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State v. Berry

Court of Common Pleas of Delaware, New Castle

April 20, 2018

STATE OF DELAWARE,
v.
LEROY A. BERRY, Defendant.

          Submitted: February 22, 2018

          SAMUEL B. KENNEY, ESQ. DEPUTY ATTORNEY GENERAL, ATTORNEY FOR THE STATE OF DELAWARE

          JAMES M. STILLER, JR., ESQ. SCHWARTZ & SCHWARTZ, P.A.

          MEMORANDUM OPINION DEFENDANT'S MOTION TO SUPPRESS

          JOHN K. WELCH, JUDGE

          I. PROCEDURAL POSTURE

         On June 1, 2017, Defendant Leroy A. Berry ("Defendant") was charged with Resisting Arrest, in violation of 11 Del. C. § 1257(b); Leaving the Scene of a Property Collision Accident, in violation of 21 Del. C. § 4201(a); Failure to Provide Information at Collision Scene Resulting in Property Damage, in violation of 21 Del. C. § 4201(b); Driving a Vehicle Under the Influence of Illicit or Recreational Drugs within Four Hours of Driving, in violation of 21 Del. C. § 4177(a)(6); and Inattentive Driving, in violation of 21 Del. C. § 4176(b). On June 6, 2017, Defendant entered a plea of not guilty. On November 7, 2017, Defendant filed a Motion to Suppress ("Motion"), moving to suppress evidence of his initial stop, subsequent arrest, and blood draw.[1] On January 2, 2018, a motion hearing was held in the Court of Common Pleas.

         Following the hearing, the Court reserved its decision and ordered supplemental briefing on issues raised in the Motion. Specifically: (1) whether there was reasonable articulable suspicion for the police officer to detain Defendant for further investigation related to driving under the influence and/or the companion charges, (2) whether there was probable cause to arrest Defendant for driving under the influence and/or the companion charges, and (3) whether there existed sufficient probable cause within the four-corners of the search warrant affidavit for the Justice of the Peace Court magistrate to sign the search warrant to draw Defendant's blood.

         On January 30, 2018, the State filed its Response to Defendant's Motion to Suppress ("State's Response").[2] And, on February 22, 2018, Defendant filed his Reply to State's Response to Defendant's Motion to Suppress ("Defendant's Reply").[3] This is the Court's memorandum opinion on Defendant's Motion.

          II. FACTUAL HISTORY

         The suppression hearing consisted of testimony from the State's witness, Officer First. Class Michael Hilliard ("Officer Hilliard") of the Middletown Police Department, [4] and a portion of Officer Hilliard's body camera recording ("BCR").[5] Officer Hilliard's testimony is summarized below.[6]

         On May 20, 2017, Officer Hilliard testified that he received a radio transmission from the dispatch center regarding a property collision at 420 East Main Street, which is the address of the "Chicken House."[7] The Chicken House is located at the end of a row of stores in Middletown Crossing Shopping Center. Cement pillars are stationed in between the storefronts as well as at the end of each row. Shortly after 7:26 p.m., Officer Hilliard arrived at the Chicken House and spoke with Nancy Pacheco ("Ms. Pacheco"), the owner of the Chicken House. She informed him that Defendant's vehicle had collided with a cement pillar outside of the Chicken House and Defendant had subsequently exited his vehicle, walking down the street onto Dickenson Boulevard. Because Defendant was not far-off, Ms. Pacheco was able to point him out as he walked down Dickenson Boulevard. Officer Hilliard then left the scene of the accident to pursue Defendant.

         Once Officer Hilliard was near Defendant, he parked his patrol vehicle at the intersection of Dickenson Boulevard and East Main Street.[8] At this point, Defendant was about to cross the street when Officer Hilliard arrived. From across the intersection, Officer Hilliard beckoned Defendant to cross and speak with him. Defendant turned and acknowledged Officer Hilliard, but did not cross the intersection. In his interaction with Defendant, Officer Hilliard testified that Defendant appeared to be "looking past" Officer Hilliard as if "something was going on" behind him. Officer Hilliard did not believe Defendant was responsive to his questions. He found Defendant's comments to be mumbled and that Defendant would not turn and talk to Officer Hilliard when Defendant was asked direct questions. Officer Hilliard testified that he believed Defendant was "out of it" and his responses were not similar to how "a real person would respond to a person speaking with them." Officer Hilliard testified that Defendant's hands remained clenched around his water bottle when the two were conversing.

         Believing something was awry, Officer Hilliard asked Defendant to place his hands behind his back.[9] Officer Hilliard testified that after he asked Defendant numerous times to place his hands behind his back, Defendant "did not respond right away, " so Officer Hilliard pulled Defendant's arms behind his back for him. When Officer Hilliard first attempted to move Defendant's arms, Defendant "tensed and tried to pull away from" him. Officer Hilliard was able to handcuff Defendant and place him in Officer Hilliard's patrol vehicle.

         Officer Hilliard then spoke again with Ms. Pacheco who confirmed that Officer Hilliard had picked up the man she saw seated in the driver's seat of a vehicle that had collided with the cement pillar.[10] She further stated that Defendant had stayed seated in the vehicle for approximately ten minutes before he exited the vehicle.[11] In her opinion, she believed Defendant was "high."[12]

         Officer Hilliard then transported Defendant to the Middletown Police Department to conduct a further driving under the influence ("DUI") investigation. At the Middletown Police Department, Officer Hilliard read Defendant his Miranda rights and Defendant agreed to speak with him. Defendant again denied ingesting drugs or alcohol. At the suppression hearing, Officer Hilliard noted that Defendant seemed appropriately dressed and "orderly." Defendant did not appear discombobulated, but Officer Hilliard described his facial expression as a blank stare. Officer Hilliard again testified that Defendant did not provide coherent answers to his questions. Officer Hilliard further testified that Defendant asked repetitive questions regarding the process and Officer Hilliard ended up repeating himself multiple times. Officer Hilliard did not notice an odor of alcohol. Likewise, Defendant refused to perform field sobriety tests, including refusing to blow into the Preliminary Breath Test ("PBT"). Because of these refusals, a Drug Recognition Expert ("DRE") refused Officer Hilliard's request to travel to the Middletown Police Department and perform a DRE evaluation.

         Upon learning a DRE would not be responding to his location, Officer Hilliard drafted a Blood Search Warrant ("Warrant") and Search Warrant Affidavit ("Affidavit") to draw Defendant's blood.[13] Officer Hilliard's Affidavit was a summary of his testimony at the suppression hearing. Based on the Affidavit, the Justice of the Peace Court 11 ("JP Court") approved the Warrant.[14] Officer Hilliard then contact Omega Diagnostics for a blood draw and Maria Cruz, an Omega phlebotomist, was sent to the Middletown Police Department. Ms. Cruz withdrew Defendant's blood at approximately 12:40 a.m. on May 21, 2017.

          III. PARTIES' CONTENTIONS

         Relying on the Fourth Amendment to the United States Constitution, Defendant requests that the Court "suppress all evidence of wrong doing; or in the alternative, suppress the results of the blood test."[15] In his Motion, Defendant argues that Officer Hilliard "did not have reasonable articulable suspicion [ ], much less probable cause [ ], to arrest Defendant for DUI and/or to then administer a blood draw."[16] Defendant asserts that a "minor property damage collision" without an odor of alcohol or drugs is insufficient to support Defendant's arrest and subsequent blood draw.[17] Defendant concurrently argues that the blood draw violates 21 Del. C. § 4177(a)(6) because Defendant's blood was not drawn "within [four] hours of driving."[18]

         In the State's Response, the State requests that the Motion be denied. The State argues that Officer Hilliard possessed reasonable articulable suspicion to detain and investigate Defendant, Officer Hilliard possessed probable cause to arrest Defendant for driving under the influence of drugs, and the Affidavit presented to the JP Court Magistrate contained sufficient facts to support a probable cause determination under a "Four-corners" analysis.[19] Regarding reasonable articulable suspicion, the State argues that a property damage collision in which a defendant flees the scene without providing the appropriate information violates Delaware law and, therefore, provides sufficient suspicion.[20] Regarding Defendant's arrest, the State relies on the probable cause standard, arguing that Defendant was linked to the accident as the driver, engaged in incoherent speech, possessed a blank stare and pinpoint pupils, and-in the opinion of a witness- was "high."[21] In addition, the State argues that Officer Hilliard had probable cause to arrest Defendant for resisting arrest because Defendant was "tensing his body and arms and refusing to place his hands behind his back" when Officer Hilliard handcuffed him.[22] Finally, the State argues that probable cause exists on the face of the Affidavit.[23]

         In Defendant's Reply, Defendant disagrees with the State's characterization of his demeanor during the encounter with Officer Hilliard. Defendant asserts that his behavior was more appropriately interpreted as apprehension and fear.[24] Likewise, his pinpoint pupils could be readily explained by the brightness of May 20th, and his "resisting" was merely an attempt not to drop his water bottle.[25] Defendant also elaborates on his original arguments. First, Defendant seems to concede that Officer Hilliard had reasonable articulable suspicion to stop Defendant and investigate whether he was the individual who left the scene of the collision.[26] Second, Defendant argues that Officer Hilliard did not possess probable cause to arrest Defendant for resisting arrest because it is unclear whether Defendant's arms "tensed up" in order to prevent the water bottle from falling or resist the arrest.[27] Third, Defendant argues Officer Hilliard lacked reasonable articulable suspicion to investigate Defendant for a DUI as there was no alcohol or drug odor, Defendant's pupils reacted to the sunlight, and the BCR refutes Officer Hilliard's descriptions of Defendant's facial expressions and speech.[28] Fourth, the BCR does not support probable cause to arrest Defendant for DUI. Fifth, the four-corners of the Affidavit do not support a finding of probable cause when the Affidavit omits mention of Officer Hilliard's NHTSA training in impairment detection and "what inferences can be drawn from pinpointed pupils ... on a bright day."[29]

         IV. DISCUSSION

         On a Motion to Suppress, the State must prove by a preponderance of evidence that the underlying stop and subsequent arrest are based on sufficient evidence.[30] However, as Defendant's Motion relates to the Affidavit, Defendant bears the burden of challenging the validity of the search warrant and proving that the search or seizure was unlawful.[31]

         A. Reasonable Articulable Suspicion to Stop Defendant

         The Fourth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, protects individuals against unreasonable searches and seizures.[32] The Delaware Supreme Court has stated:

Under Terry v. Ohio, an officer is justified in stopping an individual when the officer possesses a reasonable, articulable suspicion that the individual was committing, had committed, or was about to commit a crime. This Court has recognized that an arresting officer is "entitled to rely on information relayed to him through official channels" and that "[t]he arresting officer himself need not be apprised of the underlying circumstances which have risen to a conclusion of probable cause."[33]

The Supreme Court has further held that a "police officer may conduct a Terry stop of an individual who matches the description of a suspect provided to the officer either by a reliable informant or over a police radio broadcast."[34] A court's analysis of the police officer's suspicion is based on the totality of the circumstances-"through the eyes of a reasonable, trained police officer in the same circumstances combining objective facts with a reasonable officer's subjective interpretation of those facts."[35]

         The Court agrees with the State that Officer Hilliard possessed reasonable articulable suspicion to stop Defendant and investigate whether he had recently been involved in the Middletown Crossing Shopping Center collision. Officer Hilliard was dispatched to the Chicken House for a one-vehicle collision; Ms. Pacheco provided a coherent story of the incident that involved a fleeing driver; and she was not only able to describe the individual, but point him out on Dickenson Boulevard. Since information from reliable informants[36] and concerned neighbors[37]can support reasonable articulable suspicion, the Court similarly finds that a business owner who provides a firsthand description of the accident and driver has satisfied the reasonable articulable suspicion standard.

         Therefore, Officer Hilliard possessed reasonable articulable suspicion to stop and investigate Defendant.[38]

          B. Reasonable Articulable Suspicion to Proceed to a DUI Investigation

         Pursuant to the Fourth Amendment of the United States Constitution, [39] the Court finds that Officer Hilliard possessed reasonable articulable suspicion to proceed from an accident investigation to a DUI Investigation.[40] As this Court has stated,

The Delaware Supreme Court has defined reasonable articulable suspicion as an "officer's ability to 'point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.' " "Reasonable suspicion must be evaluated in the context of the totality of the circumstances as viewed through the eyes of a reasonable, trained police officer in the same or similar circumstances, combining objective facts with such an officer's subjective interpretation of those facts."[41]

         The standard is not exacting, [42] and a police officer's belief that a defendant is confused can be a vital factor.[43] In the present case, Officer Hilliard and Defendant engaged in the following exchange when Officer Hilliard approached Defendant on Dickenson Boulevard.

HILLIARD: "Hey sir, what's going on? Come here."
BERRY: *turns*
HILLIARD: "Were you just driving a car?"
BERRY: "Huh?"
HILLIARD: "Were you just driving a car?"
BERRY: "What?"
HILLIARD: "Were you just driving a car?"
HILLIARD: "Were you just driving a car?"
BERRY: "Where?"
HILLIARD: "What's that?"[44]
BERRY: "Huh?"
HILLIARD: "Were you just driving a car?"
BERRY: *silent*
HILLIARD: "What's going on?"
BERRY: "What's up?"
HILLIARD: "Were you just driving a car?"
BERRY: *affirmative head nod*
HILLIARD: "What kind of car were you driving?"
BERRY: "raising eyebrows and hands*
HILLIARD: "What kind of car were you driving?"
BERRY: "What's up?"
HILLIARD: "Alright, put your hands behind your back for me." (attempting to handcuff Defendant)
HILLIARD: "Put your hands behind your back."
HILLIARD: "Put your hands behind your back."
HILLIARD: "Put your hands behind your back."
HILLIARD: "Put your hands behind your back."
HILLIARD: "Put your hands behind your ...

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