IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

V.,. ID. No. 1507021564

DIONTE H. DUBOSE,

§S\/\/\/&JL/

Defendant.
Submitted: March 30, 2016
Decided: April 18, 2016

On Defendant Dionte H. Dubose’s Motion to Suppress,;
GRANTED IN PART; DENIED IN PART.



Barzilai K. Axelrod, Esquire, Deputy Attorney General, Department of Justice,
Wilrnington, Delaware, Attorney for the State.

Kevin J. O’Connell, Esquire, Assistant Public Defender, Wilmington, Delaware, '°
Attorney for Defendant Dionte H. Dubose.

SCOTT, J.

 

Ilzfred;wli»l§ t

Before the Court is Defendant Dionte H. Dubose’s ("Defendant") Motion to
Suppress. Therein, Defendant challenges the validity of police action following an
otherwise valid initial traffic stop, which resulted in evidence and charges against
Defendant, as having violated his right against unreasonable searches and seizures
of his vehicle and his person guaranteed under the Fourth Amendment to the
United States Constitution and Article I, Section 6 of the Delaware Constitution
and protected by Title ll, chapter 23 of the Delaware Code. The Court has
reviewed and considered the Parties’ written submissions, as well as the evidence
provided and arguments made by the Parties at the suppression hearing.l For the

following reasons, Defendant’s Motion to Suppress is GRANTED, in part, and

DENIED, in part.

 

On July 28, 20l5, at approximately l:00 am, Delaware State Police Sergeant
David Diana ("Sgt. Diana") was patrolling Route 9 in New Castle County as part
of the Governor’s Task Force initiative of targeting hot spots of criminal activity in

certain areas. Sgt. Diana’s law enforcement experience includes nearly 15 years

'».

w-»-J_  1__-_¢=»

1 Defendant filed his Motion to Suppress on December 21, 2015. The State filed its response on
January 13, 2016. The suppression hearing was held on March 30, 2016.

2 Unless otherwise noted, the findings of facts were made from the testimony of Sergeant Diana
and Detective Gliam, which was provided and undisputed at the suppression hearing, as
Defendant Dubose was absent from the proceedings and, thus, did not testify nor did he call any

fact witness to testify.

additional investigation into the possibility that criminal activity was afoot."
These same facts also begin to form the basis for Sgt. Diana’s belief that under the
circumstances his safety was in danger. The Court finds that the testimony of Sgt.
Diana regarding his observations of the passenger when he first initiated the traffic
stop and when he conducted the roadside interview of the passenger to be credible,
especially in light of Defendant’s failure to present any evidence to the contrary.

Therefore, under the facts and circumstances here, Sgt. Diana was warranted
in his belief that his safety was in danger. Sgt. Diana testified that it appeared to
him based on his experience that the passenger had either retrieved or hidden
something, possibly a weapon, when he initiated the traffic stop. He further
testified that he removed the passenger from the vehicle to continue his roadside
interview based on his evaluation that he presented the immediate threat and he
was still alone on the scene at this point, and that during the interview the
passenger exhibited further suspicious behavior.

This scenario is similar to the facts in State v. Wausnock, where our Supreme
Court found that a limited protective search of a vehicle during a traffic stop where
the driver was seen reaching underneath his seat was reasonable.lg In Wausnock,

while following the defendant’s car prior to initiating the traffic stop, the officers

1 - -' -._.-__,-_-_=___,_.-'._-_==_._._-

   

    
 
 

17 Terry, 392 U.S.at S;-'Jones, 745 A.2d at 86l; se A.3d 23, 26 (_l__)el. 2011)
("Any  of the :':,_`f' "'_5_  '  ` ~ . " " to "':i'::.:pl€te   " 
of the  must be  the  

 

intrusion."’).
‘8 Wausm»ck, 303 A.zd ar 637.

10

"saw the defendant bend down and reach under the driver’s seat three or four
times" with his right arm, which gave them a strong idea that the defendant might
possibly be reaching for a gun.lg Upon stopping the car, the officers immediately
searched under the seat to find drug paraphernalia, and the court found that the
"officers, as reasonably prudent men in the totality of the circumstances, had good
cause to experience fear for themselves or others and, thus, the limited protective
search conducted was reasonable.zo Applying the same rationale here, this Court
finds that the limited protective search conducted underneath the passenger seat of
the vehicle was reasonable under the circumstances and did not violate
Defendant’s constitutional rights. Therefore, the Court does not reach the State’s
alternative argument that the officers had probable cause to search underneath the
passenger seat for contraband based on the passenger’s movements, admission, and
nervous behavior, and, thus, the search was reasonable under the automobile
exception, though it would likely have found the argument to have merit.
Accordingly, Defendant’s Motion to Suppress the evidence consisting of the
handgun found underneath the passenger seat of the vehicle is DENIED.

2. Search of Defendant’s Person

Next, Defendant argues that Det. Gliem’s search of his person was unlawful,

because there was neither any indication that he was armed and dangerous when

';¢=:' =_-=_-=»-_.-_-;___-_-_--____=__e_-_» .

1914
20 

ll

Det. Gliem patted him down nor any probable cause to arrest him. The State
argues that at this moment Defendant was not being detained but was already
under arrest and, thus, Det. G1iem lawfully searched Defendant under the search
incident to arrest exception to the warrant requirement. Because the scope of the
pat down cum search of Defendant differs depending on his status, as detainee or
arrestee, the Court must first make a factual finding based on the entire record as to
Defendant’s status as of the time Det. Gliem patted him down.

The distinction between an arrest and an investigatory detention depends
upon the nature and the degree of the intrusion occasioned by the particular
encounter.zl "[A]t some point in the investigative process, police procedures
qualitatively and quantitatively can be so intrusive with respect to a subject’s

freedom of movement and privacy issues as to trigger the full protection of the

. Fourth and Fourteenth Amendments."zz Delaware cases have identified the

following factors as pertinent to the analysis: (l) the amount of force used by the

police; (2) the need for such force; (3) the extent to which the individual's freedom
of movement was restrained; (4) the physical treatment of the individual, including
whether handcuffs were used; (5) the number of agents involved; (6) the duration

of the stop; and (7) whether the target of the stop was suspected of being arnied.”

- _¢-_=__.-.+1

21 State v. Bida'le, 1996 WL 527323, at *7 (Del. Super. Aug. 9, 1996), a]j"d, 712 A.2d 475 (Del.
1993), (ciring U.S. v. Roper, 702 F.zd 934, 985 (i ith Cir. 1933)).

22 ld. ar *6 (¢iring Hayes v. Florida, 460 U.s. 811, 815-16 (1985)).

23 Id. (citing U.S. v. Perea, 986 F.Zd 633, 645 (Zd Cir. 1993)).

12

    

The Court finds Sgt. Diana’s testimony, as the officer who made the initial
traffic stop and initiated the roadside interviews, that he considered the passenger
to be the "immediate threat" under the circumstances and, thus, addressed him first
and left Defendant in the car with the engine running but within sight, credible and
relevant to the instant inquiry When asked about the running engine, Sgt. Diana
testified that he could not recall exactly when he instructed Defendant to turn it off
but that he believes he did so before Det. Gliem conducted the protective search
undemeath the passenger seat. Det. Gliem’s testimony corroborates this belief.

In order to determine whether a seizure is an investigatory detention or an
arrest, courts must examine "the reasonableness of the level of intrusion under the
totality of the circumstances."% Defendant argues and the evidence establishes
that Defendant was compliant throughout the traffic stop, roadside interview,
investigatory detention, and arrest, and that the passenger was the one who
admitted to smoking the marijuana and failed to provide identification. These facts
comport with the relatively non-intrusive treatment, i.e., the nature and degree of
the intrusion, occasioned by Defendant while he was being detained in his vehicle,
as he was allowed to remain in his vehicle alone. Therefore, the Court finds that

Defendant was merely being detained at this point, i.e., before the handgun was

found underneath the passenger seat.

___ _ =__;L._

 

.;¢n;¢»:

54

  

fci at *_7 wiring 1505-ff i)¢§herzy, 944 F.zd 91, 98 (2<1 cir. 1991)).
13

Because the circumstances changed once the gun was discovered underneath
the passenger seat, the Court must further analyze the reasonableness of the level
of intrusion to l)efendant in order to determine whether the seizure of Defendant
then became an arrest. The Court finds the testimony of Det. Gliem regarding the
moments after he found the handgun underneath the passenger seat credible and
relevant to the status of Defendant at this time. The pertinent facts are as follows:
(i) based on Sgt. Diana’s safety concerns, Det. Gliem` looked underneath the
passenger seat of the vehicle; (ii) at this time, Defendant was seated in the driver’s
seat; (iii) Det. Gliem saw a handgun underneath the passenger seat; (iv) Det. Gliem
immediately told Sgt. Diana to take the passenger into custody; (v) Sgt. Diana then
placed handcuffs on the passenger and put him into a unit car (vi) Det. Gliem then
ordered Defendant to show his hands and talked him out of the vehicle; (vii) at that
point, Det. Gliem had decided to detain Defendant based on the odor of burnt
marijuana, the handgun he had just seen, and for officer safety; (viii) Det. Gliem
then patted Defendant down for the same reasons; (ix) Det. Gliem found marijuana
in Defendant’s pant pocket; and (x) Det. Gliem then handcuffed Defendant and
stood him behind the vehicle while a complete search of the vehicle was made.

Though the record shows that the officers’ relative treatment of Defendant
escalated throughout the course of the detention, it appears to the Court that such
intrusions reasonably correlated to the officers’ discovery of the passenger’s

suspicious behavior and the gun hidden underneath the passenger seat. Before the
14

pat down, Defendant was never handcuffed and was allowed to remain in the
vehicle without direct supervision. Further, the officers’ testimony indicated that
Defendant was cooperative and that his behavior was otherwise unremarkable.
Once the handgun was discovered underneath the passenger seat, however, it
appears to the Court that the officers took reasonable steps under the circumstances
to protect themselves, which included restraining Defendant’s access to the vehicle
and making sure he was not in possession of another weapon. As a result, this
Court finds that the intrusions did not trigger the full protection of the Fourth
Amendment, and, thus, Defendant was merely being detained and was not under
arrest when he was patted down. Therefore, having determined that Defendant’s
status was as a detainee, the Court will proceed with its analysis under Terry and
its progeny and not, as the State argues, under the search incident to an arrest
exception. l

As discussed above, under certain circumstances it is permissible during a
lawfiil detention for law enforcement officers to conduct a protective pat down of a
defendant, but only if "the officer justifiably believes the detained individual may
be in possession of a weapon or weapons that could be used to harm the officer."z§
While the test for "justification" is "whether a reasonably prudent man in the

circumstances would be warranted in the belief that his safety or that of others was

__,____;._=_ __ :_-\:~::_-¢;.-o

125 Woo; v._ S;t:;b$ A.2d 1257, 1266 (Del. 2001) (citing 

Adams, 407 U.S. at 145-46 (noting that "the patdown is d€_;'“_
crime, but to allow the officer to pursue his investigation withou

15

 

also

  

in danger," the intrusion must be founded upon "the officer’s ability to point to
specifc and articulable facts."ze In this case, Det. Gliem testified that he
discovered a large handgun hidden under the passenger seat and that Defendant
had been sitting alone in the vehicle prior to its discovery. Sgt. Diana also testified
that it was after one o’clock in the morning when he initiated the traffic stop, and
that it was his job to patrol high crime areas. Under the circumstances, the Court
finds that the officers articulated a justifiable belief that Defendant may have been
in possession of a weapon, which led them to fear for their safety, and,
accordingly, the decision to conduct a pat down was proper.

The scope of a protective pat down is initially limited to the suspect’s outer
clothing, but the officer may go into the suspect’s pocket if he initially feels
something he reasonably believes to be contraband or a weapon in that pocket.27
Under the plain touch doctrine, "an officer may go into a suspect’s pockets if
pursuant to a lawful pat down he feels an item that he concludes with reasonable
certainty is contraband."zs In this case, however, there is no testimony whatsoever
from Det. Gliem, who conducted the pat down of Defendant, as to what he felt
before he went into Defendant’s pocket. Therefore, this Court cannot conclude

that Det. Gliem had any reasonable belief that Defendant had either a weapon or

-‘¢;.=-_`_-._,_»-=.\_i.a_»-\= _..-_=_¢__ =_1_:___.\-,

26 Cazdwezl, 770 A.zd at 53=1=._
27 Id. (citing Minnesota v. Dickerson, 508 U.S. 366 (1993)); see Terry, 392 U.S. at 29-30;

£ickerson v. Stal‘e, 620 A.Zd 857 (TABLE), 1993 WL 22025, at *2 (Del. Jan. 26, 1993).
Ia'.

l6

 v. ..

contraband in his pocket that would support extending the protective pat down of
Defendant to a search inside of Defendant’s pocket. This pat down, though
reasonable at its inception, thus, turned into an unreasonable search. Accordingly,

Defendant’s Motion to Suppress the evidence consisting of marijuana found on his

person is GRANTED.

B. Search of Vehicle’s Trunk”

Under the automobile exception to the warrant requirement under the Fourth
Amendment, when police have probable cause to believe that an automobile is
carrying contraband or evidence, they may search the vehicle without obtaining a
search warrant.30 Probable cause exists where, under the totality of the
circumstances, the facts known to the off`1cers, as those versed in the field of law
enforcement, are sufficient to warrant a man of reasonable prudence in the belief
that contraband or evidence of a crime will be found.3l The standard is of only a
"fair probability" of;_criminal activity, which is less than a preponderance of
evidence.32 Therefore, under the automobile exception, if probable cause justifies

the search of a lawfully stopped vehicle, it justifies the search of every part of the

`:.'.-¢`¢=1 ‘:_=:.__ _ _.=_,-=-,_,-_=._,__ =_-___._,,,

29 Notwithstanding the Court’s finding that the search of Defendant’s person was
unconstitutional, the Court considers the search of the vehicle’s trunk as independent of and
unrelated to the search of Defendant’s person and, thus, is not properly considered as fruit of the
poi"__;'_‘f'.i"zW:-;tree. _  __

o.f_;:h'_§g_:rzizpq; v. State, 494 A.Zd 1249, 1251 (Del. 
31 Illinois v. Gates, 462 U.S. 213, 243-244 (_l;__.`_ 
2006); Gargz»_@er_v. Smze, 567 A.zd 404, 409 qil§;af
 <D@v was

 
  
 
 
 

_ 900 A.zd 639,4,,,._”_§§¢@‘»‘ 
t .- v_ S¢aze, 539-assists a  `j'-;

 

  

l7

vehicle and its contents that may conceal the objects of the search.33 lt has long
been recognized by courts that the scope of this search is broader than others,
allowing for searches for evidence relevant to offenses other than the offense of

arrest,34 so long as there is probable cause to believe that evidence may be found in

the places searched.”

Defendant’s primary argument here is that "a full search of the vehicle was
not warranted since the weapon had already been located."% In support of this
contention, Defendant cites Gant v. Arz`zona; however, the Court finds that
Defendant’s reference to this case is inapposite, because the Gant court addressed
the search incident to an arrest exception to the warrant requirement, which search
is limited to the passenger compartment of a vehicle.37 Defendant also supplied the
Court with a Tenth Circuit case, United States v. Nielsen, which stands for the
proposition that the odor of burnt marijuana in a vehicle alone, when
uncorroborated by the eventual search of the trunk and when performed after a
consented-to search of the passenger compartment produced no evidence to
support the officer’s suspicions, is insufficient to establish probable cause to search
the vehicle’s trunk.38 Lastly, Defendant argued at the suppression hearing that

Delaware law requires proof of an exigency in order for the automobile exception
:: State v. Manley, 706 A.2d 5`35, 539 (Del. Super. 1996) (citations omitted}.‘_»
Id.

33 U.S. v. R@ss, 456 U.s. 798, 824 (1982).

36 Def.’s Mot. Supp. at 5.

33 Arzz@na v. G¢m¢, 556 U.s. 332, 343 (2009).

33 U.S. v. Nzelsen, 9 F.zd 1437, 1491 (lorh cir. 1993).

18

     

to apply. His contention and reliance on the Carroll doctrine is misplaced, as
Delaware no longer requires a proof of a particular exigency as the mobility of an
automobile is a sufficient exigency to satisfy the requirement.” Thus, this
argument is without merit.

The Court finds the following facts, when viewed from the standpoint of an
objectively reasonable police officer, relevant to its analysis of the challenged
sufficiency of probable cause to search the trunk for contraband or evidence in this
case: (l) the time of night in which the incident took place; (2) the "hot spot"
location in which the incident took place; (3) the odor of burnt marijuana in the
passenger compartment, which remained even after the passenger exited the
vehicle; (4) the evasive behavior of the passenger observed by Sgt. Diana as he
initiated the traffic stop; (5) the passenger’s admission to having smoked marijuana
earlier; (6) the suspicious behavior of the passenger observed by Sgt. Diana during
the roadside interview; (7) the large handgun found by Det. Gliem underneath the
passenger seat; and (8) the arrest of, at least, the passenger for the concealed

handgun.

By directing this Court to use the Nielsen case as a guide, Defendant fails to

acknowledge that probable cause must be measured by the totality of the

   
    

  
 

  

   
    

 
 

   __  at  _ __  f_  __   ..    
search of a vehicle occur contemporaneously with its lawful seiz re) (citing Texas v. White, 423
U.s. 67, 68 (1975)).

    
 

19

with the Delaware State Police and nearly four years with the New Castle County
Police, throughout which time he has participated in several thousand traffic stops.

On the night in question around 1105 am, Sgt. Diana was traveling
northbound on Route 9 in response to a high number of complaints of criminal
behavior in the area, when he observed a vehicle traveling southbound turn onto
Rogers Road. Because Sgt. Diana observed that the vehicle had no illuminated
lights on the back panel, he initiated an immediate traffic stop for an equipment
violation using the light bar and siren on his nonconventional car. Sgt. Diana
concluded that without any lights on the back panel and in the darkness, the vehicle
was in an unsafe condition and would either have to be towed or parked.

Upon activating the lights and siren, Sgt. Diana observed the passenger, who
was seated in the front seat, immediately react to the presence of law enforcement
by bending at the waist and dipping his right shoulder to reach underneath the front
passenger seat. Based on his past experience, Sgt. Diana interpreted this sudden
movement as consistent with the recovering or hiding of an item, such as a
handgun, so he elected to approach the driver’s side out of concern for his safety.

From his point of approach, Sgt. Diana immediately detected a strong odor
of burnt marijuana emanating from the vehicle. He engaged the driver in dialog,
introducing himself and requesting identification, and the driver willingly
complied. Sgt. Diana identified the driver as Defendant Dubose. Sgt. Diana also

requested identification from the passenger, who verbally provided his name,
2

circumstances. Thus, the Court must consider all of the facts known to the officers
when they searched the trunk, regardless of their state of mind at the time, in
determining whether there was "probable cause to believe that [the contraband or
evidence] may [have been] found" in the trunk.40 Therefore, the Court finds that
the Nielsen case is distinguishable, because the circumstances of the case at bar
include more than just an odor of marijuana and do not include a consented-to-
search of the passenger compartment that did not reveal any contraband or
evidence of criminal activity.

In Baxter v. Stczte, the Delaware Supreme Court held that the defendant
driver’s admission to officers that he possessed a handgun in his vehicle alone
established probable cause to search the entire vehicle/n In doing so, the Supreme
Court relied on its prior holding in Ledda v. State. In Ledda, the driver admitted to
having a machete in the trunk of the vehicle which prompted the Supreme Court to
hold that "[u]pon learning of the concealed machete, the officers had probable
cause to conduct a probing search of all compartments and containers within the
vehicle, including the trunk, which may have concealed other weapons.""z
Therefore, this Court finds that there was sufficient probable cause to believe
contraband or evidence of criminal activity would be found in the trunk to justify

Det. Gliem’s warrantless search, once he discovered the handgun concealed

 

 

~-..1_

‘*°_se_@ M;¢ryla,i;z v._z:ri'@le, 540 U.s. 366, 371 (2003); Ross, 456 

 

  

‘*‘ Bax¢er v. S¢aze, 788 A.zd 130 (TABLE),; 2002 WL 27435, ar *2 
42 Ledda v. sm¢e, 564 A.zd 1125, 1129 (1)@1. 1989).

20

 

  2002)§;.

underneath the passenger seat and in light of the passenger’s behavior throughout
the course of the evening, the odor of burnt marijuana, the time of night, and the
location of the stop. Accordingly, Defendant’s Motion to Suppress evidence found

as a result of the search of the vehicle’s trunk is DENIED.

C. Invent0ry Search

Because the Court has determined that both of the searches of the vehicle
were reasonable, it does not reach the question of whether the doctrine of
inevitable discovery based on the officers’ alleged inventory search of the vehicle

applies to the facts and circumstances of this case.
For the foregoing reasons, Defendant’s Motion to Suppress is hereby

GRANTED, IN PART, AND DENIED, IN PART.

IT IS SO ORDERED.

 

cc§:§ Prothonotary

21

which was later determined to be correct via DELJIS and fingerprints. Sgt. Diana
asked the passenger about the marijuana, and he said he smoked marijuana earlier.

As a result of the burnt marijuana odor and the passenger’s suspicious
actions as the vehicle was being pulled over, Sgt. Diana determined that the
passenger presented the most immediate threat and decided to continue his
interview with him outside of the vehicle due to his concern for officer safety as it
was still a two-on-one situation. Sgt. Diana asked the passenger to step out of the
car, and he complied. Sgt. Diana did not handcuff him. At this point, Sgt. Diana
was still alone and, thus, opted to leave Defendant in the vehicle with the engine
running and the passenger door open, but was able to see him the entire time. At
some point, Sgt. Diana recalls directing Defendant to turn off the engine.

While continuing his interview with the passenger outside of the vehicle,
Sgt. Diana observed the following behavior from him that continued to elevate his
concern about some criminal behavior being afoot: very limited eye contact,
looking around into the distance toward the southbound shoulder; fidgeting with
his hands; nervously shuffling his feet, and looking over his shoulder across
Rogers Road. Sgt. Diana perceived that the passenger’s anxiety was building as
his stress level increased, and based on his training and experience, he interpreted
the passenger’s actions as consistent with fight or flight behavior. He was also
concerned that there was a weapon within the driver’s wingspan with which the

passenger might be able to rearm himself if he returned to the vehicle.
3

While Sgt. Diana was engaged in this traffic stop, Delaware State Police
Detective Jeffrey Gliem ("Det. Gliem") was engaged in another traffic stop a short
distance away. Det. Gliem has nearly 10 years experience with the Delaware State
Police and at the time in question was assigned to the Govemor’s Task Force.
When he received Sgt. Diana’s call for backup, Det. Gliem terminated his traffic
stop and proceeded to Sgt. Diana’s scene, which he could see from his location.

Sgt. Diana relayed to Det. Gliem that he needed to do a safety sweep
underneath the passenger seat. Det. Gliem testified that, based on his experience in
working withllSgt. Diana over 100 times in the past, he assumed Sgt. Diana was
directing him to perform a safety sweep for a weapon because of the tone of
concem that he detected in Sgt. Diana’s voice, even though the word "weapon"
was not specifically mentioned. Det. Gliem also noted that at this time, while he
stood outside of the vehic1e, he smelled burnt marijuana coming from the
passenger compartment, as if someone had just smoked marijuana in the car.

As the passenger door was open, Det. Gliem poked his head inside of the
vehicle and looked under the passenger seat. He observed a large handgun lying
on its side with its barrel pointing toward the trunk and its handgrips facing the
right door. Det. Gliem perceived the handgun’s orientation as being consistent
with a right-handed person having placed it under the seat. Without mentioning

that he had found a gun, he then instructed Sgt. Diana to take the passenger into

custody, which Sgt. Diana did, and ordered Defendant, who remained in the
4

driver’s seat, to show his hands. Det. Gliem then slowly talked Defendant out of
the car and placed him into custody.

Det. Gliem testified that Defendant was under detention because he didn’t
sign a warrant for his arrest. He testified that he detained Defendant based on the
odor of burnt marijuana, the weapon in the car, and for safety reasons. Det. Gliem
then proceeded to pat him down and found l0 bags of marijuana in his front
pocket. He then put Defendant in handcuffs and stood him behind the vehicle,
while the officers conducted what Det. Gliem described as an inventory search,
after which Defendant was put into a unit car and the vehicle was towed. Det.
Gliem testified that every time a car is towed, they conduct an inventory search.
Sgt. Diana also testified that whenever a car is towed by the Delaware State Police,
an inventory search is performed in order to safeguard the property and inventory
the contents in case there is a claim later that an item was destroyed or stolen.

Det. Gliem testified that he searched the entire vehicle at the scene and
found a second gun inside the vehicle’s trunl<. This gun’s serial number appeared
to have been scratched off.

Sgt. Diana remained on the scene until the vehicle was towed to Troop 2.



Defendant argues that the warrantless searches of the vehicle violated his

constitutional rights, because neither were supported by probable cause nor

complied with any applicable exception to the warrant requirement. Defendant

5

further argues that the warrantless search of his person violated his constitutional
rights, because it was neither supported by reasonable suspicion to suspect that he
was anned and dangerous nor probable cause arrest him in the first place.

The State argues that the officers had sufficient reasonable suspicion to
perform a limited protective search underneath the passenger seat of the vehicle.
The State also argues that probable cause existed to search the entire vehicle,
including the trunk, based on the odor of burnt marijuana, and to arrest Defendant
and search him incident to the arrest, based on the odor of burnt marijuana and the
concealed handgun found underneath the passenger seat. Alternatively, the State
argues that the doctrine of independent discovery applies to the handgun found

inside the trunk, as a result of the inventory search.

-.'~;§ta”d

On a motion to suppress evidence seized during a warrantless search, the

State bears the burden of establishing that the challenged search or seizure did not

violate the rights guaranteed a defendant by the United States Constitution, the
Delaware Constitution, and Delaware statutory law.3 The burden of proof on a

motion to suppress is proof by a preponderance of the evidenced

3 Hum‘er v. State, 783 A.2d 558, 560-61 (Del. 2001).
4 State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010) (citing State v. Bz'en-
Aime & Smalls, 1993 WL 138719, at *3 (Del. Super. Mar. l7, l993).

6



An individual’s right to be free from unlawful governmental searches and
seizures in Delaware is secured by two independent sources.$ The Fourth
Amendment of the United States Constitution guarantees "the right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable

searches and seizures . . . ."6 Likewise, Article I, Section 6 of the Delaware

Constitution guarantees that "[t]he people shall be secure in their persons, houses,

. . 7
__ papers and possessions, from unreasonable searches and seizures . . . ." Searches

and seizures are presumptively unreasonable, unless they are authorized by

warrants or fall under a recognized exception to the warrant requirements

Where it is shown that there has been a violation of a defendant’s right to be
free from illegal searches and seizures, the exclusionary rule acts as the remedy.9
The rule requires that any evidence recovered or derived from an illegal search and
seizure must be excluded from evidence, in the absence of an independent source

for or a situation allowing for the inevitably discovery of the evidence.m

-:__- _=__=-  -»-

   

g  righ_t has been codified by title ll, chapter 23 of the Delaware Code. ll Del. C. § 2301 et
seq.
6 U.S. Const. amend. IV. The Fourteenth Amendment makes the Fourth Amendment applicable

to the states. See Mapp v. Ohio, 367 U.S. 643, 655 (l96l).

7 Del. Const. art. l, § 6.
8 Mason v. State, 534 A.Zd 242, 248 (Del. 1987).

9 J@nes v. S¢are, 745 A.zd 356, 872(1)@1. 1999).
10 Id. (citations omitted).

7

A. Searches F0llowing the Traff`lc Stop

A traffic stop is regarded as "a seizure of a vehicle and its occupants by the
State," and is only reasonable if supported by reasonable suspicion of criminal
activity or probable cause to believe that a traffic violation has occurred. ll
Reasonable suspicion means an offlcer’s ability to point to specific and articulable
facts which, combined with all rational inferences, reasonably warrant the
intrusion.lz lt was made clear at the suppression hearing that Defendant concedes
that the initial traffic stop was proper, and it appears to the Court that Defendant
also concedes that the stop was properly extended because of the odor of
marijuana. According to defense counsel, Defendant’s point of contention,
however, arises at least at the moment Sgt. Diana instructed Det. Gliem to search
under the passenger seat, if not earlier when the passenger admitted to smoking
marijuana. Defendant argues that this course of action constituted an illegal
search, because the officers fail to articulate any reasonable basis to suspect that
Defendant was armed and dangerous or that he illegally possessed a firearm. The
State argues that the officers had both reasonable suspicion to conduct a limited

protective search of the vehicle and probable cause to search the entire vehicle

under the automobile exception

 

.__:Fx=»-_¢_:=,__:._` `-_*~_ - _ _

" Celdwe_z__;__v. s¢e_;je, 780 :>..2§1 1037, 1045 (De1. 2001); see Whren v_ Us., 51__7__U.s. 806, 810

     
  

(1996);- v_  422 U.s. 873, 880-81 (1975) (é?i&?‘ae§¢_~:rerry v. 1392 U.s. 1,
16-19   M'Wds, 2 A.zd 147, 151 (Del. super.  ep"d, §e:::eeeeav’_d 782 (De1.

 

2011).
‘2 coleman v. s¢eze, 562 A.2d 1171, 1174 (Del. 1989).

8

1. Limited Search of Vehicle

The Court finds, however, that proper analysis of the legality of the search
underneath the passenger seat implicates the issue of whether the officers’
suspicions that the passenger was armed and dangerous were reasonable. In the
context of an investigatory detention, it has been long held that police officers may
conduct a limited protective search for concealed weapons under certain
circumstances.” The issue is "whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was
in danger."m Because a detention is not an arrest, the possibility of access to
weapons in the vehicle is not mooted by an officer interviewing a suspect outside
of the vehicle, because if not arrested the suspect may return to the vehicle after the
interview is completed.ls Therefore, so long as officers possess "an articulable and

objectively reasonable belief that the suspect is potentially dangerous" and the

protective search does not excessively invade the defendant’s rights, their search of

the vehicle will comport with the scope of a Terry stop and will be reasonable.l°"
The record reflects that in the course of issuing a citation for the traffic

violation, Sgt. Diana uncovered facts that independently and reasonably warranted

 

    
  

  
  

 

.~   _.  ~"""1715, 717 (Dai. 1972) (arrrrarr.~,§”  v.  rr rf:§rov U.s. 143, 146
 Mz`d.__"_' _'_.§§z v. Long, 463 U.S. 1032,   (l`x`§el` "-_ __;M%i;_-when no arrest is

made;_' officers may search the car if they reasonably believe the suspect is dangerous and may

 295 ar

  

 control  'ons).
*i"`$`~'j§§§ie v.i_ ` ,  ~» ml__.636, 637 (Del. l973) (citing Terry, 392 U.S. at 27).

 

‘5 saa rd.; srara v. Campba`z"z,"`éoi§ wL 5178407, ar *2 (Dai. super Aug. 28, 2015) (¢rring Laag,

463 U.s. ar 1051).
" Campban, 2015 wL 5178407, ar *3 (arrrng Laag, 463 U.s. ar 1051).

9

