ORDER

GOLDSTEIN, J.

This 13th day of February, 2001, upon consideration of the papers filed by the parties and the record in this case, it appears that:

(1) On April 29, 2001, Wilmington Police officers arrested Defendant, Kamil Ifriqi. Defendant was charged with two counts of Attempted Murder, First Degree, four counts of Possession of a Firearm During the Commission of a Felony, Robbery, First Degree, Aggravated Menacing, and Wearing a Disguise During the Commission of a Felony.

(2) Defendant subsequently filed a Motion to Suppress, asking that the Court suppress any and all statements by him obtained by police. Defendant argues that he did not knowingly, intelligently, or voluntarily waive his Miranda rights prior to police questioning because he was intoxicated. The Court held a hearing on Defendant's motion on February 5, 2001.

(3) At the suppression hearing, Detective Brian Cross of the Wilmington Police Department testified that, on April 29, 2001, he responded to the scene of a shooting on Union Street in Wilmington. Defendant was in custody when Det. Cross arrived. Det. Cross testified that he read Defendant his Miranda rights at the scene and spoke to him briefly. Defendant indicated at the scene that he was under the influence of marijuana and PCP.

(4) Det. Cross transported Defendant back to the station and again read Defendant his Miranda rights. Det. Cross testified that Defendant indicated that he wished to waive his rights. According to Det. Cross, Defendant did not appear to be under the influence of PCP at the station. Det. Cross explained that a strong odor is usually present when a person has consumed PCP and that no such odor was present on Defendant. Det. Cross testified that he did not detect the odor of alcohol or any other "unusual smell."

(5) Det. Cross agreed that Defendant told him that he had smoked marijuana that Defendant believed was laced with PCP. However, Det. Cross stated that it was his opinion that Defendant was not under the influence of drags when he waived his Miranda rights and that he saw no physical signs of alcohol or drug intoxication. Det. Cross testified that he did not remember if Defendant fell asleep during the course of the police interviews. Det. Cross noted that Defendant told him that he had "never been more cognizant."

(6) At the conclusion of the suppression hearing, the State submitted a video tape of Det. Cross's interrogation of Defendant at the police station, which the Court has reviewed.

(7) When a defendant waives his privilege against self-incrimination and the right to counsel pursuant to Miranda, the State bears the burden of proving by a preponderance of the evidence that the waiver was voluntary and the product of a knowing and intelligent decision. Howard v. State, Del. Supr., 458 A.2d 1180, 1183 (1983). The Court determines whether the State has met its burden under the totality of the circumstances. State v. Russo, Del. Super., 700 A.2d 161, 174 (1996), aff'd, Del. Supr., No. 458, 1996, Walsh, J. (Apr. 7, 1997) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) and Whalen v. State, Del. Supr., 434 A.2d 1346, 1351 (1981)).

(8) In order to properly conclude that a defendant waived his Miranda rights, the Court must make inquire whether: "(1) the waiver was `voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception' and (2) the defendant was fully aware of the rights abandoned." Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).

(9) The first requirement, the "voluntariness" of the defendant's waiver, does not depend upon a defendant's personal characteristics; rather, it is limited to "the existence of State misconduct or overreaching." DeJesus v. State, Del. Supr., 655 A.2d 1180, 1192 (1995). Such voluntariness "does not concern "moral or psychological pressures to confess emanating from sources other than official coercion.'" Id. (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)) (Emphasis in original.) Rather, the voluntariness of the waiver depends, "entirely upon the absence of police overreaching, and not upon an abstract inquiry into the defendant's `free will' or subjective view of reality." Id. at 1192-93 (citing Colorado v. Connelly, 479 U.S. 157, 170 (1993) and Liu v. State, Del. Supr., 628 A.2d 1376, 1379-80 (1993)).

(10) In the instant case, Defendant does not contend that Det. Cross intimidated, coerced, or deceived him into waiving his rights. The Court finds that no such evidence exists in the record. Therefore, the Court finds that the first factor, as set forth above, that Defendant's waiver of his rights be voluntary rather than the result of intimidation, coercion, or deception, has been satisfied.

(11) The Court also must determine whether Defendant was fully aware of the rights that he abandoned. In order to make a knowing and intelligent waiver of Miranda rights, a defendant must have, "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of circumstances surrounding the interrogation' reveal., the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Moran, 475 U.S. at 421 (citations omitted).

(12) In examining the "totality of the circumstances" surrounding a waiver of Miranda rights, the Court should examine "the behavior of the interrogators, the conduct of the defendant, his age, his intellect, his experience, and all other pertinent factors." Traylor v. State, Del. Supr., 458 A.2d 1170, 1176 (1983) (quoting Howard, 458 A.2d at 1182). Drug or alcohol intoxication does not per se invalidate an otherwise proper waiver of a defendant's rights. Traylor v. State, Del. Supr., 458 A.2d 1170, 1176 (1983) (citations omitted). Whether a defendant who is under the influence of drugs is able to knowingly and intelligently waive his Miranda rights requires the Court to determine whether the suspect has the "sufficient capacity to know what he is saying and to have voluntarily intended to say it." Id.

(13) In the instant case, the Court finds that, under the totality of the circumstances surrounding Defendant's statements to Det. Cross, Defendant did not knowingly and intelligently waived his Miranda rights. Although Det. Cross testified that Defendant did not appear to be under the influence of drugs and displayed no physical signs of drug or alcohol influence, the videotaped interview submitted by the State clearly indicates otherwise. During the interview, Defendant informs Det. Cross that he had smoked marijuana all day and that he believed that the marijuana had been laced with PCP because of its effect on him. Defendant states that he will be "a lot more cooperative" when he sobers up.

(14) Also, Defendant does not appear to be alert during the interview. Defendant slurs his words and is often slow in his responses to questions. Defendant also rambles in his responses to most of those questions and does not always respond in a coherent manner. For example, although Defendant seemingly indicates that he understands the rights read to him, he appears to be more preoccupied with receiving a shirt or jacket to wear. When asked what he did with his own shirt or even what color the shirt was, Defendant cannot remember. Defendant falls asleep immediately each time Cross exits the room and even appears to nod off during questioning.

(15) The Court has also taken into consideration the fact that Defendant is twenty-seven years old, that he told Det. Cross that he attended community college, and that he stated during the interview that he was "somewhat familiar with the judiciary system" due to a prior arrest in Pennsylvania. However, under the totality of the circumstances, given the degree of Defendant's obvious intoxication, the Court finds that Defendant did not knowingly and intelligently waive his Miranda rights.

As a result, the Court hereby grants Defendant's Motion to Suppress.

IT IS SO ORDERED.

Carl Goldstein, Judge

oc: Prothonotary