IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
V.,. ID. No. 1507021564
DIONTE H. DUBOSE,
§S\/\/\/&JL/
Defendant.
Submitted: March 30, 2016
Decided: April 18, 2016
On Defendant Dionte H. Dubose’s Motion to Suppress,;
GRANTED IN PART; DENIED IN PART.
Barzilai K. Axelrod, Esquire, Deputy Attorney General, Department of Justice,
Wilrnington, Delaware, Attorney for the State.
Kevin J. O’Connell, Esquire, Assistant Public Defender, Wilmington, Delaware, '°
Attorney for Defendant Dionte H. Dubose.
SCOTT, J.
Ilzfred;wli»l§ t
Before the Court is Defendant Dionte H. Dubose’s ("Defendant") Motion to
Suppress. Therein, Defendant challenges the validity of police action following an
otherwise valid initial traffic stop, which resulted in evidence and charges against
Defendant, as having violated his right against unreasonable searches and seizures
of his vehicle and his person guaranteed under the Fourth Amendment to the
United States Constitution and Article I, Section 6 of the Delaware Constitution
and protected by Title ll, chapter 23 of the Delaware Code. The Court has
reviewed and considered the Parties’ written submissions, as well as the evidence
provided and arguments made by the Parties at the suppression hearing.l For the
following reasons, Defendant’s Motion to Suppress is GRANTED, in part, and
DENIED, in part.
On July 28, 20l5, at approximately l:00 am, Delaware State Police Sergeant
David Diana ("Sgt. Diana") was patrolling Route 9 in New Castle County as part
of the Governor’s Task Force initiative of targeting hot spots of criminal activity in
certain areas. Sgt. Diana’s law enforcement experience includes nearly 15 years
'».
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1 Defendant filed his Motion to Suppress on December 21, 2015. The State filed its response on
January 13, 2016. The suppression hearing was held on March 30, 2016.
2 Unless otherwise noted, the findings of facts were made from the testimony of Sergeant Diana
and Detective Gliam, which was provided and undisputed at the suppression hearing, as
Defendant Dubose was absent from the proceedings and, thus, did not testify nor did he call any
fact witness to testify.
additional investigation into the possibility that criminal activity was afoot."
These same facts also begin to form the basis for Sgt. Diana’s belief that under the
circumstances his safety was in danger. The Court finds that the testimony of Sgt.
Diana regarding his observations of the passenger when he first initiated the traffic
stop and when he conducted the roadside interview of the passenger to be credible,
especially in light of Defendant’s failure to present any evidence to the contrary.
Therefore, under the facts and circumstances here, Sgt. Diana was warranted
in his belief that his safety was in danger. Sgt. Diana testified that it appeared to
him based on his experience that the passenger had either retrieved or hidden
something, possibly a weapon, when he initiated the traffic stop. He further
testified that he removed the passenger from the vehicle to continue his roadside
interview based on his evaluation that he presented the immediate threat and he
was still alone on the scene at this point, and that during the interview the
passenger exhibited further suspicious behavior.
This scenario is similar to the facts in State v. Wausnock, where our Supreme
Court found that a limited protective search of a vehicle during a traffic stop where
the driver was seen reaching underneath his seat was reasonable.lg In Wausnock,
while following the defendant’s car prior to initiating the traffic stop, the officers
1 - -' -._.-__,-_-_=___,_.-'._-_==_._._-
17 Terry, 392 U.S.at S;-'Jones, 745 A.2d at 86l; se A.3d 23, 26 (_l__)el. 2011)
("Any of the :':,_`f' "'_5_ ' ` ~ . " " to "':i'::.:pl€te "
of the must be the
intrusion."’).
‘8 Wausm»ck, 303 A.zd ar 637.
10
"saw the defendant bend down and reach under the driver’s seat three or four
times" with his right arm, which gave them a strong idea that the defendant might
possibly be reaching for a gun.lg Upon stopping the car, the officers immediately
searched under the seat to find drug paraphernalia, and the court found that the
"officers, as reasonably prudent men in the totality of the circumstances, had good
cause to experience fear for themselves or others and, thus, the limited protective
search conducted was reasonable.zo Applying the same rationale here, this Court
finds that the limited protective search conducted underneath the passenger seat of
the vehicle was reasonable under the circumstances and did not violate
Defendant’s constitutional rights. Therefore, the Court does not reach the State’s
alternative argument that the officers had probable cause to search underneath the
passenger seat for contraband based on the passenger’s movements, admission, and
nervous behavior, and, thus, the search was reasonable under the automobile
exception, though it would likely have found the argument to have merit.
Accordingly, Defendant’s Motion to Suppress the evidence consisting of the
handgun found underneath the passenger seat of the vehicle is DENIED.
2. Search of Defendant’s Person
Next, Defendant argues that Det. Gliem’s search of his person was unlawful,
because there was neither any indication that he was armed and dangerous when
';¢=:' =_-=_-=»-_.-_-;___-_-_--____=__e_-_» .
1914
20
ll
Det. Gliem patted him down nor any probable cause to arrest him. The State
argues that at this moment Defendant was not being detained but was already
under arrest and, thus, Det. G1iem lawfully searched Defendant under the search
incident to arrest exception to the warrant requirement. Because the scope of the
pat down cum search of Defendant differs depending on his status, as detainee or
arrestee, the Court must first make a factual finding based on the entire record as to
Defendant’s status as of the time Det. Gliem patted him down.
The distinction between an arrest and an investigatory detention depends
upon the nature and the degree of the intrusion occasioned by the particular
encounter.zl "[A]t some point in the investigative process, police procedures
qualitatively and quantitatively can be so intrusive with respect to a subject’s
freedom of movement and privacy issues as to trigger the full protection of the
. Fourth and Fourteenth Amendments."zz Delaware cases have identified the
following factors as pertinent to the analysis: (l) the amount of force used by the
police; (2) the need for such force; (3) the extent to which the individual's freedom
of movement was restrained; (4) the physical treatment of the individual, including
whether handcuffs were used; (5) the number of agents involved; (6) the duration
of the stop; and (7) whether the target of the stop was suspected of being arnied.”
- _¢-_=__.-.+1
21 State v. Bida'le, 1996 WL 527323, at *7 (Del. Super. Aug. 9, 1996), a]j"d, 712 A.2d 475 (Del.
1993), (ciring U.S. v. Roper, 702 F.zd 934, 985 (i ith Cir. 1933)).
22 ld. ar *6 (¢iring Hayes v. Florida, 460 U.s. 811, 815-16 (1985)).
23 Id. (citing U.S. v. Perea, 986 F.Zd 633, 645 (Zd Cir. 1993)).
12
The Court finds Sgt. Diana’s testimony, as the officer who made the initial
traffic stop and initiated the roadside interviews, that he considered the passenger
to be the "immediate threat" under the circumstances and, thus, addressed him first
and left Defendant in the car with the engine running but within sight, credible and
relevant to the instant inquiry When asked about the running engine, Sgt. Diana
testified that he could not recall exactly when he instructed Defendant to turn it off
but that he believes he did so before Det. Gliem conducted the protective search
undemeath the passenger seat. Det. Gliem’s testimony corroborates this belief.
In order to determine whether a seizure is an investigatory detention or an
arrest, courts must examine "the reasonableness of the level of intrusion under the
totality of the circumstances."% Defendant argues and the evidence establishes
that Defendant was compliant throughout the traffic stop, roadside interview,
investigatory detention, and arrest, and that the passenger was the one who
admitted to smoking the marijuana and failed to provide identification. These facts
comport with the relatively non-intrusive treatment, i.e., the nature and degree of
the intrusion, occasioned by Defendant while he was being detained in his vehicle,
as he was allowed to remain in his vehicle alone. Therefore, the Court finds that
Defendant was merely being detained at this point, i.e., before the handgun was
found underneath the passenger seat.
___ _ =__;L._
.;¢n;¢»:
54
fci at *_7 wiring 1505-ff i)¢§herzy, 944 F.zd 91, 98 (2<1 cir. 1991)).
13
Because the circumstances changed once the gun was discovered underneath
the passenger seat, the Court must further analyze the reasonableness of the level
of intrusion to l)efendant in order to determine whether the seizure of Defendant
then became an arrest. The Court finds the testimony of Det. Gliem regarding the
moments after he found the handgun underneath the passenger seat credible and
relevant to the status of Defendant at this time. The pertinent facts are as follows:
(i) based on Sgt. Diana’s safety concerns, Det. Gliem` looked underneath the
passenger seat of the vehicle; (ii) at this time, Defendant was seated in the driver’s
seat; (iii) Det. Gliem saw a handgun underneath the passenger seat; (iv) Det. Gliem
immediately told Sgt. Diana to take the passenger into custody; (v) Sgt. Diana then
placed handcuffs on the passenger and put him into a unit car (vi) Det. Gliem then
ordered Defendant to show his hands and talked him out of the vehicle; (vii) at that
point, Det. Gliem had decided to detain Defendant based on the odor of burnt
marijuana, the handgun he had just seen, and for officer safety; (viii) Det. Gliem
then patted Defendant down for the same reasons; (ix) Det. Gliem found marijuana
in Defendant’s pant pocket; and (x) Det. Gliem then handcuffed Defendant and
stood him behind the vehicle while a complete search of the vehicle was made.
Though the record shows that the officers’ relative treatment of Defendant
escalated throughout the course of the detention, it appears to the Court that such
intrusions reasonably correlated to the officers’ discovery of the passenger’s
suspicious behavior and the gun hidden underneath the passenger seat. Before the
14
pat down, Defendant was never handcuffed and was allowed to remain in the
vehicle without direct supervision. Further, the officers’ testimony indicated that
Defendant was cooperative and that his behavior was otherwise unremarkable.
Once the handgun was discovered underneath the passenger seat, however, it
appears to the Court that the officers took reasonable steps under the circumstances
to protect themselves, which included restraining Defendant’s access to the vehicle
and making sure he was not in possession of another weapon. As a result, this
Court finds that the intrusions did not trigger the full protection of the Fourth
Amendment, and, thus, Defendant was merely being detained and was not under
arrest when he was patted down. Therefore, having determined that Defendant’s
status was as a detainee, the Court will proceed with its analysis under Terry and
its progeny and not, as the State argues, under the search incident to an arrest
exception. l
As discussed above, under certain circumstances it is permissible during a
lawfiil detention for law enforcement officers to conduct a protective pat down of a
defendant, but only if "the officer justifiably believes the detained individual may
be in possession of a weapon or weapons that could be used to harm the officer."z§
While the test for "justification" is "whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was
__,____;._=_ __ :_-\:~::_-¢;.-o
125 Woo; v._ S;t:;b$ A.2d 1257, 1266 (Del. 2001) (citing
Adams, 407 U.S. at 145-46 (noting that "the patdown is d€_;'“_
crime, but to allow the officer to pursue his investigation withou
15
also
in danger," the intrusion must be founded upon "the officer’s ability to point to
specifc and articulable facts."ze In this case, Det. Gliem testified that he
discovered a large handgun hidden under the passenger seat and that Defendant
had been sitting alone in the vehicle prior to its discovery. Sgt. Diana also testified
that it was after one o’clock in the morning when he initiated the traffic stop, and
that it was his job to patrol high crime areas. Under the circumstances, the Court
finds that the officers articulated a justifiable belief that Defendant may have been
in possession of a weapon, which led them to fear for their safety, and,
accordingly, the decision to conduct a pat down was proper.
The scope of a protective pat down is initially limited to the suspect’s outer
clothing, but the officer may go into the suspect’s pocket if he initially feels
something he reasonably believes to be contraband or a weapon in that pocket.27
Under the plain touch doctrine, "an officer may go into a suspect’s pockets if
pursuant to a lawful pat down he feels an item that he concludes with reasonable
certainty is contraband."zs In this case, however, there is no testimony whatsoever
from Det. Gliem, who conducted the pat down of Defendant, as to what he felt
before he went into Defendant’s pocket. Therefore, this Court cannot conclude
that Det. Gliem had any reasonable belief that Defendant had either a weapon or
-‘¢;.=-_`_-._,_»-=.\_i.a_»-\= _..-_=_¢__ =_1_:___.\-,
26 Cazdwezl, 770 A.zd at 53=1=._
27 Id. (citing Minnesota v. Dickerson, 508 U.S. 366 (1993)); see Terry, 392 U.S. at 29-30;
£ickerson v. Stal‘e, 620 A.Zd 857 (TABLE), 1993 WL 22025, at *2 (Del. Jan. 26, 1993).
Ia'.
l6
v. ..
contraband in his pocket that would support extending the protective pat down of
Defendant to a search inside of Defendant’s pocket. This pat down, though
reasonable at its inception, thus, turned into an unreasonable search. Accordingly,
Defendant’s Motion to Suppress the evidence consisting of marijuana found on his
person is GRANTED.
B. Search of Vehicle’s Trunk”
Under the automobile exception to the warrant requirement under the Fourth
Amendment, when police have probable cause to believe that an automobile is
carrying contraband or evidence, they may search the vehicle without obtaining a
search warrant.30 Probable cause exists where, under the totality of the
circumstances, the facts known to the off`1cers, as those versed in the field of law
enforcement, are sufficient to warrant a man of reasonable prudence in the belief
that contraband or evidence of a crime will be found.3l The standard is of only a
"fair probability" of;_criminal activity, which is less than a preponderance of
evidence.32 Therefore, under the automobile exception, if probable cause justifies
the search of a lawfully stopped vehicle, it justifies the search of every part of the
`:.'.-¢`¢=1 ‘:_=:.__ _ _.=_,-=-,_,-_=._,__ =_-___._,,,
29 Notwithstanding the Court’s finding that the search of Defendant’s person was
unconstitutional, the Court considers the search of the vehicle’s trunk as independent of and
unrelated to the search of Defendant’s person and, thus, is not properly considered as fruit of the
poi"__;'_‘f'.i"zW:-;tree. _ __
o.f_;:h'_§g_:rzizpq; v. State, 494 A.Zd 1249, 1251 (Del.
31 Illinois v. Gates, 462 U.S. 213, 243-244 (_l;__.`_
2006); Gargz»_@er_v. Smze, 567 A.zd 404, 409 qil§;af
..2§1 1037, 1045 (De1. 2001); see Whren v_ Us., 51__7__U.s. 806, 810
(1996);- v_ 422 U.s. 873, 880-81 (1975) (é?i&?‘ae§¢_~:rerry v. 1392 U.s. 1,
16-19 M'Wds, 2 A.zd 147, 151 (Del. super. ep"d, §e:::eeeeav’_d 782 (De1.
2011).
‘2 coleman v. s¢eze, 562 A.2d 1171, 1174 (Del. 1989).
8
1. Limited Search of Vehicle
The Court finds, however, that proper analysis of the legality of the search
underneath the passenger seat implicates the issue of whether the officers’
suspicions that the passenger was armed and dangerous were reasonable. In the
context of an investigatory detention, it has been long held that police officers may
conduct a limited protective search for concealed weapons under certain
circumstances.” The issue is "whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was
in danger."m Because a detention is not an arrest, the possibility of access to
weapons in the vehicle is not mooted by an officer interviewing a suspect outside
of the vehicle, because if not arrested the suspect may return to the vehicle after the
interview is completed.ls Therefore, so long as officers possess "an articulable and
objectively reasonable belief that the suspect is potentially dangerous" and the
protective search does not excessively invade the defendant’s rights, their search of
the vehicle will comport with the scope of a Terry stop and will be reasonable.l°"
The record reflects that in the course of issuing a citation for the traffic
violation, Sgt. Diana uncovered facts that independently and reasonably warranted
.~ _. ~"""1715, 717 (Dai. 1972) (arrrrarr.~,§” v. rr rf:§rov U.s. 143, 146
Mz`d.__"_' _'_.§§z v. Long, 463 U.S. 1032, (l`x`§el` "-_ __;M%i;_-when no arrest is
made;_' officers may search the car if they reasonably believe the suspect is dangerous and may
295 ar
control 'ons).
*i"`$`~'j§§§ie v.i_ ` , ~» ml__.636, 637 (Del. l973) (citing Terry, 392 U.S. at 27).
‘5 saa rd.; srara v. Campba`z"z,"`éoi§ wL 5178407, ar *2 (Dai. super Aug. 28, 2015) (¢rring Laag,
463 U.s. ar 1051).
" Campban, 2015 wL 5178407, ar *3 (arrrng Laag, 463 U.s. ar 1051).
9