Opinion
I.D. No. 0606006030.
Submitted: March 28, 2007.
Decided: March 30, 2007, Issued: April 3, 2007.
Upon Defendant's Motions to Suppress. Denied. Upon the State's Remaining Motion in Limine. Denied.
Gregory R. Babowal, Esquire and Stephen E. Smith, Esquire, Department of Justice, Dover, Delaware; attorneys for the State of Delaware.
John R. Garey, Esquire, Dover, Delaware; attorney for the Defendant.
ORDER
Defendant Ron E. King filed three Motions to Suppress evidence seized by the Delaware State Police stemming from a motor vehicle collision that occurred on June 8, 2006. The Court will consider Mr. King's three separate Suppression Motions concurrently.
Additionally, the State has filed a Motion in Limine to limit questioning regarding the National Highway Transportation Safety Administration ("NHTSA") standards for field sobriety testing other than those that are directed to the Horizontal Gaze Nystagmus test.
The Defendant contends that the investigating Officer lacked probable cause to believe Mr. King was under the influence of alcohol. Mr. King argues that the walk and turn and one leg stand tests were improperly administered by Officer Slutsky of the Delaware State Police because the Defendant informed the Officer that he had a back injury prior to the administration of the tests. The Defendant further argues that the empty Natural Light beer cans discovered in his automobile were seized illegally because the evidence was seized pursuant to a warrantless search of the vehicle, prior to the Defendant's arrest. Therefore, the Defendant contends that the physical field sobriety tests and the empty beer cans seized should not be considered as part of the totality of the circumstances when determining whether the Officer had probable cause to believe Mr. King was driving under the influence of alcohol. Mr. King contends that the Officer's remaining observations do not rise to the required level needed to establish the existence of probable cause.
Mr. King further argues that Officer Slutsky improperly advised Mr. King about the consequences of consenting to the Intoxilyzer test while at the Police Station. Therefore, the Defendant did not knowingly and voluntarily consent to the chemical test. Mr. King seeks Suppression of all evidence seized for the reasons stated above.
Statement of Facts
Officer Elwood of the Delaware State Police responded to a motor vehicle collision that Defendant Ron E. King was involved in on June 8, 2006. Mr. King explained to the Officer that he pulled out into a lane of traffic while attempting to cross Route 13 southbound and he did not observe the other vehicle [involved in the collision] until it was to late. Officer Elwood detected a moderate odor of alcohol coming from the Defendant's breath. When asked if he had been drinking, Mr. King informed the Officer that he had two Natural Light beers before driving.
There is a conflict in testimony as to whether there were 2 or 3 beer cans found in or about the Defendant's vehicle.
The investigation was turned over to Officer Slutsky of the Delaware State Police when he arrived on the scene. It was determined that the Defendant's motor vehicle was inoperable and needed to be towed. Officer Elwood conducted an inventory search of the vehicle, pursuant to division policy (discussed in detail below), and the Officer discovered three empty beer cans in a lunch cooler behind the driver's side seat. This information was relayed to Officer Slutsky. Officer Slutsky approached the Defendant and observed a moderate odor of alcohol coming from Mr. King's breath. Further, the Officer noted that the Defendant's eyes were not bloodshot, but his eyes were glassy. The Defendant advised the Officer that he had consumed two beers approximately fifteen minutes before driving. Officer Slutsky performed three field sobriety tests following the consent of the Defendant. The Officer administered the Horizontal Gaze Nystagmus test ("HGN"), the Walk and Turn test and the One Leg Stand test, respectfully. Prior to administering the tests, Mr. King advised Officer Slutsky that he suffered from a back injury and/or back pain, which was duly noted by the Officer.
Officer Slutsky observed 6 out of a possible 6 clues when conducting the HGN test. Consequently, the Officer testified that the Defendant had failed the test. The Officer made further (lay) observations concerning the walk and turn and one leg stand test. These tests are discussed below. Based on the totality of the circumstances, Officer Slutsky determined that he had probable cause to believe Mr. King had been driving under the influence of alcohol. The Officer transported the Defendant to the police station, so that the Officer could administer an Intoxilyzer test. While at the police station and prior to the administration of the chemical test, the Defendant claims that the Officer misinformed the Defendant that he was facing a misdemeanor and would be released shortly, if he consented to the test. The Defendant therefore argues that his consent to the chemical test was involuntary.
Discussion
The Court will first address the Defendant's argument concerning the Defendant's involuntary consent to the chemical test (the Intoxilyzer), while at the police station. Subsequent to Officer Slutsky's investigation at the scene of the accident, Mr. King was transported to the police station for chemical testing. Officer Slutsky testified that he did not recall any conversations with the Defendant concerning the administration of the Intoxilyzer test. The Officer conceded that he did not "run" Mr. King's information until the test was completed. The Officer was therefore unaware that the Defendant was facing a possible felony as a result of the present incident for a fourth Driving Under the Influence arrest. Mr. King testified that Officer Slutsky misinformed the Defendant that he was only facing a misdemeanor and that if he consented to the Intoxilyzer test, he would be released from custody in a short time. The Defendant contends that the misinformation provided by the Officer tainted the Defendant's knowing and voluntary consent and the results of the Intoxilyzer should be suppressed as a result.
Officer Slutsky testified that it was possible the conversation could have occurred.
When a person operates a motor vehicle in Delaware, he or she is deemed by statute to have given consent to chemical tests, including a test of the breath to determine the presence of alcohol or drugs. This testing may be required of a person when a police officer has probable cause to believe that the person was driving while under the influence of alcohol or drugs. Therefore, whether Officer Slutsky may have misinformed the Defendant about the consequences of consenting to the Intoxilyzer test is irrelevant. If the Police Officer had probable cause to believe that Mr. King was driving under the influence of alcohol, then the Defendant is deemed to have consented to the chemical test. The appropriate inquiry concerning Mr. King's consent to the chemical testing is, therefore, whether Officer Slutsky had probable cause to believe that Mr. King was driving under the influence.
Bease v. State, 884 A.2d 495, 497-498 (Del.Supr. 2005) citing 21 Del. C. § 2740(a)(2005). 21 Del. C. § 2740(a) states in relevant part: "Any person who drives, operates or has in physical control a vehicle. . . within this State shall be deemed to have given consent, subject to this section and §§ 4177 and 4177L of this title to a chemical test or tests of that person's blood, breath and/or urine for the purpose of determining the presence of alcohol or a drug or drugs. The testing may be required of a person when an officer has probable cause to believe the person was driving, operating or in physical control of a vehicle in violation of §§ 4177 and 4177L or § 2742 of this title, or a local ordinance substantially conforming thereto."
Id. at 498. The testing of the breath for the presence of alcohol or drugs has been recognized as a search and, therefore, subject to Fourth Amendment requirements and protections. Id. at FN4 citing Schmerber v. California, 384 U.S. 757, 767 (1966).
Probable cause is determined by the totality of the circumstances and requires a showing of a probability that criminal activity is occurring or has occurred. Probable cause exists where facts and circumstances within the police officer's knowledge, and of which the police officer had reasonably trustworthy information, are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed. The State bears the burden of establishing that there was probable cause of driving under the influence to require Mr. King to submit to an Intoxilyzer test.
Id. citing State v. Maxwell, 624 A.2d 926, 928 (Del. 1993).
Id.
Id.
The Defendant argues that the one leg stand and walk and turn tests conducted by Officer Slutsky at the scene of the accident on Route 13 should not be considered when assessing the totality of the circumstances. Mr. King contends that the two tests were not administered according to standard operating procedures because the Defendant advised Officer Slutsky that he had a back injury prior to the administration of the tests. Both parties make arguments based on this Court's decision in State v. Ministero .
The Defendant argues in the alternative that his performance on the tests would indicate "no impairment."
State v. Ministero, 2006 WL 3844201 (Del.Super.).
In Ministero, this Court affirmed a Court of Common Pleas ("CCP") decision that found insufficient probable cause to arrest the defendant for driving under the influence. This Court stated that in order to determine whether the physical field tests conducted by the investigating officer (the walk and turn and one leg stand tests) were reliable and therefore admissible, the (lower) Court had to first determine if the field tests conducted by the Officer were conducted in accordance with the NHSTA standards. The CCP found that the Officer failed to comply with the NHSTA guidelines, indicating that where there is an indication of some physical disability, the test is not to be performed. The record below evidenced that the defendant informed the trooper prior to the tests that he had surgery on his neck and back. This Court decided not to question the CCP's exclusion of the field tests since the defendant had advised the trooper of his previous back surgery. Further, this Court explained that because the field tests were not conducted within the NHSTA guidelines, the trial court was free to disregard them when assessing if probable cause existed to arrest the defendant.
Id. at *4.
Id.
Id.
Id.
Id. See also State v. Powers, 1999 WL 1847353 (Del. Com. Pl) (With regards to the walk and turn test, the Officer testified that the defendant informed him that "he had a disability." However, the Officer administered the tests when the defendant said he could walk. Following an oral Motion in Limine to exclude the walk and turn test, the Motion was granted. Specifically, the Court ruled that since the Officer testified that NHTSA training as well as the NHSTA manual indicates that when a defendant informs the investigating officer that he/she has a disability, no such walk and turn test field test should be administered to the defendant.).
Officer Slutsky testified that Mr. King informed him about a back injury and/or back pain prior to the Officer conducting the walk and turn and one leg stand tests. The Officer duly noted this fact in his report at the time the tests were conducted. The Defendant testified that he had a ruptured disk in the past and the injury had been aggravated from time to time while at work. Mr. King further testified that he had re-aggravated his back injury while at work on the day of his June 8, 2006 arrest. Officer Slutsky may not have known the extent of Mr. King's back injury, but it is undisputed that the Defendant informed the Officer he suffered from a back injury prior to the Officer conducting the field tests. Therefore, this Court will disregard these two physical field tests when assessing whether probable cause existed to arrest Mr. King.
The Defendant's testimony is conflicting as to when the initial injury occurred.
The Defendant also contends that the three empty beer cans found should be disregarded when assessing whether probable cause existed because the cans were seized illegally. This Court has held that inventory searches are lawful when they are made to safeguard property for the benefit of the owner, police and tow company, and not under pretext to gather evidence without a warrant. The State has the burden to show that the inventory search was conducted in good faith in furtherance of the police care taking function and not as a pretext for an investigatory motive. The State must establish by a preponderance of the evidence that the police followed standardized procedures and acted in good faith in conducting the inventory search.
State v. Brown, 2005 WL 2680 43, *2 (Del.Super.) cit ing Lively v. State, 427 A.2d 882, 883 (Del. 1981).
Id. citing State v. Miller, 420 A.2d 181, 184 (Del.Super.Ct. 1980).
State v. Deputy, 2001 WL 1729120, *2 (Del.Super.). Although not argued by Mr. King, it is well established that the police may open closed containers, such as a bag, during an inventory search. Id.
There is undisputed testimony that the Defendant's vehicle was inoperable as a result of the accident. Officer Elwood testified that the location of the damaged vehicle could have caused an obstruction in the flow of traffic. The Officer testified that the motor vehicle had to be towed and, pursuant to Division policy, he did an inventory search of Mr. King's vehicle. Officer Elwood testified that the purpose of the inventory search is to note any valuables that may be in the car on a tow slip in order to protect the owner of the vehicle and the tow company. As a result of the inventory search, the Officer found three empty Natural Light beer cans in a cooler behind the driver's side seat which the Defendant seeks to have suppressed.
There is somewhat conflicting testimony concerning where the Officer saw the empty beer cans because the Defendant's girlfriend, Ms. Burris, testified that the Officer looked in the cooler outside of the vehicle. The Court is confident that the Officer's testimony is credible concerning his discovery of the empty beer cans. Mr. King's written Motion to Suppress also explains that the Officer located the cans through a search of the vehicle.
The Court finds that the State has established by a preponderance of the evidence that Officer Elwood was following standard procedures incident to the towing of Mr. King's vehicle when he discovered the three empty beer cans. Further, the record reflects that the Officer conducted the inventory search in an effort to protect the Defendant and the tow company by making a list of any valuables that were in the vehicle prior to being towed. This evidences the Officer's good faith intentions. Consequently, the beer cans were seized pursuant to a valid inventory search and the evidence is admissible in assessing whether probable cause existed to arrest Mr. King for driving under the influence.
The Court finds the following factors relevant in assessing whether the Officers had probable cause to believe Mr. King was driving under the influence of alcohol: (1) The Defendant advised Officer Elwood that he pulled out into a lane of traffic and did not see the oncoming car, which he collided with; (2) Officers Elwood and Slutsky observed a moderate odor of alcohol coming from the Defendant's breath; (3) Officer Slutsky observed that the Defendant's eyes were glassy; (4) The Defendant advised Officers Elwood and Slutsky that he had consumed two Natural Light beers before driving; (5) Officer Elwood discovered three empty Natural Light beer cans in a cooler behind the driver's side seat of Mr. King's vehicle pursuant to a valid inventory search; and (6) The Defendant failed the HGN test.
Mr. King's testimony during the Suppression hearing could easily be interpreted as the Defendant having had three beers before driving, instead of two.
The Defendant argues that the circumstances in Ministero are similar to the case at hand and this Court should find that no probable cause existed as a result. In Ministero, the CCP used the following evidence to assess whether probable cause existed to arrest the defendant: (1) The defendant's speeding and swerving within one lane and failure to signal; (2) The moderate smell of alcohol emanating from the defendant; (3) the defendant stated that he had a few beers the night before the incident; (4) the defendant's eyes were blood shot and glassy; (5) the Portable Breath Test ("PBT") results; and (6) the HGN results. This Court determined that the CCP properly did not give much weight to the PBT test results because the PBT was only a "border failure." Also, the CCP properly did not give much weight to the HGN test because the Officer conducted the test in an un-lit area using a flashlight to observe the defendant. This Court affirmed the lower court's decision because the CCP's finding that there was no probable cause was based on a logical analysis of the evidence and an application of the appropriate legal standard of probable cause.
Ministerio, 2006 WL 3844201 at *5.
Id.
Id.
Id. at *6.
In the case sub judice, the Officers had more probable cause than did the Officers in Ministero to believe the defendant was driving under the influence of alcohol. The HGN test that Mr. King failed is a reliable indicator of impairment. The State established that the trooper was trained to administer the test and that he followed the standards as he was trained. The Defendant testified that the sun was in his eyes during the HGN test, but the Defendant did not advise the Officer of the apparent problem during the administration of the test. Further, the Officer did not note that the sun was an issue in his report. Therefore, the failed HGN test has more weight in the case at hand. Also, Officer Elwood discovered three empty Natural Light beer cans in Mr. King's vehicle. The evidence supports the Defendant's own admission that he had at least two (maybe three) beers 15 minutes prior to driving. In comparison, the defendant in Ministero stated that he had a few beers the night before the incident.
Id. at *5.
Id.
The Bease case illustrates circumstances where probable cause was less likely to be found in comparison to Mr. King's case, yet probable cause was found to exist. In Bease, the Delaware Supreme Court affirmed this Court's finding that there was probable cause to believe the defendant had been driving under the influence of alcohol. In concluding that the evidence was sufficient in Bease to establish probable cause to administer the Intoxilyzer test, this Court only considered the following factors: (1) the defendant's abrupt driving movement; (2) the odor of alcohol on the defendant's breath; (3) the defendant had glassy and bloodshot eyes; and (4) the defendant admitted to having consumed beer or Chardonnay the night before. Officer Slutsky had more relevant factors in the total mix in Mr. King's case to determine probable cause existed as compared to the Officers in Bease.
Bease, 884 A.2d at 498. This Court declined to weigh the results of either the PBT or the HGN test in performing its probable cause analysis in the Bease case.
Based on the totality of the circumstances that Officer Slutsky was privy to as I have discussed, a reasonable person would believe that Mr. King was driving under the influence of alcohol. Therefore, probable cause existed for Officer Slutsky to administer the Intoxilyzer test to Mr. King. The Defendant is deemed to have consented to the chemical test because Officer Slutsky had probable cause to believe Mr. King was driving under the influence.
Based on the foregoing, the Defendant's Motions to Suppress are denied.
With respect to whether the Field Sobriety Test testimony, other than the testimony pertaining to the HGN may be cross-examined as it pertains to the procedure followed or standards applicable, I find that the defense shall not be hampered and may refer to the standards recommended by the NHTSA. It is clear that NHTSA has published a training manual for the purpose of teaching police officers the proper execution of the walk and turn, one leg stand, as well as the HGN test. Judge Carpenter expressly commented that because the field tests were not conducted within the NHTSA guidelines, the CCP was free to disregard them when assessing if probable cause existed to arrest the defendant in the Ministero case. Obviously, there had to have been testimony concerning the procedure followed in conducting the tests. The Officer may be examined as to describing the procedure and his observations, however, since the tests have not been accepted as scientifically valid in Delaware, the Officer may be examined as a lay witness as to his methods and observations as well as whether he followed a recognized standard of procedure.
Ministero, 2006 WL 3844201 at *4.
IT IS SO ORDERED.