Opinion
ID No. 0803005602.
Date Submitted: August 15, 2008.
Date Decided: October 28, 2008.
Upon Defendant's Motion to Suppress Evidence: GRANTED
Joseph S. Grubb, Esquire, Wilmington, Delaware, Attorney for the State of Delaware.
Charles M. Oberly, III, Esquire, Wilmington, Delaware, Attorney for the Defendant.
I. BACKGROUND
The incident giving rise to this Motion to Suppress is a traffic stop for a partially obscured inspection sticker on a license plate. On March 4, 2008 at approximately 10:00 p.m., Wilmington police officers on patrol saw the defendant operating a green 1997 four-door Lexus with Delaware license plate "YUNGBOI" near the intersection of 8th and Adams Streets. The police followed the vehicle for over a mile. When asked why the police initially decided to follow this vehicle, Officer Talley responded:
See Transcript of Suppression Hearing on Aug. 15, 2008 ("Tr.") at 30, Docket Item ("D.I.") 16.
Actually, just the license plate itself originally attracted me. It's marked with . . . [YUNGBOI]. It is a vanity tag. And it kind of just caught my attention. We were trying to . . . [decipher] what that meant. In the process of doing that . . . I can't read the registration . . . It's covered by . . . [an] after-market metal plate for some reason.
Tr. at 4.
Tr. at 4.
When asked why he and his partner, Officer Scholl, followed the vehicle for over a mile, Officer Talley explained that they spent a great deal of time discussing what "YUNGBOI" meant and whether they should stop the vehicle, or whether they needed to respond to higher priority complaints. After deciding that they could not read the registration sticker and were not needed on higher priority calls, they stopped the vehicle. There is no dispute that the sole basis for the stop was 21 Del. C. § 2122. The defendant produced his license, registration, and proof of insurance without incident. Officer Talley advised the defendant that his vehicle tag registration sticker was "unreadable as far as expiration," and then went to his patrol car to run a computer check on the defendant's license and registration. The computer check established that the defendant's license and registration were valid. Although the insurance card appeared to be valid, Officer Talley decided to call the defendant's insurance company to confirm his coverage. Officer Talley was able to reach a Progressive Insurance agent who advised him that the policy was no longer valid. Officer Talley informed the defendant that his vehicle was uninsured and asked him to step out of the vehicle. He placed the defendant under arrest, handcuffed him, and told him that the vehicle would be towed. Officers Talley and Scholl then commenced an inventory search of the vehicle pursuant to Wilmington Police Department Directive 6.34. Officer Talley first examined the exterior and then opened the trunk. He found two rounds of ammunition in the trunk. According to Officer Talley, he immediately stopped the inventory search upon discovering the rounds "because at that point my concern is I am not just doing an inventory, now I'm looking for something because normally when there's ammunition, there's more." Officer Talley called Detective Solge, told Detective Solge what he found and asked what he should do. Detective Solge instructed Officer Talley to have the vehicle brought to headquarters and said that detectives would search the vehicle there. The vehicle was towed to headquarters. According to Officer Talley, the vehicle was searched at headquarters and police found 226 grams of crack cocaine in the glove compartment. The defendant was charged with an "unauthorized addition" to his license plate pursuant to 21 Del. C. § 2122, and Trafficking Crack Cocaine.
Tr. at 6:
. . . we followed behind but, at the time we listened to the radio . . . listening for other complaints that may take priority other than stopping this vehicle and advising them of the situation, we can't read, it's unreadable. Secondly, we were actually going back and forth discussing what does . . . [YUNGBOI] mean. It just took a little time, that's all. It wasn't anything more than that.
Tr. at 32. 21 Del. C. § 2122 provides: "No person shall use or exhibit in a manner or at a time not authorized by this chapter, or by the rules and regulations of the Department with respect thereto, any number of registration plates or accessory plates, or display or use any unauthorized design, symbol or legend on or attached to any such plates."
Tr. at 7.
Id. The registration sticker bears the number "08." The right half of the "8" is obscured. Tr. at 50; Ex. 1 to Def. Mot. to Suppress Evidence and to Dismiss Charges pursuant to Del. Super. Ct. Crim. Rules 12(b) and 41(f), D.I. 5.
Tr. at 7-8.
Tr. at 11-12.
Tr. at 13-14. According to Officer Talley, the reasons the police conduct an inventory search before towing a vehicle are: "It protects the vehicle. If a tow truck vehicle was to bring it up on the truck and damage it, this way we can say it was done prior to or after . . . Also, if there's expensive equipment in the vehicle that is no longer there, it protects the defendant or the owner of the vehicle to make sure they receive their property back." Id. at 14.
Paragraph IV.A. of Wilmington Police Department Directive provides:
The purpose of the inventory is to protect the lawful owner's property and to avoid claims of theft or damage against the seizing officer.
Specifically the guidelines are intended to:
1. Protect the property of others while in police custody.
2. Protect the members of the Department of Police against claims or disputes over lost or stolen property.
3. Protect the members of the [D]epartment from potential danger.
4. Respond to incidents of theft or vandalism.
D.I. 10, Exh. 2.
Tr. at 15.
Tr. at 16.
Id. Interestingly, the police did not allow the defendant an opportunity to legally park the vehicle so it would not have to be towed. Tr. at 34-36. Pursuant to paragraph I.A.9. of Wilmington Police Department Directive 6.34, when a vehicle is being operated without insurance, "the officer will . . . allow the owner/operator to legally park the vehicle." D.I. 10, Exh. 2. Although the defendant was not the owner, he was the operator.
Tr. at 16-17, 21.
Prior to this stop, Officer Talley had never before issued a citation for a violation of 21 Del. C. § 2122. Tr. at 9.
The defendant argues that the traffic stop was pretextual and thus violative of Article I, Section 6 of the Delaware Constitution. The defendant further argues that the evidence must be suppressed because it was found as a result of an improper inventory search. Alternatively, the defendant argues that his arrest was premised upon an alleged violation of 21 Del. C. § 2122, a statute that is unconstitutionally vague, thereby making defendant's arrest a violation of due process.
Del. Const. art. I, § 6. "The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or thing, shall issue without describing them as particularly as may be; nor then, unless there be probable cause supported by oath or affirmation."
The State contends that the initial stop was constitutionally sound because the police had probable cause to believe that the defendant violated 21 Del. C. § 2122 which prohibits the "display or use of any unauthorized design, symbol or legend on or attached to" license plates. The State also argues that the stop was legal because 21 Del. C. § 2126 (which was not cited by the police as a basis for the stop) prohibits display of "any other material . . . placed on or around a number plate which would conceal and/or obscure any information contained thereon, including the registration expiration sticker."
DISCUSSION
The defendant was stopped because of an alleged violation of 21 Del. C. § 2122. The metal frame which obscured a part of the "8" on his registration sticker does not constitute an "unauthorized design, symbol or legend" Within the meaning of § 2122. The State suggests as much by its conduct after receiving the defendant's Motion to Suppress — the State re-indicted the defendant under § 2126 instead of § 2122. The State claims it did this because of the defendant's vagueness argument. The State's re-indictment does not fix the problem. The problem is the police based their traffic stop on a particular law, § 2122, and the undisputed facts do not establish a violation of that law. The police mistakenly cited § 2122 when they should have cited § 2126. The State claims it does not matter because as long as the defendant violated some law, the police had a "valid reason" to stop him.As noted in McDonald v. State, the "four corners" test is used to determine whether an affidavit demonstrates probable cause to issue either an arrest warrant or a search warrant. "Sufficient facts must appear on the face of the affidavit such that a reviewing court can ascertain from that document alone the factual basis for a determination that probable cause exists." In McDonald, the police asserted in the Affidavit of Probable Cause that the defendant's vehicle entered a public highway without signaling. This violation was the sole basis for the stop. The Delaware Supreme Court held that the code provision relied upon by the police did not apply to vehicles exiting from a private parking lot, (as McDonald's vehicle had), and that it would have been impossible for McDonald or anyone else to have complied with the turn signal requirement given the length of the parking lot. Consequently, the Court held in McDonald that the alleged turn signal violation did not satisfy the probable cause requirement.
McDonald v. State, 947 A.2d 1073, 1078 (Del. 2008).
Id.
Id. (emphasis added).
In McDonald, the code provision relied upon by the police required a turn signal to be "given continuously during not less than the last 300 feet or more than one-half mile . . . before turning." The total length of the private parking lot the defendant exited was only 200 feet. Id. at 1079.
The outcome must be the same here. The "unauthorized addition to license plate frame" (§ 2122) cited in Officer Talley's Affidavit of Probable Cause does had insufficient to Suppress is not satisfy the probable cause requirement. At the time of the stop, the police officer may have reasonably believed the defendant was committing a traffic offense, but the officer could not have reasonably believed that the defendant was in violation of § 2122, the only section articulated in Officer Talley's Affidavit of Probable Cause. Therefore, there are insufficient facts in the "four corners" of the Affidavit to establish probable cause.
See Id. The Court notes that because it is suppressing the evidence under McDonald, it need not address the Franks issue. Franks v. Delaware, 438 U.S. 154 (1978). There are material and troubling inconsistencies between the two Affidavits of Probable Cause, Officer Talley's testimony at the hearing and the circumstances leading up to and surrounding the "inventory search." If, as Officer Talley testified, the crack cocaine was found during a search conducted at headquarters pursuant to the search warrant stemming from Officer Talley's discovery of the ammunition rounds, then Detective Tabor's Affidavit and Officer Talley's Affidavit contain serious errors. If Officer Talley's Affidavit is correct, then Detective Tabor's Affidavit contains serious errors. Officer Talley testified that it was his discovery of the ammunition rounds that prompted the police to seek a search warrant. Yet the Affidavit Detective Tabor submitted to obtain the search warrant is silent as to the ammunition; it mentions the crack cocaine. Under Franks, when a defendant establishes that a false statement in an affidavit for probable cause is "necessary to the finding of probable cause[,]" and that statement was included by the affiant in the affidavit "knowingly or intentionally or with reckless disregard for the truth[,]" then the "search warrant must be voided and the fruits of the search excluded. . . ." Id. at 2676.
See Aff. of Probable Cause, Ex. 2 to Def.'s Mot., D.I. 5. The only basis for the stop articulated in Officer Talley's Affidavit of Probable Cause is "equipment violation (Unauthorized Addition to License Plate Frame.)" It is undisputed that § 2122 was the sole basis for the stop. Tr. at 32, 42.
In conclusion, because the Court finds that the police probable cause to stop the vehicle, the defendant's Motion GRANTED.
IT IS SO ORDERED.