Submitted: September 5, 2014
Michael B. DegliObizzi, Esquire, Deputy Attorney General, Attorney for State of Delaware.
Joseph A. Hurley, Esquire, Attorney for Defendant.
OPINION AND ORDER
Ferris W. Wharton, Judge
Defendant Bob Mugo was arrested and subsequently indicted on the charge of Driving a Vehicle While Under the Influence of Alcohol or With a Prohibited Alcohol Content. He filed a Motion to Suppress Evidence on June 24, 2014. The State submitted its Response on July 3rd. A suppression hearing was held on August 22nd. Following the hearing, the Court requested that the parties submit simultaneous memoranda on an issue regarding a discrepancy between certain language in the Delaware State Police's (DSP) sobriety checkpoint guidelines and those of the Office of Highway Safety (OHS). The parties have submitted those memoranda. The Court did not request memoranda on other issues raised by the motion.
Upon consideration of the Motion to Suppress Evidence, the State's Response, the evidence presented at the suppression hearing, the arguments of counsel and the parties' post-hearing submissions, the Court finds that the language of the DSP checkpoint guidelines, taken as a whole, requires reasonable, articulable suspicion of driving under the influence before a police officer may detain a driver for purposes of conducting a further investigation. The Court also finds that the Defendant's other complaints about the execution of the guidelines are without merit. Accordingly, the Defendant's Motion to Suppress Evidence is DENIED.
The basic facts are not in material dispute. DSP Lt. Michael Wysock testified that he requested and received approval to conduct a sobriety checkpoint at Salem Church Road at Adel Drive in New Castle County on September 20, 2013. The location was selected because it met certain criteria regarding alcohol related crashes and alcohol related arrests during the previous three years. The checkpoint was approved for the hours of 10:00 p.m. to 2:00 a.m. Lt. Wysock's testimony touched on each of the guidelines set out for requesting and conducting the checkpoints. The State introduced, through Lt. Wysock, a copy of the sobriety checkpoint guidelines,  the 2013 DUI Checkpoint Grid,  Lt. Wysock's memo requesting approval for the September 20th checkpoint containing Capt. Benson's approval and a statistical report of the results of the checkpoint.
DSP Lt. Roger Davis was the officer who made contact with the Defendant as one of the officers working the line of vehicles stopped at the checkpoint on September 20th. Lt. Davis testified the he detected a strong odor of alcohol coming from the Defendant's person and breath to the point where the Defendant reeked of alcohol. Lt. Davis also testified that the Defendant's eyes were bloodshot and appeared glassy and that the Defendant's speech was slurred. At that point Lt. Davis asked the Defendant to pull into a parking lot for further investigation.
III. THE PARTIES' CONTENTIONS
The Defendant raises several issues in support of his motion. First, he argues that there is a fatal discrepancy between the DSP checkpoint guidelines and the OHS guidelines used for checkpoints conducted by Delaware municipal police officers. Specifically, the Defendant asserts that the DSP guidelines require only "articulable suspicion" before an officer may undertake further investigation, while the OHS guidelines require "reasonable, articulable suspicion." The difference is important, he argues, because "reasonable, articulable suspicion" and "articulable suspicion" are not the same thing and every stop must be based on reasonable, articulable suspicion under the Fourth Amendment, not merely articulable suspicion. The Defendant also argues that the September 20th checkpoint failed to comply with the DSP guidelines because Lt. Wysock did not request approval for the checkpoint at least one week in advance and because there was insufficient proof of advance publicity of the checkpoint.
The State, citing United States v. Henson,  argues that there are essentially three factors for the Court to consider in determining whether a checkpoint complies with the Fourth Amendment: (1) the checkpoint must be clearly visible; (2) it must be part of a systematic procedure that strictly limits the discretion of police officers; and (3) drivers are detained no longer than reasonable to accomplish the purpose of checking license and registration, unless other facts establish a reasonable suspicion of criminal activity. The State also argues that the testimony of Lt. Wysock together with the request for authorization to conduct the checkpoint ...