                                SUPERIOR COURT
                                        of the
                             STATE OF DELAWARE

 Jeffrey J Clark                                                Kent County Courthouse
 Judge                                                               38 The Green
                                                                    Dover, DE 19901
                                                                Telephone (302)739-5333



                                  February 26, 2016



Zachary A. George, DAG                        J’Aime L. Walker, Esq.
Department of Justice                         Office of the Public Defender
102 West Water Street                         45 The Green
Dover, DE 19904                               Dover, DE 19901

      Re:     State v. Mykal Dempster
              ID No. 1505012037

Dear Counsel:

      The Court has reviewed and considered the Defendant’s motion to suppress and
the State’s response. After a hearing and consideration of the parties’ written
submissions, the Court denies the defendant’s motion to suppress.

       On May 17, 2015, Defendant Mykal Dempster (hereinafter “Defendant”) was a
passenger in a vehicle that was the subject of a traffic stop by Officer Martinek
(hereinafter “Officer”) from the Dover Police Department. The Officer ran the plate of
a gold Honda Accord and learned that the vehicle’s owner had a suspended license. At
the time, the vehicle was in fact driven by someone other than its registered owner with
the suspended license. The Defendant was a passenger in the vehicle. After (1) the
challenged initial stop and (2) some further observations providing unchallenged probable
cause for a search and arrest, the Officer arrested the Defendant for possession of a
firearm and firearm ammunition by a person prohibited and possession of Marijuana.

      Defendant moved to suppress all evidence seized after the challenged stop.
Defendant argues that the stop was unlawful because it was pretextual in nature.
Furthermore, Defendant also argues that the Officer lacked reasonable articulable
suspicion to conduct the stop. Defendant asserts that the mere knowledge that a
registered owner’s license was suspended does not create reasonable suspicion that the
owner was the one driving. The State opposed Defendant’s motion to suppress asserting
that the initial stop was supported by reasonable suspicion and Defendant’s subsequent
arrest was supported by independent facts giving the Officer probable cause to arrest the
Defendant.1

       The Fourth Amendment of the United States Constitution requires that a traffic stop
and any subsequent police investigation be justified at its inception.2 A traffic stop by the
police must be justified by a reasonable suspicion of criminal activity and must be
reasonable in its scope.3 When a police officer conducts a traffic stop, he seizes the car
as well as its occupants and may request any passenger to provide identification and/or
exit the vehicle.4 “[A]ny investigation of the vehicle or its occupants beyond that required
to complete the purpose for the [initial] stop constitutes a separate seizure that must be
supported by independent facts sufficient to justify the additional intrusion.”5

      In Delaware, an officer is permitted to arrest an individual if the officer has
reasonable grounds to believe that the individual committed a misdemeanor in the officer’s
presence, such as driving with a suspended license.6 Furthermore, the Superior Court,




        1
           At the suppression hearing, in addition to the arguments in the State’s written response,
 the State raised the issue of whether Defendant had standing to challenge the initial stop of the
 vehicle since he was not the vehicle’s driver or owner. The State aptly cites Chisholm v. State,
 988 A.2d 937 (Del. 2005) and Jarvis v. State, 600 A.2d 38 (Del. 1991) in support of its argument
 that the motion should be denied based on the Defendant’s lack of standing. The Defendant,
 however, cites Brendlin v. California, 551 U.S. 249, 259 (2007) for the premise that “a passenger
 may bring a Fourth Amendment challenge to the legality of a traffic stop.” Although the more
 recent Chisolm decision does not address the Brendlin case and the two apparently conflict, this
 decision does not turn on the standing issue. Here, the stop was based on reasonable articulable
 suspicion and the Court will not address standing.
        2
            Dunlap v. State, 812 A.2d 899, *2 (Del. 2002) (TABLE).
        3
            Stafford v. State, 59 A.3d 1223, 1227 (Del. 2012)
        4
            Id.
        5
            Dunlap, 812 A.2d 899, at *2.
        6
            Brown v. State, 2014 WL 5099648, at *1 (Oct. 9, 2014) (Slip Copy).

                                                  2
in State v. Perry7, held that a Terry level traffic stop based on “a police officer’s
knowledge that a motor vehicle’s owner has a suspended license is a reasonable
articulable basis...” for conducting a stop.8

       Here, the Court finds after a suppression hearing that the Officer had reasonable
articulable suspicion that the driver of the vehicle had a suspended license. Namely, the
Officer was patrolling for a click-it or ticket overtime program, where officers specifically
patrol for traffic violations including failure to wear seatbelts, driving with suspended
licenses, or expired vehicle registrations.

        During his patrol on Northbound Bay Rd., the Officer accessed the registration
information for the gold Honda Accord at issue. Through this search, he was presented
with the vehicle’s registration information, the vehicle owner’s license information, and
the description of the owner including her sex, date of birth, height, eye color and weight.
The Court finds credible the officer’s testimony that the information he accessed while
driving his police vehicle contained no mention of race. When the Officer pulled this
information for the gold Honda Accord, he saw that the owner’s license had been
suspended. He then compared the description of the owner to what he could see of the
driver and they matched. The Court finds that the officer had reasonable suspicion to then
conduct the traffic stop. He reasonably believed that the driver of the vehicle was the
owner of the vehicle who was driving with a suspended license. That the driver and the
owner were later revealed as having different racial backgrounds and some different
characteristics does not make the Officer’s actions unreasonable. It is not reasonable to
require an officer observing a driver in a moving vehicle to conduct the equivalent of a
photo lineup. The initial stop was justified by a reasonable articulable suspicion of a
traffic violation and did not violate the Fourth and Fourteenth Amendment rights of the
driver or those of any passenger in her vehicle.

      Finally, the Defendant challenges the motion based on the holding in the Superior
Court case Heath v. State.9 After a hearing in this case, the Court finds that there was
no evidence of a pretextual stop and the holding in Heath is not at issue in this case. The
motivation of the stop at issue was a reasonable articulable suspicion that the car was
driven by a driver without a valid license.

         The Defendant’s motion challenged only the reasonableness of the initial stop. For

          7
              State v. Perry, Del. Super., Cr. A. No. 0805041047, Graves, J. (Oct. 7, 2008) (Letter
 Op.).
          8
              Id.
          9
              929 A2d 390 (Del. Super. 2006)

                                                    3
that reason, the arrest of the occupants and any accompanying searches are not addressed.

      For the above-mentioned reasons, the Defendant’s motion to suppress is DENIED.

      IT IS SO ORDERED.

                                               /s/Jeffrey J Clark
                                                       Judge




                                           4
