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State v. Terry

Superior Court of Delaware

September 10, 2019

STATE OF DELAWARE,
v.
ALFRED TERRY, Defendant.

          Submitted: September 9, 2019

          Stephen E. Smith, Esquire of the Department of Justice, Dover, Delaware; attorney for the State.

          J'Aime L. Walker, Esquire of the Office of the Public Defender, Dover, Delaware; attorney for the Defendant.

          ORDER

          Hon. William L. Witham, Jr. Resident Judge.

         Before the Court are the Motion to Suppress by Defendant, Alfred Terry, the State's Response in opposition, and the record in this case. Mr. Terry seeks suppression of all evidence obtained against him following a traffic stop, detention, and subsequent search of his person and his vehicle by Delaware State Police. As the facts stand presently, it appears to the Court that:

         1. On or about March 15, 2018, Officers of the Dover Police Department stopped Mr. Terry's vehicle for an illegal window tint.[1] Prior to the stop, Detective Willson (hereinafter "Det. Willson") observed Mr. Terry conducting a hand drug transaction with an unknown black male on Spruance Road in Dover, Delaware.[2]Det. Willson also observed Mr. Terry operating a white Ford Escape Delaware Registration PC 39816.[3] After following the car, Det. Willson advised Corporal Richey (hereinafter "Cpl. Richey") that the car had heavy window tint on all windows.[4] Cpl. Richey conducted a Criminal Justice Information Services (CJIS) check, which revealed that the vehicle did not have a window tint waiver.[5]

         2. Three officers, Cpl. Richey, PFC Johnson and SPO Porter, followed the vehicle and conducted a traffic stop after observing the window tint.[6] Two more officers arrived at the scene to assist with the traffic stop.[7] PFC Johnson approached the vehicle on the driver's side and made contact with Mr. Terry.[8] Mr. Terry was asked to roll down all the windows because of the heavy window tint, and he complied.[9] Cpl. Richey approached the car on the passenger side and immediately detected a strong odor of cologne or perfume emitting from inside the vehicle.[10]Officers also observed that Mr. Terry was nervous.[11]

         3. Once the odor of the cologne began to dissipate due to open windows, the odor of marijuana became prominent.[12] At that point, Mr. Terry was removed from the vehicle for the search of his person and his vehicle due to the odor of marijuana.[13]The State claims that Mr. Terry stated he did have a little bit of marijuana that he forgot about in his pocket.[14] PFC Johnson recovered a plastic bag containing approximately 1.7 grams of marijuana from Mr. Terry's right front pants pocket.[15]

         4. A search of Mr. Terry's vehicle was than conducted, and SPO Barrett located a handgun (9-millimeter Sig Sauer with a round of ammunition in the chamber as well as approximately 8 rounds of ammunition inside the magazine) concealed under the driver's seat, which Mr. Terry was occupying during the traffic stop.[16] Cpl. Richey also located a digital scale in the center console of the vehicle.[17]SPO Stagg located a mail envelope that contained a plastic bag with 88 grams of marijuana.[18] SPO Stagg also located plastic baggies underneath the envelope.[19]

         5. Mr. Terry contends that there was no probable cause to take him into custody, no probable cause to search him, and no probable cause to search his vehicle.[20] He further asserts that the search performed was in contravention to the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section VI of the Constitution of the State of Delaware.[21]

         6. The State denies Mr. Terry's claims and asserts that the initial stop was justified by the illegal window tint, and the stop was extended due to the hand-to-hand drug transaction, use of odor masking agent, and, ultimately, the odor of marijuana.[22]

         7. On a motion to suppress evidence seized during a warrantless search or seizure, the State bears the burden of establishing that the challenged search or seizure comported with the rights guaranteed by the United States Constitution, the Delaware Constitution, and Delaware statutory law.[23] The burden of proof on a motion to suppress is proof by a preponderance of evidence.[24]

         8. The Fourth and Fourteenth Amendments of the United States Constitution, and Article I, Section 6 of the Delaware Constitution, protect individuals from unreasonable searches and seizures. Under the Fourth Amendment, a traffic stop by the police is a "seizure" of the vehicle and its occupants.[25] Consequently, a traffic stop must be justified at its inception by a reasonable suspicion of criminal activity, and the scope of the stop must be reasonably related to the stop's initial purpose.[26]

         9. A police officer who observes a traffic violation has probable cause to stop the vehicle and its driver, however, "[t]he scope and duration of the detention must be reasonably related to the initial justification for the stop."[27]

         10. "[A]ny 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."[28] If the police prolong a suspect's road side detention in order to investigate other possible crimes, it becomes a second detention.[29] The second detention is unconstitutional unless it is based on specific and articulable facts which, taken together with all rational inferences, raised an objective suspicion of criminal behavior.[30]

         11. Reasonable suspicion must be based upon more than a hunch.[31] Delaware courts define reasonable suspicion as an "officer's ability to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion."[32] A determination of 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."[33]

         A. Initial Traffic Stop - Window Tinting

         12. In this case, the initial traffic stop constituted a seizure of Mr. Terry for Fourth Amendment purposes. The seizure was supported by probable cause because Cpl. Writer discovered that Mr. Terry's vehicle did not have a waiver for an improper window tint. The fact that the initial stop was proper is not contested in this case.

         B. Mr. Terry's Continued Detention

         13. Having determined that the stop was lawful, the Court must next address whether Mr. Terry's detention was reasonably related in scope and duration to the initial justification for the stop. The Court's decision is guided by State v. Stanley[34]In Stanley, an officer stopped the defendant because his vehicle's windshield was severely cracked and the muffler was swinging loose.[35] Once the vehicle pulled over the officer approached the defendant, whereby the officer noticed the defendant was leaning forward in his seat with his hand in a bag that was located between his legs.[36]The officer also noticed three cellular telephones sitting in the defendant's center console.[37] In addition, the defendant's hands were shaking when the officer asked for additional paperwork.[38] After this brief interaction, the officer returned to his vehicle to write a warning citation. He also ran a criminal history check and called for backup, so that he could conduct a K-9 sniff test.[39] Once backup arrived, the defendant was asked to step out of his vehicle so that another officer could explain the warning citation.[40]

         14. The Stanley Court determined that the simple act of removing the defendant from the vehicle, after the citation was completed, constituted a second seizure because the defendant's removal from his vehicle measurably extended the time needed to complete the traffic stop.[41] The continued seizure, therefore, must have been supported by independent facts sufficient to justify the additional intrusion.

         15. Here, the facts indicate that Mr. Terry was removed from the car for reasons other than the window tint. Therefore, according to Stanley, a second seizure occurred, requiring the officers to have independent facts to justify the additional intrusion.

         C. Constitutionality of the Extended Detention

         16. Because the traffic stop was extended, the question thus becomes whether officers in this case had a reasonable suspicion that Mr. Terry had committed, was committing, or was about to commit a crime to justify prolonging the traffic stop.

         17. The Court must consider two separate, but intertwined, lines of Delaware case law. In the first line of cases, Delaware Courts have consistently held that "inconsistent answers and nervousness without some other more tangible, objectively articulable indicators of criminality ... do not support a finding of reasonable suspicion."[42] In the second line of cases, Delaware Courts have held that nervousness, criminal history, and use of a rental vehicle are not supportive of reasonable suspicion unless used in conjunction with "more tangible, objectively articulable indicators of criminality."[43] In both instances, "tangible, objectively articulable indicators of criminality," included "driving with a ...


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