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State v. Papanicolas

Court of Common Pleas of Delaware, Kent

February 12, 2018

STATE OF DELAWARE
v.
KONSTANTINO P. PAPANICOLAS, Defendant.

          Submitted: October 24, 2017

          Benjamin S. Gifford, IV, Esq. Law Office of Benjamin S. Gifford, IV Attorney for Defendant

          Kevin B. Smith, Esq. Department of Justice Attorney for State

          Charles W. Welch, III Judge

         INTRODUCTION

         Before the Court is a motion to suppress filed by Defendant Konstantino P. Papinicolas. The defendant has been charged with Driving Under the Influence ("DUI") in violation of Title 21, Section 4177(a)(1) of the Delaware Code. He has filed the current motion to suppress evidence obtained after the traffic stop and DUI arrest for this case. In relevant part, the defendant contends that (1) the police officer who stopped him lacked reasonable and articulable suspicion to conduct the traffic stop of his vehicle and (2) the police officer lacked probable cause to arrest him. The Court heard testimony and argument on the defendant's motion and reserved its decision. After a careful consideration of the evidence and the applicable law, the defendant's motion to suppress is DENIED.

         FACTS[1]

         During the evening of January 1, 2017, a law enforcement officer for the Clayton Police Department ("Officer") was driving westbound on Wheatley's Pond Road in Clayton, Kent County, Delaware. He proceeded behind two vehicles. The lead vehicle was driven by the defendant. The Officer noticed the driver side tires of the defendant's vehicle pass left of the center double yellow lines on the roadway, causing the driver of the car to the rear of it to press on his brakes. Next, the defendant drifted to the right and his right tires passed over the fog line on the lane, which caused defendant's vehicle to come close to hitting construction barrels on the shoulder of the road. The defendant then signaled and turned left onto Hillyard Road. During this turn, the defendant's tires travelled onto the grass of the road's shoulder. The Officer decided, at that time, to continue to observe the defendant's behavior. Therefore, he continued onto Hillyard Road following the defendant. No cars were between the defendant and the Officer at this point. The Officer noticed that the defendant then went over the double yellow lines to the left of his vehicle once again and drifted back right onto the dirt shoulder.

          Next, the defendant approached a stop sign. The defendant did not stop his vehicle until his car was almost entirely past the stop sign, with his vehicle in the intersection. After the stop, the defendant advanced into the intersection as a vehicle with the right of way started a right hand turn onto Hillyard Road in front of him. After the defendant cleared the intersection, the Officer activated his emergency lights. The defendant did not pull over. He continued down Hillyard Road. The Officer used his overhead lights and two different tones of sirens to pull the defendant over. However, the defendant continued on driving for about a mile, although he had adequate opportunity to pull over, braking three times but not stopping. Finally, the defendant entered a development and came to a stop.

         When the Officer approached the defendant's vehicle, he observed that the defendant looked tired, with his eyes sunken in, glassy, watery and bloodshot. There was an "extreme" odor of alcohol coming from the defendant.[2] The Officer asked the defendant for his driver's license and registration. The defendant retrieved his registration but was unable to find his driver's license. The Officer then asked the defendant to perform the counting test and alphabet test. The defendant successfully stated all the letters of the alphabet from E to P. He was also able to count backwards from 68 to 47, although the Officer testified that it was done extremely slowly.

         The Officer continued his investigation by asking the defendant to step out of his vehicle, which he did without difficulty, and he had him perform field sobriety tests. The defendant performed the walk and turn test. During this test, he missed heel to toe by one half an inch to an inch on each step and stopped at step 7, at which time he stepped off the line. He also performed the one-leg stand test. The Officer instructed the defendant to hold one of his feet six inches off the ground in front of his body and to count out loud to thirty by one thousands, while keeping his hands down. The defendant did not follow the Officer's instructions as he only raised his foot by one half an inch during the one-legged stand test. However, he otherwise performed the test well by not swaying or raising his arms.[3] At this point, the defendant was placed under arrest for DUI and detained for an intoxilyzer test.[4]

         The defendant has filed a motion to suppress evidence alleging that the Officer lacked the the requisite reasonable and articulable suspicion to believe that a crime had been committed or was about to be committed when he stopped the defendant. He also contends that the Officer lacked probable cause to believe that the defendant was driving his vehicle while impaired when he was arrested for DUI.[5] The State opposes the defendant's motion. It contends that the defendant's erratic driving, along with the consequent traffic violations, provided the reasonable and articulable suspicion of a crime necessary to execute a stop of the defendant's vehicle. The State further contends that the Officer had probable cause to arrest the defendant for DUI given the defendant's erratic driving behavior, along with his appearance, strong odor of alcohol emanating from the defendant and the defendant's performance on all of the pre-exit and field sobriety tests administered to him.

          BURDEN OF PROOF

         "When a defendant moves to suppress evidence collected [without a warrant] the State bears the burden of proving by a preponderance of the evidence 'that the challenged police conduct comported with the rights guaranteed [to the defendant] by the United States Constitution, the Delaware Constitution and Delaware Statutory Law.'"[6]

         DISCUSSION

         I. Reasonable and ...


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