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State v. Dillard

Superior Court of Delaware

March 16, 2018

STATE OF DELAWARE
v.
BAKR DILLARD, Defendant.

          Submitted: February 22, 2018

         Upon Consideration of Defendant's Motion to Suppress, GRANTED.

          Mark A. Denney, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State.

          Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware. Attorney for the Defendant.

          OPINION

          Vivian L. Medinilla, Judge.

         INTRODUCTION

         Defendant Bakr Dillard ("Defendant") filed this Motion to Suppress after he was pulled over in a minivan for operating a vehicle with improper window tint. During the course of this routine traffic stop, an officer called for a K-9 Unit to perform a drug sniff and the canine alerted to the presence of drugs. Defendant argues that the officer conducted a second detention unsupported by reasonable articulable suspicion in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Article I, Section 6 of the Delaware Constitution, and Delaware statutory law. For the reasons that follow, the Court finds that the State failed to meet its burden by a preponderance of the evidence to establish that the officer had sufficient reasonable articulable suspicion to justify the seizure. As such, the Motion to Suppress is GRANTED.

         RELEVANT FACTUAL AND PROCEDURAL BACKGROUND[1]

         On October 6, 2017, Officer Wilkers and Officer Vignola of the Wilmington Police Department/Operation DISRUPT[2] were traveling in their patrol car and noted a minivan with improper window tint traveling on the 500 block of North Spruce Street. Before pulling the vehicle over, Officer Wilkers ran a check on the vehicle and saw that it was registered to a person named Rubin Harper of Wilmington. The vehicle did not have a valid window tint waiver so the officer decided to pull the vehicle over to issue a traffic citation. Upon signaling the vehicle to stop, Defendant pulled over immediately at 4th and Lombard. Upon request, Defendant produced a license and registration. A female adult passenger also produced valid identification. Officer Wilkers testified that Defendant's responses and presentation of documents were appropriate. A DELJIS check yielded no issues and Defendant's license also proved valid.

         Officer Wilkers asked Defendant to step out of the vehicle so that the officer could ask him additional questions "about the vehicle." Defendant was not handcuffed nor patted-down and instead was asked three questions. First, he was asked who owned the vehicle and Defendant corroborated what was already known to the officer about ownership. Second, when asked where he was coming from, Defendant stated "from around 7th Street." Lastly, Officer Wilkers asked if there was "anything illegal" in the vehicle. Defendant responded "no, " and that he would not consent to a search of the vehicle.

         Officer Wilkers then ordered Defendant away from the vehicle and directed Defendant to remain on a curb. At this time, another DISRUPT unit, Officers Rosado and Petrucci, showed up "to assist."[3] Officer Wilkers then returned to his vehicle to write the citation for improper window tint.

         At the hearing, the State introduced the audiotape exchange between Officer Wilkers and Officer Caez of the K-9 Unit that took place while Defendant was on the curb and Officer Wilkers was in his vehicle issuing the ticket. The exchange was initiated by Officer Wilkers for assistance from Officer Caez's "partner" to perform an open air sniff and asks, "how fast can you get here?" Officer Caez responded that he was approximately three to five minutes away. Officer Caez arrived with the dog to perform the open air sniff, and the K-9 alerted to the passenger door handle.

         Officer Wilkers returned to the minivan and opened that passenger door. There was a green plant substance in the interior of the door handle area. Officer Wilkers then opened the center console and observed additional marijuana and a large amount of money. The police stopped the search, transported the vehicle, and obtained a search warrant. In the console, upon execution of the search warrant, police found a firearm, marijuana, a sports lottery ticket, and $11, 000 in cash. The police also found forms and documents with Defendant's name on them. Defendant contends that the $11, 000 in cash was not his and that he did not sign a property receipt for it. Defendant did sign a property receipt for $472 found on his person.

         Defendant is charged with Drug Dealing Marijuana; Possession of a Firearm During the Commission of a Felony; Possession of a Firearm by a Person Prohibited; Possession of Ammunition by a Person Prohibited; Possession of a Deadly Weapon with a Removed, Obliterated, or Altered Serial Number; Carrying a Concealed Deadly Weapon; Operating a Vehicle with Improper Window Tinting; and Unauthorized Use of a Motor Vehicle.

         Defendant filed this Motion to Suppress on January 22, 2018. The State responded on February 16, 2018 and the hearing took place on February 22, 2018. Having considered all submissions and the arguments of counsel, the matter is ripe for review.

         STANDARD OF REVIEW

         On a motion to suppress, as a general rule, "the defendant bears the burden of establishing that the challenged search or seizure violated his rights under the United States Constitution, the Delaware Constitution, or the Delaware Code."[4] "However, once the defendant has established a basis for his motion, i.e., the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable."[5] As is the case here, the burden is on the State to establish the reasonableness of the seizure by a preponderance of the evidence.[6]

         CONTENTIONS OF THE PARTIES

         Defendant argues he was subjected to an impermissible seizure that fits squarely within the holding of the 2001 Delaware Supreme Court decision in Caldwell v. State, [7] and aligns on point with the more recent 2015 decisions of this Court in State v. Stanley[8] and State v. Chandler[9] Specifically, Defendant argues that Officer Wilkers extended the traffic stop to conduct a drug investigation without reasonable articulable suspicion to support a second detention.

         The State counters that there was no second detention. It argues that, unlike Stanley and Chandler where the traffic ticket had already been issued, here, the officer was still in the middle of conducting the traffic stop when the K-9 Unit arrived to perform the canine sniff. The State thus argues that since the officer was still writing up the ticket, he did not require reasonable articulable suspicion because there was no measurable extension of the duration of the stop. In the alternative, the State argues that if the Court finds there was a measurable extension of the duration of the stop, the window tint makes this case different from the other vehicle equipment or traffic violations considered in Stanley or Chandler, and that this combined with other factors, formed the basis for reasonable articulable suspicion.

         DISCUSSION

         The Fourth and Fourteenth Amendments of the United State Constitution and Article I, Section 6 of the Delaware Constitution protect citizens from illegal searches and seizures. A traffic stop constitutes such a seizure on a vehicle and those within the vehicle.[10] As such, the State is required to "demonstrate that the stop and any subsequent police investigation were reasonable in the circumstances."[11] A traffic stop is reasonable under the Fourth Amendment if it is supported by reasonable suspicion or probable cause that a traffic violation has occurred.[12] A traffic stop must be "justified at its inception by reasonable suspicion of criminal activity."[13]

         A police officer who observes a traffic violation therefore has probable cause to stop the vehicle and detain the driver. However, once stopped, "[t]he scope and duration of the detention must be reasonably related to the initial justification for the stop."[14] The detention must not extend beyond the time reasonably necessary to effectuate the purpose of the stop-i.e. the point at which the legitimate investigative purpose of the stop is completed.[15] Any additional investigation "beyond that required to complete the purpose of the traffic stop constitutes a separate seizure that must be supported by independent facts sufficient to justify the additional intrusion."[16] If police prolongs a traffic stop in order to investigate other possible crimes beyond the original traffic offense, the stop becomes a second detention.[17]

         Since the State argues there was no second detention, the Court will consider this issue first.

         Duration and Scope of the Traffic Stop

         Delaware law provides that the duration and scope of the traffic stop must last only as long as reasonably necessary to effectuate the purpose of the stop, at which point the legitimate investigative purpose of the traffic stop is completed.[18] Here, there is no dispute that the stop for improper window tint was proper since the officer knew even before he pulled the vehicle over that it did not have a valid tint waiver.

         Under 11 Del. C. § 1902, the officer was also permitted to ask the driver for his name, where he was coming from, his destination, and the reason for his trip. These questions are appropriate within a reasonable investigation of the traffic stop. The officer was well within his authority to conduct the routine checks associated with a traffic stop, including to check Defendant's license and conduct the appropriate background checks through DELJIS. The responses from Defendant were appropriate and his DELJIS check was valid.

         The officer then asks Defendant to step out of the vehicle to ask him three questions. Under Loper, it was also well within legal bounds to request that Defendant step out of the vehicle.[19] Furthermore, under Arizona v. Johnson, the United States Supreme Court held that "[a]n officer's inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop."[20] The officer's questions regarding the vehicle ownership and where Defendant was coming from were also appropriate. However, under Caldwell, "[t]he duration and execution of a traffic stop is necessarily limited by the initial purpose of the stop"[21] and that "any investigation of the vehicle or its occupants beyond that required to complete the purpose of the traffic stop constitutes a separate seizure that must be supported by independent facts sufficient to justify the additional intrusion."[22]

         The State argues that Officer Wilkers' last inquiry whether there was "anything illegal" in the vehicle is commonplace and routinely asked by police officers, and should be treated no differently than when a person is asked to step out of a vehicle. An exit command from a vehicle has been considered lawful under Loper and other cases that have addressed officer safety during traffic stops, and considered a de minimis intrusion.[23] Yet the justification found in cases such as Mimms and Loper contemplate the officer's ability to ask questions regarding officer safety. Defendant was not patted down for weapons when he stepped out of the vehicle such that officer safety was of concern.

         Our Supreme Court addressed a similar question in Pierce v. State[24] to determine if the officer's questions regarding destination, origination, and weapons and contraband, rose to the level of a "second detention." There, the trial court had determined that after the officer observed nervous behavior on the part of both defendant and his passenger, the officer's inquiry if there were "any weapons, any illegal substances in the vehicle" was a routine question asked as part of an initial traffic stop, and therefore, the question itself did not constitute a "second detention."[25] The Supreme Court affirmed and held that Defendant could not demonstrate error in the trial court's factual finding that the question was considered part of a routine stop.[26] However, the Supreme Court interjected that even if the "contraband question" was not routine, there was sufficient reasonable articulable suspicion to ask the question where the Defendant and his passenger exhibited stuttered speech, nervous behavior, inconsistent statements regarding destination and origination and refused to make eye contact.[27] The officer in Pierce made initial observations of both Defendant and his passenger that gave rise to reasonable suspicion when he asked his question regarding contraband or weapons.

         Officer Wilker's question if there was "anything illegal" in the vehicle is broader than Pierce and the timing of when the question was asked is also distinguishable. Unlike a question regarding weapons, which would focus on the officer's safety, this question did not ask a narrow question about weapons or contraband. It asked about the universe of illegal things that may be contained in the vehicle. Asking whether there is something illegal in the vehicle invites a yes or no answer. If yes, then the admission of criminal wrongdoing would have likely led Defendant to voluntary consent to a search of the vehicle, as was obtained in Pierce. If the answer is no, as here, the officer conceded during his testimony that since he did not get consent, he took further steps and decided to call in the K-9 Unit.

         Because of the events that followed, and for purposes of this analysis, this Court need not consider whether the third question amounted to a "second detention, " but this decision should not be read as aligning with Pierce to suggest that the question is acceptable as part of a routine traffic stop. As noted, the facts in this case are different not only in the timing and the scope of the question, but also because here the officer decided to call in another police unit.

         Calling the K-9

         Under Caldwell "[e]ven where the traffic stop is not formally terminated by the issuance of a citation or warning, 'the legitimating raison d'etre [of the stop may] evaporate if the pursuit is unreasonably attenuated or allowed to lapse into a state of suspended animation."'[28] Whether a detention is "unreasonably attenuated" requires a fact-intensive inquiry.[29] Although questions unrelated to the initial justification for the stop might not per se require reasonable suspicion or consent to further question, the Delaware Supreme Court has made clear that such inquiries must not measurably extend the duration of the stop.[30]

         The State argues there was no second detention because there was no measurable extension of the duration of the stop where the officer was still issuing the citation when the dog showed up within minutes of his making the call to the K-9 Unit. The State argues that as long as the officer was working on his traffic-related task (issuance of the ticket), the contemporaneous exercise of the dog sniff that ...


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