Opinion
Cr. A. No. 0403006066 MMJ.
Submitted: September 16, 2005.
Decided: December 20, 2005.
Shawn Martyniak, Esquire, Department of Justice, Wilmington, Delaware, Attorney for Appellant
Louis B. Ferrara, Esquire, Ferrara, Haley Bevis, Wilmington, Delaware, Attorney for Appellee-Defendant Below. Johnston, J.
MEMORANDUM OPINION
The State has appealed the dismissal by the Court of Common Pleas ("CCP") of the case at bar, following the suppression of essential evidence. This is the Court's decision on the State's appeal.
PROCEDURAL CONTEXT
On February 21, 2004, Defendant Richard Rollo was detained and charged with driving under the influence of alcohol. Trial was scheduled in the Court of Common Pleas on November 22, 2004. Just before the start of trial, Defendant/Appellee successfully moved to exclude the results of chemical tests for lack of probable cause. Following the exclusion, the State certified on the record that the suppressed evidence was essential to the State's case-in-chief, and sought dismissal of the charge. The Court of Common Pleas granted the State's request for dismissal pursuant to 10 Del. C. § 9902(b), automatically ripening the State's absolute right of appeal conferred by 10 Del. C. § 9902(c).
On December 3, 2004, the State timely filed a Notice of Appeal indicating that the appeal is from the order suppressing all evidence. Defendant filed a Motion to Dismiss Appeal on May 17, 2005, alleging that under Superior Court Criminal Rule 39(f), the Court lacks jurisdiction as a result of the State's failure to comply with sections 9902(b)-(c). Defendant argued that the State's Notice of Appeal is fatally flawed because the State erroneously appealed the order to suppress and not the order to dismiss, as required by sections 9902(b)-(c).
By Memorandum Opinion dated August 4, 2005, the Court denied the Motion to Dismiss, finding:
The Defendant has failed to demonstrate that he will suffer substantial prejudice from the acceptance of the technically flawed Notice of Appeal. This minor procedural flaw does not constitute a ground for dismissal. Under the circumstances presented, the error clearly was not substantive. All of the statutory requirements established by 10 Del. C. § 9902 have been met.
This is the Court's consideration of the State's appeal of the Court of Common Pleas' November 22, 2004 suppression order.
STATEMENT OF FACTS
On February 21, 2004, at approximately 2:24 a.m., Delaware State Trooper John Forester observed a maroon Ford Expedition, traveling southbound on Route 202, turn right onto westbound Route 92 without using a turn signal. Forester then observed the vehicle make a left turn onto Thompson Bridge Road without signaling. Forester watched the vehicle travel over the solid white "fog-line" off the roadway, and onto the grass before coming back onto the roadway. A large portion of the vehicle crossed over the solid, double-yellow lines and into the oncoming traffic lane. Defendant admitted that, most likely, he crossed over the roadway's centerline. These driving incidents took place within approximately one quarter mile. Forester noted that the weather was clear.
Forester activated his light bar and Defendant pulled off the roadway into a ditch. Forester then approached the vehicle and observed that Defendant was the driver. Forester discerned that Defendant's eyes were glassy and bloodshot. Forester detected a strong odor of alcohol. Defendant admitted that he had consumed three beers earlier in the evening. Defendant stated that he had gone in the restaurant/bar at approximately 7:00 p.m. During the hearing, Defendant also stated that he remained at the establishment until shortly before the stop at 2:24 a.m. Defendant's speech was slurred.
Based on these observations, Forester had Defendant perform several field sobriety tests. The first test was the "walk and turn" test. Defendant exhibited three "clues" on the test and, therefore, failed. Defendant exhibited six "clues" on the Horizontal Gaze Nystagmus test ("HGN"). Defendant also failed the Portable Breath Test. Forester concluded, based on everything he had observed up to that point, that Defendant was under the influence of alcohol.
Forester took Defendant to Delaware State Police Troop One to administer an Intoxilyzer. Defendant subsequently was cited for Driving Under the Influence of Alcohol in violation of 21 Del. C. § 4177 and for Failure to Maintain a Lane in violation of 21 Del. C. § 4122(1).
STANDARD AND SCOPE OF REVIEW
In considering appeals from the CCP to the Superior Court, factual issues are reviewed on the record and are not tried de novo. This Court's role is to correct errors of law and to review the factual findings of the court below to determine if such findings are sufficiently supported by the record and are the product of an orderly and logical deductive process. Questions of law are reviewed de novo.
11 Del. C. § 5301.
Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972).
Ensminger v. Merrit Marine Const., Inc., 597 A.2d 854, 855 (Del.Super. 1988).
ANALYSIS
The dispositive issue is whether Forester had probable cause to require Defendant to submit to an Intoxilyzer test. The CCP held that Forester did not have probable cause. In order to reach that conclusion, the CCP not only took into account the facts of the case, but Forester's credibility and knowledge, which the CCP found wanting. Probable cause may be established by factual and practical considerations, as well as by direct observations of police officers. The facts and circumstances to be considered in determining whether probable cause existed are those that were known at the time of arrest to the arresting officer.The state argues: (a) that the CCP erred by suppressing evidence of Defendant's blood alcohol content by improperly applying existing legal standards to the facts of the case; and (b) that the CCP erred by failing to consider relevant information concerning Defendant's performance in field sobriety tests when assessing probable cause.
A Delaware law enforcement officer may require an individual to submit to an Intoxilyzer test, for purposes of determining the presence of alcohol, when the officer has "probable cause to believe the person was driving, operating or in physical control of a vehicle in violation of § 4177." An officer has probable cause when there is information that would cause a reasonable person to believe that a crime has taken place. Probable cause is measured not by precise standards, but by the totality of the circumstances through a case-by-case review of the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act. Probable cause may be established by direct observations of police officers or from hearsay.
21 Del. C. § 2740.
Evon v. State, 1999 WL 743435, at *3 (Del.Super.) ( citing State v. Maxwell, 624 A.2d 926, 929-30 (Del. 1993)).
Illinois v. Gates, 462 U.S. 213, 231 (1983).
Barnett v. Division of Motor Vehicles, 514 A.2d 1145, 1146 (Del.Super. 1986).
The State argues that the evidence of probable cause in this case involved the combined testimony of Trooper Forester and the statements of Defendant. Forester testified that he concluded that Defendant was impaired from his observation of Defendant's inability to operate the motor vehicle in a safe manner and from Defendant's physical characteristics, condition and demeanor. Forester then subjected Defendant to several field tests in the presence of at least two other Delaware State Troopers.
The State asserts that the CCP erred in assessing probable cause for the following reasons:
• The CCP declined to assign any significance to Defendant's driving as a contributing factor.
• The CCP failed to take into account Defendant's statements, physical appearance, or attitude at the time of the stop.
• The CCP failed to consider the results of the Portable Breath Test when determining the existence of probable cause. Under 21 Del. C. § 4177(g)(1), evidence obtained through a preliminary screening of a person's breath, in order to estimate the alcohol concentration of the person at the scene of a stop, shall be admissible in any proceeding to determine whether probable cause existed to believe that a violation occurred.
• The CCP failed to consider the totality of the circumstances known to police prior to Defendant's arrest and the subsequent Intoxilyzer examination.
The State lists the following facts that should have been considered by the CCP under the totality of circumstances basis for probable cause:
1. At approximately 2:24 a.m. on February 21, 2004, State Trooper Forester saw a maroon Ford Expedition turn onto westbound Route 92 from Route 202 without using its turn signal.
2. Trooper Forester followed the vehicle and after having observed the vehicle travel approximately one-quarter mile, saw the driver failed to signal a turn on two separate occasions.
3. Trooper Forester, in the same quarter mile, observed the vehicle drift off the roadway, over the solid white "fog line," and onto the grass.
4. Trooper Forester also observed the vehicle cross the yellow center lines.
5. Trooper Forester activated the light bar on his police cruiser; the defendant pulled off the roadway and into a ditch.
6. Upon stopping the vehicle, Defendant quickly exited and had to be ordered to return to his vehicle.
7. The officer detected a strong odor of alcohol exhaled by Defendant.
8. The officer noticed Defendant's glassy, bloodshot eyes.
9. Trooper Forester noticed Defendant's slurred speech.
10. Defendant admitted to having consumed alcohol earlier in the evening.
11. Defendant's attitude was "cocky, arrogant, and snobby;" Defendant attempted to be in control of the investigation.
12. Defendant failed a Portable Breath Test.
Thus, the State contends that police had knowledge of facts and circumstances sufficient to induce a reasonable belief that Defendant was impaired by alcohol. The facts and circumstances to be considered in determining whether probable cause existed are those that were known at the time of the arrest to the person who made the arrest.
State v. Moore, 187 A.2d 807, 811 (Del. 1963).
During the November 24, 2004 evidentiary hearing, Forester testified that he had Defendant perform a walk and turn test. The officer determined that Defendant failed the walk and turn. Forester admitted that until the week before Defendant's hearing, he did not know if there was a permissible distance that the heel could miss the toe during the walk and turn test. Forester did not know what constituted a valid heel-to-toe clue and what did not. Forester admitted that he had given a different answer at a hearing a week prior, before he reviewed the National Highway Transportation Authority ("NHTSA") training manual and attended two additional hearings. Because Defendant informed Forester that he had problems with his knees and did not want to perform the test, the CCP determined that the walk and turn test should not have been performed at all. The NHTSA standard is that when there is a physical imitation of the suspect, the test should not be administered.
Forester also testified that Defendant failed the Horizontal Gaze Nystagmus ("HGN") test. Forester testified that although he did not remember the exact distance he held his pen from Defendant's eyes during the test, he believed he held the pen between sixteen and twelve inches away.
This Court need not address the issue of whether Trooper Forester failed to properly administer the field tests. Assuming that the field test evidence should not have been considered. Trooper Forester still had adequate probable cause to arrest Defendant and require Defendant to submit to the Intoxilyzer test.
The CCP did not find Forester's testimony credible, based upon Forester's lack of familiarity with NHTSA testing protocols. The CCP also evaluated each of Trooper Forester's observations of Defendant's conduct and demeanor, and found that the State failed to eliminate possible exculpatory explanations for such conduct.
"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." "The possibility that there may be a hypothetically innocent explanation for each of several facts revealed during the course of an investigation does not preclude a determination that probable cause exists for an arrest."
Id.
Maxwell v. State, 624 A.2d 926, 930 (Del. 1993).
The court below erred by discounting the probative value of each fact revealed by the police investigation at the scene. The burden does not shift to the police to eliminate all possible innocent explanations for the existence of each observation of Defendant's conduct, behavior and demeanor. The ultimate question in assessing probable cause is whether the facts known to the police are sufficient in themselves to cause a person of reasonable caution to believe that an offense has been or is being committed.
Id.
Id.
CONCLUSION
The Court finds that Trooper Forester had probable cause to believe Defendant was intoxicated, without considering the results of the field tests. The observations of Trooper Forester, prior to any field testing, constituted probable cause to perform the Portable Breath Test and Intoxilyzer test. Even if the CCP correctly questioned the validity of the field tests, the Intoxilyzer test results should not have been suppressed. When considering the totality of the circumstances, the police officer clearly had probable cause to administer the Intoxilyzer test. The court finds that the CCP's review of the officer's testimony concerning his observations of Defendant prior to field testing was clearly erroneous. Those observations provided ample evidence to support a finding that probable cause existed at the time of Defendant's arrest, justifying the administration of the Intoxilyzer test.Additionally, the positive results of the PBT are required by Delaware law to be admitted in any proceeding to determine whether probable cause existed. However, the CCP found that the PBT may not have been correctly administered. In light of this Court's ruling, this Court need not consider whether the CCP erred as a matter of law by failing to consider the PBT results in determining whether probable cause existed.
THEREFORE, the judgment of the Court of Common Pleas suppressing the Intoxilizer test results is hereby REVERSED.