           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE                        :
                                         :     Case No: 1607006836
                                         :     In and For Kent County
      v.                                 :
                                         :
LARRY WHEELER,                           :
                                         :
             Defendant.                  :

                                        O RDER

      Defendant herein has Moved to Suppress all evidence seized as a result of a
search and seizure of his person and property on July 9, 2016.
      The parties agree that at approximately 9:55 a.m. on that date Dover Police
Officer Hurd conducted a traffic stop, based on a brake light malfunction and
suspicion of unlawful window tinting.
      Defendant was a passenger in the stopped vehicle.
      The driver and Defendant were asked by Officer Hurd to identify themselves.
Defendant had a book bag in which he unsuccessfully looked for identification. He
did, however, correctly identify himself. The State alleges that, in the course of his
unsuccessful search, Defendant “bladed” his body, which is intended to convey some
insertion of himself between the book bag and the officer.
      When Officer Hurd did a computer check on Defendant, he found that an
outstanding capias existed – evidently on a prior, unrelated failure to appear by
Defendant. Although, this had merely been a traffic stop, where Defendant was only
a passenger in the vehicle, Officer Hurd acted upon the discovered capias, arresting
and handcuffing Defendant, and placing him into the police vehicle.
      At that time, the driver of Defendant’s vehicle was said “to be getting
State v. Wheeler
Case No. 1607006836
December 16, 2016

increasingly nervous and his hands were ‘shaking’ in front of his body.” Whether or
not that had import relative to the driver of the vehicle, it had nothing consequential
to do with Defendant. Nevertheless, Officer Hurd, with Defendant removed from the
car and secured in the police vehicle, returned to the book bag into which Defendant
had earlier looked for identification, which bag was still located in the car.
       In that situation, Officer Hurd searched Defendant’s book bag without warrant.
Defendant – having been a passenger in a vehicle stopped for suspicion of a tail
light/traffic violation – was securely in a position where he could not cause concern
about reaching for a weapon in the bag or destroy any product in the bag.
Nevertheless, the State argues that the search of the bag was “incident to arrest” in
this case.
       The general rule justifying such a search is founded on the concept that the
permissibility of a warrantless search “incident to arrest” was to prevent the
destruction of evidence or access to a weapon.1 Certainly, no such search justification
exists in this case.
       That rationale, though, has been “refined” many times. Arizona v. Gant, for
example, held that “police may search a vehicle incident to a recent occupant’s arrest
only if the arrest is within reaching distance of the passenger compartment at the time
of the search or it is reasonable to believe that the vehicle contains evidence of
arrest.”2 Since Defendant was clearly not within reaching distance of the car and had


       1
           Terry v. Ohio, 392 U.S. 1 (1968).
       2
           Arizona v. Gant, 556 U.S. 332 (2009).

                                                   2
State v. Wheeler
Case No. 1607006836
December 16, 2016

no control over the bag in the instant case, and since neither the car nor the bag had
any relationship to Defendant’s arrest on an outstanding capias, Arizona v. Gant,
supra would disallow any evidence secured from Defendant’s book bag.
       Therefore, any evidence obtained from the search of Defendant’s book bag is
suppressed. Defendant’s Motion relative thereto is GRANTED.
       The submitted material, however, is insufficient to determine whether or not
the ensuing search of the vehicle – driven by someone other then Defendant – is fruit
of the knowledge gleaned from the book bag search; or whether or not Defendant
even has standing to object to that search. Accordingly, the parties are instructed to
address that issue separately, if pursuit thereof is desired.
       SO ORDERED this 16th day of December, 2016.


                                                  /s/ Robert B. Young
                                                             J.

RBY/lmc
oc: Prothonotary
cc: Gregory R. Babowal, Esquire
     Anthony J. Capone, Esquire
     Opinion Distribution




                                              3
