Submitted: October 24, 2018
Below: Superior Court of the State of Delaware ID. No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
T. Vaughn, Jr. Justice.
12th day of December 2018, upon consideration of
the parties' briefs and the record on appeal, it appears
to the Court that:
Appellant, Jamarr Cannon, appeals from a Superior Court jury
verdict finding him guilty of Tier 5 Possession of Cocaine,
Drug Dealing Tier 4 Cocaine, Resisting Arrest, Possession of
Drug Paraphernalia, and Failure to Have Insurance Card.
Cannon's sole claim on appeal is that the Superior Court
erred in denying his motion to suppress all evidence derived
from a traffic stop for a suspected window tint violation.
Cannon contends that the Superior Court erred for three
reasons. First, he argues there was no reasonable,
articulable suspicion for the stop in the first place.
Second, he argues there was no reasonable
suspicion for his continued detention beyond the
scope of the initial stop. Finally, he argues that the search
of his person exceeded the scope of a
Cannon was arrested and charged with the crimes underlying
this appeal on June 2, 2017, following a traffic stop.
Trooper Macauley stopped Cannon's vehicle for a suspected
violation of Delaware's window tint law "[d]ue to
the window tint on the front windshield." Trooper Macauley
looked up the registration to determine whether the vehicle
had a tint waiver. It did not.
When Trooper Macauley approached the vehicle after stopping
it, Cannon appeared extremely nervous: his carotid artery was
pulsating, his hands were shaking, and he failed to make eye
contact. Moreover, Trooper Macauley observed that the
vehicle's windows were very clean and smelled an
overwhelming odor of air fresheners. Because of this, Trooper
Macauley suspected that Cannon was a drug trafficker.
After speaking with Cannon, Trooper Macauley returned to his
patrol vehicle to process an e-warning for the tint violation
and run routine checks on Cannon's license and
registration and do a criminal history check. The criminal
history check revealed that Cannon was on federal and state
probation and had a history of violent felonies including
resisting arrest and vehicle pursuits. While conducting the
routine checks, he contacted a nearby canine unit to request
a sniff test of Cannon's vehicle, but that unit was not
Because of Cannon's extensive criminal history and
federal probation status, these routine checks took longer
than usual. Trooper Macauley did not prolong the stop to
allow for the canine unit to arrive. The whole time he was in
his patrol vehicle, he was processing the e-warning for the
tint violation and checking Cannon's criminal history.
The entire traffic stop lasted 14 minutes.
When the process for printing the warning and checking
Cannon's criminal history concluded, Trooper Macauley
exited his vehicle to deliver the warning to Cannon. He
instructed Cannon to exit his vehicle and meet him at the
back of the vehicle, so he could explain the warning. Trooper
Macauley testified that it was unsafe to explain the warning
to Cannon from the driver's window because he would have
had to stand in the roadway given how close to the roadway
Cannon's vehicle was parked.
Cannon exited the vehicle, Trooper Macauley noticed a bulge
in his waistband that, according to Macauley, was consistent
with the size and shape of a handgun. Consequently, Trooper
Macauley conducted a pat-down search, which revealed that the
bulge was "a vacuum-sized, tightly-packaged, small brick
of cocaine." Trooper Macauley then took Cannon into
custody. The canine unit arrived later. Cannon was thereafter
charged with the five crimes mentioned above as well as
operating a vehicle with illegal window tint.
Prior to trial, Cannon filed a motion to suppress all
evidence acquired from the traffic stop. After a hearing, the
Superior Court denied Cannon's motion. It made three
findings. First, the court found that the initial stop was
lawful "because Mr. Cannon's vehicle had an improper
window tint" and "the trooper discovered Mr.
Cannon's vehicle did not have a [tint]
waiver." Second, the court reasoned that the
purpose of Trooper Macauley's initial stop had expired
when he requested that Cannon exit the vehicle, and therefore
asking Cannon to exit the vehicle was a second seizure; but
there was reasonable suspicion to justify the continued
seizure for three reasons: (1) Cannon's nervousness,
including trembling hands, rapidly pulsating carotid artery,
and confusion in responding to questions; (2) Cannon's
extensive criminal background, which included drug dealing
and firearms charges; and (3) the overwhelming odor of a
masking agent (air fresheners) emanating from the vehicle and
the vehicle's extreme cleanliness. Finally, the court
found, "Trooper Macauley was permitted to pat down Mr.
Cannon for weapons because Mr. Macauley noticed the bulge
between his waistband," which was "the size of a
handgun." (9) Following a bench trial, Cannon was
found guilty of all charges except the illegal window tint.
"We review the grant or denial of a motion to suppress
for an abuse of discretion." "[T]his Court will
defer to the factual findings of a Superior Court judge
unless those findings are clearly
erroneous." When "reviewing the denial of a
motion to suppress evidence based on an allegedly illegal
stop and seizure, we conduct a de novo review to
determine whether the totality of the circumstances, in light
of the trial ...