Opinion
43 2023
02-28-2024
THEODORE MILNER, Defendant Below, Appellant, v. STATE OF DELAWARE, Appellee.
Submitted: December 22, 2023
Court Below-Superior Court of the State of Delaware Cr. ID No. N2010011141
Before TRAYNOR, LEGROW, and GRIFFITHS, Justices
ORDER
Abigail M. LeGrow, Justice
After consideration of the parties' briefs and the record on appeal, it appears to the Court that:
(1) During a search of a vehicle driven by the appellant, Theodore Milner, police found two handguns in a locked glove box. The Superior Court denied Milner's motion to suppress that evidence, and the matter proceeded to a jury trial on two counts of possession of a firearm by a person prohibited ("PFBPP"). The jury found Milner guilty of one count of PFBPP and not guilty of the other count. In this direct appeal, Milner challenges the Superior Court's denial of his motions to suppress and for judgment of acquittal. For the reasons discussed below, we affirm.
(2) On the morning of October 23,2020, New Castle County Police Officer Roberto leradi observed a black Nissan Armada turn left from Governor Printz Boulevard onto Rysing Drive. Although the driver activated the turn signal before reaching the intersection, he did not do so at least 300 feet before the turn, as required by 21 Del. C. § 4155, nor did he activate the turn signal before moving into the left-turn lane. Officer leradi conducted a traffic stop in the parking lot of a convenience store; his partner, who was working in a separate patrol vehicle, joined him in the parking lot. Milner was the driver and sole occupant of the Armada.
See 21 Del. C. § 4155(a) ("No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in § 4152 of this title, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway or turn so as to proceed in an opposite direction unless and until such movement can be made with safety without interfering with other traffic. No person shall so turn any vehicle without giving an appropriate signal in the manner hereinafter provided."); id. § 4155(b) ("A signal of intention to turn or move right or left when required shall be given continuously during not less than the last 300 feet or more than 'A mile traveled by the vehicle before turning.").
(3) Officer leradi activated his body-worn camera before he exited his patrol vehicle and approached the Armada. At the suppression hearing, the State presented to the court-and Officer leradi provided testimony regarding-the portion of the video depicting the events from the time that the officer activated the camera until he began searching the Armada. In its decision denying Milner's motion to suppress, the Superior Court made the following factual findings regarding what happened during that time period:
State v. Milner, 2022 WL 2069309 (Del. Super. Ct. June 8, 2022).
In the video, the officer initially approached the passenger side of the Nissan Armada. The Defendant partially lowered the vehicle's passenger side window to speak to the officer, and a short time later, upon a request of the officer, Defendant fully lowered the passenger side window. Within approximately three minutes, Defendant produced his license, vehicle registration and insurance paperwork. Based upon the registration documentation, the officer asked the Defendant, a Delaware resident, why the vehicle had Pennsylvania temporary tags. Less than a minute later, the officer asked Defendant the following questions: Was there a reason the vehicle smelled like weed? Did the defendant smoke marijuana? Did the Defendant's friends smoke marijuana in the vehicle? These questions were based on the officer's conclusion that marijuana had been consumed in the vehicle.
The Defendant told the officer he had just smoked a "black and mild" cigar. The officer told Defendant he was not asking about someone smoking a "black and mild" cigar, and noted a distinction between the smell of burnt marijuana and the odor of a burnt cigar. The officer told the Defendant he asked about marijuana consumption because the vehicle "smells like weed." The officer suggested to Defendant that perhaps the odor of marijuana could have come from somebody else sitting in the car. In response, Defendant flatly denied that the vehicle smelled like marijuana and denied smoking marijuana. Based on the context of the interaction between the officer and the Defendant up to this point, which took less than five minutes, the officer was asking Defendant about an odor of burnt marijuana (i.e., someone consuming marijuana in the vehicle) emanating from the vehicle.
The officer returned to his patrol vehicle, expressing concern over the legitimacy of the Pennsylvania temporary registration tag. Shortly thereafter, the officer returned to Defendant's vehicle, informing the Defendant that the odor of marijuana was probable cause to search the vehicle. Defendant then admitted he possessed marijuana, and Officer leradi recovered a bag of suspected marijuana from
Defendant's pocket. At this point, Defendant was detained, and the officer began to search the interior of vehicle.
In a footnote, the Superior Court added: "Based upon a review of the body cam video, Defendant had a Delaware driver's license, but the vehicle had Pennsylvania temporary tags and was registered to Defendant at a Pennsylvania address. Under the circumstances, the officer questioned the legitimacy of the temporary tag on the vehicle." Id. at *4 n.18. The video also reflects that between the officer's questions concerning the temporary tag and his questions concerning the smell of marijuana, the officer asked, "is there anything inside the car I should be concerned about, guns, drugs, knives, anything like that," to which Milner responded "no."
Id. at *4.
When Milner exited the Armada, Officer leradi noticed that Milner's belt was unfastened, and the right side had been removed from several belt loops.
(4) During the search, Officer leradi found an empty gun holster in the center console. He showed the holster to Milner, who was standing with Officer leradi's partner near the patrol vehicles, and asked whether there was a gun in the car. Milner responded that "it shouldn't be" and stated that his significant other "drives my car" and "owns two guns." Officer leradi asked whether the guns were in the car, to which Milner responded, "I don't know." Officer leradi asked whether the guns had ever been in the car when Milner was driving, and Milner stated that they had not. Milner then stated "we just Amazon flexed yesterday and I used her car and she used mine" and that he had picked up his significant other's vehicle. Officer leradi asked whether Milner's significant other "usually leaves [the guns] in the car," to which Milner responded, "yeah, she drives around with them."
The bodycam video, including the portion depicting the search itself, was presented to the jury at trial. The video was redacted for presentation to the jury, including to omit the discussion and discovery of marijuana.
The video depicts what appear to be several Amazon packages in the vehicle and shows Officer leradi cutting open a labeled, taped Amazon box and removing packaging material to inspect the contents.
(5) Officer leradi then returned to the Armada and continued the search. Several minutes later, he attempted to open the glove compartment, which was locked. He then removed the key from the ignition and used a key from the key chain to open the glove compartment, where he observed two loaded firearms. Officer leradi then arrested and handcuffed Milner and placed him in his patrol vehicle before returning to the Armada to continue the search. In the trunk area, Officer leradi found a metal lockbox. He used a key from the keychain to open the lockbox, which contained a gun magazine.
(6) During a post-Miranda interview, Milner stated that he co-owned the Nissan Armada with his significant other, Amanda Grenardo. When asked if his DNA or fingerprints would be found on the guns, Milner stated that he had touched the guns to show Grenardo how to handle them.
An evidence detection officer processed the contraband for fingerprints and DNA. Milner's fingerprints were not found on the guns, ammunition, or magazines. Officer leradi decided not to send the DNA swabs for testing because Milner had admitted to handling the firearms. Officer leradi did not retain the holsters or the lockbox; the Superior Court gave a missing-evidence instruction as to the holsters.
(7) Grenardo testified at trial that she had obtained the guns from First State Firearms in June 2020. Store receipts and a trace report from the Bureau of Alcohol, Firearms, and Explosives corroborated that testimony. Grenardo testified that she and Milner shared the Nissan Armada and another vehicle, a Nissan Pathfinder, and that she typically drove the Armada in the course of her work delivering packages for Amazon, while Milner typically drove the Pathfinder. Grenardo stated that she bought the guns for protection during deliveries and at home and that she usually kept one gun locked in a safe at home and the other in the Armada. She testified that she put the guns in the Nissan Armada a few days before Milner's arrest because she intended to visit a gun range. She then had surgery and forgot that she had left the guns in the vehicle. Because of the surgery, she also had been unable to deliver some Amazon packages; she stated that Milner was driving the Armada on the day of his arrest because she had asked him to return the packages to Amazon for delivery by another carrier.
State v. Milner, 2023 WL 19080, at *2 (Del. Super. Jan. 3, 2023).
Id.
(8) The guns were a SCCY 9 mm handgun and a Smith &Wesson .40 caliber handgun. The SCCY gun was in a holster when Officer leradi found it in the glove compartment; the Smith &Wesson gun was not in a holster. The magazine that was located in the lockbox fit the Smith &Wesson gun. The jury found Milner guilty of the PFBPP charge relating to the SCCY gun and not guilty of the charge relating to the Smith &Wesson.
Id.
Id.
Id. at *3.
(9) Milner moved for a new trial and for a judgment of acquittal. He argued that there was insufficient evidence that he knew that there was a firearm in the glove compartment of the Nissan Armada and that the jury's verdict was inconsistent. The Superior Court denied the motions, concluding that the jury "reasonably concluded there was sufficient evidence to support Mr. Milner's PFBPP conviction, i.e., he was indeed knowingly in possession or control of at least one of the two firearms when stopped by police." The court later determined that Milner was subject to a five-year minimum-mandatory sentence for PFBPP and sentenced him to fifteen years in prison, suspended after five years for decreasing levels of supervision.
Id.
(10) Although Milner was represented by counsel in the Superior Court, he requested to proceed pro se on appeal. Following remand to the Superior Court for an evidentiary hearing under Supreme Court Rule 26(d)(iii), this Court granted Milner's request. On appeal, Milner argues that the Superior Court erroneously denied his motion to suppress and his motion for judgment of acquittal.
(11) As to the motion to suppress, Milner contends that (i) Officer leradi's testimony was inconsistent or insufficient to justify the initial traffic stop, or the stop was pretextual; (ii) Officer leradi impermissibly extended the traffic stop's duration; and (iii) the odor of marijuana did not establish probable cause for the search. We review a trial court's decision to grant or deny a motion to suppress for abuse of discretion. "The trial court's formulation and application of legal concepts are reviewed de novo, as are constitutional claims." When the trial court denies a motion to suppress after an evidentiary hearing, we defer to the court's factual findings if there was sufficient evidence to support those findings and they were not clearly erroneous. "Whether the established facts support the trial court's probable-cause determination is a question of law subject to de novo review."
Houston v. State, 251 A.3d 102, 108 (Del. 2021).
Juliano v. State, 254 A.3d 369, 376 (Del. 2020) (citing Jackson v. State, 990 A.2d 1281, 1288 (Del. 2009); Swan v. State, 28 A.3d 362, 383 (Del. 2011)).
Diggs v. State, 257 A.3d 993, 1003 (Del. 2021).
Juliano v. State, 260 A.3d 619, 626 (Del. 2021).
(12) A traffic stop is a seizure of a vehicle and its occupants and is subject to constitutional limitations. "Specifically, the State must demonstrate that the stop and any subsequent police investigation were reasonable in the circumstances." A police officer may stop and detain a motorist if the officer has reasonable suspicion that the driver has violated or is violating the law, including traffic laws. At the suppression hearing, Milner argued that Officer leradi lacked reasonable articulable suspicion that Milner had committed a traffic violation. The Superior Court held otherwise, finding that the officer's testimony established that "he had a clear view of the intersection when the Nissan Armada failed to signal before entering the left turn lane, and once the Defendant activated the left turn signal, the Defendant failed to exhibit his intention to [turn at least] 300 feet . . . prior to turning onto Rysing Drive." Milner challenges the court's factual findings, arguing that Officer leradi's testimony was unreliable because the officer could not recall his exact position in relation to the intersection or how far away he was when he first observed Milner's vehicle. The Superior Court considered and rejected that view of the evidence presented at the suppression hearing. We conclude that there was sufficient evidence to support the court's factual findings and that they were not clearly erroneous.
Caldwell v. State, 780 A.2d 1037, 1045-46 (Del. 2001).
Id. at 1046.
Juliano, 254 A.3d at 387; Houston, 251 A.3d at 108-09; see also Juliano, 254 A.3d at 382 ("[T]he temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws is not an unreasonable seizure . . ., even if a reasonable officer would not have stopped the motorist absent another law enforcement objective."); Caldwell, 780 A.2d at 1046 ("First, the stop must be justified at its inception by reasonable suspicion of criminal activity . . . .").
Milner, 2022 WL 2069309, at *3.
See id. ("While Officer leradi, seventeen months after Defendant's arrest, could not recall the specific location of his police vehicle when he saw the traffic violation, or recall whether he was in front of or behind the Nissan Armanda, the officer credibly offered specific testimony regarding his observations of the Defendant's lane change, late activation of the turn signal, and the vehicle's turn onto Rysing Drive.").
(13) Milner also contends that Officer leradi impermissibly extended the duration of the traffic stop and that the odor of marijuana did not establish probable cause for the search of the Nissan Annada. "Use or consumption of marijuana in a moving vehicle is a misdemeanor." Under the Fourth Amendment of the United States Constitution and Article I, Section 6 of the Delaware Constitution, police may lawfully search a vehicle without a warrant if they have probable cause to believe that the automobile contains contraband or evidence of criminal activity. Probable cause determinations are made by evaluating the totality of the circumstances. If an officer makes a valid traffic stop, the "duration and execution" of the stop is "limited by the initial purpose of the stop. . . . [A]ny investigation of the vehicle or its occupants beyond that required to complete the purpose of the traffic stop constitutes a separate seizure that must be supported by independent facts sufficient to justify the additional intrusion."
Valentine v. State, 2019 WL 1178765, at *2 (Del. Mar. 12, 2019) (citing 16 Del. C. § 4764(d)). Milner's traffic stop occurred in 2020. Use or consumption of marijuana in a moving vehicle remains a misdemeanor even following substantial amendments to Delaware's marijuana laws in 2023. See 16 Del. C. § 4764(d) (effective Apr. 23, 2023, to present) ("Any person who knowingly or intentionally uses or consumes up to a personal use quantity of a controlled substance . . . classified in § 4719(d)(19) of this title in an area accessible to the public or in a moving vehicle, except as otherwise authorized by this chapter, shall be guilty of an unclassified misdemeanor . . . .); id. § 4714(d)(19) (effective June 30, 2022, to present) (identifying marijuana as a Schedule I controlled substance).
Pollard v. State, 284 A.3d 41, 46 (Del. 2022); Valentine, 2019 WL 1178765, at *2.
Pollard, 284 A.3d at 46; Valentine, 2019 WL 1178765, at *2.
Caldwell, 780 A.2d at 1047; Juliano, 254 A.3d at 388-89 (discussing Caldwell).
(14) Applying these principles, the Superior Court determined that Officer leradi had probable cause to believe that Milner had consumed marijuana while operating the vehicle and that "[t]o the extent the traffic stop was extended,... the police officer developed facts independent of the traffic stop to justify the additional intrusion and extension of the stop." The Superior Court based its conclusions upon the evidence that Milner only partially lowered the vehicle's window when Officer leradi approached, the dialogue concerning the odor, and the fact that Milner was the vehicle's sole occupant. The court distinguished State v. Cornelius in which the Superior Court granted a motion to suppress, concluding that the decision in Cornelius was based on reliability and credibility issues that were not present in this case, in which the Superior Court found that Officer leradi's testimony was "consistent," "uncontroverted," and "memorialized by body cam video."
Milner, 2022 WL 2069309, at *4-5.
Id. at *4-5. The Superior Court also included within its analysis the fact that Milner admitted possessing marijuana. We do not include that fact as supporting the probable-cause determination because the bodycam video reflects that Milner did not admit to possessing marijuana until after Officer leradi told Milner that he had probable cause to search the vehicle. Thus, Milner's admission could not have been a factor in Officer leradi's probable-cause determination.
2021 WL 2879889 (Del. Super. Ct. July 7, 2021).
Milner, 2022 WL 2069309, at *5.
(15) Milner contends that the State's reliance on Valentine v. State, in which this Court affirmed the Superior Court's denial of a motion to suppress, is misplaced because in Valentine the probable-cause determination was based on facts in addition to the odor of marijuana, including that the defendant was driving thirty-two miles per hour over the speed limit at 1:00 a.m. Milner posits that we should instead apply Juliano v. State, in which this Court determined, "under the totality of the circumstances ... in [that] unusual case," that a precipitous custodial arrest based on the odor of marijuana alone was unconstitutional. We conclude that, as in Valentine, the search of Milner's vehicle was based on more than solely the odor of marijuana, including the fact that Milner was the driver and sole occupant of the vehicle; the dialogue regarding the smell; and the fact that Milner only slightly lowered the window when Officer leradi approached the vehicle. In Juliano, in contrast, law enforcement officers arrested a vehicle's driver and several passengers, including the juvenile defendant, immediately upon stopping the vehicle and detecting an odor of marijuana. Moreover, Valentine examined the validity of a motor vehicle search that preceded the defendant's arrest; in contrast, the State's argument in Juliano was effectively that "the odor of marijuana, and nothing more, justifies a full custodial arrest for marijuana possession thus clearing the way for a strip search incident to that arrest." We find no reversible error in the Superior Court's denial of Milner's motion to suppress.
Juliano, 260 A.3d at 622.
Id. at 621, 623.
Juliano, 260 A.3d at 630-31; see also id. at 622 (noting the defendant's argument that "although the odor of marijuana may support the extension of a traffic stop or serve as a factor contributing to probable cause to search a person or vehicle, it does not, standing alone, authorize a full custodial arrest").
(16) Milner also challenges the Superior Court's denial of his motion for judgment of acquittal. He argues that the evidence presented at trial was insufficient to establish that he knowingly possessed or controlled a firearm. The Superior Court rejected this argument, concluding that, "viewing the totality of the evidence and the reasonable inferences therefrom in the light most favorable to the State, a reasonable trier of fact could find Mr. Milner knew there was at least one firearm in his truck's glovebox." The court pointed to the evidence that Milner owned the Armada; was the only person in the vehicle when it was stopped; was within arm's reach of the guns; possessed the key to the glove compartment where the guns were located; and stated that he had touched the guns when showing his significant other how to handle them.
Milner, 2023 WL 19080, at *3.
Id.
(17) Milner further contends that the jury's verdict was inconsistent and that no rational trier of fact could find, from the evidence presented, that Milner knew that one gun, but not the other, was present. The Superior Court rejected this argument as well, explaining that:
[T]hat seeming inconsistency is easily understood considering Ms. Grenardo's testimony that she was the listed purchaser of the two firearms and routinely kept one in the glovebox and the other in her home. According to Ms. Grenardo, it was mere happenstance that both were there in the SUV at that given time. So, the jury could have reasonably concluded that Mr. Milner knew there to be at least one firearm in the SUV's glovebox-as that was the norm-but not both.
Id. at *4 (footnote omitted).
The court further concluded that, even if the result were inconsistent, it could be explained by jury lenity.
Id.
(18) After de novo review, we conclude that a rational trier of fact, viewing the evidence in the light most favorable to the State, could find Milner guilty of one count of PFBPP beyond a reasonable doubt. To establish PFBPP, the State was required to prove beyond a reasonable doubt that Milner was a prohibited person and that he knowingly possessed, purchased, owned, or controlled a firearm.Possession may be actual or constructive. To establish constructive possession for PFBPP, the State must show that the defendant knew the firearm's location and had the ability and intent to exercise dominion and control over it.
See Lum v. State, 101 A.3d 970, 971 (Del. 2014) ("We review an appeal from the denial of a motion for judgment of acquittal de novo to determine whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find a defendant guilty beyond a reasonable doubt of all the elements of the crime. We do not distinguish between direct and circumstantial evidence in making our determination." (citations omitted)).
11 Del. C. § 1448(b), (c).
Lum, 101 A.3dat971.
Id.
(19) We agree with the Superior Court that a rational factfinder could find that Milner knowingly possessed a gun. In addition to the evidence that the Superior Court highlighted in its order denying the motion for judgment of acquittal, the State also presented evidence that Milner's belt was unfastened and removed from several belt loops when he exited the vehicle; there was an empty gun holster in the unlocked center console; and Milner knew that Grenardo owned two guns, "dr[ove] around with them," and typically kept one in the vehicle that he was driving on the day of the traffic stop. Viewing the evidence in the light most favorable to the State, a rational trier of fact could conclude that Milner knowingly possessed one of the guns but not the other.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.