         IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMARR CANNON,                             §
                                           §     No. 228, 2018
       Defendant Below,                    §
       Appellant,                          §     Court Below: Superior Court
                                           §     of the State of Delaware
       v.                                  §
                                           §     ID. No. 1706001541 (K)
STATE OF DELAWARE,                         §
                                           §
       Plaintiff Below,                    §
       Appellee.                           §
                                           §
                                           §


                             Submitted: October 24, 2018
                             Decided: December 12, 2018

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

                                     ORDER

      On this 12th day of December 2018, upon consideration of the parties’ briefs

and the record on appeal, it appears to the Court that:

      (1)    Appellant, Jamarr Cannon, appeals from a Superior Court jury verdict

finding him guilty of Tier 5 Possession of Cocaine, Drug Dealing Tier 4 Cocaine,

Resisting Arrest, Possession of Drug Paraphernalia, and Failure to Have Insurance

Card. Cannon’s sole claim on appeal is that the Superior Court erred in denying his

motion to suppress all evidence derived from a traffic stop for a suspected window

tint violation. Cannon contends that the Superior Court erred for three reasons.
First, he argues there was no reasonable, articulable suspicion for the stop in the first

place. Second, he argues there was no reasonable suspicion 1 for his continued

detention beyond the scope of the initial stop. Finally, he argues that the search of

his person exceeded the scope of a Terry2 frisk.

       (2)    Cannon was arrested and charged with the crimes underlying this

appeal on June 2, 2017, following a traffic stop.               Trooper Macauley stopped

Cannon’s vehicle for a suspected violation of Delaware’s window tint law “[d]ue to

the window tint on the front windshield.” 3             Trooper Macauley looked up the

registration to determine whether the vehicle had a tint waiver. It did not.

       (3)    When Trooper Macauley approached the vehicle after stopping it,

Cannon appeared extremely nervous: his carotid artery was pulsating, his hands were

shaking, and he failed to make eye contact. Moreover, Trooper Macauley observed

that the vehicle’s windows were very clean and smelled an overwhelming odor of

air fresheners. Because of this, Trooper Macauley suspected that Cannon was a

drug trafficker.

       (4)    After speaking with Cannon, Trooper Macauley returned to his patrol

vehicle to process an e-warning for the tint violation and run routine checks on



1
  In his brief, Cannon uses the term “probable cause” when discussing the standard for continuing
a detention, Appellant’s Second Am. Opening Br. at 11-12; the correct standard is reasonable
suspicion, see Loper v. State, 8 A.3d 1169, 1175 (Del. 2010).
2
  Terry v. Ohio, 392 U.S. 1 (1968).
3
  App. to Appellee’s Answering Br. at B2.
                                               2
Cannon’s license and registration and do a criminal history check. The criminal

history check revealed that Cannon was on federal and state probation and had a

history of violent felonies including resisting arrest and vehicle pursuits. While

conducting the routine checks, he contacted a nearby canine unit to request a sniff

test of Cannon’s vehicle, but that unit was not immediately available.

      (5)   Because of Cannon’s extensive criminal history and federal probation

status, these routine checks took longer than usual. Trooper Macauley did not

prolong the stop to allow for the canine unit to arrive. The whole time he was in

his patrol vehicle, he was processing the e-warning for the tint violation and

checking Cannon’s criminal history. The entire traffic stop lasted 14 minutes.

      (6)   When the process for printing the warning and checking Cannon’s

criminal history concluded, Trooper Macauley exited his vehicle to deliver the

warning to Cannon. He instructed Cannon to exit his vehicle and meet him at the

back of the vehicle, so he could explain the warning. Trooper Macauley testified

that it was unsafe to explain the warning to Cannon from the driver’s window

because he would have had to stand in the roadway given how close to the roadway

Cannon’s vehicle was parked.

      (7)   As Cannon exited the vehicle, Trooper Macauley noticed a bulge in his

waistband that, according to Macauley, was consistent with the size and shape of a

handgun. Consequently, Trooper Macauley conducted a pat-down search, which


                                         3
revealed that the bulge was “a vacuum-sized, tightly-packaged, small brick of

cocaine.” 4 Trooper Macauley then took Cannon into custody. The canine unit

arrived later. Cannon was thereafter charged with the five crimes mentioned above

as well as operating a vehicle with illegal window tint.

         (8)     Prior to trial, Cannon filed a motion to suppress all evidence acquired

from the traffic stop. After a hearing, the Superior Court denied Cannon’s motion.

It made three findings. First, the court found that the initial stop was lawful

“because Mr. Cannon’s vehicle had an improper window tint” and “the trooper

discovered Mr. Cannon’s vehicle did not have a [tint] waiver.”5 Second, the court

reasoned that the purpose of Trooper Macauley’s initial stop had expired when he

requested that Cannon exit the vehicle, and therefore asking Cannon to exit the

vehicle was a second seizure; but there was reasonable suspicion to justify the

continued seizure for three reasons: (1) Cannon’s nervousness, including trembling

hands, rapidly pulsating carotid artery, and confusion in responding to questions; (2)

Cannon’s extensive criminal background, which included drug dealing and firearms

charges; and (3) the overwhelming odor of a masking agent (air fresheners)

emanating from the vehicle and the vehicle’s extreme cleanliness. Finally, the court

found, “Trooper Macauley was permitted to pat down Mr. Cannon for weapons



4
    Id. at B5.
5
    Id. at B10-11.
                                             4
because Mr. Macauley noticed the bulge between his waistband,” which was “the

size of a handgun.”6

         (9)    Following a bench trial, Cannon was found guilty of all charges except

the illegal window tint.

         (10) “We review the grant or denial of a motion to suppress for an abuse of

discretion.”7     “[T]his Court will defer to the factual findings of a Superior Court

judge unless those findings are clearly erroneous.”8           When “reviewing the denial

of a motion to suppress evidence based on an allegedly illegal stop and seizure, we

conduct a de novo review to determine whether the totality of the circumstances, in

light of the trial judge’s factual findings, support a reasonable articulable suspicion

for the stop.”9

         (11) Cannon first contends that Trooper Macauley lacked reasonable

suspicion that he was violating the vehicle window tint law (21 Del. C. § 4313).

Cannon, however, did not adequately raise this argument in the trial court. His

motion to suppress did not contest Trooper Macauley’s reason for stopping his

vehicle. It focused on the alleged unlawfulness of Cannon’s continued detention

beyond the scope of the initial traffic stop.




6
    Id. at B13.
7
    Lopez-Vazquez v. State, 956 A.2d 1280, 1285 (Del. 2008).
8
    State v. Rollins, 922 A.2d 379, 382 (Del. 2007).
9
    Lopez-Vazquez, 956 A.2d at 1285.
                                                5
       (12) Accordingly, this Court reviews this claim under the plain error

standard of review.10 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.”11 “[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.” 12 There is no such error here.

Trooper Macauley testified that he stopped Cannon “[d]ue to the window tint on the

front windshield.” 13      Under Delaware law, it is likely illegal to have any tint

covering the entire windshield—regardless of its transparency.14

       (13) Second, Cannon contends that Trooper Macauley impermissibly,

without reasonable suspicion, extended the scope of the stop and therefore subjected

him to a “second” seizure when he called the canine unit and ordered Cannon to exit

the vehicle to explain the warning. However, a request for a canine unit does not

exceed the scope of a traffic stop when the unit is called while the officer performs


10
   Zhurbin v. State, 104 A.3d 108, 113 (Del. 2014).
11
   Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (en banc).
12
   Id.
13
   App. to Appellee’s Answering Br. at B2 (emphasis added).
14
   The “70 percent rule,” which allows window tint if it provides a light transmission of at least
70 percent, appears to apply only to the windows to the immediate right and left of the driver and
not to the windshield. See 2 Del. Admin. C. § 2277-3.1.2; see also id. § 2277-3.1.1 (providing
that glass coating material (film tint) installed upon a windshield shall not extend (1) below the
AS-1 mark or (2) if there is no such mark, more than five inches down from the uppermost part of
the windshield).
                                                6
routine checks within the scope of the initial stop. 15              The critical question is

“whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop.’” 16

Because Trooper Macauley called the canine unit while waiting upon the results of

the background checks, he did not impermissibly “prolong” the stop.17 Moreover,

the canine unit did not arrive until after Trooper Macauley took Cannon into custody

for the cocaine he discovered in his waistband, meaning neither the call to, nor the

subsequent presence of, the canine unit caused any extended detention.

       (14) Furthermore, Trooper Macauley did not extend the detention beyond

the scope of the traffic stop when he asked Cannon to exit his vehicle. An officer

“may order the driver or a passenger to exit the car after a valid traffic stop, and that

order is not a ‘seizure’ under the Fourth Amendment.”18 So long as such an order

does not “measurably extend the duration of the stop,” it does not amount to a

“second” seizure under the Fourth Amendment.19 The officer’s having Cannon exit

the vehicle so the officer could explain the warning for the tint violation, under the

circumstances involved here, did not “measurably extend the duration of the stop.”20


15
   See Rodriguez v. United States, 135 S. Ct. 1609, 1612 (2015) (holding that a dog sniff conducted
after completing the traffic stop violates the Fourth Amendment); Illinois v. Caballes, 543 U.S.
405, 408 (2005) (holding that a dog sniff conducted during a lawful traffic stop does not violate
the Fourth Amendment).
16
   Rodriguez, 135 S. Ct. at 1616.
17
   Id.
18
   Loper, 8 A.3d at 1174; accord Arizona v. Johnson, 555 U.S. 323, 331 (2009).
19
   Johnson, 555 U.S. at 333.
20
   Id.; see also Caldwell v. State, 780 A.2d 1037, 1049 (Del. 2001) (en banc) (finding a second
seizure where the officer’s actions were “entirely unrelated” to the parking violation).
                                                7
Therefore, because the initial stop was lawful, as discussed above, and because

Trooper Macauley ordered Cannon to step out of the vehicle to receive an

explanation for the warning, Trooper Macauley neither impermissibly extended the

stop beyond its initial scope nor subjected Cannon to a second seizure.

       (15) Finally, Cannon contends that Trooper Macauley exceeded the scope

of the Terry frisk because “there was absolutely no testimony that the frisk yielded

evidence that the officer, by feel, felt was immediately seizable when he felt the

item.”21 Cannon neglected to raise this argument in his motion to suppress before

the Superior Court. The motion to suppress exclusively addressed whether Trooper

Macauley extended the traffic stop beyond the initial purpose without reasonable

suspicion. At the suppression hearing, Cannon’s trial counsel never questioned

Trooper Macauley about the plain feel of the object that was seized during the pat

down. And Cannon never argued that the object seized was not immediately

seizable upon its plain feel.22

       (16) Because Cannon did not fairly raise this argument below, it is reviewed

for plain error. The issue of whether it was immediately apparent that the object

seized was subject to seizure does not rise to the level of plain error: it was not a


21
   Appellant’s Second Am. Opening Br. at 12.
22
   App. to Appellee’s Answering Br. at B9-10 (arguing in conclusion that “there was no reasonable
articulable suspicion to get him out of the car and continue the stop at that point”); see also id. at
B11 (summarizing Cannon’s suppression argument, “Cannon contends that Trooper Macauley
unlawfully prolonged the traffic stop in absence of reasonable suspicion making the search of Mr.
Cannon’s person the unlawful result of an unlawful detention”).
                                                  8
“material defect[] . . . apparent on the face of the record.” 23 Trooper Macauley

testified that he first noticed the object seized when Cannon exited the vehicle; it

was in the front of Cannon’s waistband and was consistent in size and shape with a

firearm. This prompted Trooper Macauley to pat down Cannon, at which point he

discovered that the object was a small brick of cocaine. There is no plain error here.

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

Court is AFFIRMED.

                                          BY THE COURT:

                                          /s/ James T. Vaughn, Jr.
                                          Justice




23
     Wainwright, 504 A.2d at 1100.
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