State v. Dillard

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE 0F DELAWARE )
)

)

v. ) Crim. I.D. No.: 1710003809

)

BAKR DILLARD, )
)

Defendant. )

O'PINION

Submitted: February 22, 2018
Decided: March 16, 2018

Upon Consideration of Defendant ’s Motion to Suppress,
GRANTED.

Mark A. Dermey, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware. Attorneyfor the State.

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware. Attorney
for the Defendant.

MEDINILLA, J.

INTRODUCTION

Defendant Bakr Dillard (“Defendant”) filed this Motion to Suppress after he
Was pulled over in a minivan for operating a vehicle With improper Window tint.
During the course of this routine traffic stop, an officer called for a K-9 Unit to
perform a drug sniff and the canine alerted to the presence of drugs. Defendant
argues that the officer conducted a second detention unsupported by reasonable
articulable suspicion in violation of the Fourth and Fourteenth Amendments of the
United States Constitution, Article I, Section 6 of the DelaWare Constitution, and
DelaWare statutory laW. For the reasons that folloW, the Court finds that the State
failed to meet its burden by a preponderance of the evidence to establish that the
officer had sufficient reasonable articulable suspicion to justify the seizure. As such,

the Motion to Suppress is GRANTED.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUNDl
On October 6, 2017, Officer Wilkers and Officer Vignola of the Wilmington
Police Department/Operation DISRUPT2 Were traveling in their patrol car and noted

a minivan With improper Window tint traveling on the 500 block of North Spruce

l The Court’s recitation is based on the testimony of the State’s Witnesses and/or exhibits presented
at the Suppression hearing on February 22, 2018.

2 None of the Witnesses for the State recalled What the acronym stood for even after Defense
Counsel cross-examined them that it stood for “Dealing with Issues of Stabilization through
Respect, Understanding, and Promoting Trust.” This is no longer the name of the unit.

Street. Before pulling the vehicle over, Officer Wilkers ran a check on the vehicle
and saw that it was registered to a person named Rubin Harper of Wilmington. The
vehicle did not have a valid window tint waiver so the officer decided to pull the
vehicle over to issue a traffic citation. Upon signaling the vehicle to stop, Defendant
pulled over immediately at 4th and Lombard. Upon request, Defendant produced a
license and registration A female adult passenger also produced valid identification
Officer Wilkers testified that Defendant’s responses and presentation of documents
were appropriate. A DELJIS check yielded no issues and Defendant’s license also
proved valid.

Officer Wilkers asked Defendant to step out of the vehicle so that the officer
could ask him additional questions “about the vehicle.” Defendant was not
handcuffed nor patted-down and instead was asked three questions First, he was
asked who owned the vehicle and Defendant corroborated what was already known
to the officer about ownership. Second, when asked where he was coming from,
Defendant stated “from around 7“‘ Street.” Lastly, Officer Wilkers asked if there
was “anything illegal” in the vehicle. Defendant responded “no,” and that he would
not consent to a search of the vehicle.

Officer Wilkers then ordered Defendant away from the vehicle and directed

Defendant to remain on a curb. At this time, another DISRUPT unit, Officers

Rosado and Petrucci, showed up “to assist.”3 Officer Wilkers then returned to his
vehicle to write the citation for improper window tint.

At the hearing, the State introduced the audiotape exchange between Officer
Wilkers and Officer Caez of the K-9 Unit that took place while Defendant was on
the curb and Officer Wilkers was in his vehicle issuing the ticket. The exchange was
initiated by Officer Wilkers for assistance from Officer Caez’s “partner” to perform
an open air sniff and asks, “how fast can you get here?” Officer Caez responded that
he was approximately three to five minutes away. Officer Caez arrived with the dog
to perform the open air sniff, and the K-9 alerted to the passenger door handle.

Officer Wilkers returned to the minivan and opened that passenger door.
There was a green plant substance in the interior of the door handle area. Officer
Wilkers then opened the center console and observed additional marijuana and a
large amount of money. The police stopped the search, transported the vehicle, and
obtained a search warrant. In the console, upon execution of the search warrant,
police found a firearm, marijuana, a sports lottery ticket, and $11,000 in cash. The
police also found forms and documents with Defendant’s name on them. Defendant
contends that the $11,000 in cash was not his and that he did not sign a property

receipt for it. Defendant did sign a property receipt for $472 found on his person.

3 The State did not establish why two more officers were needed to assist for the write-up of a
traffic ticket, except to suggest it was DISRUPT protocol.

Defendant is charged with Drug Dealing Marijuana; Possession of a Firearrn
During the Commission of a Felony; Possession of a Firearrn by a Person Prohibited;
Possession of Ammunition by a Person Prohibited; Possession of a Deadly Weapon
with a Removed, Obliterated, or Altered Serial Number; Carrying a Concealed
Deadly Weapon; Operating a Vehicle with lmproper Window Tinting; and
Unauthorized Use of a Motor Vehicle.

Defendant filed this Motion to Suppress on January 22, 2018. The State
responded on February 16, 2018 and the hearing took place on February 22, 2018.
Having considered all submissions and the arguments of counsel, the matter is ripe
for review.

STANDARD OF REVIEW

On a motion to suppress, as a general rule, “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.”4 “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

4 State v. Nyala, 2014 WL 3565989, at *5 (Del. Super. July 17, 2014).

the search or seizure was reasonable.”5 As is the case here, the burden is on the State
to establish the reasonableness of the seizure by a preponderance of the evidence.6
CONTENTIONS OF THE PARTIES

Defendant argues he was subjected to an impermissible seizure that fits
squarely within the holding of the 2001 Delaware Supreme Court decision in
Caldwell v. State,7 and aligns on point with the more recent 2015 decisions of this
Court in State v. Stanley8 and State v. Chandler.9 Specifically, Defendant argues
that Officer Wilkers extended the traffic stop to conduct a drug investigation without
reasonable articulable suspicion to support a second detention.

The State counters that there was no second detention. lt argues that, unlike
Stanley and Chana'ler where the traffic ticket had already been issued, here, the
officer was still in the middle of conducting the traffic stop when the K-9 Unit

arrived to perform the canine sniff. The State thus argues that since the officer was

5 United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995). See also State v. Chandler, 132 A.3d
133, 139 (Del. Super. 2015), as corrected (Del. Super. Apr. 14, 2015) (“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.”).

6 State v. Abel, 2011 WL 5221276, at *2 (Del. Super. 2011), aff’d, 68 A.3d 1228 (Del. 2012), as
amended (Jan. 22, 2013).

7 780 A.2d 1037 (Del. 2001).
8 2015 wL 9010669 (Del. super. Dec. 9, 2015).

9 132 A.3d 133 (Del. Super. Apr. 2, 2015, revised Apr. 14, 2015).
6

still writing up the ticket, he did not require reasonable articulable suspicion because
there was no measurable extension of the duration of the stop. ln the alternative, the
State argues that if the Court finds there was a measurable extension of the duration
of the stop, the window tint makes this case different from the other vehicle
equipment or traffic violations considered in Stanley or Chandler, and that this
combined with other factors, formed the basis for reasonable articulable suspicion.
DISCUSSION

The Fourth and Fourteenth Amendments of the United State Constitution and
Article I, Section 6 of the Delaware Constitution protect citizens from illegal
searches and seizures. A traffic stop constitutes such a seizure on a vehicle and those
within the vehicle.10 As such, the State is required to “demonstrate that the stop and
any subsequent police investigation were reasonable in the circumstances.”ll A
traffic stop is reasonable under the Fourth Amendment if it is supported by

reasonable suspicion or probable cause that a traffic violation has occurred.'2 A

10 Caldwell, 780 A.2d at 1045.
ll Id. at 1045-46.

'2 State v. Rickards, 2 A.3d 147, 151 (Del. Super. 2010), ajj”d, 30 A.3d 782 (Del. 2011). See also
Holden v. State, 23 A.3d 843, 847 (Del. 2011) (“A police officer who observes a traffic violation
has probable cause to stop the vehicle and its driver.”); Whren v. United States, 517 U.S. 806, 810
(1996). Further, “[t]he case law in Delaware is clear that while probable cause will serve as the
basis for a traffic stop, only a reasonable articulable suspicion of criminal activity is required.”
State v. Ellerbe, 2014 WL 605481, at *3 (Del. Super. Jan. 27, 2014).

traffic stop must be “justified at its inception by reasonable suspicion of criminal
activity.” ' 3
A police officer who observes a traffic violation therefore has probable cause
to stop the vehicle and detain the driver. However, once stopped, “[t]he scope and
duration of the detention must be reasonably related to the initial justification for the
stop.”‘4 The detention must not extend beyond the time reasonably necessary to
effectuate the purpose of the stop_i.e. the point at which the legitimate investigative
purpose of the stop is completed15 Any additional investigation “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.”16 If police prolongs a traffic stop in order to investigate other possible
crimes beyond the original traffic offense, the stop becomes a second detention.17

Since the State argues there was no second detention, the Court will consider

this issue first.

13 Caldwell, 780 A.2d ar 1046.

14 Holden, 23 A.3d at 847.

'5 Caldwell, 780 A.2d ar 1046_47.
'6 Id. ar1047.

I7Id

Duration and Scope of the Trajjic Stop

Delaware law provides that the duration and scope of the traffic stop must last
only as long as reasonably necessary to effectuate the purpose of the stop, at which
point the legitimate investigative purpose of the traffic stop is completed18 Here,
there is no dispute that the stop for improper window tint was proper since the officer
knew even before he pulled the vehicle over that it did not have a valid tint waiver.

Under 11 Del. C. § 1902, the officer was also permitted to ask the driver for
his name, where he was coming from, his destination, and the reason for his trip.
These questions are appropriate within a reasonable investigation of the traffic stop.
The officer was well within his authority to conduct the routine checks associated
with a traffic stop, including to check Defendant’s license and conduct the
appropriate background checks through DELJIS. The responses from Defendant
were appropriate and his DELJIS check was valid.

The officer then asks Defendant to step out of the vehicle to ask him three
questions. Under Loper, it was also well within legal bounds to request that
Defendant step out of the vehicle.19 Furthermore, under Arizona v. Johnson, the

United States Supreme Court held that “[a]n officer’s inquiries into matters unrelated

18 Caldwell, 780 A.2d at 1046-50.

19 See Loper v, State, 8 A.3d 1169, 1173 (Del. 2010) (holding that asking a passenger to exit the
vehicle were not beyond the scope of a routine traffic stop).

to the justification for the traffic stop . . . do not convert the encounter into something
other than a lawful seizure, so long as those inquiries do not measurably extend the
duration of the stop.”20 The officer’s questions regarding the vehicle ownership and
where Defendant was coming from were also appropriate However, under Caldwell,
“[t]he duration and execution of a traffic stop is necessarily limited by the initial
purpose of the stop”21 and that “any 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.”22

The State argues that Officer Wilkers’ last inquiry whether there was
“anything illegal” in the vehicle is commonplace and routinely asked by police
officers, and should be treated no differently than when a person is asked to step out
of a vehicle. An exit command from a vehicle has been considered lawful under

Loper and other cases that have addressed officer safety during traffic stops, and

considered a de minimis intrusion.23 Yet the justification found in cases such as

20 Arizona v. Johnson, 555 U.S. 323, 325 (2009).
2' Caldwell, 780 A.2d at 1047 (citing Florida v. Royer, 460 U.S. 491, 498 (1983)).
22 Id. (citing Ferris v. State, 735 A.2d 491, 499 (Md. 1999)).

23 See Permsylvania v. Mz'mms, 434 U.S. 106, 110-11 (1977) (holding that the order to get out of
the car, issued after the respondent was lawfully detained, was reasonable, and thus permissible
under the Fourth Amendment where the justification for such order_the officer’s safety-is both
legitimate and weighty, and the intrusion into respondent’s personal liberty occasioned by the

Mimms and Loper contemplate the officer’s ability to ask questions regarding officer
safety. Defendant was not patted down for weapons when he stepped out of the
vehicle such that officer safety was of concern.

Our Supreme Court addressed a similar question in Pierce v. State24 to
determine if the officer’s questions regarding destination, origination, and weapons
and contraband, rose to the level of a “second detention.” There, the trial court had
determined that after the officer observed nervous behavior on the part of both
defendant and his passenger, the officer’s inquiry if there were “any weapons, any
illegal substances in the vehicle” was a routine question asked as part of an initial
traffic stop, and therefore, the question itself did not constitute a “second
detention.”25 The Supreme Court affirmed and held that Defendant could not
demonstrate error in the trial court’s factual finding that the question was considered
part of a routine stop,26 However, the Supreme Court interjected that even if the

“contraband question” was not routine, there was sufficient reasonable articulable

order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate
concerns for the officer’s safety).

24 19 A.3d 302, 2011 WL 1631558, at *2 (Del. 2011) (TABLE) (an officer’s question about
whether there was any contraband in the vehicle during a traffic stop did not constitute a second
investigative detention because it was a question the officer routinely asked as part of a traffic stop
and was being done contemporaneous to routine traffic stop).

25 Id

26 Id

suspicion to ask the question where the Defendant and his passenger exhibited
stuttered speech, nervous behavior, inconsistent statements regarding destination
and origination and refused to make eye contact. 27 The officer in Pierce made initial
observations of both Defendant and his passenger that gave rise to reasonable
suspicion when he asked his question regarding contraband or weapons.

Officer Wilker’S question if there was “anything illegal” in the vehicle is
broader than Pierce and the timing of when the question was asked is also
distinguishable Unlike a question regarding weapons, which would focus on the
officer’s safety, this question did not ask a narrow question about weapons or
contraband lt asked about the universe of illegal things that may be contained in
the vehicle. Asking whether there is something illegal in the vehicle invites a yes or
no answer. If yes, then the admission of criminal wrongdoing would have likely led
Defendant to voluntary consent to a search of the vehicle, as was obtained in Pierce.
If the answer is no, as here, the officer conceded during his testimony that since he
did not get consent, he took further steps and decided to call in the K-9 Unit.

Because of the events that followed, and for purposes of this analysis, this
Court need not consider whether the third question amounted to a “second

detention,” but this decision should not be read as aligning with Pierce to suggest

27 Id. at *2 n.14_

that the question is acceptable as part of a routine traffic stop. As noted, the facts in
this case are different not only in the timing and the scope of the question, but also
because here the officer decided to call in another police unit.
Calling the K-9

Under Caldwell “[e]ven where the traffic stop is not formally terminated by
the issuance of a citation or warning, ‘the legitimating raison d ’etre [of the stop may]
evaporate if the pursuit is unreasonably attenuated or allowed to lapse into a state of
suspended animation.”’28 Whether a detention is “unreasonably attenuated” requires
a fact-intensive inquiry.29 Although questions unrelated to the initial justification
for the stop might not per se require reasonable suspicion or consent to further
question, the Delaware Supreme Court has made clear that such inquiries must not
measurably extend the duration of the stop,30

The State argues there was no second detention because there was no
measurable extension of the duration of the stop where the officer was still issuing
the citation when the dog showed up within minutes of his making the call to the K-

9 Unit. The State argues that as long as the officer was working on his traffic-related

28 Id. at 1048 (quoting Charity v. State, 753 A.2d 556, 572 (Md. Ct. Spec. App. 2000))(emphasis
added).

29 101

30 Murray v. State, 45 A.3d 670, 675 (Del. May 14, 2012, revised July 10, 2012) (“for something
to be measurable it need not be large . . . .”).

task (issuance of the ticket), the contemporaneous exercise of the dog sniff that took
place did not extend the original detention because it was related to the duration of
the original stop.

ln the 2015 decision of Rodrigaez v. United States,31 the Supreme Court of
the United States reiterated that a traffic stop prolonged beyond the stop’s “mission”
is unlawful.32 The Court identified the “[t]he critical question” as “not whether the
dog sniff occurs before or after the officer issues a ticket . . . but whether conducting
the sniff ‘prolongs’-_i.e., adds time to-the stop.”’33 This measure need not be
large.

Here, while processing the ticket for this vehicle violation, this Court heard
an audio recording where Officer Wilkers took the additional step_and time_to
make a call to Officer Caez and call for K-9 assistance. He asks Officer Caez how
fast he can get to his location and that he needs Caez’s canine partner to conduct a

sniff. Officer Caez responds that he is only several minutes away. This means that

31 Rodriguez v. United States, 135 S.Ct. 1609 (2015) (holding that absent reasonable suspicion,
police may not extend an otherwise-completed traffic stop in order to conduct a dog sniff because
it violates the Constitution’s shield against unreasonable seizures.)

32 Id. at 1616 (citing Illinois v. Caballes, 543 U.S. 405, 407 (2005)) (holding that a dog sniff
conducted during a concededly lawful traffic stop that reveals no information other than the
location of a substance that no individual has any right to possess does not violate the Fourth
Amendment). See also, id. at 1615 (quoting Indianapolis v. Edmond, 531 U. S. 32, 40-41 (2000))
(“A dog sniff, by contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal
wrongdoing.”’).

33 Id

Officer Wilkers has to wait for the K-9 Unit. Further, unlike in Illinois v. Cal)alles,34
where the Supreme Court of the United States accepted that a K-9 Unit arrived
unsolicited and as part of the routine highway stop,35 here, the K-9 Unit was called
to the scene by the officer. No evidence was presented by the State that this K-9
was part of this routine stop. Thus, Officer Wilkers detoured from his task of issuing
the ticket to make the call to Officer Caez and wait for the K-9 Unit to arrive. This
Court considers this a measurable extension of the initial stop.

The State’s argument that because the officer was expeditiously working on
both at the same time and thus no reasonable articulable suspicion was required lacks
merit, especially where the officer made his intent clear. Two other officers had
already arrived on the scene when Officer Wilkers decided to call for Officer Caez.
The purpose of the call was not to have four officers_and a dog-assist with issuing
a traffic ticket, Officer Wilkers testified that he called for a “Title Dog,” a reference
to Title 16 of the Delaware Code, and that the intent was to have the canine sniff for
drugs. He testified and acknowledged that this particular dog, “Storm,” was not able
to detect for weapons, but only drugs In Rodrigaez, the Supreme Court of the

United States considered the distinction and significance of K-9 involvement and

34 543 U.s. 406 (2005).

35 Id. at 406.

identified that unlike the safety concern identified in Mimms, “[h]ighway and officer
safety are interests different in kind from the Government’s endeavor to detect crime
in general or drug trafficking in particular.”36 A dog sniff “is not an ordinary incident
of a traffic stop . . . . Lacking the same close connection to roadway safety as the
ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic
mission.”37

On this record, this Court finds the purpose for the traffic stop ended when
Officer Wilkers decided to call for a Title 16 dog to conduct an open air sniff of the
vehicle. This call, as the officer conceded, was no longer related to the task of
issuing a citation for improper window tint and the request for an open air sniff
obviously changed the scope of his investigation from a traffic stop into a drug
investigation

The State fails to meet its burden that the additional call for K-9 assistance
was within the duration or scope of the initial stop, Because the officer prolonged
the traffic stop solely to investigate drug related criminal activity, the traffic stop

ended and became a second detention That second detention was required to be

based on specific and articulable facts which, taken together with all rational

36 Id

37 Id. at 1615.

inferences, raise an objective suspicion of criminal behavior.38 Therefore, the State
needs to show that there were facts to support reasonable suspicion for the second
detention/drug investigation to justify the calling of the K-9 Unit.
No Reasonable Suspicion for the Extended Detention

The question is whether Officer Wilkers possessed a reasonable articulable
suspicion that criminal activity was afoot to further extend the detention to call the
K-9 Unit based on the facts presented “Reasonable suspicion” is a less exacting
standard than “probable cause.” Officers must be able to identify “specific and
articulable facts which, taken together with rational inferences from those facts,
reasonably warrant the belief that a crime is being or has been committed.”39
Whether reasonable suspicion existed must be evaluated in light 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.”40 A reviewing court should “defer

38 Id. at 1616-17 (since the canine sniff was beyond the time the officer needed to issue the written
ticket, the Court then remanded the case to the Eighth Circuit to consider whether there was
reasonable suspicion that justified detaining the driver beyond completion of the traffic infraction
investigation).

39 Quarles v. State, 696 A.2d 1334, 1337 (Del. 1997). Delaware has codified this standard for
investigatory stops and detentions in ll Del. C. § 1902, which requires that a police officer have
“reasonable ground to suspect a person is committing, has committed, or about to commit a crime”
before he may stop and detain a person

40 Jones v. smie, 745 A.2d 856, 861 (Del. 1999).

to the experience and training of law enforcement officers.”4l However, the Court
should not consider a police officer’s subjective opinion regarding reasonable
suspicion and must consider the facts under an objective standard.42

Notably, Officer Wilkers testified that he did not form reasonable articulable
suspicion until after the dog detected a “hit” on the vehicle’s door.43 Regardless, the
test requires an objective analysis. The reasonableness of official suspicion must be
measured by what the officer knew before he seized the defendant.44 “An illegal
stop cannot be justified by circumstances that arose after its initiation.”45

Defendant pulled over when directed without incident. His driving did not
cause concern He produced valid documents. A DELJIS check revealed no issues.

Defendant did not exhibit any signs of nervousness or provide inconsistent or false

answers to the officer.46 There was no palpable odor of alcohol or drugs emanating

41 Woody v. State, 765 A. 2d 1257, 1262 (Del. 2001) (citing Jones, 745 A.2d at 861).

42 State v. Chandler, 132 A.3d 133, 141 (Del. Super. Ct. 2015) (citing State v. Miliany-Ojeda, 2004
WL 343965, at *3 (Del. Super. Feb. 18, 2004)).

43 The State suggested that Officer Wilkers was “being modest” in his testimony that he actually
had probable cause at that point. Modesty or not, Officer Wilkers testified as he did.

44 Id. (“If an officer attempts to seize someone before possessing reasonable and articulable
suspicion, that person’s actions stemming from the attempted seizure may not be used to
manufacture the suspicion the police lacked initially.”).

45 Woody, 765 A.2d at 1263.

46 Contra State v. Chandler, 132 A.3d 133, 149 (Del. Super. 2015) (where court found officer did
not have reasonable articulable suspicion to extend detention where defendant had multiple cell
phones in plain view, gave inconsistent answers, was unable to provide details about his

from the vehicle, his person or passenger. When asked to step out of the vehicle,
there were no issues of officer safety since he was not patted down He answered
the questions appropriately while outside of the vehicle. When instructed to sit on
the curb, Defendant complied Officer Wilkers stated he therefore relied on the facts
that the Defendant was not the owner of a vehicle with improper window tint, that
he was coming from “around 7th Street,” and the officer’s knowledge of a prior
unrelated arrest. Only those facts known to a police officer prior to a seizure may
be part of the reasonable suspicion analysis.47

The officer’s knowledge of Defendant’s criminal history can be a factor of
reasonable suspicion to detain an individual.48 However, such history, by itself, is
insufficient to establish reasonable suspicion49 Here, the Defendant’s relevant
“criminal history” was rather an arrest that this officer had made involving a high
stakes crap game, and the arrest was not drug-related An aggregate $25,000 was
seized in connection to that arrest which involved several individuals, including

Defendant. The officer suggests that even though the arrest was not drug-related

destination was extremely nervous, had an alias, an extensive criminal history, and was driving a
rental vehicle).

47 Jones, 745 A.2d at 874.
48 Monme v. State, 913 A.2d 570, 2006 WL 3482182, at *2 (TABLE).

49 Id

and Defendant’s portion was significantly less than the total amount, through his
training and experience, this money amount is generally associated with drug-related
activity. The State argues that the holding in State v. Brady50 supports that this Court
should give great weight and deference to the officer’s knowledge and training in
the totality of the circumstances analysis. Brady is distinguishable for different
reasons.

The Brady defendant was a probationer with a history and familiarity with the
officer, such that various known violations of his probation were observed by the
officer to establish the facts he relied upon for reasonable articulable suspicion The
officer knew that defendant did not possess a license and yet was observed driving.
The Brady defendant became combative and admitted to using heroin, was observed
past curfew, and again resisted police contact. The Supreme Court reversed the trial
court’s granting suppression where the facts supported a finding of reasonable
articulable suspicion to justify the police conduct of the second seizure. Here, the
handful of facts available to Officer Wilkers pale in comparison Defendant was not
a probationer observed committing known violations of his probation The DELJIS
run proved valid Here, there was no evidence of combative or violent criminal

behavior on the part of Defendant, or any admission of wrongdoing. That he knew

50 152 A.3d 140, 2016 wL 7103408 (Del. 2016) (TABLE).
20

Defendant from a prior unrelated drug arrest that the officer thought may be drug-
related was merely a hunch.

The second factor was Defendant’s response that he was coming from “around
7th Street,” known to the officer as a high-crime area. Although the State argued that
this was a factor that could be considered, Officer Wilkers actually testified that he
did not consider this factor in his consideration of reasonable suspicion, except to
say that he knew it was a high-crime area. The fact that Defendant was coming from
a high-crime area without more is insufficient

The officer fiirther testified that he was satisfied with Defendant’s response
about who owned the vehicle, especially since it actually was corroborated by what
he already knew about the vehicle. Similarly, in State v. Passerini,31 the Court of
Appeals of Nebraska found that under the totality of the circumstances, police
officers did not have reasonable suspicion to justify a prolonged detention.52
Although that case involved a rental vehicle, that court noted that “[t]he fact that [the
defendant] was driving a rental vehicle is perfectly consistent with law-abiding
activity, and furthermore, the matching names on the driver’s license and rental
agreement, coupled with the consistency of [the defendant’s] story as to the

timeframe of the trip . . . should have dispelled, rather than created, further

51 State v. Passerini, 789 N.W.2d 60, 71 (Neb. Ct. App. 2010).

32 Id. at 71.

suspicion.”33 So too, here, the officer had already checked out who the owner of the
vehicle was before making the stop, Defendant confirmed that he was not the owner
of the vehicle. This should have dispelled suspicion, as the answers were consistent
with what the officer already knew prior to the traffic stop.

Finally, the State argues that because it is known by law enforcement that
window tint is used to conceal weapons and guns, that the window tint supplied the
reasonable suspicion to call the K-9 Unit. lt argues that the officer’s authority to call
in the K-9 Unit was reasonable because, unlike the motor vehicle violations of
speeding or equipment violations found in Clzandler and Stanley, respectively,
“[w]indow tint is different from other equipment violations or even a moving
infraction in that reasonable police officers know invalid, unapproved tint to be
associated with the concealment of drugs or weapons or both.”34

Window tint in and of itself does not seem to have the import described by the
State. Until relevantly recently, it was even unclear whether an officer’s general
observation of excessive window tint/being unable to see the occupants inside

provided the requisite reasonable suspicion to pull over someone for the

corresponding equipment violation Recent cases such as State v. Moore33 and State

33 Id. at 70 (noting that the defendant had valid driver’s license and a vehicle properly rented in his
name, both of which were facts that weighed against the finding of reasonable suspicion).

34 State’s Resp. at 4.

33 2017 WL 1040709 (Del. Super. Mar. 16, 2017).
22

v. Cannon,36 have helped clarify this area, in describing how a dark tint without a
medical waiver provides reasonable suspicion for a possible window tint violation,
even if the officer is not aware of the exact 70% or more light transmission
standard.37 Nowhere in these opinions does a court reference window tint and the
connection to possible drugs and/or weapons. ln fact, the case law on window tint
was originally so convoluted because the statute/standards on window tint refer to
the necessary degree of transparency or visibility for the driver to see out the
window, not for officers to see in and other “virtually incomprehensible” safety
concerns.38 This Court is not convinced that a minivan with improper window tint
triggers a call for the K-9 Unit without other telling factors that were present in cases
such as Caldwell,39 Clzandler,60 or Stanley,61 and still did not give rise to reasonable
articulable suspicion

Therefore, based on the totality of the circumstances, and on this record, it

cannot be said that Officer Wilkers had reasonable articulable suspicion that

36 2017 WL 1277677 (Del. Super. Mar. 30, 2017).
37 Cannon, 2017 WL 1277677, at ’1‘4; Moore, 2017 WL 1040709, at *4.

38 Cannon, 2017 WL 1277677, at *2 (citing State v. Wilson, 2013 WL 2423094, at *2 (Del. Super.
Mar. 12, 2013)).

59 Caldw€ll, 780 A.2d at 1050-51.
60 Chandler, 132 A.3d at 143-49.

61 Stanley, 2015 WL 9010669, at *4.
23

Defendant was engaging in drug-related criminal activity to justify the second
detention and to call the K-9 Unit. This Court finds that the State fails to meet its
burden that the officer had the requisite reasonable articulable suspicion to detain
Defendant to conduct a drug investigation Therefore, the evidence found as a result
of the second detention must be suppressed
VI. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Suppress is GMNTED.

1 /--

IT IS SO ORDERED. /

Vivian L. Medinilla, Jud e

oc: Prothonotary

cc: Patrick J. Collins, Esquire
Mark A. Denney, Deputy Attorney General
Defendant
Office of Investigative Services

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