State of Delaware v. Leroy Berry

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, )

)

)

)

v. ) Cr. A. No. 1705013235

)

LEROY A. BERRY, )

)

Defendant. )

)

Submitted: February 22, 2018

Decided: April 20, 2018

Samuel B. Kenney, Esq. J ames M. Stiller, Jr., Esq.

Deputy Attorney General Schwartz & Schwartz, P.A.

Department of Justice 1140 South State Street

820 North French Street, 7th Floor Dover, DE 19901

Wilmington, DE 19801 Attorney for Defendant

Attorney for the State of Delaware

MEMORANDUM OPINION ON

DEFENDANT’S MOTION TO SUPPRESS

WELCH, J.

I. PROCEDURAL POSTURE

On June l, 2017, Defendant Leroy A. Berry (“Def`endant”) Was charged With Resisting

Arrest, in violation of 11 Del. C. § l257(b); Leaving the Scene of` a Property Collision Accident,

in violation of` 21 Del. C. § 4201(a); Failure to Provide Information at Collision Scene Resulting

in Property Damage, in violation of` 21 Del. C. § 4201(b); Driving a Vehicle Under the Influence

of` Illicit or Recreational Drugs Within Four Hours of` Driving, in violation of` 21 Del. C. §

4177(a)(6); and Inattentive Driving, in violation of 21 Del. C. § 4176(b). On June 6, 2017,

Defendant entered a plea of` not guilty. On November 7, 2017, Defendant filed a Motion to

Suppress (“Motion”), moving to suppress evidence of his initial stop, subsequent arrest, and blood

draw.1 On January 2, 2018, a motion hearing Was held in the Court of` Common Pleas.

Following the hearing, the Court reserved its decision and ordered supplemental briefing

on issues raised in the Motion. Specifically: (1) whether there Was reasonable articulable suspicion

for the police officer to detain Defendant f`or further investigation related to driving under the

influence and/or the companion charges, (2) Whether there Was probable cause to arrest Defendant

for driving under the influence and/or the companion charges, and (3) Whether there existed

sufficient probable cause Within the four-corners of` the search Warrant affidavit for the Justice of`

the Peace Court magistrate to sign the search Warrant to draw Defendant’s blood.

On January 30, 2018, the State filed its Response to Defendant’s Motion to Suppress

(“State’s Response”).2 And, on February 22, 2018, Defendant filed his Reply to State ’s Response

to Defendant’s Motion to Suppress (“Def`endant’s Reply”).3 This is the Court’s memorandum

opinion on Defendant’s Motion.

1 Defendant’s Motion to Suppress (hereinafter “Def`endant’s Motion”).

2 State’s Response to Defendant’s Motion to Suppress (hereinafter “State’s Response”).

3 Defense Reply to State’s Response to Defendant’s Motion to Suppress (hereinaf`ter “Defendant’s Reply”).

2

II. FACTUAL HISTORY

The suppression hearing consisted of testimony from the State’s witness, Officer First

Class Michael Hilliard (“Officer Hilliard”) of _the Middletown Police Department,4 and a portion

of Officer Hilliard’s body camera recording (“BCR”).5 Officer Hilliard’s testimony is summarized

below.6

On May 20, 2017, Officer Hilliard testified that he received a radio transmission from the

dispatch center regarding a property collision at 420 East Main Street, which is the address of the

“Chicken House.”7 The Chicken House is located at the end of` a row of stores in Middletown

Crossing Shopping Center. Cement pillars are stationed in between the storefronts as well as at

the end of each row. Shortly after 7:26 p.m., Officer Hilliard arrived at the Chicken House and

spoke with Nancy Pacheco (“Ms. Pacheco”), the owner of the Chicken House. She informed him

that Defendant’s vehicle had collided with a cement pillar outside of the Chicken House and

Defendant had subsequently exited his vehicle, walking down the street onto Dickenson

Boulevard. Because Defendant was not far-off`, Ms. Pacheco was able to point him out as he

walked down Dickenson Boulevard. Officer Hilliard then left the scene of the accident to pursue

Defendant.

Once Officer Hilliard was near Defendant, he parked his patrol vehicle at the intersection

of Dickenson Boulevard and East Main Street.8 At this point, Defendant was about to cross the

street when Officer Hilliard arrived. From across the intersection, Officer Hilliard beckoned

4 Officer Hilliard testified that he had been employed with the Middletown Police Department for three years and

received training from the New Castle County Policy Academy related to detecting DUI. This training was based on

National Highway Traffic Saf`ety Adrninistration (“NHTSA”) standards

5 Officer Hilliard’s body camera recording (“BCR”) was played according to a stipulation by both parties; However,

only video file ending in #1935 was played for the Court.

6 Relevant portions of the BCR will be discussed inj€'a.

7 Officer Hilliard’s BCR did not record this incident and/or the recording was not played at the suppression hearing.

8 Officer Hilliard’s BCR begins recording at this point in time.

3

Defendant to cross and speak with him. Defendant turned and acknowledged Officer Hilliard, but

did not cross the intersection In his interaction with Defendant, Officer Hilliard testified that

Defendant appeared to be “looking past” Officer Hilliard as if “something was going on” behind

him. Officer Hilliard did not believe Defendant was responsive to his questions. He found

Defendant’s comments to be mumbled and that Defendant would not turn and talk to Officer

Hilliard when Defendant was asked direct questions. Officer Hilliard testified that he believed

Defendant was “out of it” and his responses were not similar to how “a real person would respond

to a person speaking with them.” Officer Hilliard testified that Defendant’s hands remained

clenched around his water bottle when the two were conversing.

Believing something was awry, Officer Hilliard asked Defendant to place his hands behind

his back.9 Officer Hilliard testified that after he asked Defendant numerous times to place his

hands behind his back, Defendant “did not respond right away,” so Officer Hilliard pulled

Defendant’s arms behind his back for him. When Officer Hilliard first attempted to move

Defendant’s arms, Defendant “tensed and tried to pull away from” him. Officer Hilliard was able

to handcuff Defendant and place him in Officer Hilliard’s patrol vehicle.

Officer Hilliard then spoke again with Ms. Pacheco who confirmed that Officer Hilliard

had picked up the man she saw seated in the driver’s seat of a vehicle that had collided with the

cement pillar. 10 She further stated that Defendant had stayed seated in the Vehicle for

approximately ten minutes before he exited the vehicle.11 In her opinion, she believed Defendant

was “high.”12

9 Officer Hilliard testified that he was detaining Defendant at this point for “an investigation related to the accident.”

10 She did not witness the accident, but was informed of the collision by an employee.

11 She noted that customers of the Chicken House had helped him exit his vehicle.

12 Officer Hilliard testified that during the investigation, his supervisor, Sergeant Saunders, arrived at the scene and

also gave his opinion that, based on previous interactions, Defendant “did not seem like his normal self.” In the

BCR, the wind muffles this interaction.

4

Officer Hilliard then transported Defendant to the Middletown Police Departrnent to

conduct a further driving under the influence (“DUI”) investigation, At the Middletown Police

Department, Officer Hilliard read Defendant his Mirana'a rights and Defendant agreed to speak

with him. Defendant again denied ingesting drugs or alcohol. At the suppression hearing, Officer

Hilliard noted that Defendant seemed appropriately dressed and “orderly.” Defendant did not

appear discombobulated, but Officer Hilliard described his facial expression as a blank stare.

Officer Hilliard again testified that Defendant did not provide coherent answers to his questions.

Officer Hilliard further testified that Defendant asked repetitive questions regarding the process

and Officer Hilliard ended up repeating himself multiple times. Officer Hilliard did not notice an

odor of alcohol. Likewise, Defendant refused to perform field sobriety tests, including refusing to

blow into the Preliminary Breath Test (“PBT”). Because of` these refusals, a Drug Recognition

Expert (“DRE”) refused Officer Hilliard’s request to travel to the Middletown Police Departrnent

and perform a DRE evaluation.

Upon learning a DRE would not be responding to his location, Officer Hilliard drafted a

Blood Search Warrant (“Warrant”) and Search Warrant Affidavit (“Affidavit”) to draw

Defendant’s blood. 13 Officer Hilliard’s Affidavit was a summary of his testimony at the

suppression hearing. Based on the Affidavit, the Justice of the Peace Court 11 (“JP Court”)

approved the Warrant.14 Officer Hilliard then contact Omega Diagnostics for a blood draw and

Maria Cruz, an Omega phlebotomist, was sent to the Middletown Police Department. Ms. Cruz

withdrew Defendant’s blood at approximately 12:40 a.m. on May 21, 2017.

13 State’s Exhibit 1.

14 Id.

III. PARTIES’ CONTENTIONS

Relying on the Fourth Amendment to the United States Constitution, Defendant requests

that the Court “suppress all evidence of wrong doing; or in the altemative, suppress the results of

the blood test.”15 In his Motion, Defendant argues that Officer Hilliard “did not have reasonable

articulable suspicion [], much less probable cause [], to arrest Defendant for DUI and/or to then

administer a blood draw.”16 Defendant asserts that a “minor property damage collision” without

an odor of alcohol or drugs is insufficient to support Defendant’s arrest and subsequent blood

draw.17 Defendant concurrently argues that the blood draw violates 21 Del. C. § 4177(a)(6)

because Defendant’s blood was not drawn “within [four] hours of driving.”18

In the State’s Response, the State requests that the Motion be denied. The State argues that

Officer Hilliard possessed reasonable articulable suspicion to detain and investigate Defendant,

Officer Hilliard possessed probable cause to arrest Defendant for driving under the influence of

drugs, and the Affidavit presented to the JP Court Magistrate contained sufficient facts to support

19 Regarding reasonable

a probable cause determination under a “Four-corners” analysis.

articulable suspicion, the State argues that a property damage collision in which a defendant flees

the scene without providing the appropriate information violates Delaware law and, therefore,

20 Regarding Defendant’s arrest, the State relies on the probable

provides sufficient suspicion.

cause standard, arguing that Defendant was linked to the accident as the driver, engaged in

incoherent speech, possessed a blank stare and pinpoint pupils, and_in the opinion of a witness_

was “high.”21 In addition, the State argues that Officer Hilliard had probable cause to arrest

15 Defendant’s Motion at 3 (citing West v. State, 143 A.3d 712, 715 (Del. 2016)).

16 Id. at l.

17 Id.

18 Ia'. at 2 (quoting 21 Del. C. § 4177(a)(6)) (internal quotation marks omitted).

19 State’s Response at 5, 6, 7.

20 Ia'. at 5-6.

21 Id. at 6-7.

Defendant for resisting arrest because Defendant was “tensing his body and arms and refusing to

place his hands behind his back” when Officer Hilliard handcuffed him.22 Finally, the State argues

that probable cause exists on the face of the Affidavit.23

In Defendant’s Reply, Defendant disagrees with the State’s characterization of his

demeanor during the encounter with Officer Hilliard. Defendant asserts that his behavior was

more appropriately interpreted as apprehension and fear.24 Likewise, his pinpoint pupils could be

readily explained by the brightness of May 2021, and his “resisting” was merely an attempt not to

drop his water bottle.25 Defendant also elaborates on his original arguments. First, Defendant

seems to concede that Officer Hilliard had reasonable articulable suspicion to stop Defendant and

investigate whether he was the individual who left the scene of the collision.26 Second, Defendant

argues that Officer Hilliard did not possess probable cause to arrest Defendant for resisting arrest

because it is unclear whether Defendant’s arms “tensed up” in order to prevent the water bottle

from falling or resist the arrest.27 Third, Defendant argues Officer Hilliard lacked reasonable

articulable suspicion to investigate Defendant for a DUI as there was no alcohol or drug odor,

Defendant’s pupils reacted to the sunlight, and the BCR refutes Officer Hilliard’s descriptions of

Defendant’s facial expressions and speech.28 Fourth, the BCR does not support probable cause to

arrest Defendant for DUI. Fifth, the four-corners of the Affidavit do not support a finding of

probable cause when the Affidavit omits mention of Officer Hilliard’s NHTSA training in

22 Id. at 7.

23 Id. at 7-9.

24 Defendant’s Reply at 1.

25 ld. at 1-2.

26 Id. at 2 (“[Officer] Hilliard appears to have had [reasonable articulable suspicion] to stop Defendant , . . .” (emphasis

added)).

27 Id.

28 Id. at 2-3.

impairment detection and “what inferences can be drawn from pinpointed pupils . . . on a bright

day.”29

IV. DISCUSSION

On a Motion to Suppress, the State must prove by a preponderance of evidence that the

underlying stop and subsequent arrest are based on sufficient evidence.30 However, as Defendant’s

Motion relates to the Affidavit, Defendant bears the burden of challenging the validity of the search

warrant and proving that the search or seizure was unlawf"ul.31

A. Reasonable Articulable Suspicion to Stop Defendant

The Fourth Amendment to the United States Constitution, which applies to the states

through the Fourteenth Amendment, protects individuals against unreasonable searches and

seizures.32 The Delaware Supreme Court has stated:

Under Terry v. Ohio, an officer is justified in stopping an individual when

the officer possesses a reasonable, articulable suspicion that the individual was

committing, had committed, or was about to commit a crime. This Court has

recognized that an arresting officer is “entitled to rely on information relayed to

him through official channels” and that “[t]he arresting officer himself need not be

apprised of` the underlying circumstances which have risen to a conclusion of

probable cause.”i’3

The Supreme Court has further held that a “police officer may conduct a Terry stop of an

individual who matches the description of a suspect provided to the officer either by a reliable

informant or over a olice radio broadcast.”34 A court’s anal sis of the olice officer’s sus icion

y

is based on the totality of the circumstances_“through the eyes of a reasonable, trained police

29 Id. at 3-4.

30 See State v. Predeoux, 2013 WL 5913393, at *l (Del. Super. Nov. 4, 2013); see also State v. Aklilu, 2017 WL

66340, at *3 (Del. Com. Pl. Jan. 4, 2017).

31 See State v. Murray, 2017 WL 5668030, at *5 (Del. Com. Pl. Nov. 20, 2017) (Welch, J.) (quoting State v.

Dopirak, 2017 WL 3129234, at *l (Del. Super. July 24, 2017)).

32 U.S. CONST. amends. IV & XIV, § 1.

33 Thomas v. State, 8 A.3d 1195, 1198 (Del. 2010) (f`ootnotes omitted).

34 Ia'.

officer in the same circumstances combining objective facts with a reasonable officer’s subjective

interpretation of those facts.”35

The Court agrees with the State that Officer Hilliard possessed reasonable articulable

suspicion to stop Defendant and investigate Whether he had recently been involved in the

Middletown Crossing Shopping Center collision. Officer Hilliard was dispatched to the Chicken

House for a one-vehicle collision; Ms. Pacheco provided a coherent story of the incident that

involved a fleeing driver; and she was not only able to describe the individual, but point him out

on Dickenson Boulevard. Since information from reliable informants36 and concerned neighbors37

can support reasonable articulable suspicion, the Court similarly finds that a business owner who

provides a firsthand description of the accident and driver has satisfied the reasonable articulable

suspicion standard.

Therefore, Officer Hilliard possessed reasonable articulable suspicion to stop and

investigate Defendant.38

33 Harris v. State, 871 A.2d 1128, 2005 WL 850421, at *2 (Del. Apr. 11, 2005) (TABLE).

36 See Purnell v. State, 832 A.2d 714, 720 (Del. 2003).

37 Harris, 871 A.2d 1128, 2005 WL 850421, at *2 (“a concerned citizen called police around 11:30 p.m. to report

suspicious activity as it was occurring in her driveway”).

38 Note that Defendant is not arguing that Officer Hilliard lacked reasonable articulable suspicion to investigate the

one-vehicle accident, This argument would clearly fail. See State v. Shutak, 2017 WL 4339690, at *4 & ns. 18-19

(Del. Com. Pl. Sept. 29, 2017).

B. Reasonable Articulable Suspicion to Proceed to a DUI Investigation

Pursuant to the Fourth Amendment of the United States Constitution,39 the Court finds that

Officer Hilliard possessed reasonable articulable suspicion to proceed from an accident

investigation to a DUI Investigation.40 As this Court has stated,

The Delaware Supreme Court has defined reasonable articulable suspicion

as an “officer's ability to ‘point to specific and articulable facts which, taken

together with rational inferences from those facts, reasonably warrant th[e]

intrusion.’ ” “Reasonable suspicion must be evaluated in the context of the totality

of the circumstances as viewed through the eyes of a reasonable, trained police

officer in the same or similar circumstances, combining objective facts with such

an officer’s subjective interpretation of those facts.”41

The standard is not exacting,42 and a police officer’s belief that a defendant is confused

can be a vital factor.43 In the present case, Officer Hilliard and Defendant engaged in the following

exchange when Officer Hilliard approached Defendant on Dickenson Boulevard.

HILLIARD: “Hey sir, what’s going on? Come here.”

BERRY: *turns*

HILLIARD: “Were you just driving a car?”

BERRY: “Huh?”

HILLIARD: “Were you just driving a car?”

39 Delaware has codified its constitutional standards for lawful detentions and stops in 11 Del. C. § 1902. See State v.

Powell, 2002 WL 1308368, at *5 (Del. Super. June 4, 2002). However, Defendant has not alleged a violation of a

Delaware Constitutional provision. See Fowler v. State, 148 A.3d 1170, 2016 WL 5853434, at *1 (Del. Sept. 29,

2016) (TABLE); accord Jenkins v. State, 970 A.2d 154, 158 (Del. 2009) (“To present properly an alleged violation

of the Delaware Constitution, a defendant must discuss and analyze one or more of the following non-exclusive criteria

. . . .”). Defendant’s briefing not only omits reference to the Delaware Constitution, but expressly relies on the United

States Constitution.

40 Officer Hilliard testified that_in his mind_the transition from an accident investigation to a DUI investigation

occurred when Officer Hilliard returned to the Chicken House and questioned Ms. Pacheco.

41 State v. Lane, 2014 WL 904785, at *3 (Del. Com. Pl. Mar. 10, 2014) (footnotes omitted) (quoting Jones v.

State, 745 A.2d 856, 861 (Del. 1999)).

42See, e.g., State v. Rothenberg, 2017 WL 2257381, at *3 (Del. Super. May 22, 2017) (odor of alcohol and traffic

offense were sufficient).

43 See State v. McDowell, 2016 WL 6462143, at *3 & n.10 (Del. Super. Oct. 31, 2016) (denoting in a footnote the

extent of defendant’s confusion during the investigation).

10

BERRY: “What?”

HILLIARD: “Were you just driving a car?”

HILLIARD: “Were you just driving a car?”

BERRY: “Where?”

HILLIARD: “What’s that?”““

BERRY: “Huh?”

HILLIARD: “Were you just driving a car?”

BERRY: *silent*

HILLIARD: “What’s going on?”

BERRY: “What’s up?”

HILLIARD: “Were you just driving a car?”

BERRY: *affirmative head nod*

HILLIARD: “What kind of car were you driving?”

BERRY: *raising eyebrows and hands*

HILLIARD: “What kind of car were you driving?”

BERRY: “What’s up?”

HILLIARD: “Alright, put your hands behind your back for me.” (attempting to handcuff

Defendant)

HILLIARD: “Put your hands behind your back.”

HILLIARD: “Put your hands behind your back.”

HILLIARD: “Put your hands behind your back.”

HILLIARD: “Put your hands behind your back.”

44 Based on the BCR, it appears that Officer Hilliard does not hear Defendant’s response of “Where” and, thus, Officer

Hilliard repeats the question. The BCR evidences a windy day and a sof`ter tone to Defendant’s voice.

ll

HILLIARD: “Put your hands behind your back.”

BERRY: “What’s going on?”

While Defendant presented no difficulty walking or speaking, and no odor was present, the

Court finds that the above exchange supports a finding of reasonable articulable suspicion. The

facts in this case not only involve a one-vehicle accident, but a defendant who has wandered away

from the scene of the accident and_in Officer Hilliard’s view_seemed particularly unresponsive

to questioning. Officer Hilliard’s subjective interpretation cannot be overlooked in this analysis.

When those subjective opinions are combined with the objective facts, the Court finds that

reasonable articulable suspicion existed to proceed to a DUI investigation,

C. Probable Cause to Arrest Defendant for Resisting Arrest

Officer Hilliard possessed probable cause to arrest Defendant for resisting arrest. The

Delaware Supreme Court has noted:

We have previously held that “[t]he probable cause standard is incapable of

precise definition because it deals with probabilities and depends on the totality

of the circumstances.” The substance of all probable cause definitions, however, is

a “reasonable ground for belief of guilt,” which must be particular to the person

seized. Probable cause exists where the facts and circumstances within the arresting

officer’s knowledge, of which he has trustworthy information, are sufficient in

themselves to warrant a person of reasonable caution to believe that an offense has

been committed The standard for probable cause requires less evidence than would

justify a conviction and does not require the officers to have facts within their

knowledge that would establish that the arrestee's guilt is more likely than not. Only

a fair probability, not a prima facie showing, of criminal activity is the standard for

probable cause.

“To determine whether an officer had probable cause to arrest an individual,

we examine the events leading up to the arrest, and then decide ‘whether these

historical facts, viewed from the standpoint of an objectively reasonable police

officer, amount to’ probable cause.” Hypothetically innocent explanations for facts

learned during an investigation do not preclude a finding of probable cause.45

45 Staffora' v. State, 59 A.3d 1223, 1229 (Del. 2012) (footnotes omitted).

12

Pursuant to Title 11, § 1257(b) states, “[a] person is guilty of resisting arrest when the person

intentionally prevents or attempts to prevent a peace officer from effecting an arrest or detention

of the person or another person or intentionally flees from a peace officer who is effecting an arrest

or detention of the person.”46 Regarding intent, 11 Del. C. § 231(b) states,

A person acts intentionally with respect to an element of an offense when:

(1) If the element involves the nature of the person's conduct or a result

thereof, it is the person's conscious object to engage in conduct of that

nature or to cause that result; and

(2) If the element involves the attendant circumstances, the person is aware

of the existence of such circumstances or believes or hopes that they exist.47

The Delaware Supreme Court has held that “conscious object” is not “simply requiring the person

be aware of the circumstances and resulting consequences.”48 lnstead, a synonym for “conscious

object” would be “purpose.”49

1n the present case, Defendant intentionally prevented Officer Hilliard from effectuating

an arrest when he refused to place his hands behind his back despite repeated requests from Officer

Hilliard, and when he pulled away from Officer Hilliard. This Court has found probable cause for

resisting arrest when a defendant “pull[s] away” from the arresting police officer.50 Given that

Officer Hilliard provided ample time for Defendant to comply,51 the Court sees no reason why

Defendant’s conduct does not provide probable cause to arrest him pursuant to § 1257(b).

46 11 Del. C. § 1257(b) (emphasis added).

47 11 Del. C. § 231(b) (emphasis added); accord State v. Watkins, 2016 WL 8999312, at *5 & n.9 (Del. Com. Pl. Feb.

2, 2016) (Welch, J.).

411 Phillips v. State, 154 A.3d 1146, 1161 (Del. 2017).

49 WEBSTER’S II DlCTlONARY 577 (3d ed. 2005) (defining “purpose” as “[a]n intended or desired result : goal”).

50 See State v. Issa, 2013 WL 8845040, at *2, 6 (Del. Com. Pl. Feb. 1, 2013); accord State v. Dorazio, 2014 WL

7007891, at *l, 5 (Del. Super. Nov. 24, 2014) (Manning, C.) (“It is also worth noting that at the point in time Defendant

pulled away from the officer, the officer then had probable cause to arrest Defendant for Resisting Arrest under

Delaware law.”).

51 See State v. Coreano, 2009 WL 2859163, at *2, 7 (Del. Com. Pl. Apr. 21, 2009) (fmding that five seconds Was an

insufficient timeframe for defendant to comply with the police officer’s request to exit the defendant’s vehicle). Based

on the BCR, Defendant was given approximately twenty seconds to comply before he was handcuffed

13

Defendant has argued that he cannot be found guilty of resisting arrest because he was not

intentionally preventing his arrest, but was intentionally attempting to hold onto his water bottle.52

Defendant’s argument is misguided. Section 1257(b)’s language, “intentionally prevents or

attempts to prevent a peace officer from effecting an arrest,” is not focused on why a defendant

prevents the arrest from occurring, but whether his words or actions evidence a purpose of

preventing the arrest.53 Likewise, Defendant provides the Court with no case law for its assertion.

Therefore, the Court is unpersuaded by Defendant’s focus on the motives behind his intentional

prevention.

D. Probable Cause to Arrest Defendant for DUI

Officer Hilliard did not possess probable cause to arrest Defendant for a DUI. The tenets

of the probable cause standard, as applied to DUI offenses, have been articulated previously:

[P]robable cause is an “elusive concept which lies somewhere between

suspicion and sufficient evidence to convict.” Probable cause exists when “an

officer possesses information which would warrant a reasonable man in believing

that such a crime has been committed.” In the context of DUI offenses, the arresting

officer must possess facts which, when viewed in the totality of the circumstances,

suggest a fair probability that the defendant was driving under the influence. In

essence, the State has to establish that the arresting officer “possess[ed] a quantum

of trustworthy factual information sufficient to warrant a man of reasonable caution

in believing a DUI offense ha[d] been committed.” Generally, probable cause to

arrest a driver for a DUI offense is measured by the arresting officer’s observations

of the defendant, including the defendant’s performance on field sobriety tests.”54

Pursuant to 21 Del. C. § 4177(i), a police officer is authorized to arrest a person suspected of

fleeing the scene of an accident involving said person if the police officer possesses probable cause

to believe § 4177 has been violated.55

52 Defendant’s Reply at 2.

53 11 Del. C. § 1257(b).

54 See Shutak, 2017 WL 4339690, at *5 (quoting State v. Diver, 2017 WL 2558265, at *4 (Del. Com. Pl. June 13,

2017)).

55 21 Del. C. § 4177(i).

14

In this case, after Officer Hilliard placed Defendant in handcuffs, 56 Officer Hilliard

proceeds to walk Defendant over to his patrol vehicle and the following exchange occurs.

HILLIARD: “What’s going on?”

HILLIARD: “What’d you take today. ”

BERRY: “Huh?”

HILLIARD: “What’d you take?”

BERRY: “1 didn’t take nothing.”

HILLIARD: “You’re not high on anything; you’re looking past me; you’re out of it.”

56 In the State’s Response,` it asserts the following: “Officer Hilliard had probable cause to arrest Berry for the crime

of resisting arrest after Berry resisted Officer Hilliard’s attempts to detain him by tensing his body and arms and

refusing to place his hands behind his back. ln that respect, Officer Hilliard would not need to establish probable

cause for driving under the influence at the scene; such probable cause to charge Berry with DUI could be established

after subsequent investigation at the police station.” State’s Response at 7 (emphasis added). First, the State fails to

provide any support for the claim that a formal arrest of one charge tolls the tilling for probable cause in relation to a

second charge. Second, the State implies that Defendant was formally arrested at the point Defendant was handcuffed;

yet, the Court disagrees. In State v. Zappa, this Court stated,

A seizure may constitute either an investigatory detention, which requires a basis of reasonable

articulable suspicion, or a custodial arrest, which requires a basis of probable cause. 1n determining

whether a seizure is an investigatory detention or a custodial arrest, the Court examines “the nature

and the degree of the intrusion occasioned by the particular encounter” under the totality of the

circumstances In its analysis, the Court considers the following:

(1) 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 armed.

State v. Zappa, 2016 WL 4537763, at *7 (Del. Com. Pl. Aug. 22, 2016) (footnotes omitted). In Zappa, this Court

found that applying handcuffs and placing a defendant in the backseat of a police vehicle did not constitute an arrest,

Id. at *8. The Court noted that handcuffs are not dispositive of an arrest, finding instead that the police officer would

have been prevented from safely conducting her investigation if the defendant was not restrained and removed from

the scene. Id. The Court allowed the investigatory detention to continue at the police station because of the “necessity”

of the continued detention based on the “unfolding situation.” Id. (quoting State v. Davis, 2012 WL 3794286, at *2

(Del. Com. Pl. July 9, 2012)) (internal quotation marks omitted).

In this case, Defendant was handcuffed and transported to the scene of the accident that he had left. In State

v. Berry, this Court noted that the Delaware Superior Court allowed “movement from one scene to another Within the

scope of an investigatory detention . . . unless the ‘[d]uration of the seizure or level of intrusion elevates the

deprivation to an arrest.’ ” State v. Berry, 2016 WL 9001122, at *3 (Del. Com. Pl. June 30, 2016) (Welch, J.)

(quoting State v. Kang, 2001 WL 1729126, at *7 (Del. Super. Nov. 30, 2001)). Hence, the investigatory detention

extended to Officer Hilliard’s questioning of witnesses and Defendant at the scene of the accident, However, the

detention did not extend to Officer Hilliard’s questioning at the police department as, at that point, the level of intrusion

had elevated.

15

Officer Hilliard then places Defendant in his patrol vehicle. Defendant exhibits no problem

climbing into the vehicle_beyond the difficulty of entering and exiting a vehicle with handcuffs.

As Officer Hilliard approaches the Chicken House with Defendant in his vehicle, Officer

Hilliard points to the vehicle that collided with the cement pillar and asks Defendant whether the

vehicle is his vehicle. Defendant agrees that it is his vehicle and that he was driving it. After a

second Middletown Police Officer arrives, Officer Hilliard leaves Defendant in his patrol vehicle

to speak with the second officer. When they return to the patrol vehicle and open the vehicle door

to speak with Defendant, the following interaction occurs:

HILLIARD: “Do you need an ambulance or anything?”

BERRY: “No.”

HILLIARD: “You don’t need an ambulance?”

BERRY: “No.”

HILLIARD: “What did you take? Be honest with me.”

BERRY: *silence*

HILLIARD: “What kind of drugs did you take?”

BERRY: “Nothing.”

***

HILLIARD: “For your welfare, what did you take?”

BERRY: “Nothing.”

Officer Hilliard proceeds to request that Defendant step out of the patrol vehicle and search his

person. Defendant responded to further questioning with “Yes, sir” and “No, sir.” Likewise,

Defendant continued to deny ingesting any controlled substances. Officer Hilliard and the second

16

officer proceed to question a few witnesses and then transport Defendant back to the Middletown

Police Department.

Based on thorough research and contemplation regarding the probable cause standard as

applied to these facts, the Court is not persuaded that probable cause existed to arrest Defendant

for a DUI. The State rests its DUI probable cause analysis on: (1) the one-vehicle collision;57 (2)

Ms. Pacheco’s observations and belief that Defendant was “high”; (3) and Officer Hilliard’s

observations of Defendant’s “clenched hands, pinpoint pupils, blank stare; and mumbled,

incomprehensible speech.”58 First, the Court afforded little weight to the State’s argument that

pinpoint pupils are indicative of drug use. The argument is reminiscent of the State’s argument in

State v. Heath where it argued that bloodshot eyes combined with an absence of an odor of drugs

or alcohol indicated [] the Defendant’s drug use.”59 The Delaware Superior Court did not agree;

finding this focus on the normality of a non-criminal iris to be unconvincing when innocent

explanations abounded.60 Besides conclusory statements, the State has presented no reason for

this Court to diverge from precedent.

Second, the Court affords little weight to Ms. Pacheco’s belief that Defendant was “high.”

While the State does not carry the burden of a criminal trial, allowing a lay person to express an

opinion regarding drug intoxication still gives the Court pause. The State has not provided the

Court with supporting Delaware case law for its reliance on Ms. Pacheco’s observation. The

Court’s research has yielded no Delaware case law directly on point. Hence, the Court expanded

57 The collision in this case does not appear particularly odd in comparison to other cases. See, e.g., Rybicki v. State,

119 A.3d 663, 667 (Del. 2015) (describing a one-vehicle accident in which the defendant drove over a grass

embankment, struck the curb, and came to rest facing west bound across northbound lanes).

511 State’s Response at 6-7.

59 State v. Heath, 929 A.2d 390, 409 (Del. Super. 2006).

60 Compare id. (“However, bloodshot eyes can ‘result from a variety of non-criminal circumstances, such as tiredness,

allergies, or just rubbing of the eyes.’ ” (quoting Ferris v. State, 355 Md. 356, 735 A.2d 491, 509 (1999))), with Hardy

v. Vein, 2016 WL 5407851, at *6 (Del. Com. Pl. June 27, 2016) (noting that one innocent explanation of a head injury

does not negate a finding of probable cause, especially when defendant’s breath contained a strong odor of alcohol).

17

its search and found that other jurisdictions disagree on whether experts are required to opine on

drug intoxication and impairment.61 Nevertheless, this Court is persuaded by State v. Bealor.62 In

Bealor, the New Jersey Supreme Court declined to allow layperson testimony as to marijuana

intoxication, stating:

In State v. Smith, 58 N..]. 202, 213, 276 A.2d 369 (1971), we explained that “[a]n

ordinary citizen is qualified to advance an opinion in a court proceeding that a

person was intoxicated because of consumption of alcohol. The symptoms of that

condition have become such common knowledge that the testimony is

admissible.” At that time, we further held that “[n]o such general awareness exists

as yet with regard to the signs and symptoms of the condition described as being

‘high’ on marihuana.” Although much has changed in the intervening years since

our decision in State v. Srnith, the passage of time alone does not relieve a party of

its burdens of proof and persuasion. In this case, the State had the burden of creating

a proper record from which a fair determination could be made that the symptoms

of marijuana intoxication “have become such common knowledge that [lay

opinion] testimony [that a person was intoxicated because of the consumption of

marijuana] is admissible.”63

The New Jersey Supreme Court held that the State had failed to “tender any proofs at any stage of

these proceedings to show that there is now a general awareness of the indicia or symptoms of

marijuana intoxication.”64

61 Compare Harris v. District of Columbia, 601 A.2d 21, 24 (D.C. 1991) (“The rationale for allowing lay opinion on

whether an individual appeared intoxicated by alcohol or insane also calls for allowing lay opinion on whether an

individual appeared to be under the influence of drugs.”), with State v. Rifkin, 438 A.2d 1122, 1124-25 (Vt. 1981) (“If

laymen are unable to rationally relate observed symptoms to the influence of a particular drug, it follows that their

opinions are also incompetent to prove that the influence of the particular drug was to such a degree that it rendered

the defendant incapable of driving safely. We hold that an arresting officer or other witness may give an opinion as

to whether a defendant is under the influence of drugs and to a degree rendering him incapable of driving safely only

when qualified as an expert to determine these issues from the symptoms displayed.” (internal citations omitted)). A

third approach_slightly divergent from the first_is also available in which the jurisdiction allows lay opinion

testimony as to drug intoxication, but requires a foundation to be laid that the lay person is “personally familiar” with

the effects of said drug. See Commonwealth v. Yedinak, 676 A.2d 1217, 1221 (Pa. Super. 1996), reh ’g denied, appeal

denied, 548 Pa. 618, 693 A.2d 588 (1996) (TABLE).

62 State v. Bealor, 902 A.2d 226 (N.J. 2006).

63 Id. at 234 (internal citations omitted).

64 Id. Ultimately, the Court found the defendant guilty of operating a motor vehicle under the influence of narcotics

because the defendant’s actions clearly evidenced a driver who was unable to properly operate a vehicle. Id. at 236

(“Even if limited solely to the time of his arrest, the fact of defendant’s intoxication was amply proved by [State Police

Trooper] Donahue's fact testimony in respect of defendant’s erratic and dangerous driving, his slurred and slow speech,

his “bloodshot and glassy” eyes, his droopy eyelids, his “pale and flushed” face, his “fumbl[ing] around the center

console and his glovebox searching for all his credentials,” the smell of burnt marijuana on defendant, his sagging

knees and the “emotionless stare on his face.” Also, on cross-examination, Donahue testified without objection that

18

The Bealor analysis is persuasive; mainly because it implies an understanding that different

types of narcotics affect individuals differently.65 Allowing lay opinions on what constitutes drug

intoxication could quickly devolve into reliance on myths and inaccuracies This implication

becomes a non-issue if the litmus test is whether the layperson’s belief is common knowledge and

based on prior observation_akin to the current state of people’s knowledge regarding alcohol

consumption. Therefore, the Court declines to afford Ms. Pacheco’s statement more weight in its

determination

Based on a totality of the circumstances, the complete interaction between Officer Hilliard

and Defendant appears indicative of an individual who is fearful and nervous around a police

officer, Phrased differently, Defendant’s behavior is not so “erratic” or “irrational” as to support

a finding of probable cause.66 In Cala’well v. State, the Delaware Supreme Court held that

“nervousness and implausible or conflicting answers” is often insufficient.67 Indeed, Defendant’s

subsequent interactions with Officer Hilliard do not elicit the State’s broad, sweeping

categorization of “incomprehensible speech.”68 In fact, Defendant’s lucidity in later questioning

supports this Court’s analysis. Defendant’s demeanor is quiet, his voice soft spoken, and he

chooses to answer only certain questions from Officer Hilliard.

defendant was intoxicated at the time of his arrest, Finally, the State incontrovertiny proved, through qualified experts,

the presence of marijuana in defendant’s blood stream at the time of the arrest and its likely source.”).

65 Id. at 238.

66 See State v. Trager, 2006 WL 2194764, at *6 (Del. Super. July 28, 2006) (finding fighting a dog to be erratic and

irrational behavior that the police officer could consider in making a probable cause determination).

67 Caldwell v. State, 780 A.2d 1037, 1050 & n.32 (Del. 2001) (finding nervous behavior and an odd assertion

insufficient to support reasonable suspicion).

68 State’s Response at 7.

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Further, Defendant exhibited no other signs of intoxication; no odor was present, no slurred

speech, no trouble walking,69 and no odd behavior unique to intoxication.70 Similarly, in cases

where a defendant was noted for conversational abnormalities other facts supported finding

71 This case contains no such facts.

probable cause under the totality of the circumstances

Therefore, this Court follows the Delaware Supreme Court’s admonishment_“[i]n a close case

like the present one, the balance ought t_o be struck on the side of the freedom of the citizen from

governmental intrusion”_and finds that Officer Hilliard did not possess probable cause to arrest

Defendant for a DU1.72

E. Regardin g Blood Draw Procedure

Regarding the blood draw, Defendant argues that: (1) the Affidavit lacks probable cause

within its four-corners for the blood draw, and (2) the drawing of blood violated 21 Del. C. §

4177(a)(6) because it occurred more than four hours after Defendant was reported driving.73 The

69 See State v. Williams, 2012 WL 6738546, at *2 (Del. Com. Pl. Oct. 25, 2012) (“Similarly, the circumstances here

provided the officer With sufficient showing of probable cause, even without field sobriety tests, given that the

defendant failed to follow the orders of the police officer, was erratic in her driving actions, smelled of alcohol,

slouched over her steering wheel, slurred her speech, and walked unsteadily from her car, requiring assistance.”).

70 See State v. Ori, 2016 WL 3568356, at *2 (Del. Super. June 22, 2016) (“In spite of all of that, though, there

undisputedly exists the accident, the odor of alcohol on Defendant’s breath, and Defendant’s having urinated while

seated in Affiant's police vehicle.”).

71 See Glass v. State, 543 A.2d 339, 1988 WL 61582, at *1 (Del. June 13, 1988) (TABLE) (single accident involving

a pickup truck resting on its side against a telephone pole and the odor of alcohol on defendant’s breath occurring on

two occasions buttressed defendant’s “confused and disoriented state”); Auwerda v. State, 2017 WL 2729561, at *9

(Del. Super. June 19, 2017) (affirming the Court of Common Pleas’ finding that the “smell of alcohol; appellant's

glassy, red eyes; his motor skills problems; appellant's inability to pass the field tests; and the police officer’s

information that appellant had been driving a short period before the officer encountered him” were sufficient for

probable cause to arrest for DUl); State v. Napier, 2009 WL 2859164, at *1-2, 7 (Del. Com. Pl. Apr. 8, 2009) (finding

probable cause to arrest defendant when: the police officer detected a strong odor of marijuana emanating from the

vehicle and from defendant’s person, defendant’s eyes were bloodshot and half-closed, he was “very confused,” his

hand-eye coordination “was very slow,” and he did not understand “basic questions,” defendant fell out of the vehicle

and admitted to marijuana being involved).

72 Jones v. State, 745 A.2d 856, 868 (Del. 1999) (quoting State v. Oquendo, 613 A.2d 1300, 1312 (Conn. 1992)).

73 Defendant’s Motion at 2-3; Defendant’s Reply at 3-4. Regarding the “four corner test,” the Court notes that the

Aguilar-Spinelli test is not utilized. See Gardner v. State, 567 A.2d 404, 409-10 (Del. 1989) (adopting Illinois v.

Gates, 462 U.S. 213 (1983)); Sierra v. State, 958 A.2d 825, 829 n.18 (Del. 2008) (noting that Illinois v. Gates replaced

the Aguilar-Spinelli test with the totality of the circumstances test). The Court directs the parties’ attention to State v.

Murray for the totality of the circumstances test. See Murray, 2017 WL 5668030, at *5.

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first argument is moot as the Court has found that Officer Hilliard did not possess probable cause

to arrest Defendant for a DUI. The second argument remains relevant.74

Section 4177(a)(6) states:

When the person's blood contains, within 4 hours of driving, any amount of

an illicit or recreational drug that is the result of the unlawful use or consumption

of such illicit or recreational drug or any amount of a substance or compound that

is the result of the unlawful use or consumption of an illicit or recreational drug

prior to or during driving.75

Section 4177(g) states:

For purposes of a conviction premised upon subsection (a) of` this section, or any

proceeding pursuant to this Code in which an issue is whether a person was driving

a vehicle while under the influence, evidence establishing the presence and

concentration of alcohol or drugs in the person's blood, breath or urine shall be

relevant and admissible. Such evidence may include the results from tests of

samples of the person's blood, breath or urine taken within 4 hours after the time of

driving or at some later time.76

While these two subsections appear contradictory, the Delaware Superior Court_as well as this

Court_have found that the four-hour window requires strict adherence when the defendant is

charged under a DUI per se provision.77 Despite the plain language of § 4177(g), this Court is

inclined to follow the appellate court’s interpretation.`78 At the suppression hearing, Officer

Hilliard stated that he was dispatched to the collision scene at 7:26 p.m. on May 20th and Ms. Cruz

drew Defendant’s blood at 12:40 a.m. on May 2151.79 Presuming that Officer Hilliard arrived

immediately after being dispatched, Defendant’s blood was still not drawn until approximately

74 It is unclear why the State did not address this argument in its Response brief`.

75 21 Del. C. § 4177(a)(6) (emphasis added).

76 21 Del. C. § 4177(g) (emphasis added).

77 See Fiori v. State, 2004 WL 1284205, at *2 (Del. Super. May 26, 2004) (citing 21 Del. C. § 4177(g)) (“The test

result is relevant and admissible only if the sample of breath or blood tested is taken within four hours of driving.”);

State v. Foskey, 2006 WL 1719977, at *4 (Del. Com. Pl. June 23, 2006).

78 State v. Hannon is distinguishable as it addresses whether § 4177(g) controls when the defendant is charged under

a general impairment theory of DUI. See State v. Hannon, 2016 WL 236995 (Del. Com. Pl. Jan. 19, 2016).

79 State’s Exhibit 1.

21

five hours later. Because Defendant’s blood was drawn outside the four-hour window, the blood

results must be excluded.80

V. CONCLUSION

For the reasons articulated above, the Court finds that the State has met its burden of

proving by a preponderance of the evidence that Officer Hilliard possessed reasonable articulable

suspicion to stop Defendant, reasonable articulable suspicion to proceed from an accident

investigation to a DUI investigation, and probable cause to arrest Defendant for resisting arrest, in

violation of ll Del. C. § 1257(b). The State has failed to prove that Officer Hilliard possessed

probable cause to arrest Defendant for a DUI, and has failed to meet its burden that the blood draw

occurred within four-hours of Defendant driving his vehicle.

Additionally, the Court finds that the State has proven by a preponderance of the evidence

that probable cause existed to charge Defendant under 21 Del. C. § 4201(b) and 21 Del. C, §

4176(b). However, the State has failed to prove by a preponderance of the evidence that probable

cause existed to charge Defendant under 21 Del. C. § 4201(a), as the statute does not require a

driver to remain at the scene when only the driver’s property sustains damage.81 The clerk shall

set this case for trial at the earliest convenience of counsel.

IT IS SO ORDERED this 20th day of April, 2018.

M{`( hfoa/50 [`

John K. Welch, Judge

cc.' Ms. Diane Healey, Judicial Case Manager Supervisor

cc.' Ms. Michelle Jackson, Judicial Operations Manager

86 See Foskey, 2006 WL 1719977, at *4 (deeming the blood draw results inadmissible).

81 21 Del. C. § 4201(a) (“lf the damage resulting fi'om such collision is to the property of the driver only, with no

damage to the person, property of another, or the environment, the driver need not stay at the scene of the collision

but shall immediately make a report ofthe damage resulting as required by §4203 of this title.”).

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