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finding that the stop of the defendant was constitutionally reasonable and denying the defendant's motion to suppress because the officer observed a clear violation of Del. Code Ann. tit. 21, Section 4146(c) (similar to Section 66-7-339(B) ) when the defendant walked eastbound in the eastbound lane of the street
Summary of this case from State v. PenmanOpinion
I.D. No. 0607014245.
Submitted: March 13, 2007.
Decided: June 8, 2007.
Upon Defendant's Motion to Suppress. Denied in part; Granted in part.
Alexis S. Slutsky, Esquire of Department of Justice, Dover, Delaware; attorneys for the State of Delaware.
James D. Nutter, Esquire of Eric G. Mooney, P.A., Georgetown, Delaware; attorneys for the Defendant.
ORDER
Defendant DeShaun Darling filed a Motion to Suppress challenging his seizure and the search of his person. First, the Defendant argues that his initial seizure was in violation of Article I, § 6 of the State of Delaware's Constitution ("the Delaware Constitution"), because the Police Officer's stop of the Defendant was based on the pretextual purpose of pursing a drug investigation. Second, the Defendant contends that the arresting officer lacked both a reasonable and articulable suspicion to stop him and a reasonable ground to believe that he was armed and/or dangerous, rendering the stop and search unconstitutional. Third, Defendant Darling argues that the arresting officer questioned him in violation of his Miranda rights. Finally, Defendant Darling contends that the pedestrian statute, which triggered the initial seizure of the Defendant, is unconstitutionally vague.
The Defendant relies on State v. Heath, 2006 WL 3842144 (Del.Super. 2006) for this proposition.
The Defendant's original Motion to Suppress did not assert a Miranda violation. Following the suppression hearing, the Defendant added the claim in the Defendant's Post-Hearing Memorandum in Support of his Motion to Suppress. Neither party proffered any questions that related to a ny Miranda issues during the Suppression Hearing. Further, the State did not address the Defendant's Miranda argument, because the Parties `briefs were filed concurrently.
Standard of Review
When presented with a Motion to Suppress, the Delaware Courts have consistently stated that the Defendant bears the burden of establishing that the challenged search or seizure violated his rights under the United States Constitution, the Delaware Constitution or the Delaware Code. The Defendant must demonstrate that he is entitled to the relief requested by a preponderance of the evidence.
State v. Dollard, 788 A.2d 1283, 1286 (Del.Super. 2001).
Id.
Statement of Facts
The salient facts are as follows: Officer DiSilvestro was traveling westbound on Deep Grass Lane in an unmarked police car on July 18, 2006. The Officer was wearing a non-conspicuous police uniform as a member of the Governor's Task Force, K-9 Division. It was daylight at the time of the incident, and there were no other people or cars in the area. Deep Grass Lane is a two-lane roadway with a fifty (50) mile per hour speed limit. Officer DiSilvestro testified that as he traveled westbound, he observed the Defendant standing in the middle of the roadway. Mr. Darling was facing north and talking on his cell phone. When the Officer approached where the Defendant was standing, the Defendant turned and walked eastbound three (3) to four (4) steps in the eastbound lane. On the other hand, the Defendant testified that he was always on the shoulder of Deep Grass Lane and he never walked in the wrong direction (eastbound) in the eastbound lane.Officer DiSilvestro decided to stop the Defendant for standing in the middle of the road and walking the wrong way on the roadway in violation of 21 Del. C. § 4146(c). The Officer notified Probation Officer Willard, who was traveling behind him, of his intention to stop the Defendant based on the pedestrian violation. The Defendant argues that the Officer stopped him due to a hunch, based on his presence in a "high-drug area," that Mr. Darling was engaged in drug offenses. Defendant Darling contends that Officer DiSilvestro's pretextual purpose for stopping the Defendant is evidenced (mainly) by (1) the Officer's affidavit of probable cause and (2) the Officer's testimony during the preliminary hearing. The State disagrees with the Defendant's arguments, and the State argues that the Officer stopped the Defendant as a result of the Defendant violating the pedestrian statute.
21 Del. C. § 4146(c) provides: "Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway, and shall walk facing traffic."
Officer DiSilvestro's affidavit of probable cause stated in relevant part: ". . . I observed a lone male standing in the middle of the east bound lanes of Deep Grass lane. At this time the defendant began to walk east bound in the east bound lane rather than in the west bound lane. Prior to patrolling the area I received confidential information that individuals who congregate in that area do so to sell illegal drugs. As the male observed my police car he began to walk away. As he did so he reached into his left pocket where I observed a small bulge. I contacted the male and took him into custody. . ." (Emphasis added)
The following questions and answers were read into the record from the preliminary hearing transcript:
Defense Counsel: "All right. And on Page 17, there was a question presented to you which says, "So besides the fact that he's standing in the street, you said he took no more than three to four steps eastbound. Correct? And there was an answer. What was your answer?"
Officer DiSilvestro: "Approximately that, three or four."
Defense Counsel: "And then there was a second question: Okay. Other than that, there is no reason for you to have confronted him. Is that correct? What was your answer?"
Officer DiSilvestro: "You know, based on information that individuals routinely do that for the purpose of selling illegal drugs."
The Defendant proffers additional circumstances (ie. the vehicle was unmarked) that allegedly evidence the Officer's pretextual purposes for stopping the Defendant in his analysis based on the factors set forth in the Heath decision.
Officer DiSilvestro pulled his police vehicle over in the area that Mr. Darling had walked to, which was on the side of the roadway. The Officer observed the Defendant place his left hand into his left front pocket in a "cupped fashion," which created a small bulge in the bottom of the Defendant's pocket. The Officer testified that "at that time, [his] impression was [that] the Defendant may have possibly had something in his pocket that could be used as a weapon." Specifically, the Officer explained that he anticipated the weapon could have been anything from a heavy set of car keys, to a knife, to a small caliber hand gun.
The Officer testified that it would be unusual to see someone walking down the street with their hands in their pocket in the way the Defendant had his hand "in a cupped fashion, partially in and partially out. . ."
Suppression Hearing Transcript, Page 10, Line 19-21.
Id. at 10-11. The Defendant contends that the Officer's characterization of the bulge being small impinges on the Officer's credibility, because he also testified that the Defendant may have had something large in his pocket. The Defendant had jean shorts on during the incident and there was no testimony concerning how loose or tight fitting the jean shorts were on the Defendant. Therefore, the Court finds that the Officer's characterizations may not be contradictory, because a large item may cause a small bulge in a pair of jean shorts that were loose fitting.
Officer DiSilvestro "stepped out of his vehicle, identified [himself] as a member of the [State Police], and made numerous [observations] about Defendant Darling." The Officer testified that the Defendant appeared nervous, excited and agitated. Mr. Darling was moving in a quick fashion and continued to have his left hand in his pocket. The Officer noted that Mr. Darling had a tight black t-shirt on, which allowed the Officer to see that Mr. Darling was "a pretty big and muscular guy."
Suppression Hearing Transcript, Page 11.
Id.
Id.
Id.
The Officer called Mr. Darling over and asked the Defendant his name, and Mr. Darling told the Officer that he did not have to give him his name. The Officer believed that Mr. Darling was experiencing a fight or flight syndrome and the Officer testified that individuals with those characteristics are either going to try to attempt to leave the area or will become combative to avoid arrest.
Id. at 11-12.
Id. at 12.
Officer DiSilvestro testified that he called the Defendant over a second time and Mr. Darling walked towards him in a quick fashion while exhibiting the same resistive, or at least hesitant, characteristics described above. At a certain distance from the Officer, the Officer ordered Mr. Darling to stop and take his hands out of his pockets. The Defendant refused to take his hand out of his pocket. Based on the circumstances, Officer DiSilvestro felt that he needed to place the Defendant in handcuffs, because the Officer felt that he could incur some level of physical injury. The Officer told Mr. Darling that he was going to put him in handcuffs for the Officer's safety. The Defendant was non-responsive when told to put his arms behind his back so that he could be handcuffed. The Officer reached out to grab the left wrist of Mr. Darling, as Mr. Darling attempted to walk past the Officer. Mr. Darling pulled away from the Officer in a violent manner, pulling his hands towards his chest while stating "You're not putting me in handcuffs."
Id.
Id. at 13.
Id.
Id.
Id. at 13-14.
Id. at 14.
Id.
Id.
Officer Willard, an officer with Probation and Parole, arrived on the scene and the Officer was at the location of the incident at this point. Officer Willard drew his mace and he looked as though he was going to discharge the mace. Officer DiSilvestro asked Officer Willard to st ep back, because Officer DiSilvestro was going to release his K-9 partner in an attempt to apprehend the Defendant. The dog door opener jammed when Officer DiSilvestro attempted to utilize it, but the Officer was able to handcuff Mr. Darling (who was apparently apprehensive about the dog being released). Officer Willard recognized the Defendant as DeShaun Darling, after Mr. Darling was put into handcuffs, and Officer Willard relayed the Defendant's identity to Officer DiSilvestro. Officer DiSilvestro recognized DeShaun Darling's name from a past drug related incident involving Mr. Darling. Officer DiSilvestro then asked the Defendant if he had any drugs in his pocket, and the Defendant replied that he did have drugs in his pocket. It appears from the record that the Officer then patted down/searched the Defendant's front pockets (right pocket first) and the Officer found five (5) pieces of crack cocaine in Mr. Darling's left front pocket. The Defendant informed the Officer that there were more [drugs] in his rear left pocket concealed in a Mike Ike candy box, and the officer recovered the additional cocaine. The Defendant wishes to have the evidence suppressed based on his arguments above, which are discussed below.
Id.
Id.
Id.
Id. at 15.
Id. at 16-17.
Id. at 17.
Id. at 19.
Id. at 19-20.
Id. at 20. The Officer testified that he believed there were eight (8) additional pieces of crack cocaine in the Mike Ike box.
Discussion
There are two aspects regarding the seizure and search of Mr. Darling that the Court must address in the case at hand. The Court must consider the legality of the (1) initial stop and (2) the pat-down of the Defendant, which involved the handcuffing and questioning of the Defendant.
I. Initial Stop
This Court has historically applied the standard established under Fourth Amendment case law, as articulated by the United States Supreme Court, when examining whether a stop was constitutionally reasonable. Generally, a stop under the Fourth Amendment is reasonable if it is supported by probable cause to believe that a traffic [or pedestrian] violation has occurred. The st andar d remai ns the same regardless of the subjective intent of the Officer at the time of the stop. Under the Fourth Amendment standards, the constitutional reasonableness of the traffic stop does not depend on the actual motivations of the individual officer involved, because subjective intentions play no role in ordinary probable cause analysis under the Fourth Amendment. Therefore, as long as the officer is making the traffic stop based on a violation of the traffic code that he has seen, any pretextual reason or actual motivations that might also be involved in the officer's actions are irrelevant. In regards to the reasonableness of an init ial tr affic stop, the D elawa re Sup reme Court has not addressed whether (or how) the scope of Article I, § 6 of the Delaware Constitution differs from the Fourth Amendment of the U.S. Constitution. The Defendant relies on State v. Heath, a 2006 Superior Court Decision, in arguing that the stop of Mr. Darling was a pure pretext, in violation of Article I, § 6. The Heath Court determined that purely pretextual stops run afoul of the underlying purpose of Article I, § 6. The Heath Court established a three step burden shifting analysis to determine whether a traffic stop involving pretextual motivations is constitutionally reasonable under the Delaware Constitution. The Heath Court created a test under Article I, § 6 of the Delaware Constitution that takes into consideration the subjective intentions of the Officer involved in the stop, which is inconsistent with Fourth Amendment analysis historically applied by this Court. Thus, the Heath Court interpreted Delaware's Article I, § 6 to provide broader rights to individuals concerning initial stops by Police Officers as compared to an individual's rights under the Fourth Amendment of the U.S. Constitution as interpreted by the Supreme Court of the United States. The Heath analysis places a difficult burden on a Court because the test requires a Court to examine the subjective motivations of an investigating officer and whether those motivations were primary concerning the officer's traffic or pedestrian stop. The practical implications of the Heath decision may make it more difficult for Police Officers to stop individuals for minor violations of the traffic or pedestrian code, if those stops were to occur in "high crime areas." This is because an Officer's subjective motivations will consistently and necessarily be called into question under the Heath test.
See State v. Banther, 1998 WL 961765 (Del.Super.); State v. Minaya, 1997 WL 855705 (Del.Super.); State v. McDannell, 2006 WL 1579818 (Del.Super.); State v. Caldwell, 1999 WL 1240828 (Del.Super.).
McDannell, 2006 WL 1579818 at *2 citing Whren v. United States, 517 U.S. 806, 810 (1996). Cases dealing with the constitutional reasonableness of a stop tend to deal with traffic stops, but the cases are applicable to stops for pedestrian violations as well.
Id. citing Whren, 517 U.S. at 813.
Minaya, 1997 WL 855705 at *2 citing Whren, 517 U.S. 806 (1996).
McDannell, 2006 WL 1579818 at *2 citing Whren, 517 U.S. at 812.
Caldwell v. State, 780 A.2d 1037, FN 18 (Del.Supr. 2001).
This Court, in State v. Caldwell, 1999 WL 1240828 (Del.Super.), was presented with the issue of whether the Fourth Amendment standard, as articulated in Whren v. United States, 517 U.S. 806 (1996), was a consistent interpretation of Article I, § 6 of the Delaware Constitution. This Court determined that the Defendant's argument, which sought to apply a different standard under the Delaware Constitution as compared to standard under the Fourth Amendment of the U.S. Constitution, was better suited at the appellate level where the Delaware Supreme Court could be afforded the opportunity to address the issue. State v. Caldwell, 1999 WL 1240828, *3 (Del.Super.).
On appeal, the Supreme Court noted that the Defendant's claim on the pretextual stop was necessarily confined to the Delaware Constitution because any federal constitutional claim on the issue has been foreclosed by the United States Supreme Court in Whren. Caldwell v. State, 780 A.2d 1037, FN9 (Del.Supr. 2001). The Supreme Court decided not to address the Delaware Constitutional Claim because of the Court's decision on the Fourth Amendment claim. Id. Therefore, the Supreme Court has never addressed whether the Whren decision is a consistent interpretation of the Delaware Constitution.
State v. Heath, 2006 WL 3842144 (Del.Super.). The word "purely" is not defined by the Heath Court. The Heath Court also stated that the Court's concern was with those traffic stops demonstrated to have been exclusively for the purpose of investigating an officer's hunch about some other offense. Id. at *7 (emphasis added). Exclusively is also not defined by the Heath Court. It appears that the use of the words purely and exclusively by the Court did not mean that pretext be "the only" or "the sole" reason for the stop, but rather the stop was pretextual under the three step test proffered by the Court.
Id. at *8 — *9.
Although the Delaware Supreme Court has never opined whether Whren is consistent with Article I, § 6 of the Delaware Constitution, specifically, the Court has interpreted Article I, § 6 as giving different and broader protections than those guaranteed by the Fourth Amendment. Dorsey v. State, 761 A.2d 807, 817 (Del.Supr. 2000) citing Jones v. State, 745 A.2d 856, 865-866 (Del.Supr. 1999). However, this Court notes that a minority of the Dorsey Court questioned the reasoning that the majority employed in interpreting Art. I, § 6 to provide broader protections. In separate dissenting opinions, Justice Berger and Justice Hartnett sought to apply established Fourth Amendment federal law to Art. I, § 6, pointing out that the language of Art. I, § 6 is "substantially identical" to the Fourth Amendment of the United States Constitution [the Fourth Amendment was adopted in 1791, the year prior to the adoption of Art. I, § 6 (1792)]. Dorsey, 761 A.2d at 821, 825 citing Rickards v. State, 77 A.2d 199, 204 (Del.Supr. 1950). The lack of any legislative history concerning Delaware's Constitution of 1792, which replaced, not amended, Delaware's Constitution of 1776, creates uncertainty concerning the Court's interpretation that Art. I, § 6 provides broader protections than the Fourth Amendment.
This Court will apply the familiar and well established Fourth Amendment standard, previously applied by the Court, in examining the Officer's stop of Mr. Darling in the case sub judice, and the Court will respectfully choose not to apply the test proffered in Heath. This Court reiterates its position that the issue is better suited at the appellate level where the Delaware Supreme Court can be afforded the opportunity to address whether the standard under the Fourth Amendment ( Whren decision) is consistent with a proper interpretation of Article I, § 6 of the Delaware Constitution. In light of our Constitutional History, if the Delaware Supreme Court determines that Whren is not a consistent interpretation, then the Court can also be afforded the opportunity to address the scope of the inconsistency.
Officer DiSilvestro's stop of Defendant Darling, on Deep Grass Lane, was constitutionally reasonable under the Fourth Amendment standard because the Officer had probable cause to stop the Defendant. The Officer witnessed the Defendant violate 21 Del. C. § 4146(c)when Mr. Darling walked eastbound in the eastbound lane of Deep Grass Lane. Therefore, the Officer had probable cause to believe that the pedestrian violation had occurred. The Defendant argues that the subjective intent of Officer DiSilvestro was to stop the Defendant for the pretextual reason of discovering drug violations. However, the Officer's subjective intent at the time of the stop is irrelevant because the Officer had probable cause to believe the Defendant committed a pedestrian violation. The initial stop of Mr. Darling was therefore constitutionally reasonable. When an officer observes a clear violation of the law (even a minor violation), the officer must respond to, and take appropriate action concerning, the violation in order to avoid being negligent in the carrying out of the officer's duties.
Indeed, a person walking or standing in the center of a public roadway would draw the attention as well as the need to make inquiry of a police officer without any need to question the officer's motivation.
II. Pat-Down of Defendant Darling
In Caldwell, the Delaware Supreme Court explained that the stop and inquiry [by the officer] must be reasonably related in scope to the justification for the officer's initiation [of the stop]. The Court went on to address the appropriateness, under the Fourth Amendment, of an officer's pat-down and handcuffing of a Defendant.
Caldwell, 780 A.2d at 1046 citing Brignoni-Ponce, 422 U.S. 873, 880-81 (1975).
The Delaware Supreme Court concluded that the actions of the officer in Caldwell (frisking and handcuffing the defendant) were entirely unrelated to the parking violation (justification for the stop) and the actions exceeded the proper scope of a traffic stop for a parking violation. The Court explained that when the Officer had frisked and handcuffed the defendant the traffic stop ended and a second, independent investigative detention began. The Court concluded that the continuation of the Defendant's detention, including the pat-down search and the use of handcuffs, had to be supported by independent facts, known to the officer at the time, to justify the additional intrusion. In the case sub judice, this test is inapplicable because Mr. Darling was not subject to a second independent investigative detention (or an additional intrusion). The actions of Mr. Darling and the observations of the Officer, which were a result of the initial stop, led to the Officer handcuffing and patting-down the Defendant. In Caldwell, the Delaware Supreme Court explained another situation where it would be appropriate for an Officer to pat-down and handcuff the defendant under the Fourth Amendment. The Court explained that after an officer effectuates a lawful investigative stop supported by reasonable suspicion, the officer has an absolute right to conduct a limited search of the suspect for dangerous weapons if the officer has a reasonable belief that the detainee is presently armed and dangerous. The question is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
Id. at 1049.
Id.
Id. at 1050. The Court explained that an officer cannot arrest the occupant of a vehicle during a traffic stop for an unrelated criminal offense unless the officer has probable cause to believe that the person has committed the unrelated criminal offense. Id. at FN 33.
Id. at 1051. citing Hicks v. State, 631 A.2d 6, 7 (Del.Supr. 1993).
Robertson v. State, 596 A.2d 1345, 1352 (Del.Supr. 1991) citing Terry v. Ohio, 392 U.S. 1, 27 (1968). The critical inquiry into the Officer's use of handcuffs, specifically, as stated by this Court is whether a reasonably prudent officer would have been justified in using handcuffs to neutralize potential threats to his or her safet y or to inhibit a ny attempt by the suspect to escape. Stevenson v. State, 1999 WL 464524, *3 (Del.Super.).
The State argues that it was necessary for Officer DiSilvestro to handcuff and pat-down Mr. Darling for the Officer's safety. The State contends that the Officer had reasonable grounds to fear for his safety and to believe Mr. Darling possessed a weapon. The Court finds the following facts relevant regarding Officer DiSil vestro's alleged fears: (1) the Defendant immediately placed his hand in his pocket (in a cupped manner) upon the Officer's approach of Mr. Darling; (2) the Defendant kept his hand hidden in his pocket around what the officer feared may be a weapon (the Officer testified that there was a small bulge in the Defendant's left front pocket, the same pocket in which the Defendant had his hand); (3) the Defendant refused to comply with the Officer's commands to remove his hand and provide his name; (4) the Defendant appeared nervous, agitated and excited in response to the Officer's presence (the Officer testified that he thought the Defendant was experiencing a flight or fight sensation); and (5) the Defendant was wearing a tight t-shirt, which revealed that the Defendant was a strong individual, capable of resisting the Police.
The Defendant raises an issue concerning a Miranda violation that would be appropriate to address at this point. After Officer DiSilvestro handcuffed Mr. Darling, Officer Willard recognized the Defendant and relayed the information to Officer DiSilvestro. Officer DiSilvestro recognized Mr. Darling's name and the Officer asked the Defendant if he had any drugs in his pockets, to which Mr. Darling replied "Yes." This occurred directly before the Officer patted-down the Defendant.
Law enforcement officials may not subject an individual to custodial interrogation unless he is advised of specific rights protective of his privilege against compelling self-incrimination guaranteed by the Fifth Amendment. If the police take a suspect into custody and interrogate him without advising him of his fifth amendment rights, his answers cannot be introduced into evidence at a subsequent trial to establish the suspect's guilt. A person is in custody for Miranda purposes when there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. The burden of proof is on the State to demonstrate that the Defendant was advised of his Miranda rights and has knowingly and intelligently waived those rights.
DeJesus v. State, 655 A.2d 1180, 1189 (Del. 1995) citi ng Miranda v. Arizona, 384 U.S. 486 (1966).
Id. at 1190.
Id.
State v. DeAngelo, 2000 WL 305332, *5 (Del.Super.).
Mr. Darling was in custody for purposes of Miranda subsequent to being placed in handcuffs, because there was a restraint on Mr. Darling's freedom of movement to the degree associated with a formal arrest. Therefore, Officer DiSilvestro should have given the Defendant his Miranda warnings before interrogating him (asking the Defendant if had drugs on his person). The State has not carried its burden of proof in demonstrating that the Defendant was advised of his Miranda warnings. Based on the testimony presented at the suppression hearing, it appears that the Officer did not give the Defendant his Miranda warnings prior to asking the Defendant if he had any drugs in his pockets. Conseq uently, Mr. Darling's answer, "Yes," cannot be introduced as evidence.
The Defendant's answer can also not be considered as part of the circumstances that led to the pat-down of the Defendant because any evidence found as a result of the illegally obtained confession would be inadmissible. The Court will therefore consider the State's argument that the Officer patted-down the Defendant out of fear for his safety while simultaneously ignoring the fact that the Officer also knew that the Defendant was in possession of drugs. The Officer's additional knowledge, obtained through the illegal questioning of the Defendant, will not be considered as it related to any fear the Officer had for his safety.
Based on the facts that led to Officer DiSilvestro's fear for his safety and the patting-down of the Defendant (laid out above and excluding the illegally obtained information), the Court finds that a reasonably prudent man in the circumstances would be warranted in the belief that his safety was in danger. Officer DiSilvestro could have reasonably feared for his safety as a result of the Defendant's actions and the Officer's observations. Based on the facts of this case, the Officer could have also reasonably believed that the Defendant was in possession of a weapon. The bulge in the Defendant's pocket could reasonably have been interpreted as a weapon of some kind, and coupled with the resistant behavior of the Defendant, there was reasonable indicia present for Officer DiSilvestro to have reacted in the manner that he did in this case. Therefore, Officer DiSilvestro was justified under the Fourth Amendment to handcuff and pat-down Mr. Darling and the drugs found as a result of the pat-down are admissible.
Finally, the Defendant argues that the pedestrian statute, which triggered the initial seizure of the Defendant, is unconstitutionally vague. Title 21 Del. C. § 4146(c)provides: "Where neither a sidewalk nor a shoulder is available, any pedestrian walking along and upon a highway shall walk as near as practicable to an outside edge of the roadway, and shall walk facing traffic." The void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. To prevail on a claim of unconstitutional vagueness, the Defendant must show that the statute is vague as applied to his own conduct. Section 4146(c) provides pedestrians with fair warning of prohibited conduct and the conduct is defined sufficiently such that it does not encourage arbitrary and/or discriminatory enforcement. Further, Mr. Darling cannot show that the statute is vague as applied to his conduct. The statute is simple, clear on its face and has a self-evident purpose to promote public safety.
Carlson v. State, 902 A.2d 1114, 1118 (Del. 2006).
Id.
Based on the foregoing the Defendant's Motion to Suppress is denied with the exception that the Defendant's illegally obtained statements, including the Defendant's confession, are suppressed.
IT IS SO ORDERED.