IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
I.D. No. 1605012957
v. : Kent County
LORI L. SAPP,
Defendant.

Submitted: December 27, 2016
Decided: January 4, 2017

ORDER
Upon Defendant’s Motion to Suppress.
Denied.
D. Benjamin Snyder, Esquire, Department of Justice, Dover, Delaware; attorney for

the State.

John R. Garey, Esquire, Dover, Delaware; attorney for Defendant.

WITHAM, R.J.

State v. Lori L. Sapp
I.D. No. 1605012957
January 4, 2017

Before the Court is Defendant Lori L. Sapp’s motion to suppress all of the
evidence gathered as a result of a police encounter that led to her eventual indictment
for felony Driving Under the Influence of Drugs (DUI). Because Ms. Sapp’s arrest
Was supported by probable cause, her motion to suppress is denied.

FACTS

On May 18, 2016, Ms. Sapp contacted Corporal Foraker of Delaware State
Police Troop 3 While he Was on the roadside tending to a car crash near Route 13 and
Voshells Mill Star Hill Road just outside of Camden, in Kent County, Delaware. Ms.
Sapp pulled her car up behind Corporal Foraker’s patrol car and approached the
officer to report the theft of her purse.

Corporal Foraker directed Ms. Sapp that she could either Wait in the parking
lot of the nearby Waffle House for him to finish tending to the crash or she could
return home and report the crime by phone. She decided to drive her car into the
parking lot and Wait for the officer. About thirty minutes later, the officer finished
his crash investigation, drove his cruiser into the parking lot, and contacted Ms. Sapp.
Ms. Sapp had been sitting in her car, but exited it when the officer parked his car.

Corporal Foraker had DUI training and Was trained in the National Highway
Traffic Safety Administration (NHTSA) standards governing DUI and field sobriety
tests. He Was not, however, qualified as a Drug Recognition Expert (DRE).

The officer observed Ms. Sapp to be impaired at the time of the contact in the
parking lot. The officer initially noted that Ms. Sapp had difficulty keeping her

balance and stumbled out of her car. She had glassy, glazed-over eyes and

State v. Lori L. Sapp
I.D. No. 1605012957
January 4, 2017

constricted pupils. Her speech was slow and slurred and she seemed confused at
times.

When the officer and Ms. Sapp spoke, Ms. Sapp gave a lengthy narrative of the
events leading to the theft of her purse and her presence at the Waffle House parking
lot, According to her narrative, the incident started when she was behind the ACME
cleaning out her car. While throwing trash into the dumpster behind the ACME, she
was approached by a man who offered to help her. The man asked her to drive him
to Meadowbrook Acres. Ms. Sapp appeared to agree, yet then drove him to Royal
Farms because the man had offered to buy her a drink with his EBT card. Ms. Sapp
withdrew $160 from her bank account using the ATM at Royal Farms and then drove
the man to Meadowbrook Acres. The man went into a house at Meadowbrook Acres
and returned to her car. Ms. Sapp would not say where they went after leaving the
house. Some time after leaving the house, she realized her purse was missing. With
the man still in the car, she drove up to Corporal Foraker to report the theft. Corporal
Foraker noted some confusion and inconsistencies in her recounting of the narrative,
including confusion over which Royal Farms the two had visited.

After hearing Ms. Sapp ’ s narrative, Corporal Foraker spoke with the man in the
car. The man largely corroborated Ms. Sapp’ s story, but he would not give the officer
any details about what they were doing while driving and he denied stealing the
purse.

At some time during the interaction, Corporal Foraker asked Ms. Sapp about

whether she was impaired. She stated to the officer that she was taking Adderall and

State v. Lori L. Sapp
I.D. No. 1605012957
January 4, 2017

Xanax and that she had DUIS in the past. She also told the officer she may have taken
an extra Xanax.

The officer then administered a number of tests on Ms. Sapp, including the
alphabet test, the counting test, a Horizontal Gaze Nystagmus (HGN) test, the walk-
and-turn test, the one-leg-stand test, and finally a Portable Breathalyzer Test (PBT).
Ms. Sapp completed the alphabet test but not the counting test initially, although after
multiple tries she was able to complete it. The officer observed four clues during the
HGN test, indicating impairment. Ms. Sapp’ s performance on the walk-and-turn and
the one-leg-stand tests also suggested impairment; Ms. Sapp scored six out of eight
clues on the walk-and-turn test and three out of four clues on the one-leg-stand test.
Her PBT resulted in a reading of 0.00.

After completing the tests, Corporal Foraker put Ms. Sapp in custody. She
signed a voluntary consent form for a blood draw.l

THE PARTIES’ CONTENTIONS

Ms. Sapp seeks suppression of any and all evidence seized, alleging that the
officer lacked reasonable suspicion to seize and detain Ms. Sapp and lacked probable
cause to arrest her for Driving Under the Influence of Drugs.

The State contends that there was no stop and that the blood draw was a result
of Ms. Sapp’ s voluntary consent. The State argues that the officer had probable cause

to arrest her under the totality of the circumstances

 

l While the State mentioned the results of the blood draw in its Written response to Ms.
Sapp’s motion, it did not elicit any testimony at the hearing establishing what the results were.

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State v. Lori L. Sapp
I.D. No. 1605012957
January 4, 2017

STANDARD OF REVIEW

“[A]ny evidence recovered or derived from an illegal search and seizure” must
be excluded from evidence.2 When a defendant moves to suppress evidence collected
in a warrantless search, the State bears the burden of proving by a preponderance of
the evidence “that the challenged police conduct comported with the rights
guaranteed [to the defendant] by the United States Constitution, the Delaware
Constitution and Delaware statutory law.”3

DISCUSSION

Ms. Sapp initiated the encounter with police and voluntarily consented to her
participation in the eventual blood draw. The officer had a reasonable and articulable
suspicion to ask Ms. Sapp to participate in field sobriety tests. The first time that the
probable cause requirement was clearly implicated was when the officer administered
a PBT and placed her under arrest. Those actions were supported by probable cause,
and the motion to suppress is denied.

Although it occurred near her vehicle, Ms. Sapp was never stopped and there
is no indication that the officer seized her prior to her arrest. A police encounter is not
a seizure “simply because a police officer approaches an individual and asks a few

questions.”4 Instead, “the police can be said to have seized an individual ‘only if, in

 

2 Jones v. State, 745 A.2d 856, 872-73 (Del. 1999).
3 State v. Kang, 2001 WL 1729126, at *3 (Del. Super. Nov. 30, 2001).

4 Robertson v. State, 596 A.2d 1345, 1351 (Del. 1991) (quoting Florida v. Bostick, 501 U.S.
429, 434 (1991)).

State v. Lori L. Sapp
I.D. No. 1605012957
January 4, 2017

view of all the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave.”’5 This case differs from the usual case
where a person is seized by being pulled over or made to step outside the vehicle and
submit to field sobriety testing. Here, Ms. Sapp initiated the encounter and exhibited
signs of impairment while she was outside of her vehicle, of her own volition, and
speaking with the officer to report a crime. A reasonable person in her situation
would have believed she was free to leave, at least until she was asked to submit to
the field sobriety tests.

When extending a citizen interaction beyond its initial purpose, “[a]n officer’s
reasonable and articulable suspicion that a defendant may have been driving while
impaired will justify the continued detention necessary to conduct field sobriety
testing.”6

“Delaware law enforcement officers have statutory authority to make a
warrantless arrest when a crime has been committed in their presence, or where they
have ‘reasonable ground to believe that the person to be arrested has committed a
felony, whether or not a felony has in fact been committed.”’7 Our Supreme Court
has interpreted “reasonable ground to believe” to mean probable cause, and more than

mere suspicion.8

 

5 Michigan v. Chesternul, 486 U.S. 567, 573 (1988) (quoting United States v. Mendenhall,
446 U.S. 544, 554 (1980) (Stewart, J., concurring)).

6 State v. Laface, No. 1502014686, 2016 WL 1637960, at *2 (Del. Super. Mar. 3, 2016).
7 T olson v. State, 900 A.2d 639, 642 (Del. 2006) (quoting 11 Del. C. § 1904(b)(1)).
8 Id. at 642-43 (citing Thompson v. State, 539 A.2d 1052, 1055 (Del. 1988)).

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State v. Lori L. Sapp
I.D. No. 1605012957
January 4, 2017

Probable cause is determined “by the totality of the circumstances, as viewed
by a reasonable police officer in light of his or her training and experience.”9
Probable cause requires that the police “present facts suggesting, in the totality of a
circumstances, that a fair probability exists that the defendant has committed a
crime.”10 lt is not necessary for “police to uncover information sufficient to prove a
suspect’s guilt beyond a reasonable doubt or even to prove that guilt is more likely
than not” in order for the Court to find probable cause.11

Here, both a reasonable and articulable suspicion and probable cause were
present at nearly every stage of the investigation This is not a close case. When Ms.
Sapp approached the officer in the parking lot, he quickly came to a conclusion that
Ms. Sapp was impaired, based on his personal observation of her slow and slurred
speech, her glazed-over, glassy-eyed appearance, her poor balance, and confused
behavior. Moreover, Ms. Sapp voluntarily stated that she was taking prescription
medications including (at least possibly) an excess dose of Xanax. The officer had
probable cause to administer a PBT and arrest her for DUI after hearing those
statements, even before engaging in the additional tests. A fortiori, he had the
reasonable and articulable suspicion necessary to perform the field sobriety tests.

When those initial pieces of evidence were combined with the poor

 

9 leler v. s¢a¢e, 4 A.3d 3 71 , 373 (Del. 2010) (citing State v. Maxwell, 624 A.2d 926, 929_30
(Del. 1993)).

1° Id. (citing Jarvis v. S¢a¢e, 600 A.2d 38, 4243 (Del. 1991)).
ll Id. at 373-74 (quoting Maxwell, 624 A.2d at 930).

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State v. Lori L. Sapp
I.D. No. 1605012957
January 4, 2017

performance on the pre-exit, walk-and-turn, and one-leg-stand tests,12 there can be no
doubt that the officer had facts that suggested a fair probability that Ms. Sapp had
driven under the influence.13 Accordingly, there was probable cause for her arrest.
Any evidence springing from the investigation at the scene and Ms. Sapp’s
subsequent arrest will not be suppressed, including the consensual blood draw.

At the hearing on the motion to suppress, Ms. Sapp argued that the lack of a
motor vehicle recording (MVR) entitled her to suppression. But it is well-established
that police are under no “affirmative duty to video record all driving under the
influence investigations.”14 The fact that Corporal Foraker did not make an MVR
does not entitle Ms. Sapp to have the evidence suppressed, because he had no duty
to make an MVR in the first place.15

Also at the hearing, Ms. Sapp argued that the fact that the officer was not a
“Drug Recognition Expert” (DRE) meant that the evidence must be suppressed The

officer’s DUI training, which encompassed impairment caused by both alcohol and

 

12 Even if the Court does not consider Ms. Sapp’s performance on the HGN test, there was
more than enough evidence to establish probable cause,

13 E.g. , Miller, 4 A.3d. at 374-75 (alcoholic odor from two or three feet away, glassy watery
eyes, failed walk-and-turn and one-legged stand tests, and defendant’s admission are sufficient to
support probable cause for DUI); Bease v. State, 884 A.2d 495 (Del. 2005) (commission of a trach
offense, odor of alcohol, bloodshot glassy eyes, rapid speech, and defendant’ s admission to drinking
Were sufficient); Maxwell, 624 A.2d 926 (Del. 1993) (traffic accident, alcoholic odor, admitted
alcohol consumption, and the defendant’s dazed appearance constituted probable cause).

14 DeLoach v. State, No. 1104015991, 2012 WL 2948188, (Del. Super. July 16, 2012) (citing
Wainer v. State, 869 A.2d 328 (Table), 2005 WL 535010, at *2 (Del. Feb. 15, 2008)).

15 lndeed, it is not clear where the cars were positioned, and the officer had no expectation
when he entered the parking lot that this was a possible DUI investigation.

8

State v. Lori L. Sapp
I.D. No. 1605012957
January 4, 2017

drugs, and his patrol experience were sufficient for him to testify to the results of the
field sobriety tests and his opinion of her impairment for the purposes of the hearing
on this motion. Ms. Sapp has pointed to no case law to the contrary.
CONCLUSION

Ms. Sapp’s encounter with law enforcement on May 18, 2016 was the result
of her own initiative in contacting a police officer. Further investigation was justified
by the officer’s reasonable and articulable suspicion that she had committed DUI.
Her arrest was supported by probable cause and she consented to the seizure of a

blood sample. Her motion to suppress is DENIED.

M/MFR

HEn. william L. witham, Jr.
Resident Judge

WLW/dmh

oc: Prothonotary

xc: D. Benjamin Snyder, Esquire
John R. Garey, Esquire

