve years of Level V incarceration,

followed by decreasing levels of supervision. This appeal followed.

       (7)    On appeal, Potts claims the Superior Court erroneously denied

his suppression motion for a number of reasons. First, Potts claims that the

Superior Court abused its discretion in denying the motion to suppress

because: (i) the traffic stop was pretextual; (ii) the evidence seized from the

search incident to his arrest for resisting arrest should have been suppressed



2
  The trial court need only have found reasonable articulable suspicion for the stop. Clay
v. State, 164 A.3d 907, 915-16 (Del. 2017).

                                            4
because the Superior Court ultimately dismissed the resisting arrest charge;

and (iii) Detective Rosaio’s questioning exceeded the scope of routine

questioning and was not justified by the circumstances. Second, Potts argues

the Superior Court abused its discretion by ignoring the ambiguous language

of 21 Del. C. § 4334 and because the uncontradicted evidence presented below

established that Potts’ vehicle’s tail lamp was functional on September 16,

2017. Third, Potts contends that the Superior Court erred in ignoring the

definition of “routine questioning” in 11 Del. C. § 1902.3

          (8)      This Court generally reviews a trial court’s denial of a motion to

suppress evidence for abuse of discretion.4 To the extent that the claim of

error is for an alleged violation of a constitutional right, we conduct a de novo

review.5 We will not, however, disturb a trial court’s factual findings absent

clear error.6

          (9)      Potts’ arguments are unavailing. We will not review Potts’ claim

that the language of 21 Del. C. § 4334 is ambiguous or his claim that the




3
  11 Del. C. § 1902(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.”).
4
    Lopez-Vazquez v. State, 956 A.2d 1280, 1284 (Del. 2008).
5
    Id. at 1284-85.
6
    Id. at 1285.

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Superior Court ignored 11 Del. C. § 1902 when considering his motion to

suppress because he did not raise them below.7

          (10) Although Potts now claims that the search of his car was invalid

because the charge of resisting arrest was later dismissed, his motion to

suppress did not challenge the search of his car. Accordingly, this Court

reviews the claim for plain error. Under this standard, “the error complained

of must be so clearly prejudicial to substantial rights as to jeopardize the

fairness and integrity of the trial process.”8 “[T]he doctrine of plain error is

limited to material defects which are apparent on the face of the record; which

are basic, serious and fundamental in their character, and which clearly

deprive an accused of a substantial right, or which clearly show manifest

injustice.”9 There is no such error here. The testimony at the suppression

hearing was limited to Detective Rosaio’s initial detention of Potts and did not

touch upon the circumstances that led to Potts’ arrest. Accordingly, there is

no material defect apparent from the face of the record to support an argument



7
  Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented
for review; provided, however, that when the interests of justice so require, the Court may
consider and determine any question not so presented.”); Delaware Elec. Coop., Inc. v.
Duphily, 703 A.2d 1202, 1206 (Del. 1997) (“It is a basic tenet of appellate practice that an
appellate court reviews only matters considered in the first instance by a trial court. Parties
are not free to advance arguments for the first time on appeal.”).
8
    Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
9
    Id.

                                              6
that Potts was deprived of a substantial right or that clearly shows manifest

injustice.

          (11) Potts’ remaining claims lack merit. Although Potts did not

explicitly argue that the traffic stop was pretextual below, the Superior Court

correctly noted that an officer’s subjective intentions play no role in a Fourth

Amendment analysis.10             The record reflects that there was conflicting

evidence about whether the tail lamp was working properly on September 16,

2017. The Superior Court’s finding—reached only after considering the

evidence presented by both the State and Potts—that the lamp was not

functional was not clearly erroneous. Finally, we agree with the Superior

Court’s conclusion that Detective Rosaio’s question of whether Potts

possessed a weapon was justified in light of the totality of the circumstances.11

Those circumstances included the following facts: (i) at the time of the stop,

Detective Rosaio was unable to trace Potts’ vehicle because the registration

tag was not visible; (ii) Potts “shouted”12 at Detective Rosaio in a manner that


10
  Murray v. State, 45 A.3d 670, 674 (Del. 2012) (“[U]nder the Fourth Amendment of the
United States Constitution, the police may of course pull over a vehicle for breaking the
law, even if the officers harbor a different subjective motivation.”).
11
   See Pierce v. State, 2011 WL 1631558, at * 2 n. 14 (Del. Apr. 29, 2011). See also
Murray, 45 A.3d at 674-75 (noting that United States Supreme Court precedent has held
that an officer’s inquiries into matters unrelated to the justification for a traffic spot were
permissible when they were “measures taken for self-protection at the very start of the
traffic stop.”)
12
     App. to the State’s Ans. Br. at B37.

                                              7
the Superior Court characterized as “confrontational;” (iii) at the time of the

stop, Potts was as-yet unidentified;13 and (iv) Potts recovered from the rear

floorboard area an opaque duffle-sized bag and opened it before complying

with the officer’s request that Potts produce identification.

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

Superior Court is AFFIRMED.

                                              BY THE COURT:

                                              /s/ Karen L. Valihura
                                              Justice




13
  At the suppression hearing, Potts testified that he immediately handed Detective Rosaio
his driver’s license when Detective Rosaio approached the car. The Superior Court found
Detective Rosaio’s testimony that Potts stated that his identification was in the bag located
on the rear floorboard to be credible. We give great deference to a trial court’s credibility
determinations. Banther v. State, 823 A.2d 467, 483 (Del. 2003).

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