Submitted: November 25, 2019
Consideration of Defendant's Revised Motion to Suppress,
Zachary Rosen, Esquire, Deputy Attorney General, Department
of Justice, Wilmington, Delaware. Attorney for the State of
A. Pedersen, Esquire, Law Office of Thomas Pedersen,
Georgetown, Delaware. Attorney for Defendant.
L. MEDINILLA, JUDGE
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.
Motion to Suppress, Stevens challenges the admissibility of
the evidence under Caldwell v. State and Murray v.
State,  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
FACTUAL AND PROCEDURAL BACKGROUND
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"). 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."
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. 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.
to Rosaio, PO DuPont followed Stevens into the neighborhood
and stopped Stevens' vehicle after Stevens backed into
and parked in the driveway of his girlfriend's residence.
PO DuPont then blocked Stevens' car with his
vehicle.He then approached Stevens who remained
seated in the driver's seat of his vehicle.Stevens was the
only occupant. Rosaio reported that PO DuPont then
ordered Stevens to produce documentation and Stevens
testified he arrived at the scene within "twenty
seconds" of being called by PO DuPont. Specifically,
he testified as follows:
Counsel: Where were you in relation to him when he made the
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
Rosaio: When he initially activated them?
Counsel: And you said you arrived about 20 seconds later?
Counsel: Do you recall talking to . . . DuPont at that point?
Rosaio: When I arrived on scene?
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
Counsel: Your conversation with . . . DuPont cause you to
question your 20 second estimation? Do you think he got all
that information in 20 seconds?
camera on Rosaio's person captured the events that
unfolded thereafter. Within seconds of approaching the
vehicle, Rosaio removed Stevens and immediately placed him in
handcuffs, stating, "You're being detained[,
]"adding "overall because you
don't have a license," and "because there was
weed on your lap." Rosaio testified he detected the odor
of raw marijuana upon five feet of approaching Stevens'
vehicle. 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.
Stevens handcuffed and outside of his vehicle, Rosaio
conducted the first pat down search of
Defendant. Rosaio searched between Stevens'
legs and his buttocks, asking, "Do you have something in
your butt . . . ?" Stevens responded,
"No." After a thorough search, the officer
discovered nothing on Stevens' person.
next told Stevens he was not under arrest. 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. This search
yielded nothing. Rosaio then asked Stevens about his
probation status, his listed address, and requested
information about his girlfriend and her
whereabouts. Stevens responded, including providing
his girlfriend's name.
then conducted a second pat down search of Stevens'
person. Rosaio testified that "secondary
search[es]" were "often [done]" even though
he had conducted a "pretty thorough search of
[Stevens'] person" the first time. He again
requested Stevens to "spread [his] legs wide," and
conducted the same search, including his buttocks and
legs. Rosaio found nothing and escorted
Stevens to the back of his police vehicle with an explanation
that he was not arresting-only detaining-him. Then Rosaio
read Stevens his rights under Miranda.
these searches and within this period, Rosaio did not
question Stevens about the alleged traffic
violation. Instead, the police inquiry was
repetitive and focused on potential and suspect contraband
"in the house." 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
Stevens in the police vehicle, Rosaio conducted a third
search of Stevens, this time asking him to remove his
shoes. 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." The body camera does not
capture the exchange that led to Stevens giving any consent,
but Rosaio asks Stevens, "Ok, you don't
mind?" Stevens says "No" and he
provides his password to unlock his cell phone. For several
minutes, Rosaio scrolled through numerous pictures and text
messages. An image or two prompts Rosaio to ask
questions about "firearms and large quantities of United
States Currency." Stevens responded that he "just
liked the black [gun]," that he "didn't buy
nothing, " and that the "money [was] from the
an hour after the initial stop, Stevens' girlfriend
arrived at her residence. 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. 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,  and that he asked her
questions regarding Stevens' marijuana use. She escorted
police to her bedroom where Stevens slept. This led to the
recovery of a sandwich bag and a Mentos container with
marijuana,  later quantified as a "personal
State then obtained a search warrant executed at 12:44 pm,
approximately three hours from the time of the
stop. 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. 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. Stevens was not charged with
crimes related to the flakes or the straw.
March 14, 2019, Defendant filed his Motion to
Suppress. On April 18, 2019, State filed its
Response,  and on May 21, 2019, Defendant filed a
Revised Motion to Suppress Evidence. On June 24, 2019, State
filed its Supplemental Response to Defendant's Revised
Motion to Suppress. Oral arguments took place on August 23,
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. 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. 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. The matter is ripe for review.
argues he was subjected to an illegal detention and arrest as
defined under Caldwell v. State and
Murray v. State,  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
State argues police had justification to extend the initial
traffic stop where trace amounts of raw marijuana on
Stevens' clothing and vehicle 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.
STANDARD OF REVIEW
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."
"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." 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."
Fourth and Fourteenth Amendments of the United
State Constitution and Article I, § 6 of the Delaware
Constitution protect citizens from illegal searches
and seizures. A traffic stop constitutes such a seizure of a
vehicle and those within the vehicle. As such, the
State is required to "demonstrate that the stop and any
subsequent police investigation were reasonable in the
circumstances." A traffic stop does not violate Fourth
Amendment rights where it supported by reasonable suspicion
or probable cause that a traffic violation has
occurred. A traffic stop must be "justified
at its inception by reasonable suspicion of criminal
Insufficient Evidence of ...