         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                          )
                                           )
                                           )
             v.                            )             I.D. No. 1809014012
                                           )
                                           )
MALIK STEVENS,                             )
                                           )
                  Defendant.               )


                                         ORDER

                               Submitted: January 8, 2020
                               Decided: January 17, 2020

                   Upon Consideration of State’s Motion for Reargument,
                                       DENIED.

        AND NOW TO WIT, this 17th day of January, 2020, upon consideration of

the State’s Motion for Reargument and the record in this case, it appears to the Court

that:

        1.        After the Court issued its Memorandum Opinion (“Opinion”) and

granted suppression in favor of Defendant,1 the State filed a timely Motion for

Reargument on December 21, 2019 seeking review under Superior Court Criminal

Rule 41 or clarification, generally.2 Defendant filed a response via email on


1
  State v. Stevens, No. 1809014012, 2019 WL 6840040, at *2 (Del. Super. Ct. Dec. 12, 2019)
(granting Defendant’s Motion to Suppress on the basis of insufficient evidence).
2
  See generally State’s Motion for Reargument on Defendant’s Motion to Suppress, State of
December 30, 2019. On January 8, 2020, this Court heard oral argument on the

State’s Motion for Reargument.3

       2.     The Court will not reiterate the underlying facts in this case, as they

have previously described by this Court in its Memorandum Opinion granting

Defendant’s Motion to Suppress.4

                                   Standard of Review

       3.     Delaware Superior Court Criminal Rule 57(d) states: “In all cases not

provided for by rule or administrative order, the court shall regulate its practice in

accordance with the applicable Superior Court civil rule . . . .”5 “Superior Court

Civil Rule 59[ ] is made applicable to criminal cases by Superior Court Criminal

Rule 57(d).”6

       4.     Delaware Superior Court Civil Rule 59(e) permits the Court to

reconsider “its findings of fact, conclusions of law, or judgment . . . .”7 “Delaware

law places a heavy burden on a [party] seeking relief pursuant to Rule 59.”8 To


Delaware v. Malik S. Stevens, Crim. ID No. 1809014012, D.I. 35 (Del. Super. Ct. Dec. 18,
2019).
3
  See Hearing for State’s Motion to Reargue the Motion to Suppress, State of Delaware v. Malik
S. Stevens, Crim. ID No. 1809014012, D.I. 40 (Del. Super. Ct. Jan. 8, 2020).
4
  See generally Stevens, 2019 WL 6840040.
5
  DEL. SUPER. CT. CRIM. R. 57(d).
6
  Guardarrama v. State, 911 A.2d 802, 2006 WL 2950494, at *3 (Del. Oct. 17, 2006) (TABLE)
(citing DEL. SUPER. CT. CRIM. R. 57(d)).
7
  Hessler Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969). See DEL. SUPER. CT. CIV. R. 59(e).
8
  Kostyshyn v. Comm’rs of Bellefonte, 2007 WL 1241875, at *1 (Del. Super. Ct. Apr. 27, 2007)
(citing Fatovic v. Chrysler Corp., No. CIV.A. 00C08299 HLA, 2003 WL 21481012, at *5 (Del.
Super. Ct. Feb. 28, 2003); Arnold v. Soc’y for Sav. Bancorp, No. CIV.A. 12883, 1995 WL
408769 (Del. Ch. June 30, 1995)).
                                              2
prevail on a motion for reargument, the movant must demonstrate that “the Court

has overlooked a controlling precedent or legal principle[ ], or the Court has

misapprehended the law or facts such as would have changed the outcome of the

underlying decision.”9 Further, “[a] motion for reargument is not a device for

raising new arguments,”10 nor is it “intended to rehash the arguments already

decided by the court.”11 Such tactics frustrate the interests of judicial efficiency and

the orderly process of reaching finality on the issues.12 In a motion for reargument,

the moving party has the burden of demonstrating “newly discovered evidence, a

change of law, or manifest injustice.”13 Here, the State argues manifest injustice.

                                        Discussion

       5.     Senior Probation Officer DuPont (“PO DuPont”) is a probation officer

and a member of the Special Operations Division, specifically the Safe Streets Task

Force Unit (“Safe Streets”).14 He is not a trained police officer. He did not testify



9
  Bd. of Managers of Del. Criminal Justice Info. Sys. v. Gannett Co., 2003 WL 1579170, at *1
(Del. Super. Ct. Jan. 17, 2003), aff’d in part, 840 A.2d 1232 (Del. 2003) (citing Cummings v.
Jimmy’s Grille, Inc., No. 99C-07-031-WTQ, 2000 WL 1211167, at *2 (Del. Super. Ct. Aug. 9,
2000) (internal citations omitted)).
10
   Id.
11
   Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Ct. Jan. 31, 2006).
12
   See Plummer v. Sherman, 2004 WL 63414, at *2 (Del. Super. Ct. Jan. 14, 2004).
13
   E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. Ct. 1995).
14
   Safe Streets is described as a joint task force between police and probation officers. See
Motion to Suppress Hearing Transcript - Morning, (Aug. 23, 2019) at 27:23-28:3 [hereinafter
“Hearing Tr. I”] (Safe Streets allows police officers to “work hand in hand with probation and
parole. Some of [the] responsibilities include monitoring and entering probationers to ensure
compliance with their conditions, and [to] also conduct proactive investigations into criminal
activity within [their] jurisdiction.”).
                                              3
at the suppression hearing in opposition of Defendant’s Motion to Suppress.15

Instead, Detective Andrew Rosaio (“Rosaio”), also a member of Safe Streets,

employed as a police officer with the New Castle County Police Department

(“NCCPD”), testified as to PO DuPont’s alleged observations that occurred on the

morning of September 25, 2018 regarding the incidents relevant to this case.16

       6.     The Court granted suppression because the record is replete with gaps

between the initial traffic stop and police arrival, creating questions as to whether

the probation officer’s actions were lawful, and leaving the Court to speculate as to

whether the state action was justified at the traffic stop’s inception. Specifically, PO

DuPont is not a police officer, did not testify at the suppression hearing, and the

Court was unable to consider “the totality of the circumstances as viewed through

the eyes of a reasonable, trained police officer . . . .”17 and was unable to “defer to

the experience and training of law enforcement officers.”18 For this reason, the Court

could not assess the facts available to that officer—PO DuPont—when he blocked

in, approached, questioned and seized Stevens. As a result, the Court determined

the State was unable to meet its burden and the evidence insufficient.



15
   See Suppression Hearing: Reserved Decision, State of Delaware v. Malik S. Stevens, Crim. ID
No. 1809014012, D.I. 30 (Del. Super. Ct. Aug. 23, 2019).
16
   State’s Search Warrant Application and Affidavit at ¶ 2.
17
   Jones v. State, 745 A.2d 856, 861 (Del. 1999).
18
   State v. Dillard, 2018 WL 1382394, at *6 (Del. Super. Ct. Mar. 16, 2018), reargument denied,
2018 WL 2264414 (Del. Super. Ct. May 17, 2018), and aff’d, 207 A.3d 136 (Del. 2019) (quoting
Woody v. State, 765 A. 2d 1257, 1262 (Del. 2001) (citing Jones, 745 A.2d at 861)).
                                               4
       7.      Troubled by the duration and scope of the “detention” conducted by

Detective Rosaio, the Court raised various concerns, although it did not deem it

necessary to analyze under Caldwell.                 The Court supplements its Opinion in

consideration of Caldwell v. State.19

       8.      Under Caldwell, “[t]he duration and execution of a traffic stop is

necessarily limited by the initial purpose of the stop”20 and “any investigation of the

vehicle or its occupants beyond that required to complete the purpose of the traffic

stop constitutes a separate seizure that must be supported by independent facts

sufficient to justify the additional intrusion.”21 A traffic stop becomes a “second


19
   See generally 780 A.2d 1037 (Del. 2001) (holding that a traffic stop must be justified from the
outset by a reasonable suspicion of criminal activity and that the investigation must be
reasonably related in scope to the stop’s initial justification to comport with the Fourth
Amendment).
20
   Id. at 1047 (citing Florida v. Royer, 460 U.S. 491, 498, 500 (1983) (“[R]easonable suspicion
of criminal activity warrants a temporary seizure for the purpose of questioning limited to the
purpose of the stop . . . [A]n investigative detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop.”); Hicks v. State, 631 A.2d 6, 10 (Del. 1993)
(“[A] search which is minimally intrusive and reasonably related in scope to the circumstances
which justified the interference passes constitutional muster.”) (emphasis added and citations
omitted); 11 Del. C. § 1902 (authorizing brief investigative stops where an officer has a
reasonable ground to believe that the suspect has committed a crime)).
21
   Id. (citing Ferris v. State, 355 Md. 356, 735 (1999) (“[T]he officer’s purpose in an ordinary
traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of
driving with the intent to issue a citation or warning. Once the purpose of that stop has been
fulfilled, the continued detention of the car and the occupants amounts to a second detention.”);
Whitehead v. State, 698 A.2d 1115, 1118 (1997) (“[T]he purpose of the traffic stop is to issue a
citation or warning. Once that purpose has been satisfied, the continued detention of a vehicle
and its occupant(s) constitutes a second stop, and must be independently justified by reasonable
suspicion.”) (internal citation omitted); People v. Redinger, 906 P.2d 81, 85–86 (Colo. 1995)
(“When, as here, the purpose for which the investigatory stop was instituted has been
accomplished and no other reasonable suspicion exists to support further investigation, there is
no justification for continued detention and interrogation of citizens.”); Com. v. Torres, 674
N.E.2d 638, 642 (Mass. 1997) (“It is well settled that a police inquiry in a routine traffic stop
                                                 5
detention,” when the police “prolong” detention “to investigate other possible

crimes.”22 Delaware law provides that the duration and scope of the traffic stop must

last only as long as reasonably necessary to effectuate the purpose of the stop, at

which point the legitimate investigative purpose of the traffic stop is completed.23

Here, the duration and scope of the traffic stop violated Caldwell in several respects.

       9.      The first glimpse of a Caldwell issue arises when the probation officer,

through some presumed authority under Operation Safe Streets, decided to stop

Stevens and conduct what Detective Rosaio characterized as a “traffic stop,” after

Stevens is alleged to have entered into his girlfriend’s neighborhood without using

a proper turn signal. It is unclear on what basis PO DuPont made the decision, but

assuming he was authorized to do so, the record sets out the following:

       10.     The probation officer followed Stevens until Stevens backed into the

driveway of his girlfriend’s residence, where PO DuPont blocked him in. He then

approached Stevens to question him.                  He compelled Stevens to produce

documentation. If authorized to act as he did, PO DuPont did not perform the

functions associated with issuing a citation. He instead called for Detective Rosaio,

also of Safe Streets. Neither issued a citation.


must end on the production of a valid license and registration unless the police have grounds for
inferring that ‘either the operator or his passengers were involved in the commission of a crime .
. . or engaged in other suspicious conduct.’”)).
22
    State v. Chandler, 132 A.3d 133, 140 (Del. Super. Ct. 2015), as corrected (Apr. 14, 2015)
(citing Caldwell, 780 A.2d at 1047).
23
    Dillard, 2018 WL 1382394, at *6 (citing Caldwell, 780 A.2d at 1046-50).
                                                6
          11.    It is undisputed by the State that PO DuPont seized Stevens. The

duration of the stop is unknown and it is unclear for how long PO DuPont held

Stevens, waiting for Rosaio to arrive. What is clear, as set out in the Opinion, is that

the Court did not find credible the portions of Rosaio’s testimony asserting that only

twenty seconds passed between PO DuPont’s seizure of Stevens and Rosaio’s

arrival.

          12.    While there are gaps regarding the timing and scope of the probation

officer’s actions, if the State had called PO DuPont to justify this initial detention,

the Court finds that his actions of blocking Stevens’s vehicle and calling in a

detective are outside the mission of carrying out the functions of a routine traffic

violation. The duration of the stop was unlawfully extended when, instead of issuing

a citation, PO DuPont decided to call a Safe Streets detective, not for a traffic

violation but to conduct a separate investigation. The Court considers this to be the

first strike under Caldwell.

          13.    It is clear from the video evidence that Rosaio was not called to issue a

ticket, where within seconds of arrival, the officer was investigating more.24

Assuming his acts were based on what perhaps PO DuPont may have seen (raw

flakes of marijuana) or smelled (the strong odor of raw marijuana within five feet of




24
     See Joint Exhibit 1; see also Defendant's Exhibit 1; see also Defendant's Exhibit 2.
                                                   7
approaching Stevens) as testified to by Rosaio,25 then the best that can be said is that

Rosaio was called to investigate drug activity related to the vehicle. Instead, as

outlined in the Opinion, Rosaio was focused on obtaining evidence beyond the

vehicle and was solely interested in what was in “the house” relevant to this case.

       14.     Even if calling Rosaio to the scene was justified, the duration and scope

of Rosaio’s search and seizure of Stevens went beyond that which was necessary to

investigate any raw flakes of marijuana or any straw with white powdery substance,

allegedly located in the vehicle.26 The video evidence demonstrates that even after

the first pat-down search and vehicle search, there was no evidence.27 At that point,

Stevens should have been given a citation or released. Neither happened. Instead,

Rosaio extended the scope and duration of the detention when he conducted a second

pat-down search of Stevens’ person, equally as intrusive as the first one. There was

no justification for so doing. For reasons already expressed in the Court’s Opinion,

there was no evidence that Rosaio’s conduct was based on officer safety or the

ordinary questions related to the traffic ticket.28 Under Caldwell, this is strike two.




25
   See Hearing Tr. I at 34:6-8.
26
   See id. at 30:7-13, 43:13-44:4; see also Joint Exhibit 1.
27
   See Joint Exhibit 1; see also Defendant’s Exhibit 1; see also Defendant’s Exhibit 2.
28
   The Court highlights that even if justified, Rosaio’s “first search should have addressed any
safety concern[,]” and that any subsequent searches, “exceeded the scope of both the traffic
violation and the drug investigation where Stevens had nothing on his person nor in his vehicle
to warrant further intrusion.” State v. Stevens, No. 1809014012, 2019 WL 6840040, at *8 (Del.
Super. Ct. Dec. 12, 2019).
                                                8
          15.     Following two pat-downs and two extensive searches of Stevens’

vehicle—that yielded no evidence of illegal activity or threats to officer safety—

Rosaio maintained that Stevens was not under arrest and placed him in handcuffs

into the back of a police vehicle. Although Rosaio called this a mere detention, it

is an arrest without justification, wherein he conducts a third search of Stevens, this

time asking him to remove his shoes.29 This search also yielded nothing. Strike

three. Still not satisfied, he riddled him Stevens with questions and claims to have

obtained consent to additional searches, which this Court already opined was invalid.

Assuming the Court overlooks the first two Caldwell strikes, it cannot do so for

strike three. There was no evidence that Rosaio’s conduct was based on any

specified justification to search or seize Stevens, or to place him in the back of a

police vehicle and hold him there until they obtained the consent they claim to have

been given.

          16.     The Court considers the acts of both DuPont and Rosaio throughout the

stop, finding such conduct to be wholly unrelated to issuing a ticket for the initially

alleged traffic violation. This Court conducted a fact-specific analysis of this stop,

finding the presence of at least three Caldwell violations, potentially more. At

different levels, Safe Streets officers prolonged the duration and scope of the traffic

stop without reasonable articulable suspicion to justify the seizure. The pretext of a


29
     See Joint Exhibit 1.
                                             9
traffic violation converted this stop into an unconstitutional detention. Safe Streets

went beyond the boundaries of the ordinary tasks associated with a lawful routine

traffic stop and violated constitutional protections that should have been afforded

Stevens.

                                    Conclusion

      17.    To supplement, the Court finds the existence of an unjustified

measurable extension of the stop in violation of Stevens’ constitutional rights. The

Court further finds the State fails to meet the heavy burden of manifest injustice to

warrant reargument. Where clarification was requested, the Court finds that under

Caldwell, Defendant’s Motion to Suppress stands as GRANTED, and the State’s

Motion for Reargument is DENIED.

      IT IS SO ORDERED.




                                                    /s/ Vivian L. Medinilla
                                                    Judge Vivian L. Medinilla


oc:   Prothonotary
cc:   Thomas A. Pedersen, Esquire, Law Office of Thomas Pedersen
      Zachary Rosen, Deputy Attorney General
      Office of Defense Services
      Investigative Services Office




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