IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
STATE OF DELAWARE, :
:
v. :
:
EZRI TURNER :
1502014211 :
:
Defendant. :
Submitted: December 11, 2015
Decided: January 5, 2016
MEMORANDUM OPINION
Upon Defendant’s Motion to Suppress
DENIED
Zachary A. George, Esquire, Department of Justice, for the State.
J’Aime L. Walker, Public Defender’s Office, for the Defendant.
Clark, J.
I. INTRODUCTION
The issues before the Court involve Defendant’s Motion to Suppress evidence
seized after his traffic stop and arrest. Defendant argues that the arresting officer
lacked reasonable suspicion to stop Defendant’s vehicle. Defendant also argues that
the arresting officer lacked probable cause to arrest Defendant and accordingly that
the weapon and ammunition seized pursuant to a search incident to that arrest should
be suppressed. For the following reasons, Defendant’s Motion to Suppress evidence
is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Court held a suppression hearing on November 30, 2015. The parties then
supplemented the record with written arguments that concluded on December 11,
2015. The following constitute the findings of fact applicable to the suppression
motion.
On February 24, 2015, Officer Martinek, of the Dover Police Department,
stopped Defendant’s vehicle for failing to signal while changing lanes in violation of
21 Del. C. § 4155. Prior to this traffic stop, Officer Martinek received a tip from a
confidential informant (“CI”) regarding Ezri Turner (“ Defendant”). The CI was a
past, proven and reliable source having previously provided three valid tips resulting
in arrests. The CI told Officer Martinek that a person nicknamed “Izzy” was going
to be in the area of Club Fitness Gym on Bay Road in Dover. The CI identified the
vehicle as a green Nissan Sentra and provided the tag number, 540994. The CI also
informed Officer Martinek that Izzy would be in possession of a firearm.
Officer Martinek and Probation Officer Stagg drove southbound on Bay Road
toward the identified shopping center. As they approached, the officers noticed a
green Nissan Sentra leaving Club Fitness’s parking lot. The green Nissan’s license
2
plate matched the one provided by the CI.
Officer Martinek then began to follow the vehicle. As he followed the green
Nissan Sentra northbound on Bay Road, the vehicle traveled in the left lane. The
driver of the Nissan then moved into a left turn lane without using a turn signal.
While stationary and waiting to make his left turn, the Defendant activated his signal
while the officers sat to his rear.
After this traffic infraction, Officer Martinek activated his emergency
equipment. This also activated the vehicle’s MVR which runs constantly, but does
not preserve a recording until approximately twenty seconds before the emergency
equipment is activated. The camera’s video, which was reviewed in Court, does not
show the traffic infraction. According to Officer Martinek, the infraction occurred
before the start of the video.
At the direction of the officers, Defendant’s vehicle turned into a Royal Farms
parking lot and stopped. As Officer Martinek approached the vehicle, he noticed that
the Defendant seemed extremely nervous. Officer Martinek testified that at that point
he was on high alert for his safety because of a possible gun in the vehicle. Officer
Martinek then explained to Defendant why he was stopped. Defendant became
argumentative and began raising his window while Officer Martinek’s stood at the
car’s door. Officer Martinek believed, based on his 10 years of experience, that the
Defendant was going to put the car into drive and flee. Officer Martinek did not see
3
a gun and assumed that if there was one, it was hidden.
At that point, the officer asked Defendant to step out of the vehicle. Defendant
refused. Officer Martinek then opened the vehicle door and removed Defendant from
the vehicle with the assistance of two other officers. At that point, Defendant
attempted to flee. It required four officers wrestling with Defendant, and eventually
tasing Defendant, in order to place him in custody.
Once Defendant was detained and arrested, the officers searched the vehicle.
The search revealed a black 9mm handgun beneath the driver’s seat with an
obliterated serial number and 6 rounds in a seated magazine. The State indicted the
Defendant for Assault Second Degree, Resisting Arrest with Force or Violence,
Carrying a Concealed Deadly Weapon, Possession of a Weapon with a Removed,
Obliterated, or Altered Serial Number, and Criminal Mischief.1
III. STANDARD OF REVIEW
In a Motion to Suppress, pursuant to a search without a warrant, the State bears
the burden of establishing that the challenged search or seizure complied with the
rights guaranteed by the United States Constitution, the Delaware Constitution, and
1
Approximately 21.6 grams of marijuana and a scale were also found in the trunk of the
vehicle. Since Defendant was not indicted for drug related offenses, the seizure of contraband from
inside the trunk was not addressed by the parties. The legality of the search of the trunk, therefore
is not addressed by this decision.
4
Delaware statutory law.2 The State’s evidentiary burden in a motion to suppress is
to prove the challenged matter by a preponderance of the evidence.3 At a suppression
hearing, the trial judge sits as the trier of fact, and determines witness credibility.4
IV. DISCUSSION
Defendant argues that the initial stop was not lawful because it was pretextual
and because the tips provided by the CI were not sufficiently reliable or relevant to
justify a stop. Defendant also argues that the subsequent arrest was illegal.
Accordingly, the Defendant argues that any evidence seized in a search incident to
an illegal arrest is not admissible. The State responds by arguing that the initial stop
was reasonable and justified because Officer Martinek observed a traffic infraction.
Furthermore, the State argues that Defendant’s refusal to exit the vehicle, flight, and
assault of an officer, justified his arrest and the search of the vehicle. The Court finds
that there was probable cause for the initial traffic stop. It also finds that the search
of the vehicle producing the weapon and ammunition was also lawful. Consequently,
suppression of the challenged evidence is not warranted.
A. The traffic stop was justified and reasonable.
2
State v. Holmes, 2015 WL 5168374, at *3 (Del. Super. Sept. 3, 2015).
3
State v. Darling, 2007 WL 1784185, at *1 (Del. Super. June 8, 2007), as corrected (July 3,
2007).
4
Turner v. State, 957 A.2d 565, 570-71 (Del. 2008).
5
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.5 A stop under the Fourth Amendment “is
reasonable if it is supported by probable cause to believe that a traffic [or pedestrian]
violation has occurred. The standard remains the same regardless of the subjective
intent of the officer at the time of the stop.”6 The Fourth Amendment constitutional
reasonableness standard for a traffic stop does not depend on the actual motivations
of an individual officer. Subjective intentions play no role in probable cause analysis
under the Fourth Amendment.7 Therefore, as long as an officer makes a traffic stop
based on a violation of the traffic code in his presence, any pretextual reasons or
actual motivations that may also be involved in the officer's actions are irrelevant.8
Defendant argues, citing State v. Heath, that the traffic stop was pretextual in
nature because it was motivated by the CI’s tip. Defendant asserts that the tip
included no allegation of criminal activity. Namely, the reference to “Izzy’s”
possession of a gun involved no criminal conduct. Defendant emphasizes that the
possession of a gun, absent other circumstances, is not criminal. Admittedly, State
5
Holmes, 2015 WL 5168374, at *3.
6
Darling, 2007 WL 1784185, at *3.
7
Id.
8
Id.
6
v. Heath held that if a stop is motivated by an unrelated (and unjustified) purpose, and
absent that purpose the stop would not have been made, then that stop is pretextual
and unlawful.9
However, despite opportunity, the Delaware Supreme Court has declined to
adopt the holding in Heath. Namely, in Turner v. State, the Defendant argued that
the traffic stop was pretextual, and pursuant to the holding in Heath, violated Article
1, Section 6 of the Delaware Constitution. The Supreme Court declined to follow
Heath, however, noting “[t]hat decision was not appealed, and Heath has not been
followed in any other Superior Court decisions.”10 For this reason, the Court does not
rely upon Heath as support that an alleged pretextual reason for the stop rendered it
and the subsequent search unconstitutional.
Here, Officer Martinek testified that he witnessed a violation of 21 Del. C. §
4155 when Defendant did not use his turn signal to change lanes. Defendant also
contests this, as a factual matter, because the traffic violation was not captured on the
video recording shown in Court. The Court, however, finds Officer Martinek’s
testimony to be credible and finds that a traffic violation in fact occurred. Namely,
the Court is satisfied, by a preponderance of the evidence, that a traffic violation
occurred and the video, during the normal course of its operation, first shows
9
State v. Heath, 929 A.2d 390, 402–03 (Del.Super. 2006).
10
Turner v. State, 25 A.3d 774, 777 (Del.2011).
7
Defendant’s vehicle after the violation. Accordingly, there was probable cause to
stop Defendant’s vehicle.
B. Officer Martinek had probable cause to arrest Defendant and justifiably
searched the vehicle.
An arresting officer has probable cause to make a warrantless arrest “whenever
the facts and circumstances within the officers' knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent person in
believing that the arrestee . . . had committed or [was] committing an offense.”11 An
officer must have probable cause to conduct an arrest, under the totality of the
circumstances, as viewed by a reasonable police officer in light of his or her training
and experience.12 The facts must suggest that a fair probability exists that the
defendant has committed a crime.13 Finally, “the passenger compartment of a car may
be searched incident to the lawful arrest of an occupant of that car.” 14 However, “an
officer, lacking reasonable suspicion to effect a stop or search that leads to an illegal
arrest [cannot] contend that evidence seized incident to that illegal arrest is
admissible.” 15
11
State v. Manley, 706 A.2d 535, 538-39 (Del. Super. 1996).
12
Miller v. State, 4 A.3d 371, 373-74 (Del. 2010).
13
Id.
14
Ortiz v. State, 2004 WL 2741185, at *2 (Del. Nov. 16, 2004).
15
Jones v. State, 745 A.2d 856, 873 (Del. 1998).
8
While a great deal of time at the hearing involved testimony regarding the CI’s
tip, this aspect of the case turns on the Defendant’s conduct after being lawfully told
to exit the vehicle. The Delaware Supreme Court has recognized that “[t]he police
may order the driver or a passenger [of a vehicle] to exit the car after a valid traffic
stop.”16 If a Defendant is already lawfully detained as a consequence of a valid traffic
stop, limiting his mobility, and then asking him to exit the vehicle is not considered
a second seizure. It is a legal order from an officer.17 Here, Officer Martinek ordered
Defendant to exit the vehicle after making a lawful traffic stop. The Defendant
refused the lawful order, attempted to flee, and resisted arrest.
In arguing against the legality of the search, Defendant also relies upon Jones
v. State’s holding that a completely unlawful stop does not justify a search incident
to an illegal arrest. In Jones v. State, however, the defendant was stopped without
reasonable articulable suspicion.18 Namely, the officer in Jones had “no reasonable
and articulable ground to suspect that Jones was committing, had committed, or was
about to commit a crime.”19 During that illegal seizure, the defendant resisted arrest.20
16
Loper v. State, 9 A.3d 1169, 1174 (Del. 2014) (citing Pennsylvania v. Mimms, 434 U.S.
106 (1977)).
17
Id.
18
Jones, 745 A.2d 856, at 863.
19
Id.
20
Id. at 872
9
Because the initial stop and seizure were not reasonable or justified, the Court ruled
that any evidence seized from a search incident to arrest was inadmissible at trial.21
In the case at hand, the initial stop was supported by probable cause of a traffic
offense. Officer Martinek had probable cause to stop and then cite Defendant for a
traffic violation. Likewise, he then had lawful authority to order Defendant to step
out of the car. Defendant refused, fled, and then fought the officers. For purposes of
this suppression motion, the Court finds by a preponderance of the evidence that
Defendant assaulted Officer Martinek, resisted arrest, and committed the crime of
criminal mischief by damaging the officer’s property. It therefore follows that there
was probable cause to arrest Defendant at that point and to then search the vehicle
incident to an arrest.
V. CONCLUSION
For the reasons cited, the Defendant’s Motion to Suppress is DENIED.
IT IS SO ORDERED.
/s/Jeffrey J Clark
Judge
21
Id. at 872-73.
10
State of Delaware v. Turner.
Combined Opinion