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State v. Aklilu

Court of Common Pleas of Delaware, New Castle

January 4, 2017


          Submitted: December 15, 2016

          Will Raisis, Esquire Deputy Attorney General Attorney for the State of Delaware.

          James M. Stiller, Jr., Esquire Schwartz & Schwartz Attorney for Defendant.


          Honorable Carl C. Danberg Judge.

         The defendant, Maria Aklilu (hereinafter the "Defendant"), brings this motion to suppress evidence obtained in connection with a Driving Under the Influence ("DUI") investigation. The Defendant asserts three grounds for suppression: 1) the investigating officer improperly failed to retain evidence; 2) the Defendant was not given Miranda warnings in violation of the Fifth Amendment; and 3) the investigating officer lacked probable cause to arrest the Defendant.

         On December 6, 2016, a hearing was convened to allow the parties to question witnesses and to present oral argument. At the conclusion of the hearing, the Court determined the Defendant's Motion to Suppress would be best addressed by a written opinion and requested supplemental briefing.[1] This is the Final Decision of the Court on the Defendant's Motion to Suppress.


         During the hearing convened on December 6, 2016, the Court heard from Delaware State Police Corporal Brian A. Timmons ("Corporal Timmons"), the sole witness in this matter. Corporal Timmons was dispatched to the scene of a two vehicle accident on Route 40, near Scotland Drive. Upon arriving at the scene, Corporal Timmons observed the Defendant standing behind her vehicle. Corporal Timmons approached the Defendant and asked where the Defendant was coming from, to which the Defendant responded she had been at Ruby Tuesday. Corporal Timmons then observed the Defendant had watery, bloodshot, and glassy eyes, and also detected an odor of alcohol. Corporal Timmons asked the Defendant whether she had been drinking; the Defendant advised that she had been drinking, but did not specify how much she had to drink.

         After Corporal Timmons inquired about the accident, the Defendant advised she did not know how it had happened. The accident had occurred in the rightmost of two parallel left turn lanes on Route 40; the Defendant's vehicle had rear-ended a vehicle that had been stopped at the light. The Defendant stated she never saw the other vehicle. At this point, Corporal Timmons initiated an investigation into whether the Defendant was driving under the influence (the "DUI investigation").

         Corporal Timmons began with the alphabet test and instructed the Defendant to recite the alphabet from D to T. The Defendant recited as follows: D, E, F, G, A, B, C, D, E, F, G, L [pause] Q, R, S, T, U, V. Corporal Timmons regarded this as a failure. Next, Corporal Timmons instructed the Defendant to count backward from 79 to 64; Corporal Timmons also asked if the Defendant understood, to which the Defendant responded in the affirmative. The Defendant counted as follows: 79, 78, 77, 76, 75, 74, 73, 72, 71, 70, 69, 68, 76, 65, 64, 64, 63, 62, 61, 60, 59, 58, 57, 56.

         Next, Corporal Timmons instructed the Defendant on the walk-and-turn test. While Corporal Timmons did not ask whether the Defendant had any injuries or disabilities, Corporal Timmons did explain and demonstrate the test, while also ensuring the Defendant understood the instructions. The Defendant reportedly started too early, missed heel to toe, stepped off the line, raised arms, and took only eight steps. Corporal Timmons advised this constituted a failure. On the one-leg stand test, Corporal Timmons reportedly observed the Defendant swayed and raised her foot, thus also failing that test. No other field sobriety tests were conducted.[2] At this point the Defendant was placed under arrest and taken to Troop 2, where an intoxilyzer test was administered.

         During the hearing on the instant Motion to Suppress, several corollary matters were brought to the Court's attention through the examination of Corporal Timmons. First, Corporal Timmons detected the Defendant spoke with an accent, but could not recall whether the Defendant advised English was not her native language. While counsel for the Defendant represented the Defendant was not born in the United States, the Court heard no testimony as to the Defendant's place of birth or proficiency with the English language.[3] Second, there was testimony regarding the (lack of) an MVR. Corporal Timmons testified to his understanding of how the MVR system in his patrol vehicle works. Specifically, Corporal Timmons believes the system continually records, but only retains the most recent sixty seconds of footage; upon activation of the MVR, the prior sixty seconds then become part of the permanent recording.[4]According to Corporal Timmons, there are several ways in which the MVR begins recording -and permanently storing - footage. Two of those methods include activating the vehicle's emergency equipment and the officer pressing a button on his or her radio device. During his testimony, Corporal Timmons admitted he had made a conscious decision not to record the proceedings of his investigation. There was no conclusive testimony as to why Corporal Timmons made this decision.


         The Defendant argues three grounds for suppression. First, the Defendant argues the State is responsible for destroying or failing to preserve evidence in the form of the MVR. As the Court understands it, the argument is thus: the MVR recorded the entirety of the DUI investigation, albeit in a long string of individual segments that were overwritten by the subsequent recordings. Corporal Timmons knew the MVR was recording the investigation and, rather than act to preserve the recording, Corporal Timmons made the conscious decision to allow the buffer to clear and to permanently erase the temporary MVR data. This decision, according to the Defendant, constitutes an affirmative decision to destroy - or, at a minimum, fail to preserve - evidence.

         Second, the Defendant argues Corporal Timmons was required to advise the Defendant of her Miranda rights prior to any questioning. Specifically, the Defendant argues Miranda is required when the facts transcend the "ordinary traffic stop." According to the Defendant, an investigation into a motor vehicle accident and a DUI investigation are sufficiently beyond ordinary to necessitate Miranda warnings. Third and finally, the Defendant argues the walk-and-turn and one-leg stand tests were not conducted in accordance with NHTSA standards and, irrespective of whether the tests are considered, Corporal Timmons lacked probable cause to arrest the Defendant under suspicion of DUI.

         The State argues there is no duty for an officer to create an MVR and, therefore, Corporal Timmons' decision not to record the investigation cannot be deemed a violation on the part of the State. Second, the State characterizes the Defendant's position with regard to Miranda as requiring the Court "to rule that, as soon as an officer smells alcohol emanating from a person during a traffic stop or car accident investigation, the Constitution requires that the officer give Miranda warnings before asking that person why they smell like alcohol." The State argues this ruling is inappropriately broad and not required under the jurisprudence applying Miranda to such investigations. Third, the State argues the field sobriety tests are admissible because they are merely personal observations of the officer and within the ken of the average layperson; based upon the totality of the circumstances, the State argues probable cause exists.


         On a Motion to Suppress, the State bears the burden of proving the legality of the underlying stop and subsequent arrest by a preponderance of the evidence.[5] The standard for probable cause is well established:

To establish probable cause for a DUI offense, an officer must possess "information which would warrant a reasonable [person] in believing that [such] a crime ha[s] been committed." Therefore, an officer must "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 DUI offense.[6]

         I. Failure to Preserve the MVR

         The objection to the lack of an MVR is not novel to this Court. Delaware courts address such claims under the Deberry standard:

1) would the requested material, if extant in the possession of the State at the time of the defense request, have been subject to disclosure under ...

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