Opinion
I.D. No. 0107009869.
Submitted: November 19, 2001.
Decided: November 27, 2001.
Upon Defendant's Motion to Suppress Evidence — DENIED. 1K Nos. 01-07-0383 thru 0387.
Martin J. O'Connor, Esquire, Deputy Attorney General, Attorney for the State of Delaware.
Sandra W. Dean, Esquire, Office of the Public Defender, Attorney for the Defendant.
ORDER Facts
1. Based on testimony and arguments received at the suppression hearing conducted by this Court on November 19, 2001, the facts appear as follows. The Defendant herein is charged with four counts of new charges in a Track I proceeding. The charges are possession with intent to deliver a non-narcotic Schedule I controlled substance, maintaining a vehicle for keeping controlled substances, tampering with physical evidence, and possession of drag paraphernalia.
According to the testimony of the arresting officer, the Milford Police Department received information or a tip from an undisclosed informant, whose identity, circumstance and past reliability is undisclosed, that the defendant was in possession of marijuana.
The defendant did not testify or offer any witnesses.
The testifying officer stated that on July 13, 2001, he was advised that the defendant would be leaving Mispillion Apartments in a vehicle with a black female. Thereafter, he observed a vehicle traveling northbound on Walnut Street from the Mispillion Apartments. The vehicle had a passenger who turned away from the officer and looked toward the driver. A police officer who was ahead of this vehicle confirmed that the passenger was indeed the defendant.
The officer observed that the vehicle crossed the yellow line two times prior to the identification of the passenger and two additional times after the passenger was confirmed. The emergency lights of the police cruiser were activated and the car proceeded to an intersection and turned without utilizing its turn signal. After a short time, the car did stop.
The officer approached the car and he noticed an odor of alcohol coming from the inside of the vehicle. The driver had no difficulty producing her driver's license and car registration, yet failed two out of three performance tests given to her while in the vehicle. She was removed from the car and brought back to the rear and asked to perform additional field tests which, in the officer's view, she failed. She was not charged with driving under the influence, but was charged with careless driving. After the arrest, the car was searched and within plain view a plastic bag containing a leafy material was seized. The material tested positive for marijuana.
Positions of the Parties
2. Defendant moves to suppress all evidence obtained as a result of the events of July 13, 2001, including the marijuana, for the reason that the arresting officer did not have reasonable articulable suspicion to arrest him. Defendant argues that the marijuana was obtained by an illegal search and seizure under the Federal and State Constitutions, and is not admissible under the exclusionary rule. In addition, the reliability of the informant has not been established and there has been no corroboration. The stop can only be viewed as pretextual.
3. The State argues that, under the facts set forth above, the officer had reasonable and articulable suspicion to lawfully seize the defendant as well as the marijuana, which is now admissible in this case.
Reasonable and Articulable Suspicion
4. The Delaware Supreme Court has stated that an officer has reasonable and articulable suspicion to support a detention when he or she "can point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[s] th[e] intrusion. The Court must analyze a police officer's determination of reasonable and articulable suspicion under the "totality of the circumstances" evaluated "through the eyes of a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an officer's subjective interpretation of those facts."
Jones v. State, Del. Supr., 745 A.2d 856 (1999).
Id. at 861.
Id.
Where there is an anonymous tip that provides the police with no predictive information that they may use to assess the reliability and knowledge of an informant [such] is insufficient to raise reasonable suspicion. Yet, a reasonable suspicion is raised where a legitimate, objective reason for stopping a defendant for a traffic violation was committed in the officer's presence.
Flonnory v. State, Del. Supr., ___ A.2d ___, No. 513, 2000 at 9, Steele, J. (Nov. 5, 2001).
Whren v. United States, 517 U.S. 806 (1996).
Analysis
5. "On a motion to suppress, the defendant bears the burden of establishing that the challenged search or seizure was unlawful. The burden of proof is proof by a preponderance of the evidence.At the time that the officer stopped the car for the stated reason, a traffic violation, the totality of the circumstances show: (1) the driver had crossed the yellow line at least four times; (2) failed to signal a turn; and (3) the odor of alcohol was emanating from the vehicle. The issue of the unsubstantiated informant is not the issue here because the ulterior motive of the officer is not relevant and subjective intentions play no role in the ordinary probable cause Fourth Amendment analysis. Detention and an arrest of the driver, as well as the passenger, for drug related offenses is proper under the Whren test.
See Delaware v. Praise, 440 U.S. 648 (1979).
Given the facts as presented, under the totality of the circumstances, the independent observations of the arresting officer for the traffic related charges of which the driver pled guilty justify the stop and the arrest. The marijuana was in plain view in her purse and therefore the defendant's motion to suppress evidence is denied.
IT IS SO ORDERED.