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State v. Ellerbe

Superior Court of Delaware, New Castle

January 27, 2014

STATE OF DELAWARE,
v.
BERNARD ELLERBE, Defendant.

Submitted: December 20, 2013

Upon Defendant's Motion to Suppress DENIED

Mark A. Denney, Jr., Esquire, Deputy Attorney General, Wilmington, Delaware, Attorney for State of Delaware.

Leroy A. Tice, Esquire, Wilmington, Delaware, Attorney for Defendant Bernard Ellerbe.

ERIC M. DAVIS JUDGE

Introduction

Defendant Bernard Ellerbe was arrested on June 18, 2013 and charged with the offenses of (i) aggravated possession, (ii) drug dealing, (iii) conspiracy second, and (iv) possession of drug paraphernalia. Mr. Ellerbe was the passenger of a Lincoln Continental (the "Continental"). Keyon M. Hoye was driving the Continental. The State charged Mr. Hoye with the same offenses as Mr. Ellerbe. In addition, the State charged Mr. Hoye with disregarding a stop sign in violation of 21 Del. C. § 4164(a). On September 6, 2013, Mr. Ellerbe's counsel filed a motion to suppress (the "Motion") that challenged the validity of the traffic stop and subsequent search of the Continental and Mr. Ellerbe's person. The State responded to the Motion. On November 15, 2013, the Court held an evidentiary hearing (the "Hearing") on the Motion. The Court heard some argument and testimony but had to continue the hearing until December 20, 2013 due to some confusion among the parties as to the breadth of the Motion.

On December 18, 2013, Mr. Ellerbe's counsel filed a supplemental paper with the Court in support of the Motion. The State filed an additional paper in opposition to the Motion on December 19, 2013. On December 20, 2013, the Court reconvened the hearing, heard additional testimony and argument and, at the end of the hearing, reserved decision on the Motion.

After a review of the record, the applicable authorities, and the legal arguments and factual presentation made at the Hearing, the Court DENIES the Motion.

Background

General and Procedural Background

Through the Motion, Mr. Ellerbe challenges the stop of the Continental, the subsequent search of the vehicle and his person, and Mr. Ellerbe's arrest. Mr. Ellerbe contends the traffic stop of the vehicle was improper as probable cause did not exist for stopping the Continental for disregarding the stop sign. Relying upon 21 Del. C. § 4101(a)(3), Mr. Ellerbe contends that the stop sign was on private property, Mr. Hoye was not in violation of 21 Del. C. § 4164(a) and, under McDonald v. State, 947 A.2d 1073 (Del. 2006), there can be no probable cause for an arrest for disregarding a stop sign when that stop sign is located on nonresidential, commercial property. Mr. Ellerbe also contends that even if probable cause existed for the traffic stop there was not sufficient suspicion to justify an extension of the stop and subsequent search of the Continental and Mr. Ellerbe.[1] The Motion contends that the evidence obtained during the stop should be suppressed and the case dismissed because of this failure.

On November 15, 2013, the Court began a hearing on the Motion. At the Hearing, the State called one witness – Officer Nicholas Heitzmann of the New Castle County Police Department. Officer Heitzmann is one of the arresting officers (the other being Officer Richard Blackston of the New Castle County Police Department) and the affiant for Mr. Ellerbe's arrest warrant. In addition to Officer Heitzmann's testimony, the State produced DelDOT records concerning the traffic plans of Beaverbrook Plaza (the "Beaverbrook Plaza Plans").[2]

Officer Heitzmann testified that he was notified by an undercover officer that the Continental failed to stop at the stop sign located at the exit of Beaverbrook Plaza onto Saienni Boulevard. Officer Heitzmann confirmed that the location was in New Castle County, Delaware. Officer Heitzmann went on to testify that the emergency equipment of the patrol car was activated prior to the intersection of Saienni Boulevard and Karen Court. Officer Heitzmann stated the Continental did not immediately stop but, rather, continued on at a slow speed through the ...


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