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State v. Stevens

Superior Court of Delaware

December 12, 2019


          Submitted: November 25, 2019

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

          Zachary Rosen, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State of Delaware.

          Thomas A. Pedersen, Esquire, Law Office of Thomas Pedersen, Georgetown, Delaware. Attorney for Defendant.




         A probation officer with the Safe Streets Task Force conducted a traffic stop, detaining Defendant Malik Stevens ("Stevens") after he allegedly failed to utilize a turn signal when he turned into a residential neighborhood in New Castle County. The probation officer detained Stevens in the driveway of his girlfriend's residence. A police officer called to the scene shortly thereafter conducted multiple searches of Stevens' person and an extensive search of his vehicle that yielded no evidence. Approximately one hour later, police obtained consent from Stevens to search his phone and from his girlfriend to search her residence where police eventually discovered evidence of drugs and firearms.

         In this Motion to Suppress, Stevens challenges the admissibility of the evidence under Caldwell v. State[1] and Murray v. State, [2] arguing his search and seizure violated the Fourth and Fourteenth Amendments of the United States Constitution, Article I, § 6 of the Delaware Constitution, and Delaware statutory law. For the reasons that follow, the Court finds the State fails to meet its burden by a preponderance of the evidence to establish the officer had sufficient reasonable articulable suspicion to stop Stevens and justify the seizure. With insufficient evidence, Defendant's Motion to Suppress is GRANTED.


         A. Factual Background

         Senior Probation Officer DuPont (PO DuPont) is a probation officer and a member of the Special Operations Division, specifically the Safe Streets Task Force Unit ("Safe Streets").[4] Detective Andrew Rosaio ("Rosaio") is also a member of Safe Streets employed as a police officer with the New Castle County Police Department. At approximately 10:00 am on September 25, 2018, members of Safe Streets conducted a "proactive mobile patrol along the Route 9 corridor."[5]

         Rosaio did not accompany PO DuPont while on patrol. According to Rosaio, PO DuPont observed a 2013 gold Ford Edge traveling northbound on New Castle Avenue, and allegedly observed Stevens fail to utilize his turn signal while completing a left hand turn onto Mansion Parkway.[6] PO DuPont did not supervise Stevens nor was Stevens subject to the provisions of any Interstate Compact that would place him under supervision in this State. Although Stevens was not a probationer in Delaware, law enforcement knew him to be under community supervision in another State.

         According to Rosaio, PO DuPont followed Stevens into the neighborhood and stopped Stevens' vehicle[7] after Stevens backed into and parked in the driveway of his girlfriend's residence. PO DuPont then blocked Stevens' car with his vehicle.[8]He then approached Stevens who remained seated in the driver's seat of his vehicle.[9]Stevens was the only occupant.[10] Rosaio reported that PO DuPont then ordered Stevens to produce documentation and Stevens complied.[11]

         Rosaio testified he arrived at the scene within "twenty seconds" of being called by PO DuPont.[12] Specifically, he testified as follows:[13]

Counsel: Where were you in relation to him when he made the vehicle stop?
Rosaio: I believe I was just about in the turn lane on New Castle Ave to complete a left-hand turn onto Mansion Parkway.
Counsel: Were you immediately behind . . . DuPont?
Rosaio: He was not in eyesight when he actually contacted Mr. Stevens initially . . . .
Counsel: And did you see . . . DuPont light up from your vantage point?
Rosaio: When he initially activated them?
Counsel: Yes.
Rosaio: No.
Counsel: And you said you arrived about 20 seconds later?
Rosaio: Approximately.
Counsel: Do you recall talking to . . . DuPont at that point?
Rosaio: When I arrived on scene?
Counsel: Yes.
Rosaio: Yes.
Counsel: And do you recall him talking to you about some of the conversation he had had with Mr. Stevens at that point?
Rosaio: I believe he said something about his license. He didn't have a valid license or something along the lines of that.
Counsel: Your conversation with . . . DuPont cause you to question your 20 second estimation? Do you think he got all that information in 20 seconds?
Rosaio: Yes.

         A body camera on Rosaio's person captured the events that unfolded thereafter.[14] Within seconds of approaching the vehicle, Rosaio removed Stevens and immediately placed him in handcuffs, stating, "You're being detained[, ]"[15]adding "overall because you don't have a license," and "because there was weed on your lap."[16] Rosaio testified he detected the odor of raw marijuana upon five feet of approaching Stevens' vehicle.[17] Rosaio explained further that he observed trace amounts of raw marijuana scattered about Stevens' person, and within his vehicle, in the form of "flakes" and a "straw with a residue" he considered to be consistent with heroin.[18]

         With Stevens handcuffed and outside of his vehicle, Rosaio conducted the first pat down search of Defendant.[19] Rosaio searched between Stevens' legs and his buttocks, asking, "Do you have something in your butt . . . ?"[20] Stevens responded, "No."[21] After a thorough search, the officer discovered nothing on Stevens' person.

         Rosaio next told Stevens he was not under arrest.[22] He then conducted an extensive search of Stevens' vehicle, including all compartments, under and inside the rear trunk area, and under the hood of the vehicle.[23] This search yielded nothing. Rosaio then asked Stevens about his probation status, his listed address, and requested information about his girlfriend and her whereabouts.[24] Stevens responded, including providing his girlfriend's name.[25]

         Rosaio then conducted a second pat down search of Stevens' person.[26] Rosaio testified that "secondary search[es]" were "often [done]"[27] even though he had conducted a "pretty thorough search of [Stevens'] person" the first time.[28] He again requested Stevens to "spread [his] legs wide," and conducted the same search, including his buttocks and legs.[29] Rosaio found nothing and escorted Stevens to the back of his police vehicle with an explanation that he was not arresting-only detaining-him.[30] Then Rosaio read Stevens his rights under Miranda.[31]

         Throughout these searches and within this period, Rosaio did not question Stevens about the alleged traffic violation.[32] Instead, the police inquiry was repetitive and focused on potential and suspect contraband "in the house."[33] Rosaio conceded that he "tailored [his questions] around the traffic stop, [but] [was] also prompted by some of the information [gathered] through confidential sources and informants" provided in "August and September 2018" about drug-related activity "along the Route 9 corridor."[34]

         With Stevens in the police vehicle, Rosaio conducted a third search of Stevens, this time asking him to remove his shoes.[35] This search also yielded nothing. After more questioning, the audio from the body camera depicts Rosaio stating, "He's going to consent to at least a search of his phone."[36] The body camera does not capture the exchange that led to Stevens giving any consent, but Rosaio asks Stevens, "Ok, you don't mind?"[37] Stevens says "No" and he provides his password to unlock his cell phone.[38] For several minutes, Rosaio scrolled through numerous pictures and text messages.[39] An image or two prompts Rosaio to ask questions about "firearms and large quantities of United States Currency."[40] Stevens responded that he "just liked the black [gun]," that he "didn't buy nothing, "[41] and that the "money [was] from the casino."[42]

         Approximately an hour after the initial stop, Stevens' girlfriend arrived at her residence.[43] The body camera did not capture this exchange and Rosaio could not recall how he conducted his investigation as to her identity, her address, or anything related to her.[44] The record is also unclear about what communications took place between her and law enforcement but Rosaio testified that the girlfriend gave consent to enter her residence, [45] and that he asked her questions regarding Stevens' marijuana use.[46] She escorted police to her bedroom where Stevens slept. This led to the recovery of a sandwich bag and a Mentos container with marijuana, [47] later quantified as a "personal use" amount.[48]

         The State then obtained a search warrant executed at 12:44 pm, approximately three hours from the time of the stop.[49] That search yielded evidence to include greater quantities of marijuana, United States currency, and two firearms. Stevens was arrested and charged with Drug Dealing, Aggravated Possession, two counts of Possession of a Firearm During the Commission of a Felony, several counts of Possession of a Firearm (and Ammunition) by Person Prohibited, Possession of Drug Paraphernalia, and Failure to Make Left Turn.[50] Law enforcement did not collect any physical evidence from the pat down searches or the search of the vehicle. Nor did they test any of the alleged flakes of marijuana or straw paraphernalia described on Stevens' person and in his vehicle.[51] Stevens was not charged with crimes related to the flakes or the straw.[52]

         B. Procedural Background

         On March 14, 2019, Defendant filed his Motion to Suppress.[53] On April 18, 2019, State filed its Response, [54] and on May 21, 2019, Defendant filed a Revised Motion to Suppress Evidence.[55] On June 24, 2019, State filed its Supplemental Response to Defendant's Revised Motion to Suppress.[56] Oral arguments took place on August 23, 2019.

         On November 13, 2019, the Court requested that the State and Stevens provide supplemental briefing to identify the legal authority that allows probation officers to conduct routine traffic stops.[57] On November 20, 2019, the State responded with a string of statutory provisions to suggest that-when pieced together-the law gives probation officers the same authority provided to a police officer to conduct traffic stops.[58] On November 25, 2019, Stevens responded and argued that neither Delaware case law nor statutory language provide the authority for probation officers to make such arrests.[59] The matter is ripe for review.


         Stevens argues he was subjected to an illegal detention and arrest as defined under Caldwell v. State[60] and Murray v. State, [61] or alternatively, that his constitutional rights were violated where the State exceeded its authority through the actions of the probation officer to conduct a pre-textual stop without justification to do so.[62]

         The State argues police had justification to extend the initial traffic stop where trace amounts of raw marijuana on Stevens' clothing and vehicle[63] created a basis for the additional investigation. The State also argues no constitutional foul occurred where both Stevens and his girlfriend gave separate consent to search the cell phone and the residence, respectively.


         Not surprisingly, both sides also disagree as to who bears the burden in this case. The State argues that the existence of a search warrant places the burden upon Stevens to establish a violation of his constitutional rights. It is true that on a motion to suppress, "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."[64] "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."[65] Here, where the events began with the first warrantless seizure after the traffic stop, "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."[66]

         V. DISCUSSION

         The Fourth[67] and Fourteenth Amendments[68] of the United State Constitution and Article I, § 6 of the Delaware Constitution[69] protect citizens from illegal searches and seizures. A traffic stop constitutes such a seizure of a vehicle and those within the vehicle.[70] As such, the State is required to "demonstrate that the stop and any subsequent police investigation were reasonable in the circumstances."[71] A traffic stop does not violate Fourth Amendment rights where it supported by reasonable suspicion or probable cause that a traffic violation has occurred.[72] A traffic stop must be "justified at its inception by reasonable suspicion of criminal activity."[73]

         A. Insufficient Evidence of ...

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