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ruling that the trial court could consider observational tests in its probable cause analysis despite the State not establishing the tests' scientific reliability
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ID No. 0306011221 WCC.
Submitted: May 30, 2006.
Decided: December 21, 2006.
Appeal from Decision of the Court of Common Pleas. AFFIRMED.
Gregory C. Strong, Deputy Attorney General; State of Delaware Department of Justice; Wilmington, Delaware.
Louis B. Ferrara, Esq.; Ferrara, Haley, Bevis Collins; Wilmington, Delaware.
MEMORANDUM OPINION
Introduction
This is an appeal from a decision of the Court of Common Pleas in finding insufficient probable cause to arrest the Appellee/Defendant Charles Ministero, Jr. As a result, the blood alcohol analysis conducted thereafter was ruled inadmissible. For the reasons set forth below, the decision of the Court of Common Pleas is affirmed.
Facts
On the evening of June 11, 2003, while Delaware State Police Trooper Andrew J. Hudak was on duty patrolling the Concord Pike area, Tpr. Hudak observed Mr. Ministero operating a motorcycle at a high rate of speed. As a result, Tpr. Hudak followed the motorcycle for three to four miles, and while doing so observed the motorcycle change lanes without signaling and swerve within its lane while continuing to travel at a high rate of speed. Based on his observations, Tpr. Hudak conducted a traffic stop of Mr. Ministero.
Tpr. Hudak testified to his credentials, including the special training he received relating to the enforcement of the DUI laws. Because his training is not in question, this Court will not regurgitate all the certificates and classes Trooper Hudak attended and obtained. See Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 4-7.
Id. at 18, 33.
Id. at 24, 27, 32-33.
Id.
While the stop itself was uneventful, based on the above-mentioned observations prior to the stop, Tpr. Hudak initially suspected Mr. Ministero may have been driving under the influence of alcohol. This suspicion was heightened after Tpr. Hudak engaged in a conversation with Mr. Ministero, and Tpr. Hudak smelled a moderate odor of alcohol from his breath. Mr. Ministero explained to Tpr. Hudak that he had a couple of beers that night, and Tpr. Hudak described Mr. Ministero's eyes as "bloodshot, glassy, and brown."
During voir dire to determine whether the trooper had reasonable articulable suspicion to stop Mr. Ministero, the following testimony took place:
FERRARA: Here's my question. If you were, number one, on DUI patrol and, and — I'm sorry, let me back up one, one question. Can we agree that nothing he did during his driving or — let, let me, let me not lead you. Did anything he do during his driving make you think you had a potential DUI, or did you just think you had a speeder?
HUDAK: The combination of the speed, unsafe lane changes, and the swerving within the lane, the combination of all three heightened my suspicion that it's possible he may have been drinking.
Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 33.
Id. at 41.
Id. at 39-41.
Relying on these observations, Tpr. Hudak administered several field sobriety tests, including asking Mr. Ministero to recite the alphabet, to perform a counting test, to do a nine-step walk and turn and to perform a one-leg stand. In addition, Tpr. Hudak administered a Portable Breathalyzer Test (PBT) and conducted a Horizontal Gaze Nystagmus Test (HGN Test). Based on his performance on these tests, Tpr. Hudak arrested Mr. Ministero and charged him with Driving Under the Influence of Alcohol and/or Drugs and Speeding. Subsequently, Mr. Ministero filed a motion to suppress the initial traffic stop, his arrest, and the chemical analysis performed as a result of the arrest.
Id. at 42.
21 Del. C. § 4177(a) states, in pertinent part:
(a) No person shall drive a vehicle: (1) When the person is under the influence of alcohol;[or] (4) When the person's alcohol concentration is, within 4 hours after the time of driving .08 or more. . . .
. . . .
(4) "While under the influence" shall mean that the person is, because of alcohol or drugs or a combination of both, less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a vehicle.
The Court of Common Pleas determined that Tpr. Hudak had reasonable articulable suspicion to stop Mr. Ministero for further investigation. As a result, the lower court denied the Defendant's motion to suppress the stop. However, it did grant the Defendant's motion to suppress the arrest based on finding that under the totality of the circumstances standard, the State did not establish probable cause for Tpr. Hudak to arrest Mr. Ministero. As a collateral result, the blood analysis conducted was also suppressed.
Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 39.
Id. at 104.
Based on this ruling, the State certified the evidence suppressed was necessary for the prosecution of Mr. Ministero pursuant to 10 Del. C. § 9902, and the charges against Mr. Ministero were thereafter dismissed by the lower court. The State subsequently filed a notice of appeal of the suppression order. Both parties have briefed the matter, and this is the Court's ruling.
Standard of Review
"When this Court acts as an intermediate court of appeals, its function is the same as that of the Delaware Supreme Court when it hears appeals." Thus, an appeal from the Court of Common Pleas to the Superior Court is reviewed " de novo for legal determinations, and `clearly erroneous' for findings of fact." If the factual finding of the Court of Common Pleas is "sufficiently supported by the record and [is] the product of an orderly and logical deductive process," the conclusion must be accepted by this Court even if this Court would have reached a different conclusion, provided the correct legal standard was applied.
Evon v. State, 1999 WL 743435 (Del.Super.Ct.), at *2 ("[T] he Court determines whether there are errors of law and whether the evidence supports the lower court's factual findings, viewing the evidence in a light most favorable to the State.").[14] State v. Karg, 2001 WL 660014 (Del.Super.Ct.), at * 1 (citing State v. High, 1995 WL 314494 (Del.Super.Ct.), at *5); see also Lopez v. State, 861 A.2d 1245 (Del. 2004) ("Once the historical facts are established, the issue is whether an undisputed rule of law is or is not violated. Accordingly, appellate courts review de novo whether there is probable cause for an arrest, as a matter of law.") (citations omitted).
State v. Karg, 2001 WL 660014 (Del.Super.Ct.), at * 1 (citing State v. High, 1995 WL 314494 (Del.Super.Ct.), at *5); see also Lopez v. State, 861 A.2d 1245 (Del. 2004) ("Once the historical facts are established, the issue is whether an undisputed rule of law is or is not violated. Accordingly, appellate courts review de novo whether there is probable cause for an arrest, as a matter of law.") (citations omitted).
High, 1995 WL 314494 at *2 (citing Levitt v. Bouvier, 287 A.2d 671 (Del.Super.Ct. 1972)); State v. Maxwell, 624 A.2d 926, 928 (Del. 1993).
Discussion
The question before this Court is whether the Court of Common Pleas properly determined that Tpr. Hudak did not have probable cause to arrest Mr. Ministero. "To establish probable cause, the police are only required to 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 crime." Thus, in cases in which a defendant is suspected of, and charged with, Driving Under the Influence of Alcohol, the police must present evidence that, under the totality of the circumstances, there is a fair probability that the defendant was driving a vehicle while under the influence of alcohol.After Tpr. Hudak testified at the probable cause hearing, the Court of Common Pleas first determined what evidence was reliable, and the weight to give that evidence. It then determined whether probable cause existed based on the remaining evidence. As a result, this Court analyzes the lower court's decision in two parts. First, this Court will apply the clearly erroneous standard in determining whether the trial court properly excluded certain tests performed by Tpr. Hudak. In doing so, if this Court finds sufficient evidence to support the factual conclusions reached by the Court of Common Pleas regarding whether the field tests, HGN test or PBT were conducted in accordance with the appropriate standards, this Court will accept its conclusions unless they are clearly wrong. Second, once it is determined what evidence was properly considered, this Court will review whether, as a matter of law, the lower court applied the appropriate legal standard in assessing whether probable cause was present at the time of Mr. Ministero's arrest.
Lopez, 861 A.2d at 1248 ("A determination of probable cause for an arrest is grounded, first, in the events leading up to the arrest and, second in the decision whether those events amount to prob abl e cau se as a matter of law. `The fi rst part of the an alysis i nvo lves on ly a determination of historical facts, but the second is a mixed question of law and fact . . .'") (citing Ornelas v. United States, 517 U.S. 690, 696 (1996); Purnell v. State, 832 A.2d 714, 719 (Del. 2003)).
State v. Cagle, 332 A.2d 140, 143 (Del. 1974) ("The Superior Court has the duty to review the sufficiency of the evidence and to test the propriety of the findings below. If such findings are sufficiently supported by the record and are the product of an orderly and logical deductive process, the Superior Court must accept them, even though independently it might have reached opposite conclusions.").
Banthar v. State, 823 A.2d 467, 486 (Del. 2003) ("A trial judge's suppression ruling is reviewed de novo on appeal because it involves mixed questions of fact and law. The Superior Court's factual findings as to all of the claims asserted on appeal by Banthar are supported by the testimony presented during the six days of the pre-trial suppression hearing and the taped statements themselves. These factual findings are not clearly erroneous.").
A. Counting Test
First, upon objection by the Defendant, the Court of Common Pleas did not allow Tpr. Hudak to testify regarding Mr. Ministero's performance of the counting test. The trial court determined the counting test has "no correlation between one's ability to count and impairment." In making this ruling, it appears the lower court relied on its previous ruling in State v. Brown:
The State did not attempt to enter any testimony regarding the alphabet test, and thus this Court will not address whether it should have been admitted.
"THE COURT: On the State's offer of the counting test, this Court has rejected the counting test as having no correlation between one's ability to count and impairment. And that decision was entered more than four years ago, and we have not deviated from that." Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 44.
[W]ith respect to the admission of results from the `alphabet' test, the `counting' test, and the `finger count' test, the Horn reliability concerns become apparent in the case before this Court. The results of these three field sobriety tests do not constitute scientific evidence as a matter of law, nor are any of these `exercises' even recognized as sufficiently reliable indicators of alcohol impairment by the National Traffic Safety Administration. . . . The State may, however, present the testimony of witness(es) consisting of `helpful firsthand observat ions' of Defendant's performance of these three tests.
State v. Brown, 2003 WL 1826219, at *1 (Del.Com.Pl.) (citing to United States v. Horn, 185 F.Supp.2d 530 (D.Md. 2002)).
Incorporating the ruling of the United States District Court of Maryland in U.S. v. Horn, the Court of Common Pleas's decision basically limits a police officer's testimony to that of a lay person since the field tests are not scientifically proven. Specifically addressing how a police officer may testify, the court in Horn declared:
[W]hen testifying about the SFSTs [Standard Field Sobriety Test] a police officer must be limited to describing the procedure administered and the observations of how the defendant performed it, without resort to terms such as `test,' `standardized clues,' `pass' or `fail,' unless the government first has established a foundation that satisfies Rule 702 and the Daubert/Kumho Tire factors regarding the reliability and validity of the scientific or technical underpinnings of the NHTSA assertions that there are a stated number of clues that support an opinion that the suspect has `failed' the test.
Horn, 185 F. Supp.2d at 559.
This Court agrees with this assessment. An individual's performance on "memory" type tests are factors an officer may use to determine whether probable cause exists to arrest an intoxicated person, just like the officer's observations of the defendant's driving or his personal appearance. For example, there can be no argument that an officer is allowed to testify concerning a defendant's speech, his lack of balance or the defendant's overall general appearance or performance. The defendant's ability to complete tests like counting and alphabet word affiliation fully fall within this category.
Unfortunately, the Court must find that the lower court ruling in which it refused to consider testimony regarding the counting test to be inconsistent with its earlier decision in Brown. Here, Tpr. Hudak should have been allowed to testify regarding the Defendant's performance on the counting test, not as a scientifically reliable result that would definitively establish intoxication or impairment, but as part of his general overall observation of the Defendant that he used to assess whether the Defendant was driving in an impaired state, similar to the other personal observations he had made that evening.
The Court does agree with the trial court that these field tests are not to be viewed with any scientific value unless their scientific reliability is first established. While it is not clear what the testimony of Tpr. Hudak would have been, more importa ntly, the State made no attempt to create a record to contradict the conclusions reached by the trial court concerning the scientific reliability of such a test. The State did not present expert evidence that would establish impairment as indicated by one's failure to successfully complete a counting test or that such a test has been certified by the National Highway Traffic Safety Association (NHTSA). Without some evidence to support the legitimacy and reliability of the test and its relationship to one's impairment to operate a motor vehicle, this Court is not in a position to question the lower court's decision to discount the testimony as an unreliable scientific indicator of impairment.
Accordingly, while the lower court erred in not allowing any testimony regarding Mr. Ministero's performance on the counting test, the trooper did have an opportunity to testify as to the Defendant's general appearance, his clothing, his speech at the time of the traffic stop, and the general operation of his motor vehicle. Thus, the Court finds this error by the lower court to be harmless and did not affect the overall decision of the lower court.
B. Field Test
Next, to determine if the physical field tests conducted by Tpr. Hudak were reliable, and therefore admissible, the Court had to first determine if the field tests conducted by Tpr. Hudak were conducted in accordance with the NHTSA standards. At the conclusion of Tpr. Hudak's testimony in this area, the Court ruled as follows:
On the motion, with respect to the field coordination tests, that the officer failed to comply with the NHTSA guidelines, indicating that where there's an indication of some physical disability, that the test is not to be performed. It is clear that that would affect, at least in my evaluation, that that requirement would clearly involve the walk-and-turn test and the balance test. And those two tests will be excluded.
Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 74-75.
The record supports this conclusion, as Tpr. Hudak did in fact testify that Mr. Ministero stated he had surgery on his neck and back. Further, the parties agree that the field tests should have been conducted in accordance with the NHTSA standards,and that those standards support the conclusion that a person with a disability would be unable to appropriately perform the physical field tests, causing unreliable results. Since Mr. Ministero advised Tpr. Hudak of his previous back surgery, the Court of Common Pleas' decision to exclude the field test will not be questioned by this Court. Because the field tests were not conducted within the NHTSA guidelines, the trial court was free to disregard them when assessing if probable cause existed to arrest Mr. Ministero.
Id. at 43-44, 64, 68.
The prosecutor further conceded that NHTSA guidelines indicate that a test should not be administered on a person with a physical disability. Id. at 72.
C. Portable Breathalyzer Test
With respect to the Portable Breathalyzer Test (PBT), Tpr. Hudak testified on direct examination that Mr. Ministero failed the PBT. On cross-examination, however, Tpr. Hudak testified as follows:
Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 79.
FERRARA: And this PBT is a PBT that actually gives a digital printout, I mean a, yeah, a digital printout. It's not, it doesn't tell you pass/fail, it actually gives you a reading?
HUDAK: It gives you a number, yes.
FERRARA: And in this case you're right on the border, aren't you?
HUDAK: Yes.
. . . .
FERRARA: So, thirty-five minutes after he's last driving, he gives you a, an absolute borderline reading?
HUDAK: Yes.
Id. at 82.
Id. at 83.
Based on the testimony presented, it appears that the Court did consider the PBT reading when it rendered its decision, and the PBT result was not completely excluded as evidence. However, it is within the appropriate discretion of the Court of Common Pleas judge to determine what weight to give the PBT results based on Tpr. Hudak's testimony. So long as there is evidence in the record to support the trial court's decision, this Court is not in a position to overturn that assessment. Here, the record supports the lower court's decision to include the PBT in its final analysis of the existence of probable cause, and the record also supports the lower court's decision to not afford the potentially borderline reading much weight toward building probable cause to arrest Mr. Ministero. As a result, the lower court's decision with respect to the PBT results is not clearly wrong, and this Court must accept its decision.
Cagle, 332 A.2d at 142.
D. Horizontal Gaze Nystagmus Test
The last piece of evidence with respect to probable cause to arrest Mr. Ministero is the administration of the Horizontal Gaze Nystagmus Test (HGN). The HGN test is performed by a trained police officer who determines if the individual being tested is alcohol-impaired based on his "inability of the eyes to maintain visual fixation as they are turned horizontally side to side." Simply put, the officer holds an object, such as a pen, in front of the driver's eyes, then "gradually moves the object, or stimulus, horizontally out of the driver's field of vision towards the ear and watches the driver's eyeball to detect involuntary jerking-or nystagmus." This Court has approved HGN as a reliable indicator of impairment that may be used in assessing probable cause. However, due to the possibility of misdiagnosis or poor application, in order for a court to admit HGN evidence, a proper foundation must first be laid. To do so, the State must establish that the trooper was trained to administer the test and that he followed the standards as he was trained.
State v. Ruthardt, 680 A.2d 349, 352 (Del.Super.Ct. 1996) (citations omitted).
Ruthardt, 680 A.2d at 353. For a complete recitation of how to perform the HGN test, see the Court's opinion in Ruthardt.
Id. at 354, 362 ("[T] estimony at the evidentiary hearing regarding the reliability of the HGN test more than adequately establishes that, in the hands of a trained police officer, the test is reasonably trustworthy when used in conjunction with other field rests to establish probable cause to arrest.").
Zimmerman v. State, 693 A.2d 311, 315 (Del.Super.Ct. 1997); Ruthardt, 680 A.2d at 349, 362 (Concluding that HGN is a scientific test and must satisfy Delaware Rules of Evidence for admissibility. "[P] rior to the admission of HGN evidence the State must provide a proper foundation for the evidence by presenting testimony from an expert with specialized knowledge and training in HGN testing and its underlying principles. The foundation testimony need not come from a scientific or medical expert; testimony from a scientific or medical expert; testimony from a Delaware police officer with specialized training in HGN will suffice.").
Id.
Here, Tpr. Hudak testified that he was in fact trained to perform the HGN test pursuant to the NHTSA standards, and he testified as to what those standards entail. One of the requirements pursuant to the NHTSA Training Manual is that the test is performed in a "well-lit area," and both Tpr. Hudak's testimony and his report reflect that this stop was in an unlit area. While the area he performed the test was unlit, Tpr. Hudak explained to the court that he used his flashlight to illuminate Mr. Ministero to enable Tpr. Hudak to analyze how he performed on the HGN test.
Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 47.
Ruthardt, 680 A.2d at 353. ("To ensure accuracy, the NHTSA manual further instructs the officer to perform the test outside of the automobile in a well-lite area.") (citing to the NHTSA Training Manual).
Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 53-54.
On voir dire, Tpr. Hudak testified as follows:
FERRARA: — are you aware or are you not that NHTSA requires that it be done in a well-lighted area:
HUDAK: In the training, I am sure that they went through that, but right now I cannot recall —
. . . .
FERRARA: Okay. And where do you — what, what do you do with this flashlight.
HUDAK: You would hold it, illuminating the subject's chest area where the brightest light would be on the chest area. And you would have, you know, light, enough light to observe the face —
FERRARA: Right.
HUDAK: — so you're not blinding him or making him —
FERRARA: Yeah.
HUDAK: — squint.
FERRARA: All right. And you have a specific memory that you did that in this case?
HUDAK: Yeah.
FERRARA: All right. Now, my question is, would you consider you, the use of that flashlight as creating a well-lighted area?
TROOPER HUDAK: Enough light for me to observe what I needed to see.
Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 53-56.
Thus, Tpr. Hudak testified that the HGN test was performed in a unlit area, against the NHTSA standards, and the trooper was further unable to state whether the use of the flashlight was sufficient to meet the NHTSA standards. This discrepancy is one of the factors that the Court of Common Pleas may properly use to analyze the testimony put forth by Tpr. Hudak to determine what weight to give the HGN test results. Regardless of whether this Court would have ruled in the same fashion, because the record supports the trial court's decision that the test performed by the trooper did not clearly comply with requirements of the NHTSA standards, the trial court's assessment of the weight to give the HGN test results based on the testing conditions must be accepted by this Court, as it was not clearly erroneous.
Tpr. Hudak did not know the rationale behind the NHTSA standards requiring a well-lit area for the HGN test, he just knew that a well-lit area was required. Id. at 88.
E. Court of Common Pleas Analysis of Probable Cause
Upon excluding the physical tests performed by Tpr. Hudak, at this point the lower court was left with the following evidence to assess whether probable cause existed to arrest Mr. Ministero: 1) the driving of Mr. Ministero, including speeding, swerving within one lane and failure to signal; 2) the moderate smell of alcohol emanating from Mr. Ministero; 3) the indication by Mr. Ministero that he had a few beers that night; 4) Mr. Ministero's glassy and bloodshot eyes; 5) the PBT results and 6) the HGN test results. As previously discussed, the trial court declined to give much weight to the PBT results and the HGN test results, noting that the PBT was a "border failure" and the HGN had a "poor performance."
Id. at 104.
"Probable cause exists where the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Here, the record supports that the lower court properly applied this Maxwell standard in determining that probable cause did not exist for Tpr. Hudak to arrest Mr. Ministero. In doing so, the Court of Common Pleas did not discount factors because of innocent explanations, as Maxwell cautions against. Rather, the lower court discounted tests performed improperly, rendering the results untrustworthy and consequently invalidating the arrest.
Maxwell, 624 A.2d 926 (citing Brinegar v. United States, 338 U.S. 160, 175-176 (1949)).
The lower court noted that the officer must have "sufficient facts to warrant a reasonable person to believe that the person to be taken into custody has committed the offense for which he is to be charged." Tr. Hudak, Del. CCP, C.A. No. 0306011221, at 103.
Accordingly, the lower court conducted an appropriate examination of the evidence before it, and made factual determinations regarding how much weight to give each test or observation of Tpr. Hudak. After careful analysis of the totality of the circumstances, the lower court determined probable cause to arrest Mr. Ministero for driving under the influence of alcohol did not exist. The Court finds that this conclusion is based on a logical analysis of the evidence and an application of the appropriate legal standard of probable cause. Since the Court of Common Pleas ruling was not erroneous as a matter of law, it will not be disturbed by this Court.
Conclusion
For the foregoing reasons, the decision of the Court of Common Pleas is hereby AFFIRMED.
IT IS SO ORDERED.