IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, )
)
v. ) Case No. 1605010355
)
ADAM T. KUPIS, III, )
)
Def`endant. )
Submitted: November 7, 2017
Decided: February 5, 2018
Anthony J. Hill, Esquire Joseph Hurley, Esquire
Deputy Attorney General 1215 King Street
820 N. French Street, 7th Floor Wilmington, DE 19801
Wilmington, DE 19801 Attorney for Defendant

Attorney for the State of Delaware

MEMORANDUM OPINION AND ORDER
ON DEFENDANT’S MOTION TO SUPPRESS
The Defendant, Adam Kupis, III (hereinafter the “Defendant”), brings this motion to
suppress evidence in connection with a Driving Under the Influence (“DUI”) investigation. The
Def`endant asserts that there was a reckless exclusion of important and material facts which a
reasonable and objective police officer should have known would have been of significance to a
magistrate in the decision-making process to determine whether a finding of probable cause was
warranted under the totality of the circumstances On November 7, 2017, a hearing was convened
on the Motion to Suppress. A State of Delaware Impaired Driving Report, an Af`fidavit and

Application for Search, and an Af`fidavit of Defendant’s attorney, Joseph Hurley were submitted

into evidence. Following the hearing, the Court reserved decision. This is the Final Decision of
the Court on the Defendant’s Motion to Suppress.
FACTS AND PROCEDURAL HISTORY

On May 15, 2016, at approximately 5:39 a.m., Delaware State Officer Dustin Hamilton
(hereinaf’cer “Trooper Hamilton”) was dispatched for a welfare check on a white male passed out
in the driver’s seat of a vehicle, with the vehicle running and the driver side door open. When
Trooper Hamilton arrived, he made contact with EMS personnel and Corporal Underwood, who
observed the vehicle running with the driver side door open and the operator passed out. Cpl.
Underwood woke the operator of the vehicle and detected an odor of alcohol.

Trooper Harnilton then initiated contact with the vehicle operator and upon viewing his
Delaware driver’s license, identified him as Adam T. Kupis, III, the Defendant in this matter.
During this interaction, Trooper Hamilton observed glassy and blood shot eyes, with a moderate
odor of alcohol emanating from the Defendant. At this time, Defendant admitted to drinking earlier
in the evening and that he had pulled his car over to its present position after visiting a friend.

Trooper Hamilton proceeded to conduct an alphabet test, asking the Defendant to recite the
alphabet from E to P. Defendant stated “E, D, E” before accurately reciting the rest of the requested
letters in proper sequence. Trooper Hamilton then instructed the Defendant to count backward
from 68 to 53. The Defendant completed this preliminary test without incident.

Next, Trooper Hamilton had the Defendant exit the vehicle, which the Defendant
proceeded to in a normal manner, in order for Trooper Hamilton to administer various field
sobriety tests to the Defendant, including the HGN/VGN, Walk and Turn, and One Leg Stand.l

According to Trooper Hamilton, the Defendant demonstrated four of a possible six clues during

 

l State’s Ex. 2; Search Warrant Application and Affidavit, P. 3, Paragraph 5.
2

the HGN test, noting that “[Defendant’s] eyes lacked smooth pursuit and uncontrollable jerking of
the eyes was present at maximum deviation.”2 On the Walk and Turn test, the Defendant
demonstrated an additional clue when he failed to properly place his right foot in front of his lefc,
touching the right heel to his left toes.3

Following the field sobriety tests, Trooper Hamilton placed the Defendant in his patrol
vehicle to complete the lS-minute observation period, during which Defendant had nothing to eat,
drink, or smoke. Trooper Hamilton then asked Defendant to consent to a Preliminary Breathalyzer
Test (PBT). Defendant refused, and Trooper Hamilton then transported Defendant to DSP Troop
9. Defendant refused to consent to an Intoxilyzer test, at which point a search warrant was obtained
to draw a sample of Defendant’s blood.

PARTIES’ CONTENTIONS

The Defendant seeks to suppress the results of the blood test, Defendant argues Trooper
Hamilton recklessly excluded information that should have been presented to the Court in a
meaningful way so that the Court could evaluate the totality of the circumstances before issuing a
search warrant.

First, Defendant maintains that Trooper Hamilton did not relay to the Court the precise
position of Defendant’s vehicle. In Trooper Hamilton’s report, he indicated that Defendant’s
vehicle was stopped on the shoulder of the roadway at an intersection on Pole Bridge Road. In
Trooper Hamilton’s search warrant affidavit submitted to the Court, Trooper Hamilton describes
arriving at the scene, at “Pole Bridge Rd. at the entrance of Augustine Blvd.”4 Defendant argues

that Trooper Hamilton failed to clearly articulate that the vehicle was not, in fact, in the

 

2 State’s Ex. 1; State of Delaware Impaired Driving Report, P. 3, Paragraph l.
3 State’s Ex. 1, P. 3, Paragraph 2.
4 State’s Ex. 2; Search Warrant Application and Affidavit, P. 3, Paragraph 2.

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intersection, but rather, parked on the shoulder of the roadway. This, Defendant avers, is a
significant factor that a Magistrate would want to consider in determining whether to issue a search
warrant.

Second, Defendant argues that glassy and blood shot eyes and the moderate odor of alcohol
on Defendant’s breath, as observed by Trooper Hamilton and included in his affidavit to the court,
merely indicate consumption of alcohol, rather than impairment by alcohol.5 Defendant asserts
that one of the most telling signs of impairment is the interruption of normal fluency. The
transposition of letters during the recitation of part of the alphabet, Defendant claims, was a single
instance of imperfection and not evidence of impaired speech.6 Furthermore, Defendant argues,
Trooper Harnilton failed to indicate in his affidavit that Defendant did not have difficulty
understanding or complying with commands Defendant maintains that had Trooper Hamilton
included in his affidavit the indication of normal speech and an accurate description of the position
of Defendant’s vehicle, the remaining assertions would not have constituted probable cause for the
collection of Defendant’s blood.

The State argues that sufficient information was included in the affidavit for the Court to
accurately examine the totality of the circumstances In addressing Defendant’s first argument,

the State contends that the location of the vehicle is immaterial to the operative facts that gave rise

 

5 Defendant’s Motion to Suppress, P. 2, Paragraph (b.)

6 Defendant also argues that results of the walk and turn test, as described in the Police report, suggest
impaired performance This, Defendant claims, is due to a “rather cryptical point” made by Trooper
Hamilton when articulating the parameters of the test, that suggested there was “misperformance” by the
Defendant on the walk and turn test, However, on the affidavit submitted to the Court by Trooper
Hamilton in the application for a search warrant, Defendant is described as having taken “9 heel to toe
steps and turned to his left as instructed, then took 8 heel to toe steps to finish the test.” State’s Ex. 2;
Search Warrant Application and Affidavit, P. 4, Paragraph 1. Because there is no impaired performance
suggested by this description in the affidavit and application for the search warrant, the court considers
Defendant’s argument on this point moot in determining whether the state relayed all of the information
necessary for the Court to evaluate the “totality of the circumstances.”

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to the probable cause, but rather it is the fact that the Defendant was reported to be passed out in
the driver’s seat of the vehicle, with the door open and the vehicle running, that gives rise to the
probable cause.

The State also addresses the Defendant’s second argument regarding the description of the
Defendant’s eyes, emission of alcoholic odors, and the lack of any description in the affidavit of
Defendant’s competency to understand and comply with Trooper Hamilton’s commands The
State asserts that, while there may have been no indication of impairment of speech, Trooper
Hamilton’s description of glassy, blood shot eyes, moderate alcohol odor, and Defendant’s
admission that he had been drinking earlier in the evening are sufficient to satisfy the probable
cause threshold.

Furthermore, the State argues Trooper Hamilton did not intentionally manipulate
information or act in such a manner that might be considered a reckless disregard for the truth, as
evidenced by the inclusion in his report and affidavit of information that does not carry an
implication of intoxication.7

DISCUSSION

For determining whether probable cause exists to obtain a search warrant, Delaware
follows established jurisprudence by applying a totality of the circumstances analysis8 Defendant
argues that the affidavit submitted by Trooper Hamilton in the application for a search warrant did
not have enough information for a magistrate to make a decision under the totality of the

circumstances

 

7 State’s Response to Defendant’s Motion to Suppress, P. 3, Paragraph 2, noting Trooper Hamilton’s
inclusion of successful completion of the preliminary counting test
8 Sisson v. State, 903 A.2d 288, 296 (Del. 2006) (citing Fink v. State, 817 A.2d 781, 787 (Del. 2003))

5

There is a presumption of validity with respect to the affidavit supporting a search warrant
application, which can be overcome by offering proof of (1) reckless or intentional omission (2)
of facts material to a finding of probable cause, (3) which, if known by the reviewing magistrate,
would have resulted in a different outcome.9 Omissions made with reckless disregard for the truth
occur “when an officer recklessly omits facts that any reasonable person would know that a judge
would want to know in making a probable cause determination.”l° Whether the omission is
material to a finding of probable cause requires the court to “reconstruct the affidavit to include
the newly added information, and then decide whether the ‘corrected’ affidavit would establish
probable cause.”"

The Court finds the following indicators, as noted in Trooper Hamilton’s affidavit, to
establish probable cause: the presence of the vehicle parked (on the shoulder) running, with the
driver door open and the driver passed out in the driver seat; a moderate odor of alcohol on
Defendant’s breath; admission to consumption of` alcoholic beverages earlier in the evening;
glassy, blood shot eyes; uncontrollable jerking of the eyes during the HGN/VGN test; and refusal
to consent to a PBT.12

First, Defendant asserts that Trooper Hamilton’s failure to indicate in the affidavit that the
vehicle was on the shoulder of the roadway constitutes a significant factor that a Magistrate would
want to consider in determining whether to issue a search warrant. This Court agrees with the
State’s assertion that this is not a reckless disregard for the truth or an intentional misdeed, as the

specific location of the vehicle is irrelevant. Even if the affidavit were reconstructed with this

 

9 Franks v. State, 438 U.S. 154, 171-172 (1978).

10 Rivera v. State, 7 A.3d 961, 969 (Del. 2010) (quoting Wilson, v. Russo, 212 F.3d 781 (3d Cir. 2000).
ll Id.

12 State’s Ex. 2; Search Warrant Application and Affidavit, P. 3-4.

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explicit testimony included, it does not diminish the fact that the vehicle was on the shoulder,
running, with the driver passed out in the driver seat and his door open.

Second, Defendant argued that Trooper Hamiltori ought to have included testimony of
Defendant’s normal speech and ability to understand and comply with Trooper Hamilton’s
commands during the alphabet test. This Court finds that a failure to affirmatively testify to
Defendant’s ability to understand Trooper Hamilton’s instructions and to follow those instructions
by counting and reciting letters is not a reckless omission of facts Furthermore, the affidavit does
note Defendant’s compliance and ability to follow instructions when completing the other
preliminary tests set by Trooper Harnilton.13 If this Court were to reconstruct another affidavit with
redundant language further stating Defendant’s ability to comply with basic instruction, a judge’s
ability to make a probable cause determination would remain unchanged.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED this 5‘1l day of February, 2018,
Defendant’s Motion to Suppress is DENIED. The Clerk is directed to schedule a trial in this
matter.

ITIS so oRDEREl) 2 f 2

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The f:lonofabl'e"R‘<i)ert H. Surles
Judge

 

13 State’s Ex. 2; Search Warrant Application and Affidavit, P. 3, Paragraph 5,6,7. Affidavit notes that
when the Defendant was asked to exit the vehicle, “he complied and did in a normal manner.”

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