Opinion
I.D. No. 1005011579.
Submitted: November 12, 2010.
Decided: December 1, 2010.
On Defendant's Motion to Suppress — DENIED.
Sarita Wright, Esquire, Department of Justice, Wilmington, DE.
Thomas A. Foley, Esquire, Wilmington, DE.
Dear Counsel:
As a result of the Motion to Suppress filed by the defendant, the Court conducted a hearing on November 12, 2010 in which the only witness was the arresting officer. In addition, the interaction between the officer and the defendant during the traffic stop was recorded, and the tape of the event was played for the Court. Based upon this evidence, the Court finds no basis to suppress the evidence seized from the defendant's vehicle and this motion will be denied.
The facts of the case are not in dispute. On May 15, 2010 the arresting officer, Corporal Sebastianelli had received information from another Delaware State Police officer that he had observed the defendant's vehicle while conducting surveillance of possible illegal drug activity and that officer believed the occupants of the vehicle had engaged in a drug transaction. Officer Sebastianelli was provided a description of the vehicle and a license plate number and was asked that if an opportunity presented itself to stop the vehicle, that he should do so and attempt to confirm the other officer's suspicion.
Upon receipt of this information, Corporal Sebastianelli set up radar surveillance on a road near the defendant's residence on which it was common for cars to speed. At approximately 5:30 p.m. that evening the defendant's vehicle was observed by Corporal Sebastianelli. It was not speeding, but the officer continued to monitor the defendant's vehicle and observed that it pulled onto the shoulder prior to the marked turn lane. As such conduct was a violation of the motor vehicle code, the officer executed a stop of the vehicle.
The officer approached the vehicle and the defendant was able to provide his license, registration card and proof of insurance. During the initial interaction with the defendant, the officer made no additional observations that would justify a search of the vehicle beyond the normal observations consistent with a routine motor vehicle stop. The officer testified that he believed there was no basis to search the vehicle so the only possible avenue was to see if the defendant would consent to the search. The Court also finds there is no question if the defendant had refused to give consent, the officer simply intended to give the defendant the motor vehicle warning documents and send him on his way.
Having found the defendant's motor vehicle record to be in order and that there were no outstanding warrants, the officer again approached the vehicle, requested the defendant to exit the vehicle and stand behind it while he discussed the motor vehicle stop with him. The defendant complied and the officer proceeded to tell the defendant that since his papers were in order and that he had no prior motor vehicle violations, the officer was simply going to issue him a warning. The defendant thanked the officer, shook his hand and at this point the following conversation occurred:
Officer — Let me ask you this. You got pinched in Middletown?
Defendant — Yes.
Officer — You still messing with that stuff?
Defendant — No.
Officer — No more?
Defendant — No, no, no.
Officer — Nothing in the car that is not supposed to be there?
Defendant — Nope.
Officer — Do you mind if I check?
Defendant — No, sure.
Officer — Alright, cool.
The defendant now argues that the search that subsequently occurred was an unjustified and illegal extension of the original traffic stop seizure and without further probable cause justification, the subsequent search must be suppressed. The defendant argues that the conduct here is in line with the facts of Caldwell v. State and since there is no question that there is no basis to search the vehicle, unless consent was given, the issuance of the traffic warning ended the appropriate interaction and anything beyond that point was a violation of the defendant's Fourth Amendment rights.
780 A.2nd 1037 (Del. 2001)
After having reviewed the videotape of the interaction between the defendant and the officer recorded from the police car, the Court disagrees with the defendant. Unlike the facts in Caldwell, the police officer's conversation here was friendly, non-confrontational and was a continuance of the exchange between the officer and the defendant as a result of the traffic stop. There is no question the defendant voluntarily gave consent to the search and there is nothing in how this matter was handled by the officer that would have given the defendant any indication he could not refuse the officer's request. The defendant was not handcuffed or frisked as was the defendant in Caldwell, and the subsequent request to search the vehicle occurred as part of the ongoing non-confrontational conversation with the defendant relating to the traffic stop. There was no "unreasonable attenuation" in the conversation as asserted in Caldwell and the defendant here clearly voluntarily consented to continue the conversation. Under the facts of this case, the Court finds the defendant voluntarily consented to the search of his vehicle and the defendant's Fourth Amendment rights were not violated. The motion is hereby DENIED.