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

      STATE OF DELAWARE,             )
                                     )
                  v.                 )          ID. No. 1410014987
                                     )
      LAMAR MASSAS.                  )
                                     )


                                 ORDER

      On this 24th day of April, 2015, IT IS ORDERED as follows: Defendant’s

Motion to Suppress is DENIED.




Daniel B. McBride, Esq., Deputy Attorney General, Delaware Department of
Justice, Wilmington, Delaware. Attorney for State of Delaware.


Kathryn Van Amerongen, Esq., Assistant Public Defender, Public Defender’s
Office, Wilmington, Delaware. Attorney for Defendant.




Scott, J.
                                   Introduction

      Before the Court is Defendant Lamar Massas’ (“Defendant”) Motion to

Suppress, brought by counsel. Defendant argues that his Fourth Amendment right

against unreasonable search and seizure was violated as a result of an improper

pre-textual stop that exceeded the scope of a traffic stop. The Court has reviewed

the parties’ submissions, held a suppression hearing and reviewed the parties’

supplemental submissions on the issue of standing. For the following reasons, the

Defendant’s Motion to Suppress is DENIED.

                                 Findings of Fact

      On October 21, 2014, Officer Dirocco of the Wilmington Police Department

was on patrol when he observed a teal Nissan Altima fail to stop completely at a

stop sign at the intersection of West 29th Street and Tatnall Street, after which he

activated his emergency equipment and stopped the vehicle.

      At the suppression hearing, Officer Dirocco noted that he had seen this same

vehicle earlier that day around noon, but did not call it in because the vehicle was

parked and unoccupied. Officer Dirocco took notice of the vehicle because of an

officer safety alert that had been distributed by Wilmington Detectives that

morning, and provided a description of the vehicle and its license plate number.

The officer safety alert also noted that detectives wanted to speak with occupants

of interest associated with that vehicle, Tasia Richmond (“Richmond”) and Lamar

Massas, regarding them being potential witnesses to a homicide, and instructed
                                      2
officers to call Detective Fox should they encounter the vehicle. Officer Dirocco

also recalled an earlier officer safety alert sent in September for that same vehicle,

which provided a description of the vehicle and its license plate number, and stated

that the vehicle had been seen fleeing several recent shooting scenes.

      Officer Dirocco testified that, while he was aware that Richmond and

Defendant were occupants of interest associated with that vehicle, he was not

aware of the identities of the vehicle’s occupants when he initially pulled the

vehicle over for the moving violation. Due to the officer safety alerts on that

vehicle, which Officer Dirocco was aware of at the time of the stop, he

immediately radioed for additional units when he called in the traffic stop at

1:51p.m. Officer Dirocco approached the driver’s side of the vehicle and asked the

driver – subsequently identified as Richmond – for her license, registration and

insurance. Richmond immediately produced the requested information. At that

time, Officer Dirocco also asked Richmond a few standard questions asked during

traffic stops such as, where are you were going to and coming from. Officer

Dirocco testified that Richmond appeared extremely nervous in response to routine

questions that would not trigger such unusual nervousness, to the extent that it

made Officer Dirocco nervous. He testified that he observed Richmond’s hands

shaking or trembling, and that he could hear in Richmond’s voice her breathing

very heavily and fast as she answered his questions.



                                       3
      Officers Cannon and Tiberi of the Wilmington Police Department arrived at

the scene to assist at 1:53p.m. At that time, Officer Cannon approached the

passenger side of the vehicle and made contact with Defendant, who was in the

passenger seat. In response to Richmond’s unusually nervous demeanor, Officer

Dirocco asked Richmond to step out of the vehicle. Officer Cannon then observed

Defendant suddenly become extremely nervous and jittery when Richmond was

removed from the vehicle. For that reason, Officer Cannon asked Defendant to

step out of the vehicle as well.

      Both Richmond and Defendant were cooperative and complied with the

officers’ instruction to sit on the curb while Officer Dirocco called Det. Fox.

Officer Dirocco spoke with Det. Fox, who instructed him to transport Richmond

and Defendant to the Wilmington Police Department. Richmond and Defendant

were then patted down for weapons and placed in custody, pursuant to department

procedure when transporting persons in a marked patrol vehicle. As they were

being moved to the patrol vehicles for transport, Officer Tiberi overheard

Defendant say to Richmond, “yo, make sure the vehicle is locked.”

      In response to Defendant’s statement to Richmond, Officer Tiberi went back

to the vehicle. Upon peering through the rear driver’s side window, Officer Tiberi

saw in plain view a handgun sticking out from underneath the back of the driver’s

seat. Officer Dirocco testified that, while the rear window was tinted, he could still

see through it and into the vehicle when he was at the window.
                                       4
      Richmond and Defendant were placed in separate patrol vehicles to be

transported to Wilmington Police Department. The call detail report, which was

submitted at the hearing and notes the timing of radio transmissions related to the

stop, shows that one patrol vehicle departed the scene at 2:00p.m. and the other

patrol vehicle departed the scene at 2:05p.m. At the hearing, Officer Dirocco

could not recalled which vehicle departed first, but testified that he transported

Richmond in his vehicle. The call detail report shows that the entire duration of

the traffic stop lasted between 9 and 14 minutes.

      Officer Dirocco also testified that a routine traffic stop for a moving

violation where an e-ticket is issued takes approximately 15 to 20 minutes. He

concluded that the duration of the actual stop here was the same duration as, if not

shorter than, it would have been had he merely conducted the traffic stop and

issued Richmond an e-ticket. Officer Dirocco added that while Richmond was not

issued an e-ticket at the scene, she was ultimately charged for the moving violation

together with her other charges.

      Defendant was subsequently charged with Possession of a Firearm by a

Person Prohibited, Possession of Ammunition by a Person Prohibited, Carrying a

Concealed Deadly Weapon and Possession of a Stolen Firearm. On January 16,

2015, Defendant filed this Motion to Suppress.

      On April 13, 2015, the Court held a suppression hearing on this motion. At

the conclusion of the hearing, the Court instructed the parties to submit
                                      5
supplemental briefing on the issue of whether Defendant, as a passenger in the

vehicle, had standing to challenge the stop of the vehicle and discovery of the

handgun.

                               Parties’ Contentions

      Defendant contends that the evidence found in the vehicle should be

suppressed because it was found in violation of his Fourth Amendment right

against unreasonable search and seizure. Defendant argues that the traffic stop was

invalid because it was purely pretextual in order for the officer to detain him and

search the vehicle. Defendant also argues that, regardless of pretext, his detention

was unlawful because exceeded both the reasonable scope and duration permitted

under Terry.

      The State contends that the evidence found in the vehicle should not be

suppressed. The State argues that the traffic stop was valid and not pretextual

because Officer Dirocco conducted the traffic stop in response to Richmond’s

failure to stop completely at a stop sign. The State also argues that Defendant’s

detention as a result of the traffic stop was both reasonable in duration and within

the scope permitted under Terry because the entire detention lasted approximately

ten minutes. Moreover, the State argues that Defendant’s detention was within the

scope permitted under Terry because the handgun was found in plain view on the

floor of the vehicle, and not pursuant to a search of the vehicle. In other words, the

discovery of the handgun was within the scope of the traffic stop because it was
                                       6
not found as a result of a separate investigation. Finally, the State argues that

Defendant does not have standing to contest the search of the vehicle.

                                       Discussion

      A person only has standing to challenge evidence seized as a result of a

violation of one's own constitutional rights. 1 The petitioner must demonstrate his

own “legitimate expectation of privacy in the invaded place” before he may

challenge the validity of a search or seizure. 2 For purposes of protection under the

Fourth Amendment, automobiles are treated differently than houses. 3 A passenger

who does not own or exercise control over a vehicle does not possess a reasonable

expectation of privacy in the vehicle in which he is traveling. 4 Therefore, a mere

passenger in a vehicle does not have standing to challenge a search. 5

      Defense counsel references only a footnote in Jarvis v. State 6 in asserting

that, even as a mere passenger, Defendant has standing to challenge the

admissibility of the handgun found in the vehicle. However, defense counsel

offers no argument for its application to this case. 7 Upon its own review, the Court

finds Jarvis inapplicable to this case. Importantly in Jarvis, the Delaware Supreme

Court recognized that as the passenger in the vehicle who did not own the vehicle

1
  Mills v. State, 2006 WL 1027202 (Del. Apr. 17, 2006).
2
   Wilson v. State, 812 A.2d 225 (Del. 2002) (citing Rakas v. Illinois, 439 U.S. 128
(1978)).
3
  Rakas, 439 U.S. 128.
4
  See Mills, 2006 WL 1027202; see Rakas, 439 U.S. 128.
5
  Id.
6
  600 A.2d 38, n.1 (Del. 1991).
7
  See D.I. 14 (Def. Supplemental Briefing on Issue of Standing).
                                         7
or exercise control over it, Jarvis did not have a reasonable expectation of privacy

in the vehicle under Rakas v. Illinois, 439 U.S. 128 (1978).8 The Supreme Court

noted only that Jarvis had standing in the narrow context of objecting to the seizure

of her person.9 This Court finds Jarvis inapplicable to this case because Defendant

here does not seek suppression of evidence found as a result of a search incident to

his seizure. Defendant only seeks suppression of a handgun which was found in

plain view, and not pursuant to a search, in the vehicle. Thus, even under Jarvis,

Defendant is not extended a reasonable expectation of privacy in a vehicle that he

did not own or exercise control over, or for evidence found in that vehicle in plain

view.

        Instead, the Court finds the more recent Delaware Supreme Court opinion in

Mills v. State more appropriate. In Mills, the defendant argued that he was illegally

detained at the time of the motor vehicle stop and that the fruits of that detention

should have been suppressed. 10 The court in Mills held that the defendant lacked

standing to seek suppression of the fruits discovered as a result of the driver’s

arrest because the defendant did not own or exercise control over the vehicle, and

therefore had no reasonable expectation of privacy in the vehicle’s trunk where the

evidence was found.11 Furthermore, the court in Mills specifically acknowledged


8
  Jarvis, 600 A.2d at n.1.
9
  Id.
10
   Mills, 2006 WL 1027202, at *1.
11
   Id.
                                      8
that, while the defendant had “no standing with respect to the stop and search of

the vehicle, he [had] standing to object to the circumstances under which his

person was seized.” 12

          Similarly in this case, the Court finds that while Defendant has standing to

object to the circumstances under which his person was seized, Defendant has no

standing with respect to the stop of the vehicle and discovery of the handgun in

plain view. The vehicle was driven by and registered to Richmond. There is no

evidence that Defendant owned the vehicle or exercised control over it. Moreover,

the handgun was not found pursuant to a search of the vehicle; it was found by

Officer Tiberi in plain view upon looking through the rear driver’s side window of

the vehicle. Therefore, Defendant, as a passenger in the vehicle, had no reasonable

expectation of privacy inside the vehicle where the handgun was found.4 “Absent

other factors that are not present here, any reasonable expectation of privacy in the

car belongs to its owner or driver, but not a passenger.”13 Accordingly, Defendant

has no standing to suppress evidence obtained from Richmond’s vehicle and

pursuant to the traffic stop.




12
     Id. at *2.
13
     See Id.
                                         9
                        Conclusion

For the foregoing reasons, Defendant’s Motion to Suppress is DENIED.

IT IS SO ORDERED.

                                        /s/Calvin L. Scott
                                        Judge Calvin L. Scott, Jr.




                            10
