       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                         :
                                           :          ID No. 1810002230
                v.                         :          In and For Kent County
                                           :
NICOLAI TUGULTSCHINOW,                     :
                                           :
                Defendant.                 :

                                       ORDER

                             Submitted: March 7, 2019
                             Decided: March 11, 2019

                Upon Defendant’s Motion to Suppress - DENIED

   On this 11th day of March 2019, having considered Defendant Nicolai
Tugultschinow’s (hereinafter “Defendant’s”) motion to suppress, it appears that:
   1. Defendant is charged with fourth offense driving a vehicle while under the
influence of alcohol and/or drugs, failure to have insurance identification in his
possession, and careless driving. These charges followed his single-car accident
near Cheswold on October 4, 2018.
   2. Defendant moves to suppress toxicology results of a blood test taken while he
was in Kent General hospital after the accident. In his motion, he attacks the search
warrant authorizing the seizure of his blood. Specifically, he alleges that the
affidavit of probable cause does not recite facts sufficient to establish probable cause
that he drove under the influence at the time of the accident.
   3. The affidavit of probable cause recites the following relevant facts in support
of the warrant: (1) the Defendant had glassy eyes at the hospital upon first contact
with the officer; (2) the Defendant told the officer at the hospital that “he believed
he was intoxicated and should not be driving;” (3) the Defendant smelled strongly
of alcohol; (4) the Defendant admitted he drank two beers; and (5) the Defendant
refused to consent to a portable breath test while in the hospital.
    4. The State must secure a warrant to justify a blood draw absent consent or
exigent circumstances.1 An affidavit submitted in support of a search warrant
application must set forth facts within its four corners that are sufficient for a neutral
magistrate to conclude that probable cause existed based upon the totality of the
circumstances.2 In evaluating the sufficiency of a warrant, this Court is required to
give “great deference” to a magistrate’s determination of probable cause and the
review should not “take the form of a de novo review.”3 The Court, however, must
determine whether the magistrate’s decision “reflects a proper analysis of the totality
of the circumstances.”4
    5. Furthermore, a review of an affidavit of probable cause is subject to “much
less rigorous standards than those governing the admissibility of evidence at
trial…”5 The Delaware Supreme Court has “eschewed a ‘hyper technical’ approach
to reviewing a search warrant affidavit.” 6 Unlike in a challenge of a warrantless
seizure, in a motion to suppress that challenges a search warrant’s legality, the
defendant bears the burden of proving that the challenged search or seizure was
unlawful.7




1
  Flonnory v. State, 109 A.3d 1060, 1065 (Del. 2015).
2
  Lambert v. State, 110 A.3d 1253, 1255 (Del. 2015).
3
  State v. Holden, 60 A.3d 1110, 1114 (Del. 2013).
4
  Id. (citation omitted).
5
  Id. at 1115.
6
  Id.
7
  State v. Hackendorn, 2016 WL 266360, at * 2 (Del. Super. Jan. 13, 2016) (citing State v. Sisson,
883 A.2d 868, 875 (Del. Super. Mar. 11, 2005)). This approach is particularly appropriate given
the U.S. Supreme Court’s concern regarding lowering the deference due for warrants signed by
neutral magistrates because non-lawyer police officers draft them. Holden, 60 A.3d at 1114-1115
(citing Illinois v Gates, 462 U.S. 213, 236 (1983)). In contrast, in a suppression hearing, where the
State has the burden of proof, the State is represented by counsel who is better able to address
foundational and evidentiary technicalities.
                                                 2
      6. Here, under the totality of the circumstances, the magistrate’s probable cause
finding was justified by the facts recited in the affidavit. In fact, the incriminating
facts recited in the probable cause affidavit significantly exceed those recited in an
affidavit reviewed by the Delaware Supreme Court in Lambert v. State.8 There, in
the same context as the case at hand, the Supreme Court found a search warrant
affidavit to be sufficient because it recited that there was an accident, the defendant
exhibited a moderate odor of alcohol, and the defendant had blood shot and watery
eyes.9 In the case at hand, those same facts are present. In addition, according to
the officer, this Defendant admitted to the officer that he was intoxicated, admitted
he drank beer, and refused to submit to a portable breath test. Under the totality of
the circumstances, these facts adequately support the magistrate’s finding that
probable cause existed to believe Defendant was under the influence of alcohol. As
a consequence, the State lawfully seized and tested his blood.
         WHEREFORE, Defendant Nicolai Tugultschinow’s motion to suppress is
appropriately DENIED.


                                                       /s/Jeffrey J Clark
                                                             Judge




8
    Lambert, 110 A.3d at 1254.
9
    Id. at 1256-57.
                                            3
