The opinion
IN THE COURT OF COMMON PLEAS FOR THE STATE OF
DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE,
Vs Case No. 1711014044
JAYDEVSINH SOLANKI,
a ae ae ae a a a
Defendant.
Submitted: September 9, 2019
Decided: November 8, 2019
Angelica Endres, Esquire Joe Hurley, Esquire
Deputy Attorney General 1215 King Street
820 N. French Street, 7 Floor Wilmington, DE 19801
Wilmington, DE 19801 Attorney for Defendant
Attorney for the State of Delaware
MEMORANDUM OPINION ON
DEFENDANT’S MOTION TO SUPPRESS EVIDENCE
Manning, J.
FACTS AND PROCEDURAL HISTORY
On November 23, 2017, Jaydevsinh Solanki (hereinafter “Defendant”) was
arrested by Officer Matthew Granas (‘““Granas”) for the offense of Driving a Vehicle
Under the Influence of Alcohol (“DUI”) in violation of 21 Del. C. § 4177. The facts
that gave rise to this charge indicate that Granas observed a black Infinity G35
stopped in the middle of the road, approximately two car lengths behind the traffic
light on Marrows Road at the intersection of East Chestnut Hill.' Granas approached
the running vehicle and observed both occupants slumped over in their seats, either
asleep or unconscious. Defendant was in the driver’s seat and Daniel Hamill
(“Passenger”) in the passenger’s seat; the time was approximately 3:45 a.m. Granas
banged loudly on the front passenger window in an attempt to wake up the
occupants. Passenger eventually awoke and Granas requested that he roll down the
window and take the keys out of the ignition, Defendant did not wake initially. Once
Defendant finally awoke, Granas asked if he needed an ambulance; however,
Defendant assured Granas he was just exhausted. Granas questioned whether
Defendant and passenger were drinking. Defendant did not answer, but Passenger
replied in the affirmative. When Granas asked Defendant and Passenger whether
they “had done any drugs,” Passenger stated no and Defendant shook his head in the
| The entire interaction was recorded on Granas’ body-worn camera (“bodycam”), which was
entered into evidence by the State.
negative. Passenger stated, “we did do some drinking” at Buck’s Tavern and
Tailgates earlier in the evening. Defendant had a difficult time responding to
requests to produce his license, registration and insurance, even attempting to hand
police incorrect documents. Moreover, Defendant spent a considerable amount of
time staring at the various documents he pulled from the glove compartment,
evidentially unable to comprehend what he was looking at. Defendant’s actions and
movements were noticeably slow throughout the entire encounter. The bodycam
recording corroborates Granas’s in-court testimony and reveals that Defendant was
hard to wake, appeared confused, moved very slowly with often-garbled speech, and
was slow to follow instructions.
Based on these observations, Granas requested Defendant perform National
Highway Transport Safety Administration (“NHTSA”) Field Sobriety Tests
(“FSTs”). Defendant agreed and they walked over to an adjacent parking lot to
conduct the tests. Performance of the FSTs was captured on bodycam and entered
into evidence by the State. Granas administered the Horizontal Gaze Nystagmus
(“HGN”), Walk and Turn (“WAT”) and One Leg (“OLS”) tests. During the HGN,
Defendant allegedly exhibited lack of smooth pursuit in his left and right eye, distinct
nystagmus at maximum deviation in his left and right eye, and nystagmus onset
before 45 degrees in his left and right eye, for a total of six clues.
During the WAT, Defendant had difficulty maintaining his balance at the start
of the test, swayed, raised his arms, stepped off the line multiple times, and missed
connecting his heal and toe during the administration of the test. Additionally,
Defendant took 17 steps on the return trip, 8 more than the 9 he was instructed to
take. All of this is plainly evident on the bodycam recording of the FSTs.
During the OLS test, Defendant allegedly exhibited difficulty complying with
the test instructions and exhibited signs that he was under the influence. At the
completion of the FSTs, Defendant was arrested for DUI. A warrant was
subsequently obtained for a sample of Defendant’s blood, which tested negative for
alcohol, but positive for opioids (Morphine) and Benzodiazepine (Alprazolam).
On March 22, 2019, Defendant filed a Motion to Suppress (“Motion”). The
Court held a hearing on the Motion on July 2, 2019. Upon conclusion of the hearing,
the Court took the Motion under advisement. At the request of the Court, the State
and Defendant both filed supplemental briefs following the hearing. On August 1,
2019, the State submitted its Motion Hearing Memorandum. On August 9, 2019,
Defendant submitted his Memorandum of Law Regarding Invalidity of Blood
Collection Search Warrant. On September 5, 2019, Defendant submitted his Reply
Memorandum in Support of Suppression of Evidence. On September 9, 2019, the
State submitted its Response to Defendant’s Memorandum.
PARTIES’ CONTENTIONS
Defendant argues the State did not meet its burden that there was probable
cause to find impairment justifying the arrest. In support of this argument,
Defendant avers Granas provided no basis to conclude that he had the capabilities
necessary to justify an excursion into the privacy afforded Defendant’s blood.
Defendant contends Granas failed to make a showing that he followed NHTSA
standards of FSTs. Specifically, Defendant asserts Granas did not comply with the
timing in the implementation of the HGN. Furthermore, Defendant argues the
results of the WAT and OLS be given no weight because Granas failed to follow the
standardized instruction that must be given in order to ensure reliability. In addition,
Defendant asserts Granas failed to make a proper showing that he was qualified and
certified to conduct standardized field sobriety test and that he received specialized
training in administering and grading all of the FSTs. Moreover, Defendant claims
Granas failed to identify in the affidavit the specific tests he administered and
Defendant’s performance on each, which is required to find the non-scientific WAT
and OLS admissible.
Furthermore, Defendant avers glassy eyes, slurred speech, loss of balance and
difficulty following instruction are general, vague and unparticular comments that
could be attributed to Defendant being awakened from sleep. Defendant contends
he denied drug use, never indicated he drank that night, and that the odor of alcohol
was associated with the interior of the car, rather than emanating from his person.
Moreover, Defendant states he spoke clearly and had no issues with balance.
The State argues Granas properly obtained a valid warrant for the seizure and
subsequent testing of Defendant’s blood. The State asserts Granas provided his
current position within the search warrant affidavit, which gave the magistrate the
information necessary to find him capable of performing a DUI investigation.
Further, the State avers while Granas did not mention the results of the WAT and
OLS in the search warrant, Granas did state Defendant was unable to perform either
test, which corroborated his awareness of the tests. Moreover, the State claims the
magistrate judge could consider the HGN results. However, the State argues if this
Court finds the FSTs cannot be part of the analysis, the Court should still evaluate
the remaining probable cause contained in the affidavit. The State refers to the
vehicle parked and running at an intersection, Defendant sleeping in the driver seat,
Passenger admitting to Granas that they were both drinking earlier that night, the
odor of alcohol emanating from the vehicle, Defendant’s glassy eyes, slurred speech,
loss of balance and difficulty following instructions. The State argues these
observations amount to probable cause.
Additionally, Defendant asserts the search warrant was overly broad in
permitting the collection of Defendant’s blood sample when there was no probable
cause justifying the collected sample for the purpose stated in the affidavit and
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warrant with regard to drug impairment. Defendant argues the affidavit supplied
information regarding alcohol ingestion, not drug ingestion. Defendant states there
is no logical, factual, nexus between the facts articulated in the affidavit and
authority to collect blood for the purpose of conducting a drug analysis.
The State avers the search warrant was not overly broad in permitting the
collection of a blood sample because there was probable cause justifying the testing.
The State argues the search warrant permitted the collection of Defendant’s blood
for evidence of intoxication in a driving under the influence investigation. Further,
the State asserts that an officer has the ability to request blood under all theories.
The State argues the affidavit states facts not specifically related to alleged use of
alcohol but rather the use of alcohol and/or drugs. The State contends the search
warrant affidavit was not limited to a finding of probable cause of use of alcohol but
the use of alcohol and/or drugs. Lastly, the State avers the classification of evidence
of alcohol and/or drugs was reasonable and a more precise description would not
have been feasible.
DISCUSSION
For a warrantless arrest, “the State must establish, by a preponderance of the
evidence, that Defendant’s arrest was supported by probable cause.” * To establish
* State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010).
probable cause for a DUI arrest, the state “must present facts which suggest, when
those facts are viewed under the totality of the circumstances, that there is a fair
probability that the defendant has committed a DUI offense.” * This totality
consideration is based on “the factual and practical considerations of everyday life
on which reasonable and prudent men, not legal technicians, act.” * “The Court must
examine the totality of circumstances surrounding the situation as viewed through
the ‘eyes of a reasonable trained police officer in similar circumstances, combining
999 5
the objective facts with the officer's subjective interpretation of those facts.
Field Sobriety Tests
The NHTSA developed FSTs for officers to utilize when evaluating drivers
suspected of alcohol and/or drug impairment. NHTSA’s 2018 DWI Detection and
Standardized Field Sobriety Testing (SFST) Refresher Guide advises that validation
of FSTs only applies when “[t]he tests are administered in the prescribed,
standardized manner... [and] [i]f any one of the [FSTs] elements is changed, the
* Lefebvre vy. State, 19 A.3d 287, 293 (Del. 2011).
* State v. Cardona, 2008 WL 5206771, at *3 (Del. Super. Dec. 3, 2008) (quoting State v.
Maxwell, 624 A.2d 926, 928 (Del. 1993)).
> State v. Kane, No. 1210019022, 2014 WL 12684290, at *4 (Del. Com. PI. Feb. 12, 2014); See
Woody v. State, 765 A.2d 1257, 1262-64 (Del. 2000).
validity may be compromised.” ® However, “[n]o Court in this jurisdiction ha[s]
concluded that a failure to strictly comply with NHTSA invalidates the test.” ’
Nevertheless, sufficient deviation from the NHTSA guidelines can diminish FSTs
reliability. Thus, “[t]he court’s role is to take note of the deficiencies in the
administration of the sobriety test when giving weight and value to the test
performed.” ”
When an officer conducts the WAT, the officer must instruct the subject to
take nine heel-to-toe steps, turn in a prescribed manner, take nine heel-to-toe steps
back, keep arms at one’s sides, watch one’s feet at all times and count one’s steps
out loud.!” Further, the officer must ask and make sure the subject understands the
instructions.!!
Granas failed to instruct Defendant to keep his arms at his sides, look at his
feet, count his steps aloud and ask him if he understood the instructions. Granas
° National Highway Traffic Safety Administration, DWI Detection and Standardized Field
Sobriety Testing (SFST) Refresher, Session UI, 2018 Edition.
7 State v. Dale, 2016 WL 691445, at *3 (Del. Com. Pl. Feb. 11, 2016).
8 State v. Reilly, 2018 WL 7049372, at *3 (Del. Com. Pl. Nov. 30, 018) citing to State v.
Hudgins, 2015 WL 511422, at *3 (Del. Super. Jan. 16, 2015).
° Dale at *3.
'© National Highway Traffic Safety Administration, DWI Detection and Standardized Field
Sobriety Testing (SEST) Refresher, Session II, 2018 Edition.
od
failed to comply with the instructional part of the NHTSA test. Thus, I cannot view
it with the same reliability as if the test was properly conducted. However, I am still
permitted, and indeed will, take into consideration my observation of Defendant
during the performance of the test. As previously noted, bodycam footage shows
that Defendant had extreme difficulty maintaining his balance throughout the test,
swayed, raised his arms, stepped off the line multiple times, missed nearly every heal
to toe connection, took 17 steps instead of nine, and was unable to follow
instructions—all obvious indicia of some form of impairment. Simply put,
Defendant’s performance on this test leaves me with little doubt that he was suffering
from some type of impairment—no matter the deficiencies with the administration
of the test instructions.
When an officer conducts the OLS, the officer must instruct the subject to
raise either foot approximately six inches off the ground, with both legs straight and
arms at one’s side and count aloud while looking at the elevated foot.'? Indicators
that the subject is impaired are swaying while trying to maintain balance, using arms
to help maintain balance, hopping while trying to maintain balance and putting a
12 Id.
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foot down before the test is completed.'? A showing of two of more clues indicates
a blood alcohol content of 0.08 or above. '*
Granas failed to instruct Defendant to look at his elevated foot while counting
aloud. Further, Granas testified that his report stated Defendant depicted all four
indicators of impairment; however, after review of the bodycam during cross-
examination, Granas testified Defendant did not hop while trying to maintain his
balance. I have observed the bodycam footage and find Defendant exhibited two of
the indicators of impairment—foot touching the ground and swaying. However, due
to Granas’s failure to comply with the NHTSA instruction, I can only give minimal
weight to the results of the OLS test.
When an officer conducts the HGN, the officer must instruct the subject to
stand with one’s feet together, hands at one’s sides, hold one’s head still and follow
the motion of a stimulus with the eyes only.'> Although the standards do not state
how long the HGN should take in its entirety, the Delaware Superior Court in Dale
found an HGN test conducted within fifty-five (55) seconds was “not a minor
'3 National Highway Traffic Safety Administration, DWI Detection and Standardized Field
Sobriety Testing (SFST) Refresher, Session III, 2018 Edition.
14 Td.
Id.
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deviation.”'® This finding differs from the Courts finding in State v. Oseguera-Avila
that “82 seconds [was] not significantly shorter than the 96-second minimum period
exacted by the [d]efense.”!”
The bodycam indicates that it took Granas only 50 seconds to conduct the
HGN test, an amount of time even shorter than the disregarded HGN conducted in
Dale that the Superior Court considered “not normal.”'? Because Defendant’s HGN
test was conducted considerably faster than it should have been, and the deviation
from the NHTSA instructions were significant, I do not find the test to be sufficiently
reliable and therefore it is excluded from the probable cause determination.
Traffic Stop and Officer’s Observations
The Delaware Supreme Court in Bease v. State found probable cause to arrest
and administer an intoxilyzer test existed where a motorist, who had just committed
a traffic violation, spoke rapidly, smelled of alcohol, admitted consumption of
alcoholic beverages, and had blood shoot glassy eyes.!? The Delaware Supreme
Court in Lefebvre held probable cause to arrest a driver for a DUI offense exists
'6 Dale at *3.
17197 A.3d 1050, 1056 (Del. Super. Nov. 2, 2018).
'8 Dale at *3.
'9 $84 A.2d 495, 498 (Del. 2005).
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where an officer can “present facts which suggest, when those facts are viewed under
the totality of the circumstances, that there is a fair probability that the defendant has
committed a DUI offense.””° In this case, the Supreme Court found probable cause
to arrest a driver for DUI prior to the administration of any FSTs.2! “[{T]he
performance results of field sobriety tests may either eliminate suspicion or elevate
Suspicion into probable cause but they are of insufficient evidentiary weight to
eliminate probable cause that had already been established by the totality of the
circumstances before the performance of the field sobriety tests.” Moreover, the
Delaware Superior Court in Hudgins found that “[t]he totality of the facts and
circumstances underlying [a] suspect’s arrest can support a finding of probable cause
even where no field sobriety tests were administered...”*2 In that case, the
defendant’s bloodshot eyes, slurred speech and the odor of alcohol emanating from
his breath was “ample evidence to support a finding that there was probable cause
to arrest [dJefendant for a DUI offense.””*
20 Lefebvre at *292.
21 Td.
°2 Td. at *295,
3 Hudgins at *4.
24 Id.
13
Here, Defendant’s vehicle was stopped behind a traffic light at an intersection.
The vehicle was running and Defendant was asleep behind the wheel. His lethargic
responses, difficulty following instructions, garbled speech, very poor performance
on the WATs, and glassy eyes put Granas on notice that he was impaired. For all of
the aforementioned reasons, I hold that probable cause existed to arrest Defendant
for the crime of DUI.
Blood Search Warrant
Before a magistrate issues a search warrant, she “must find that probable cause
exists that evidence of a crime will be found in the place to be searched.” ** “An
affidavit of probable cause in support of a search warrant must contain sufficient
facts to establish probable cause within the ‘four corners’ or on the face of the
affidavits. Probable cause exists in the affidavit where there is ‘a logical nexus
between the items sought and the place to be searched.’ ”*° “Such a nexus can be
‘inferred from the type of crime, the nature of the items sought, the extent of an
opportunity for concealment and normal inference as to where a criminal would hide
evidence of a crime.’ ”2’
5 Rybicki v. State, 119 A.3d 663, 668 (Del. 2015).
26 State v. Nieves-Torres, 2001 WL 2083958, at *6 (Del. Super. Apr. 25, 2011) (quoting Dorsey
v. State, 761 A.2d 807, 811 (Del. 2000)).
27 Id. (quoting State v. Cannon, 2007 WL 1849022 at *4 (Del. Super. Oct. 18, 2000)).
14
The Delaware Supreme Court in State v. Holden observed that “[a] court
reviewing the magistrate’s determination has the duty of ensuring ‘that the
magistrate had a substantial basis for concluding that probable cause existed.” A
magistrate’s determination of probable cause ‘should be paid great deference by
reviewing courts’ and should not, therefore, ‘take the form of a de novo review.’ ”8
“ “Notwithstanding this deference,’ the reviewing court must determine whether the
magistrate’s decision reflect a proper analysis of the totality of the circumstances.”
29
Addressing one of Defendant’s foundational arguments first, Granas stated in
his affidavit that he was a “sworn Police Office with the New Castle County Police
Department and has been employed by same since December 2016.” This fact alone
allowed the issuing magistrate to reasonably conclude that Granas had the requisite
knowledge and training to conduct a DUI investigation, including the administration
of FSTs. Defendant’s argument to the contrary is without merit.
In his affidavit, Granas detailed the discovery of Defendant unconscious
behind the wheel of a running vehicle at an intersection. The affidavit further
indicated that an odor of alcohol emanated from the vehicle, and that Defendant had
28 60 A.3d 1110, 1114 (Del. 2013) (quoting Ilinois v. Gates, 462 U.S., 238-39, 103 S. Ct. 2317,
76 L.Ed.2d 527 (U.S. 1983)).
2° Id. (quoting LeGrande v. State, 947 A.2d 1103, 1108 (Del. 2008)).
15
glassy eyes, slurred speech, loss of balance and difficulty following instructions.
The Affidavit also stated that Defendant exhibited all six clues on the HGN, but
“could not complete the W&T or the OLS.”
Although the body of affidavit did not specifically state the search warrant
was for drugs, the affiant suspected Defendant of impairment while driving and
requested a warrant to search Defendant’s blood for the crime of “Driving Under the
Influence of Alcohol and/or Drugs — 21 Del. C. 4177a.” °° Simply stated, the failure
to specifically state in the narrative portion of the search warrant affidavit that it was
for drugs is not fatal — a DUI can be committed either way, or both. The affiant
was looking for the cause of Defendant’s impairment and a test of Defendant’s blood
is one way to obtain such information; thus, the requisite nexus to conduct a blood
search existed here. Granas had reason to believe the Defendant’s blood contained
alcohol and/or drugs in violation of the statute, and as such, he requested a search
warrant to determine the cause of that impairment.
I recognizing and concede that Granas’ warrant affidavit is not a paradigm
of drafting and certainly could have been more detailed and explicit. However,
based on the all of the information contained within the document’s four pages, I
conclude that the magistrate’s reliance on the information provided was reasonable
3° Defense Exhibit 1, p.2, AFFIDAVIT AND APPLICATION FOR SEARCH.
16
and the warrant contained sufficient facts to demonstrate probable cause to believe
that Defendant’s blood may have contained evidence that he was driving under the
influence of alcohol and/or drugs.
CONCLUSION
For the foregoing reasons, Defendant’s Motion to Suppress is DENIED. The
matter shall be scheduled for trial forthwith.
IT ISSO ORDERED
Bradley V. Manffing, —
Judge
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