           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                   :
                                     :      I.D. No. 1502003222
      v.                             :      Kent County
                                     :
MARSHALL L. RIVERS, III,             :
                                     :
             Defendant.              :


                            Submitted: April 4, 2016
                            Decided: April 21, 2016


                                    ORDER

                     Upon Defendant’s Motion to Suppress.
                                 Granted.


Zachary A. George, Esquire of the Department of Justice, Dover, Delaware; attorney
for the State.

Andre M. Beauregard, Esquire of Brown Shiels & Beauregard, Dover, Delaware;
attorney for the Defendant.




WITHAM, R.J.
State v. Marshall L. Rivers, III
I.D. No. 1502003222
April 21, 2016


       Defendant Marshall L. Rivers III (“Rivers”) moves this Court to suppress
evidence seized as the result of a traffic stop of a vehicle in which Rivers was a
passenger. Rivers claims the stop was illegal because the vehicle in which he was
riding did not fail to come to a stop, and that the stop was a pretext to conduct further
investigation of the occupants of the vehicle for more serious crimes. Rivers further
claims that if the stop was legal, it was extended beyond the time necessary to
complete the purpose of the stop, and that such an extension must be supported by
facts sufficient to justify the additional intrusion. For the following reasons, Rivers’
motion to suppress evidence is GRANTED.
                      FACTS AND PROCEDURAL HISTORY
       On February 5, 2015, Patrolman First Class Joshua Boesenberg (“Pfc.
Boesenberg”) was patrolling in his capacity as a member of the City of Dover Police
Department’s Drug, Vice and Organized Crime Unit. He was accompanied by Rick
Porter (“Officer Porter”), a probation and parole officer. As a team, Pfc. Boesenberg
and Officer Porter patrol high crime and drug areas and ensure compliance of
probationers within the City of Dover. At approximately 10 p.m., Pfc. Boesenberg
witnessed a green Chevrolet pickup truck fail to stop for a stop sign on Whatcoat
Drive and thereafter conducted a traffic stop. Pfc. Boesenberg testified that after
initiating the stop, the vehicle continued to roll slowly while the driver and passenger
appeared to be engaged in conversation. The vehicle eventually stopped on the
shoulder of the road.
       After the vehicle stopped, Pfc. Boesenberg approached the vehicle from behind

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State v. Marshall L. Rivers, III
I.D. No. 1502003222
April 21, 2016


on the driver’s side. As Pfc. Boesenberg approached the vehicle with a flashlight, he
saw the passenger, Rivers, placing his hands near his waist area. Pfc. Boesenberg
testified that he saw Rivers place his hand in his left front outside jacket pocket, and
that he observed what appeared to be heroin bundled in blue wax paper inside the
pocket. Rivers was removed from the vehicle. Pfc. Boesenberg described Rivers’
demeanor as nervous. Rivers was staring straight ahead, would not make eye contact,
was fidgeting, and was making movements on his left side in the pocket area. Once
Rivers was removed from the vehicle, the contents of the left front outside jacket
pocket were no longer visible.
       Pfc. Boesenberg checked the left pocket of Rivers’ jacket, but found no heroin.
A pat down search revealed packages that felt like heroin in Rivers’ jacket liner. Pfc.
Boesenberg testified that further investigation revealed a hole in the left front outside
jacket pocket through which the heroin may have been pushed in order to hide the
heroin in the jacket liner. Surprisingly, the jacket was not seized as evidence. At an
April 4, 2016 hearing to suppress evidence obtained as a result of the traffic stop,
counsel for Rivers produced a jacket that had been given to him by Rivers.1 The


       1
         At sidebar the Court asked the State if a request for discovery of evidence had been served
on the Defendant under Super. Ct. Crim. R. 16. The State responded that they do so in every case.
Counsel for Rivers stated that he was not required to disclose physical evidence. Section (b) governs
disclosure of evidence by the Defendant. Rule 16(b)(1)(A) states:
       Documents and Tangible Objects. If the defendant requests disclosure under
       subdivision (a)(1)(C), (D) or (E) of this rule, upon compliance with such request by
       the state, the defendant, on request of the state, shall permit the state to inspect and
       copy or photograph books, papers, documents, photographs, tangible objects, or
       copies or portions thereof, which are within the possession, custody, or control of the

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State v. Marshall L. Rivers, III
I.D. No. 1502003222
April 21, 2016


jacket was identified by Rivers as the jacket he was wearing on the night of the traffic
stop. The jacket produced at the hearing did not have a hole in the left front outside
pocket. However, the jacket did have a hole in the inside left breast pocket, a pocket
that Pfc. Boesenberg testified that he could not see when approaching the vehicle.
       On June 23, 2015, Rivers filed this motion to suppress evidence obtained as the
result of the traffic stop, and of the subsequent detention, search, seizure, and arrest
of Rivers. On April 4, 2016, this Court conducted a hearing on the motion to
suppress.
                                 STANDARD OF REVIEW
       The Delaware Supreme Court has held that “any evidence recovered or derived
from an illegal search and seizure” must be excluded from evidence.2 Once a motion
to suppress has been filed, 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 Probable cause exists “when the officer


        defendant and which the defendant intends to introduce as evidence in chief at the
        trial.
The jacket is a tangible object and therefore subject to disclosure. If the jacket was not available
when the State’s Rule 16 request was made, Rule 16(c) imposes a continuing duty to disclose. The
failure of counsel for Rivers to disclose possession of the jacket is a violation of Rule 16 and would
possibly prevent admission of the jacket into evidence at trial. To the extent the jacket was allowed
into evidence at the hearing, the Court considered the fact that the jacket remained in the possession
of the Defendant or Defendant’s counsel until it was produced at the hearing.
        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).

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State v. Marshall L. Rivers, III
I.D. No. 1502003222
April 21, 2016


possesses information which would warrant a reasonable man in believing that a
crime has been committed.”4 The finding of probable cause does not require proof
beyond a reasonable doubt, or even that the defendant’s guilt is more likely than not.
Probable cause only requires that the arresting officers “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.”5
                                          DISCUSSION
       It is well established that “law enforcement officers may arrest an individual
only if the seizure is supported by probable cause.” 6 Furthermore, “law enforcement
officers may stop or detain an individual for investigatory purposes, but only if the
officer has reasonable articulable suspicion to believe the individual to be detained
is committing, has committed, or is about to commit a crime.”7 However, the search
of an individual who has not been arrested is limited in scope and may only be
performed for officer safety. 8 “[W]hile officer safety is both legitimate and weighty,

       4
          State v. Betts, 2015 WL 2066602, at *1 (Del. Super. Apr. 1, 2015).
       5
          Id. at *5.
        6
          Woody v. State, 765 A.2d 1257, 1262 (Del. 2001) (citing Florida v. Royer, 460 U.S. 491,
498 (1983)).
        7
          Id. (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)).
        8
          See Holden v. State, 23 A.3d 843, 849-50 (Del. 2011) (“[T]he constitution does not condone
routine pat downs without any reasonable suspicion that the officer’s personal safety requires it.”);
Purnell v. State, 832 A.2d 714, 721 (Del. 2003) (“[I]f the protective search goes beyond what is
necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be
suppressed.”); Caldwell v. State, 780 A.2d 1037, 1050-51 (Del. 2001) (“After an officer effectuates
a lawful investigative stop supported by reasonable suspicion, the officer has an absolute right to
conduct a limited search of the suspect for dangerous weapons if the officer has a reasonable belief

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State v. Marshall L. Rivers, III
I.D. No. 1502003222
April 21, 2016


it cannot in all circumstances justify a search or seizure. Otherwise nearly any
invasion of a person’s privacy could be justified by arguing that the police needed to
protect themselves from harm.”9
       The question before the Court is whether the pat down search conducted by
Pfc. Boesenberg violated Rivers’ constitutionally guaranteed rights protecting him
from an unreasonable search and seizure. This question presents two related issues.
The first issue is whether Pfc. Boesenberg possessed probable cause to believe Rivers
was in possession of heroin. Probable cause to believe Rivers was in possession of
heroin would bolster the State’s argument on the second issue. The second issue is
whether Pfc. Boesenberg possessed reasonable and articulable facts to justify a pat
down search of Rivers. It is the State’s burden to present a cogent argument in
support of each issue.
       The State argues Pfc. Boesenberg possessed probable cause to believe a crime
had been committed because Rivers made furtive movements while talking with the
driver of the vehicle as the vehicle came to a stop, because Boesenberg observed clear
plastic bags containing blue wax paper inside Rivers’ left front jacket pocket, and
because Rivers exhibited nervous behavior and continued furtive movement prior to
being removed from the vehicle. Pfc. Boesenberg approached a Chevrolet pickup
truck at 10 p.m. in the evening. The police report refers to the pickup truck as a C15


that the detainee is presently armed and dangerous.”) (internal quotation marks omitted); Hicks v.
State, 631 A.2d 6, 9 (Del. 1993) (“The rationale for a Terry search is solely predicated on a
determination whether a suspect is armed.”).
        9
          Jones v. State, 745 A.2d 856, 872 n.78 (Del. 1999).

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State v. Marshall L. Rivers, III
I.D. No. 1502003222
April 21, 2016


pickup, which would be a full size Chevrolet pickup truck. Based strictly on the facts
as presented, the Court is not convinced that an officer would be able to identify
bundled blue wax paper packets in a clear plastic bag in a passenger’s jacket pocket
when approaching a full size pickup truck from behind on the driver’s side in poor
lighting conditions. Although the Court finds it implausible that an officer could
identify bundled packets of heroin under these conditions, it does not find it
impossible. However, in this instance, more facts were needed to carry the argument.
       Furthermore, the items Pfc. Boesenberg suspected to be in the jacket pocket
where no longer visible when Rivers exited the vehicle, and in fact were not in the
jacket pocket when Rivers was searched. Pfc. Boesenberg testified that there was a
hole in the jacket packet through which Rivers pushed the packets of heroin into his
jacket liner, but the jacket was not seized as evidence. There is no doubt that Pfc.
Boesenberg suspected the content of the jacket pocket was heroin, and he most
certainly possessed a reasonable suspicion that Rivers had committed a crime, but,
based on the foregoing, there was not enough evidence to support probable cause.
Probable cause would have allowed Pfc. Boesenberg to arrest Rivers and perform a
search incident to arrest. However, Rivers was not arrested, and the reasonable
suspicion possessed by Pfc. Boesenberg limited the scope of the stop to that of an
investigatory detention.
       Once Rivers was removed from the vehicle, Pfc. Boesenberg performed a pat
down search. The Supreme Court of Delaware has stated that the nature of the crime
and whether the area in which the detention occurs is a high crime area are factors to

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State v. Marshall L. Rivers, III
I.D. No. 1502003222
April 21, 2016


be considered when determining the constitutionality of a Terry frisk.10 The Court
has also stated that the mere incantation of “officer safety” does not provide the
suspicion necessary for a frisk. 11 An officer must “possess a reasonable belief that
the detainee is presently armed and dangerous.”12 On direct examination, Pfc.
Boesenberg stated that Rivers was known to possess weapons, but no testimony was
offered as to how Pfc. Boesenberg came into this knowledge. On cross examination,
Pfc. Boesenberg was asked if he had a suspicion of any weapons, and he replied “I
always do.” When asked why he performed a pat down of Rivers, Pfc. Boesenberg
replied that heroin dealers commonly use weapons.
       Pfc. Boesenberg testified that Rivers was known to possess weapons and that
heroin dealers commonly use weapons, but this testimony was cursory as well as
conclusionary and unsupported by facts. On cross examination, Pfc. Boesenberg
testified that he always suspects weapons. Pfc. Boesenberg suspected Rivers may
have had drugs in his jacket pocket, but there was no concrete information other than
a view through the rear window of a pickup truck in poor lighting condition to
support that suspicion. Thus, absent expanded testimony that Rivers was a known
drug dealer, the nature of the crime exception is tenuous at best. There was no bulge
to indicate a weapon. There were no sudden movements to lead Pfc. Boesenberg to
believe Rivers was armed. The Court perceives this testimony as the “mere


       10
          See Holden, 23 A.3d at 850.
       11
          Id.
       12
          Hicks, 631 A.2d at 9.

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State v. Marshall L. Rivers, III
I.D. No. 1502003222
April 21, 2016


incantation of officer safety” that Holden held does not provide the suspicion
necessary for a frisk. In summary, there was a lack of cogent testimony showing Pfc.
Boesenberg possessed reasonable and articulable suspicion that Rivers might be
armed at that moment and may have posed an immediate danger in that situation.
       The Court notes that Rivers was on Level III probation at the time of the stop.
Probation and Parole procedures in place at the time of the stop appear to give Officer
Porter the authority to perform a search of Rivers’ person if Officer Porter possessed
sufficient reason to believe Rivers possessed contraband.13 Pfc. Boesenberg testified
that he did not learn Rivers was on probation until some point after the stop was
completed. Because there was no claim that the search was performed based on
Probation and Parole guidelines, the Court will not perform an analysis regarding the
legality of such a search. The Court merely points to another tool that may be at law
enforcement’s disposal.
                                        CONCLUSION
       A pat down search performed in public by a policeman while the citizen stands
helpless “is a serious intrusion upon the sanctity of the person, which may inflict
great indignity and arouse strong resentment, and it is not to be undertaken lightly.”14
Courts are charged with the responsibility of monitoring the “substantial interference
with liberty and personal security by police officers whose judgment is necessarily

       13
          Probation and Parole Procedure 7.19 section VI(E)(1) allows an officer to search an
offender or his living quarters when “[t]he Officer has knowledge of sufficient reason to believe the
offender possesses contraband.”
       14
          Terry, 392 U.S. at 17.

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State v. Marshall L. Rivers, III
I.D. No. 1502003222
April 21, 2016


colored by their primary involvement in ‘the often competitive enterprise of ferreting
out crime.’”15 “A warrantless search is presumed invalid unless it falls within one of
the recognized exceptions to the warrant requirement.”16                    To overcome this
supposition of invalidity, the State must present facts sufficient for the Court to find
an exception to the warrant requirement. The State failed to meet this burden based
on the specific facts of this case. Therefore, Rivers’ motion to suppress evidence is
GRANTED.
       IT IS SO ORDERED.


                                              /s/ William L. Witham, Jr.
                                              Resident Judge

WLW/dmh
oc: Prothonotary
xc: Zachary A. George, Esquire
    Andre M. Beauregard, Esquire




       15
            Id. (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)).
       16
            State v. Brinkley, 2013 WL 1225869, at *7 (Del. Super. Feb. 19, 2013).

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