State v. Frost

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
Case No. 1810006157
Vv. : Kent County

MATTHEW D. FROST,
Defendant.

Submitted: May 8, 2019
Decided: May 28, 2019
ORDER
Defendant’s Motion to Suppress.
Granted.

Defendant’s Motion to Reopen Evidence.
Denied as Moot.

Lindsay A. Taylor, Esquire of the Department of Justice, Dover, Delaware; attorney
for the State.

Stephanie H. Blaisdell, Esquire of the Office of the Public Defender, Dover,
Delaware; attorney for the Defendant.

WITHAM, R.J.
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

INTRODUCTION

This opinion constitutes the Court’s decision in the matter of Defendant
Matthew Frost (hereinafter “Defendant”) and his Motions to Suppress and Reopen
Evidence. Defendant moves to suppress evidence collected pursuant to a traffic stop
and warrantless search conducted by the Delaware State Police on October 11, 2018.
After the Court had initially decided the matter, the State, pursuant to Superior Court
Rule of Civil Procedure 59(e), filed a Motion for Reargument. Upon reconsideration,
the Court granted the State’s motion because it found it had misapplied certain legal
and evidentiary principles. Subsequent to that order, Defendant filed a Motion to
Reopen Evidence.

Today, the Court intends to resolve both matters and accordingly, the Court’s
March 12, 2019 order is hereby vacated.

After considering the parties’ motions, oral arguments, and the record in its
entirety, the Court finds the State has sufficiently demonstrated probable cause to
conduct a traffic stop on Defendant and that reasonable, articulable suspicion existed
to justify the first extension of the stop. However, the Court also finds that the State
has failed to demonstrate additional reasonable, articulable suspicion to justify
extending the stop for a second time. The State has further failed to demonstrate
probable cause to justify the warrantless search conducted by the officers on
Defendant’s vehicle, where drugs and drug paraphernalia evidence was seized.

Accordingly, and for the reasons that follow below, the Defendant’s Motion

to Suppress is GRANTED. All drug and drug paraphernalia evidence seized as a
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

result of the unlawful search, must be suppressed. The Defendant’s Motion to Reopen
Evidence is hereby DENIED as moot.
FACTS

On October 11, 2018 at approximately 1:00 p.m., Delaware State Police Officer
First Class Holl (hereinafter “Tfc. Holl”) was on routine patrol and observed
Defendant’s vehicle failing to signal before exiting onto Exit 98 from Route 1.' Tfc.
Holl and Corporal Goertz (hereinafter “Cpl. Goertz”) initiated a traffic stop of
Defendant’s vehicle due to the traffic violation.

Tfc. Holl initiated contact with Defendant, the sole occupant of the vehicle,
through the passenger side window, while Cpl. Goertz observed from the driver’s side
door.” From the onset of the traffic stop, Tfc. Holl testified that Defendant was
“extremely nervous,” more so than the average motorist.’ He also testified that after
he requested Defendant’s license and registration,’ Defendant: (1) moved his hands

frantically within the vehicle;’ (2) bounced a cigarette between his fingers like a

' Suppression Hearing TR (hereinafter “TR”) at 6:1-3.
* St . Reply Ex. 1 (hereinafter “St. Ex. 1") at 01:00:53-54.

* TR at 7:19-20. Tfc. Holl’s characterization of the Defendant’s behavior was significantly
more elevated than the State’s characterization as simply "nervous." See St. Reply to D. Mot. to
Suppress at ff] 2-3,18-19. But cf St. Ex. 1 (MVR footage appears to coincide with the State’s
characterization, rather than Tfc. Holl’s “Richter scale” articulation.).

* Id. at 08:2-3. See also St. Ex. 1 at 01:00:54-57 (Tfc. Holl appears to ask Defendant only for
his license and registration.).

> TR at 08:3-4.
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

“Ritcher Scale” needle;° (3) displayed a delayed response when asked for his
insurance card;’ (4) failed to make eye contact;® and (5) quickly opened and shut the
center console.’ Tfc. Holl further testified that Defendant did not have proof of
insurance,'° but that Defendant indicated that his insurance information was located
on the GEICO application (hereinafter “app”) via his cellular telephone."’

As Defendant attempted to bring up the GEICO app, Tfc. Holl queried him
regarding his travel prior to the traffic stop.'? Defendant, without hesitation or
confusion, responded he had come from North Smyrna and had given “Ashley” a ride
home.’ When Tfc. Holl pressed Defendant for Ashley’s last name, he could not recall

it, but stated that she was a friend of “Nick’s.”'* Based on Defendant’s “vague”’®

° Td. at 08:8-9.

"Id. at 08:10-11. Cf St. Ex. 1 at 01:00:54-57 (Tfc. Holl is not heard asking for insurance.).
8 7d. at 08:12.

° Id. at 08:13-14.

0 Td. at 08:4-5.

'! Td. at 08:17-18.

"2 St. Ex. 1 at 01:01:26.

'? Id. at 01:01:29-37 (Ashley’s existence has never been confirmed.).

'4 Td. at 01:01:42-58 (Defendant identified Nick as a co-worker, but could not recall his last
name.).

STR at 9:5.
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

answers and behaviors, Tfc. Holl “concluded” that “[Defendant] was making up a

”!® and was involved in criminal activity.!’

story

After a brief period,'® Defendant was unable to produce his insurance
information and Tfc. Holl asked him to exit the vehicle.'? Defendant did not do so
immediately, but asked, amongst other things, about being detained.’® Tfc. Holl
informed Defendant that he was being detained and he wanted to talk.*’ Defendant

complied and slowly maneuvered his way out of the vehicle.” After he limped to the

CTR at 9:9-5,

'" Id. at 10:4. Tfc. Holl’s testified:

Sure. People are generally nervous when they see the police sure. But all these
indicators I saw from [the Defendant], the totality of the circumstances of him
providing vague answers, him failing to make eye contact with me, the violent
shaking in his hands, and it was apparent when he was holding his cigarette. Like I
said, it looked like a Richter Scale just going off. And when he was frantically
moving-—just for the insurance card, he reached into the center console and shut it real
quick. When he looked in the glove box, he was frantically moving about the vehicle,
and I didn’t feel safe. I didn’t know what was going on. The totality of all these
indicators I deemed was criminal activity afoot.

'§ St. Ex. 1 at 01:02:14-01:02:57 (43 seconds had elapsed).
'9 Id. at 01:02:57.
20 Id. at 01:03:02-10.

*! Id. at 01:03:02-05; 01:03:11-13. But see also TR at 11:8-9 (MVR footage contradicts Tfe.
Holl’s testimony. Tfc. Holl testified that he walked over to the driver’s side and said “Yes. Can you
step out of the vehicle for further questioning.”).

* Id. at 01:03:32 (Defendant clearly displayed signs of injury and a limp that was noted by
the officers upon his exit and after his arrest. See Id. at 01:03:37-40; 01:12:57. Defendant also later
states he can not bend his leg due to a hip replacement. Jd. at 01:05:43-51. The Court also notes

5
State v. Matthew D. Frost
Case No. 1810006157
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rear of the vehicle, Tfc. Holl asked Defendant if he had a knife and Defendant
immediately disclosed that he did.” He further disclosed possession of $200 that he
received via disability payments.” Two seconds later, Cpl. Goertz queried Defendant
regarding the picture on his identification card.*° Defendant stated the picture was old
and amplified his previous answer regarding his monthly disability payments and
disclosed that he had a daughter.”

At this point, and for the first time, Tfc. Holl informed Defendant that he had
observed drug paraphernalia that contained heroin residue in plain view on the

t.27

passenger seat.”’ Tfc. Holl testified that based on his training and experience,”* he

knew the blade/nail file” was utilized by heroin users to scrape heroin residue from

Defendant appears to have some difficulty hearing, as was evidenced during the hearings.).
3 Td. at 01:03:42-45.

* St. Ex. 1 at 01:04:09-12 (The Court interprets this answer as the Defendant accounting for
how he acquired the money.).

5 Td. at 01:04:14.
6 Td. at 01:04:17-30.
27 Td. at 01:04:41-52.

*8 TR at 05:02-05; 05:14 (Tfc. Holl attended drug investigation courses run by the Drug
Enforcement Administration and the Delaware State Police. He also testified that he attended a drug
interdiction course and regularly participated in drug investigations.).

* A picture was produced by Defendant at the suppression hearing on February 28, 2019, yet
the actual blade/nail file was never produced and it was never determined whether the object was
a blade or a nail file, so it will be referred to as the “blade/nail file.”

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State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

baggies.*° He inquired whether Ashley was a heroin user’! and asked if she had left
“anything in the car that [the officers] need[ed] to know about.”*” Defendant asserted
he did not know, but stated Ashley had went to “Connections.”?

Tfc. Holl then informed Defendant that he and Cpl. Goertz were going to “run
through the car,”** but further stated “if it is just [the blade/nail file], I’m going to
chalk it up to Ashley.” After he asked for a second time, Defendant admitted, for the
first time and only after Tfc. Holl’s statement, to possession of marijuana and drug
paraphernalia.*® Tfc. Holl then stated “it’s safe to say that it’s Ashley’s drug
paraphernalia.”*’

A subsequent search of Defendant’s vehicle revealed marijuana, 5.9 grams of

heroin, and other drug paraphernalia. As a result, Defendant was arrested and charged

2° TR at 10:16-22.
31 St, Ex. 1 at 01:05:08.
22 Td. at 01:04:54-57,

*° St. Ex. 1 at 01:05:05; 05:08-11. Connections is a drug treatment program that began in
1985 as a single program that supported adults moving from institutionalization into the Delaware
community and has expanded to provide residential, Assertive Community Treatment, and outpatient
services for adults who suffer from mental illness. See www.connectionscsp.org; last accessed May
14, 2019.

#4 Td. at 01:05:13-16.
> Td. at 01:05:19.
°° Td. at 01:05:19-27 (emphasis added).

7 Td. At 01:05:53.
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

with multiple drug offenses including: 1 count of Drug Dealing, a felony, in violation
of 16 Del. C. § 4752(1); 1 count of Aggravated Possession, a felony, in violation of
16 Del. C. § 4752(3); 1 count of Possession of Drug Paraphernalia, a misdemeanor,
in violation of 16 Del. C. § 4771(a); and 1 count of Possession of Marijuana, a
misdemeanor, in violation of 16 Del. C. § 4764(a).
PROCEDURAL HISTORY

Defendant timely filed his motion to suppress evidence on February 6, 2019
and moved to suppress all evidence seized as a result of the warrantless vehicle
search. The State’s response, in opposition, was timely filed on February 20, 2019.
The Court heard the parties’ arguments and testimony from Tfc. Holl on February 28,
2019. On March 13, 2019, the Court granted Defendant’s motion.*®

Subsequent to the March 13, 2019 order, the State filed a timely Motion for
Reargument on March 20, 2019. The State argued the Court misapplied the law and
evidentiary principles in three ways. First, the State argued the Court misapprehended
the appropriate standard for probable cause and the facts of the case in a manner that
changed the result of the case. Second, it challenged the Court’s decision to admit
improperly authenticated evidence. Finally, the State asserted the Court misapplied
the inevitable discovery doctrine.

Defendant’s response, in opposition, was timely filed on March 22, 2019,

where he argued that the State failed to establish sufficient grounds for reargument

°*8 State v. Frost, 2019 WL 1200331 (Del. Super. Mar. 13, 2019) (Order).

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State v. Matthew D. Frost
Case No. 1810006157
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and asserted that the Court did correctly apply the inevitable discovery doctrine.
Furthermore, Defendant argued that Tfc. Holl abandoned pursuing Defendant’s valid
proof of insurance, and the State only had established speculation that Defendant
would not procedure valid insurance.

In its April 2, 2019 Order, the Court granted reargument”’ and held another
hearing on May 8, 2019.

As a result of the April 2, 2019 Order, Defendant filed an untimely Motion to
Reopen Evidence on April 29, 2019. In that motion, Defendant contends he was
denied rebuttal opportunity for rebuttal relating to the Court’s decision regarding the
inappropriately admitted exhibit. Despite the State’s assertion that Defendant’s
motion was untimely and without good cause,” Defendant maintains that under the
circumstances, including the complex record of the case, that motion was timely and
the lack of rebuttal established good cause to reopen evidence.

STANDARDS OF REVIEW

On a motion to suppress evidence seized during a warrantless search, the

State bears the burden of establishing that the challenged search or seizure did not

violate the rights guaranteed a defendant by the United States Constitution, the

* State v. Frost, 2019 WL 1468198 (Del. Super. Apr. 2, 2019) (Order).

“’ The State argued Defendant’s motion was untimely and no enlargement had been filed,
despite circumstances outside defense counsel’s control that were made aware to the Court prior to
the hearing. The Court noted those extreme circumstances faced by defense counsel, exercised its
discretion, and allowed the motion to be heard despite being untimely.

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Case No. 1810006157
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Delaware Constitution, and Delaware statutory law.*' The burden of proof is
preponderance of the evidence.” The trial judge sits as the trier of fact, and
determines the credibility of witnesses.”

This Court also has “power and authority to reopen, on timely application and
for good cause shown, a dismissal of a criminal proceeding, whether entered with or
without prejudice.””* Those powers allow the Court to “undertake whatever action is
reasonably necessary to ensure...justice.”* An application moving a court to reopen
a case, even after the parties have rested, is at the Court’s discretion.”

DISCUSSION

After considering the record (with a particular attention focused on Tfc. Holl’s

testimony and recorded statements), and the parties’ arguments, the Court finds under

the totality of the circumstances particular to this case, Tfc. Holl established a

"! State v. DuBose, 2016 WL 1590583, at *3 (Del. Super. Apr. 18, 2016) (citing Hunter v.
State, 783 A.2d 558, 560-61 (Del.2001)).

” Id. (citing State v. Anderson, 2010 WL 4056130, at *3 (Del. Super. Oct. 14, 2010) (internal
citations omitted).

8 State v. Brinkley, 2013 WL 1225869, at *2 (Del. Super. Feb. 19, 2013) (citing Turner v.
State, 957 A.2d 565, 570—71 (Del. 2008)).

“ State v. Coleman, 2016 WL 3365785, at *3 (Del. Super. June 3, 2016) (citing State v.
Guthman, 619 A.2d 1175, 1176 (Del.1993) aff'd, 184 A.3d 341 (Del. 2018)).

“Td. (citing Guthman, 619 A.2d at 1178).

“© Coleman, 2016 WL 3365785, at *3 (citing State v. Patnovic, 129 A.2d 780, 782 (Del.
Super. 1957)); see also Pepe v. State, 171 A.2d 216, 219 (Del. 1961).

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State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

probable cause to initiate the traffic stop and reasonable, articulable suspicion to
initally extend Defendant’s traffic stop. However, Tfc. Holl failed to establish, nor
possess, the requisite reasonable, articulable suspicion to believe Defendant
possessed drug paraphernalia and/or drugs that extended the traffic stop for a second
time, nor did Tfc. Holl possess probable cause to justify a warrantless search of
Defendant’s vehicle in search of those drugs and drug paraphernalia. As a result, the
evidence seized will be suppressed, and accordingly, the record need not be reopened.
Thus, Defendant’s motion to reopen evidence is now moot.

A. The Traffic Stop was Supported By Probable Cause

The Court finds Tfc. Holl had probable cause to conduct the traffic stop. A
traffic stop is “a seizure of a vehicle and its occupants by the State,” and is
reasonable if supported by reasonable, articulable suspicion of criminal activity or
probable cause to believe that a traffic violation has occurred.*’

Tfc. Holl testified he observed Defendant fail to use a turn signal when he
exited Route 1. This is a violation of Delaware law.** Furthermore, Defendant did not
dispute he failed to signal.

As aresult, Tfc. Holl’s testimony of his observation of the Defendant’s traffic

violation, constitutes “specific and articulable facts which taken together with rational

“7 State v. Coursey, 136 A.3d 316, 323 (Del. Super. 2016) (citing Caldwell v. State, 780 A.2d
1037, 1045 (Del. 2001); see also Whren v. U.S., 517 U.S. 806, 810 (1996); U.S. v. Brignoni—Ponce,
422 U.S. 873, 880-81, (1975) (citing Terry v. Ohio, 392 U.S. 1, 16-19 (1968)); State v. Rickards,
2 A.3d 147, 151 (Del. Super. 2010), aff'd, 30 A.3d 782 (Del. 2011)).

4891 Del. C. § 4155(b)-(c).

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State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

inferences from those facts reasonably warrant the intrusion.””” Therefore, the Court
finds the State has met its burden of demonstrating Tfc. Holl had not only reasonable,
articulable suspicion to believe that Defendant, as the driver, had just committed a
driving offense, but also probable cause when he observed Defendant commit the
offense.
B. The Scope of the Traffic Stop
i. Tfc. Holl had Reasonable, Articulable Suspicion to initially extend the
traffic stop because Defendant initially failed to produce insurance.
When Tfc. Holl initially ordered Defendant to step out of the vehicle, the Court
finds a second unlawful detention did not occur. An officer “may order the driver or
a passenger to exit the car after a valid traffic stop, and that order is not a ‘seizure’
under the Fourth Amendment.”” So long as such an order does not “measurably
extend the duration of the stop,” it does not amount to a “second” seizure under the
Fourth Amendment.°!
While a traffic stop must be justified at its inception by reasonable, articulable
suspicion of criminal activity, the scope of the stop must also be reasonably related

to the stop's initial purpose.°” Reasonable, articulable suspicion is defined as an

” Coursey, 136 A.3d at 323 (citing Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989)).

°° Cannon v. State, 199 A.3d 619, 2018 WL 6575432, at *3 (Del. 2018) (Table) (citing Loper
v. State, 8 A.3d 1169, 1174 (Del. 2010); accord Arizona v. Johnson, 555 U.S. 323, 331 (2009)).

*' Id. (citing Johnson, 555 US. at 333).

° Coursey, 136 A.3d at 323 (citing Tann v. State, 21 A.3d 23, 26 (Del. 2011).

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State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

officer's ability to point to specific and articulable facts which, combined with all
rational inferences, reasonably warrant the intrusion.*? Reasonable, articulable
suspicion is more than an ill-defined hunch; rather, under the totality of the
circumstances, the detaining officers must have a “particularized and objective basis
for suspecting criminal activity.”* A law enforcement officer may detain the
individual only as long as necessary to effectuate the purpose of the traffic stop.”
“Any investigation of the vehicle or its occupants beyond that required to complete
the purpose of the traffic stop must be supported by independent facts sufficient to
justify the additional intrusion.””°

In Loper,”’ the Delaware Supreme Court held that a person, already lawfully
detained as a result of a valid traffic stop, is generally not seized a second time when

ordered to leave his car, because his mobility is already validly limited.*® The

Supreme Court relied on Pennsylvania v. Mimms,”’ where, after weighing the interest

3 Td. (citing Coleman, 562 A.2d at 1174).
4 Robertson v. State, 596 A.2d 1345, 1350 (Del. 1991) (citing Terry, 392 U.S. at 27)).
» Brinkley, 2013 WL 1225869, at *3 (citing Caldwell, 780 A.2d at 1047).

°° State v. Huntley, 777 A.2d 249, 254 (Del. Super. 2000) (citing Caldwell, 780 A.2d at
1047).

°7 8 A.3d 1169 (Del. 2010).

** Loper, 8 A.3d at 1174 (citing Dunlap v. State, 2002 WL 31796193, at *2 (Del. 2002)); see
also Caldwell, 780 A.2d at 1045 n.27).

° 434 U.S. 106 (1977).

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State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

of the driver's personal liberty against the safety of the officer, the United States
Supreme Court held that “once a motor vehicle has been lawfully detained for a
traffic violation, the officer may order the driver to [exit] vehicle without violating
the Fourth Amendment....”°° The Supreme Court further held Loper’s further
detention was independently supported by reasonable, articulable suspicion based on
the defendant's suspicious responses to the officers questions under the totality of the
circumstances.”!

Defendant contends the circumstances of his traffic stop are similar to those
addressed by our Supreme Court in Caldwell,” not Loper. This Court, despite
recognizing similarities between the cases, finds Caldwell distinguishable. In
Caldwell, the Delaware Supreme Court found that a second seizure occurred when
officers immediately ordered the defendant to immediately exit his vehicle that was
illegally parked in a fire lane after obtaining his license and registration information

because the officer's actions exceeded the permissible scope of the initial traffic stop

° Loper, 8 A.3d at 1174 (citing Mimms, 434 U.S. at 107, 111 n.6) ( the Court held that, based
on Mimms, simply being ordered out of a vehicle, which is already validly stopped, does not
automatically amount to a second seizure, absent any “authority ... [or] any cogent legal argument,
for why this Court should expand the meaning of ‘seizure’ under Jones [v. State (745 A.2d 856 (Del.
1999))] and Article 1, § 6 of the Delaware Constitution, to hold that a person already being lawfully
detained as a result of a valid traffic stop is ‘seized’ a second time when ordered to leave his car.”).

®! Td. at 1175 (the Loper court further found that the delay Loper experienced as a result of
being stopped for a traffic violation, which he conceded was valid, and his passenger's arrest, only
lasted a few minutes and was de minimus. /d. at 1173.).

° 780 A.2d 1037 (Del. 2001).

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State v. Matthew D. Frost
Case No. 1810006157
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and that it was unreasonable for want of independent facts to support reasonable and
articulable suspicion).© The Caldwell court determined that those facts were
insufficient to justify a detention of extended duration and the implementation of
more intrusive investigatory measures, including the handcuffing and pat-down of the
defendant.”

In our case, Defendant was initially stopped for failing to use a turn signal. His
detention, however, appears to have been initially extended due to his inability to
produce insurance information” and exit the vehicle, not by any action by an officer
or a passenger. The lack of valid insurance information is an objective factor that, in

addition to Defendant’s nervousness,” the Court finds sufficient to demonstrate

reasonable, articulable suspicion to initially extend the traffic stop.®’ Therefore, it

° Caldwell, 780 A.2d at 1049.
Caldwell, 780 A.2d at 1049.

* Pursuant to Section 2118 of Title 21 of the Delaware Code, the Defendant was obligated

to possess, and promptly produce, a valid form of driving insurance. Section 2118(o) states:
“Insurance identification card” shall mean a card issued by or on behalf of the insurance
company...duly authorized to transact business in this State which states in such form as the
Insurance Commissioner may prescribe or approve that such company has issued a vehicle
insurance policy meeting the requirements of [Title 21]. If the insured and insurance
company both consent, the insurance identification card may be produced in electronic
format. Acceptable electronic formats include display of electronic images on a cellular
Phone or any other type of portable electronic device (emphasis added)).

°° Albeit not the extreme nervousness represented by Tfc. Holl in testimony.

*’ Our facts are further distinguishable from Caldwell, where the defendant in that case, upon
exiting his vehicle, was immediately frisked and handcuffed. Here, Defendant was not handcuffed.

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State v. Matthew D. Frost
Case No. 1810006157
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appears to the Court that the State has met its burden of showing that Tfc. Holl did
not initially exceed the scope of the stop, because his actions were made in
furtherance of completing the traffic stop, to which Defendant caused his own delay.

ii. Tfc. Holl did not sufficiently develop a reasonable, articulable suspicion to

extend the stop a second time because of the belief that Defendant possessed

drugs and drug paraphernalia.

While the Court found Tfc. Holl had reasonable, articulable suspicion to
initially extend the traffic stop, the Court questions Tfc. Holl’s credibility regarding
his representations presented through testimony that he claims established reasonable,
articulable suspicion to further extend the traffic stop. As a result, the Court finds Tfe.
Holl’s testimony on these points not credible, and thus, he did not establish
reasonable, articulable suspicion that Defendant possessed drugs and drug
paraphernalia.

Reasonable, articulable suspicion, as previously stated above, is defined as a
detaining officer, under the totality of the circumstances, demonstrating a
“particularized and objective basis for suspecting the particular person stopped of
criminal activity.”®* A driver’s nervous behavior and/or strange assertions that he did
not know the name of his passenger may or may not provide a law enforcement
officer with reasonable, articulable suspicion justifying further limited questioning

of the suspect and/or his passenger.” But if more “tangible, objectively articulable

° See Supra n.53-54.

° Caldwell, 780 A.2d at 1050 (emphasis added).

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State v. Matthew D. Frost
Case No. 1810006157
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indicators of criminality are present, such as driving with a suspended license, failure
to provide proof of ownership of the vehicle, or the palpable odor of alcohol, drugs,
or air freshener (often used to mask the smell of marijuana and cocaine),” that
indicator(s), in conjunction with nervousness, may provide stronger support for a
finding of reasonable, articulable suspicion of criminal activity.”

Defendant argues that the blade/nail file observed by Tfc. Holl was simply a
nail file and that taken alone the item cannot be considered drug paraphernalia

pursuant to 16 Del. C. § 4772." Tfc. Holl testified however, that he observed brown

” Huntley, 777 A.2d at 256; see also United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th
Cir. 1998) (suspended license, no insurance nor proof of authority to use car, nervous behavior and
inconsistent responses); Fields v. State, Tex.App., 932 S.W.2d 97, 105 (1996) (inconsistent stories,
extreme nervousness, suspended license, and passenger's denial of history of drug offenses); United
States v. Palomino 100 F.3d 446, 450 (6th Cir. 1996) (inconsistent stories about the ownership of
the car and the purpose of the trip, nervousness, driver's criminal record, and the odor of chemicals
associated with cocaine); United States v. Hernandez, 872 F.Supp. 1288, 1294 (D. Del. 1994) (air
freshener, nervousness, inability to answer routine questions about line-of-business and car owner);
United States v. Shabazz, 993 F.2d 431, 433 (Sth Cir. 1993) (false identification and inconsistent
stories); United States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991) (nervousness and no
registration); United States v. Cummins, 8th Cir., 920 F.2d 498, 502 (8th Cir. 1990)
(counter-surveillance driving to avoid police, nervous and evasive behavior, and inconsistent
answers).

" See 16 Del. C. § 4772. The section 4772 factors are: (1) statements by an owner or by
anyone in control of the object, concerning its use; (2) the proximity of the object, in time and space,
to a direct violation of this chapter; (3) the proximity of the object to controlled substances; (4) the
existence of any residue ofa controlled substance on the object; (5) direct or circumstantial evidence
of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom the
owner knows, or should reasonably know, intend to use the object to facilitate a violation of this
chapter. The innocence of an owner, or of anyone in control of the object, as to a direct violation of
this chapter shall not prevent a finding that the object is intended for use, or designed for use, as drug
paraphernalia; (6) instructions (oral or written) provided with the object, concerning its use; (7)

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State v. Matthew D. Frost
Case No. 1810006157
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residue on the blade/nail file, and that based on his experience and training, he
believed the residue was heroin.”

Heroin residue on the blade/nail file would clearly invoke factor four (4)
pursuant to section 4772, and, combined with Defendant’s alleged conduct, might
establish reasonable, articulable suspicion that criminal activity was afoot. Indeed, if
the Court chose to take Tfc. Holl’s testimony blindly at face value, the Court could
deny the Defendant’s motion.

In this case, however, and after consideration of Tfc. Holl’s testimony and
comparing it to the MVR footage, the Court is not satisfied that his testimony was
credible as it finds portions of Tfc. Holl’s testimony regarding the traffic stop to
directly conflict with the MVR recording. Additionally, the Court is also deeply
disturbed by certain statements made by Tfc. Holl during the traffic stop that further
makes the Court question his credibility regarding the alleged presence of drug
paraphernalia he allegedly observed in plain view. As a preliminary matter, two
points need to be addressed: (1) the lack of immediate testimony regarding Tfc. Holl’s

observance of heroin residue; and (2) the knife taken from the Defendant during the

descriptive materials accompanying the object which explain or depict its use; (8) national and local
advertising concerning its use; (9) the manner in which the object is displayed for sale; (10) whether
or not the owner, or anyone in control of the object, is a legitimate supplier of like or related items
to the community, such as a licensed distributor or dealer of tobacco products; (11) direct or
circumstantial evidence of the ratio of sales of the suspect object to the total sales of the business
enterprise; (12) the existence and scope of legitimate uses for the object in the community; and (13)
expert testimony concerning its use.

2 TR at 30:16-20.

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State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

pat down search.

The Court first notes that Tfc. Holl failed to reference any heroin residue
during his testimony on direct examination. The State argues that whether he testified
to heroin residue on direct or redirect examination, Tfc. Holl still offered sworn
testimony to that affect. On that point, the Court agrees with the State.

However, the presence of the alleged heroin residue on the blade/nail file is
dispositive to the State’s argument that Tfc. Holl developed reasonable, articulable
suspicion to extend the traffic stop a second time. Keeping that in mind, the Court
finds it curious this dispositive fact was not referenced during Tfc. Holl’s testimony
on direct examination, especially when the State questioned him about his
observations regarding the blade/nail file. Tfc. Holl stated: “[a]s I stood on the
passenger side of the car, I saw to me what was a small metal blade that is commonly
used for heroin use.”’? There was no mention of heroin residue, however, until Tfc.
Holl was prompted by the State’s question on re-direct examination. The Court, as the
finder of fact, questions Tfc. Holl’s failure to reference the presence of heroin residue
when he was describing the blade/nail file (referred to as a blade in testimony) in
detail, during direct examination,” especially when, as here, the heroin residue is the

foundation for his alleged and additional reasonable, articulable suspicion that

2 TR at 10:10-12.,

™ See Id. at 10:15-16 (“[The blade/nail file] was approximately an inch in length, maybe a
quarter inch wide.”).

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State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

“criminal activity was foot.””

Second, the State appeared to argue that Defendant’s possession of a knife
should be calculated into the Court’s analysis. In this instance, the Court has so
considered it, but disagrees that the knife adds further weight to its reasonable,
articulable suspicion analysis. Despite the record clearly showing Defendant
disclosed to Tfc. Holl that he had a “knife,”” the record is void of any sufficient
articulation as to whether the seized knife was a “deadly weapon” pursuant to 11 Del.
C. § 222 or an “ordinary pocket knife.”’’ While it is true that knives, under certain
circumstances, may be classified as deadly weapons, knives that are ordinary pocket
knives are excluded from that definition.’ Here, the Court will not, nor cannot,
presume, without evidence or testimony to the contrary, that Defendant was carrying
a knife classified as a deadly weapon. Neither the State nor Tfc. Holl has represented
the knife as a “deadly weapon” that should be considered in a reasonable, articulable

suspicion analysis. Thus, the Court declines the State’s invitation to consider the

® Td. at 10:04.
7 St. Ex. 1 at 01:03:42-45.

” See 11 Del. C. § 222(5) (emphasis added); see also McIntosh v. State, 655 A.2d 308, 1995
WL 48386, at *1 (Del. 1995) (Table) (quoting section 222 as codified by 68 Laws 1992, ch. 378 §§
1-3, eff. July 14, 1992). The Court notes, however, that the cited language regarding knives appears
to be unchanged since McIntosh was decided in 1995.

11 Del. C. § 222(5) (The definition of a "deadly weapon" includes "a knife of any sort
(other than an ordinary pocket knife carried in the closed position)."An "ordinary pocket knife" is
defined as "a folding knife having a blade not more than three inches in length.").

20
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

knife in its analysis, which would, in the Court’s view, presume the knife was a
deadly weapon.

Returning to the issue of Tfc. Holl’s credibility, or lack thereof, the Court finds
portions of his testimony regarding Defendant’s conduct were at best exaggerations
and possibly misrepresentations.

First, as previously stated, Tfc. Holl testified that Defendant was “extremely
nervous,” more nervous than the average motorist.” In support, he illustrated several
observations he made regarding the conduct.*° However, upon viewing the MVR
footage, the footage does not appear to confirm or discount Tfc. Holl’s representation
regarding Defendant’s hands. However, the Court does consider Tfc. Holl’s testimony
that Defendant moved frantically with his hands before he told Tfc. Holl that he did
not have proof of insurance available®' and “when [Defendant] was frantically
moving[,] just for the insurance card, he reached into the center console and shut it
real quick.”*” Based on Tfc. Holl’s testimony, it does not appear that Defendant was
trying to hide any contraband, rather, he, as most drivers who are pulled over,

exhibited some level of nervous behavior when he could not locate his insurance

™ TR at 7:19-20. But cf St. Ex. 1 (MVR footage shown at both hearings appears to suggest
the State’s characterization compared to Tfc. Holl’s “Richter scale” articulation of certain behaviors
exhibited by the Defendant during the traffic stop.).

*° See Supra n.6-11.
81 TR at 08:4-5,
* TR at 09:21-23 (emphasis added).

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State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

information.

Assuming arguendo that Tfc. Holl’s testimony regarding Defendant’s extreme
nervousness was accurate, the MVR footage would have likely confirmed at least
some of Defendant’s body movements and other bodily functions, e.g., his voice, that
would likely correspond with the alleged frantic behavior. For example, the MVR
footage provides clear audio of Defendant’s voice and his answers to questions
regarding his prior travel and Ashley. After reviewing the MVR footage, it does not
appear to the Court that Defendant sounds “extremely nervous” and the visible
portions of his body do not reflect movements that correlate to “extreme
nervous[ness].” There further appears to be no frantic movements of Defendant’s
head, such as sudden jerking or quickly moving side-to-side, and his head is visible
on the MVR footage throughout the traffic stop while Defendant was sitting in his
vehicle.

The Court also disagrees with Tfc. Holl’s characterization regarding
Defendant’s answers relating to “Ashley.” In short, Defendant’s answers are not

84 or further provide sufficient basis to believe that he was

“delayed,”® “vague,
“making up a story.” On the contrary, Defendant is clearly heard giving prompt,

clearly audible, and specific answers to Tfc. Holl’s questions, including, without

83 Td. at 8:11; 8:22-23; 15:14.
8 Td. at 9:5; 9:17; 16:16.
85 Td. at 9:9-10.

22
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

hesitation or confusion, that he came from North Smyrna after he gave Ashley a ride
home.*

However, and damaging to Tfc. Holl’s credibility, the Court is somewhat
disturbed by statements made by Tfc. Holl during the first extension of the traffic
stop. The MVR clearly records Tfc. Holl stating:

"if it is just [blade/nail file], I'm going to chalk it up to Ashley."*”
And a short time later:

“it’s safe to say that it’s Ashley’s drug paraphernalia.’””®*

Tfc. Holl testified multiple times that the Defendant’s answers regarding his travel
and Ashley were vague and led him to believe that Defendant had made up a story.
Nevertheless, Tfc. Holl was willing to assign ownership of the blade/nail file to
Ashley, suspected as a heroin user.*’ The Court sees this as a conflict. If Tfc. Holl
truly believed, as he testified, that Defendant had made up a story, particularly

regarding Ashley, how then could he rely on her unconfirmed existence, to “chalk

°° The Court acknowledges the State’s contentions regarding Defendant’s answers relating
to his disability payments and his daughter. However, St. Ex. 1 clearly shows Defendant nearly
sandwiched between the officers while they are both questioning him. Specifically regarding his
amplification of the disability payments, it appears to the Court that Defendant is attempting to finish
an answer, after quickly answering Cpl. Goertz’s question regarding his identification photo. See St.
Ex. 1 at 01:04:09-30.

87 St. Ex. 1 at 01:05:19.
88 Td. at 01:05:53.

8° Td. at 01:05:08.

23
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

[the blade/nail file] up to [her]” or say its “safe to say” the drug paraphernalia
belonged to her?

It is obvious to the Court, that if no other drugs or drug paraphernalia had been
admitted to and/or found, Tfc. Holl intended to blindly clear the Defendant of wrong
doing, without evidence confirming Ashley’s existence, but possessing alleged
evidence of alleged drug paraphernalia with alleged heroin residue located in plain
view, mere inches away from Defendant, the confirmed sole occupant of the vehicle.
The Court declines to reconcile this paradox in Tfc. Holl’s testimony and his recorded
statements in favor of the State. Here, it is not clear that Tfc. Holl concluded that the
blade/nail file was Ashley’s or not, or merely used this as a ruse to obtain an
admission by Defendant of the presence of illegal contraband.

The Court finds it is difficult to find Tfc. Holl demonstrated reasonable,
articulable suspicion, when his credibility and testimony has been called into
question. As such, the Court finds that under the totality of the circumstances, Tfe.
Holl’s testimony is not credible regarding his description of alleged drug
paraphernalia in plain view. As a result, the Court finds that Tfc. Holl did not
demonstrate reasonable, articulable suspicion to believe that Defendant possessed
drugs and drug paraphernalia that would justify extending the traffic stop a second
time.

lii. Because Tfc. Holl did not sufficiently develop a reasonable, articulable
suspicion that the Defendant possessed drugs and/or drug paraphernalia, he
did not demonstrate probable cause to conduct a warrantless search on the
Defendant’s vehicle.

24
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

An individual's right to be free from unlawful governmental searches and
seizures in Delaware is secured by two independent sources. The Fourth Amendment
of the United States Constitution guarantees “the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures....””’ Likewise, Article I, Section 6 of the Delaware Constitution guarantees
that “[t]he people shall be secure in their persons, houses, papers and possessions,

»°l Searches and seizures are

from unreasonable searches and _ seizures...
presumptively unreasonable unless authorized by warrants or a recognized exception
to the warrant requirement.”

The exclusionary rule is the recognized remedy in cases where a defendant's
right to be free from illegal searches and seizures has been violated.” In those
extraordinary instances, evidence recovered illegally must be excluded in the absence
of independent sources or situations allowing for inevitable discovery.”

Here, the State argues that the Defendant’s disclosure of marijuana and other

drug paraphernalia is enough to establish probable cause and is analogous to probable

° U.S. Const. amend. IV.

*' Del. Const. art. I, § 6.

” Coursey, 136 A.3d at 322 (citing Mason v. State, 534 A.2d 242, 248 (Del. 1987).
” Id. (citing Jones v. State, 745 A.2d 856, 872 (Del. 1999)).

*4 Td. (citations omitted).

25
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

cause being established by the smell of marijuana emanating from a vehicle.” This
disclosure alone, the State asserts, is enough for the Court to find probable cause.”
However, under these limited circumstances particular to this case, the Court
disagrees.

The State cites United States v. McCarty” and United States v. Derickson,”
both federal circuit cases from the Fifth and Eighth Circuits respectably, in support
of its argument. In Derickson, the Fifth Circuit found that the defendant’s
“uncontested admission” that his vehicle contained marijuana established probable
cause.” In McCarty, a law enforcement officer stopped the defendant for speeding
and while waiting for verification of the defendant’s documents, the officer asked if

the defendant had any drugs in the car.'°° After becoming visibly nervous, the officer

* See State v. Dewitt, 2017 WL 2209888, at *2 (Del. Super. May 18, 2017) (citing Fowler
v. State, 148 A.3d 1170 (Table) 2016 WL 5853434 at *2 n. 5 (Del. Sep. 29, 2016) (citing United
States v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006)); see also United States v. Simmons, 2007 WL
3122169, at *3 (3d Cir. 2007) (“The odor of ‘marijuana alone, if articulable and particularized, may
establish ... probable cause for officers to believe that contraband is present in the area from which
the scent emanates.’”).

°° See United States v. Harris, 403 U.S. 573, 583 (1971) (“Admissions of crime, like
admissions against proprietary interests, carry their own indicia of credibility-sufficient at least to
support a finding of probable cause to search.”).

*7 612 F.3d 1020 (8th Cir. 2010).
*8 136 F.3d 136, 1998 WL 30007, at *1 (Sth Cir. 1998).
” Derickson, 1998 WL 30007, at *1.

'° McCarty, 612 F.3d at 1023.

26
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

encouraged the defendant to honestly disclose what was in the vehicle.'”
Subsequently, the defendant admitted that marijuana was in the center console, which
led to a warrantless search of the vehicle that yielded a significant quantity of
contraband.'” The Eighth Circuit found that the defendant’s admission established
probable cause to search for only the marijuana, and that discovery in turn,
established probable cause to search the entire vehicle. !°°

The Court distinguishes Defendant’s case from McCarty.’ In this case, while
Defendant did disclose marijuana and drug paraphernalia was in the vehicle, he did
so only after Tfc. Holl’s first statement and intention to blame Ashley for possession
of the alleged drug paraphernalia. In McCarty, the officer graduated his response to
circumstances and employed the least intrusive means to verify or dispel his
suspicions by asking the defendant to be truthful about the presence of drugs in the

105

car.” Here, Tfc. Holl was willing to assign blame to an individual he had not

confirmed existed, providing certain conditions existed and those actions are

{01 Td.
102 Td.

' Td. at 1026 (citing United States v. Hernandez—Mendoza, 600 F.3d 971, 976 (8th Cir.
2010); United States v. Olivera—Mendez, 484 F.3d 505, 512 (8th Cir. 2007)).

' The Court notes Derickson is a sparsely written opinion with little to no facts to offer
comparison to the present case. As such, the Court finds it unpersuasive. McCarty, on the other hand,
is a much more informative illustration and comparison to Defendant’s case.

' McCarty, 612 F.3d at 1025.

27
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

distinguishable from McCarty.

Accordingly, and for the same reasons mentioned above regarding reasonable,
articulable suspicion, the Court finds the warrantless search of the Defendant’s
vehicle was unsupported by the required probable cause.

C. Inevitable Discovery

At the suppression hearing, the State appeared to argue, through Tfc. Holl’s
testimony, and for the first time, that even if the Court found the evidence was seized
unlawfully, it should be admitted nevertheless pursuant to the inevitable discovery
doctrine because the evidence would have been discovered as a result of an inventory
search. The Court disagrees and finds inevitable discovery does not apply to the
particular facts of this case.

It is well settled that Delaware has adopted the inevitable discovery doctrine.'®
Inevitable discovery provides that evidence obtained unlawfully will be admissible
if the State can prove that evidence would have been discovered, in spite of the illegal
police conduct.’ In so doing, our courts may rely upon testimony on normal
procedure and “what inventory searches are usually done” in order to invoke

inevitable discovery.‘

' Martin v. State, 433 A.2d 1025, 1031 (Del. 1981) (citing Cook v. State, 374 A.2d 264
(Del. 1977).

'°7 State v. Brownell, 2005 WL 268043, at *1 (Del. Super. Jan. 28, 2005) (citing Hardin v.
State, 844 A.2d 982, 987 (Del. 2004) (emphasis added)).

108 Lambert v. State, 149 A.3d 227, 2016 WL 5874837, at *1 n.3 (Del. 2017) (Table).

28
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

Discoveries such as those, are sometimes made pursuant to a well-defined
exception to the Fourth Amendment’s warrant requirement called an inventory
search.'” This Court has held that inventory searches are lawful when they are “made
to safeguard property for the benefit of the owner, police and tow company, and not
under pretext to gather evidence without a warrant.”!"°

An inventory search may be conducted to accomplish one or more of three
purposes: (1) to protect the owner from theft or damage while the vehicle is under
police control; (2) to protect police from false claims; and (3) to protect police from
danger.''' Under conditions where an inventory search is actually conducted, the State
has the burden to show that the inventory search was conducted in good faith “in
furtherance of the police care taking function and not as a pretext for an investigatory
motive.”!!

At the suppression hearing, the State presented Tfc. Holl with a hypothetical
situation on regarding standard operating procedures that would have occurred if
Defendant had been unable to produce his insurance information.

Q: And if you don’t have insurance in Delaware, can you drive?

A: No.

'° State v. Deputy, 2001 WL 1729120, at *2 (Del. Super.) (citing Colorado v. Bertine, 479
U.S. 367, 371 (1987)).

''° Brownell, 2001 WL 1729120, at *1 (citing Lively v. State, 427 A.2d 882, 883 (Del. 1981)).
| Deputy, 2001 WL 1729120, at *2 (citing Bertine, 479 U.S. at 372).

"2 State v, Miller, 420 A.2d 181, 184 (Del. Super. 1980).

29
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

Q: So, ifthe [D]efendant was unable to produce insurance, would he have be

able to drive [the car] away?

A: No.

Q: What would [Tfc. Holl] have done with the car?

A: Towed it.

Q: Would you have done anything before you towed it?

A: Conducted an inventory search.''°
As illustrated above, if, and only if, Defendant was unable to produce his insurance
information (and no drugs and drug paraphernalia had been found) then: (1) he would
not have been permitted the drive the vehicle; (2) the vehicle would have been towed;
and (3) an inventory search would have been conducted before the vehicle was towed.
However, there was no evidence presented that the Court can rely upon that shows
that Defendant would not have been able to produce insurance information, given an
additional opportunity, especially since he was lawfully trying to access it via the
GEICO app before he was asked to exit the car.

The State cites Martin v. State'’ in support of its position that inevitable
discovery applies and contends the Delaware Supreme Court relied on minimal
testimony about a hypothetical situation that the State contends was similar to Tfc.

Holl’s testimony. The Court disagrees with the State’s representation of Martin.

''3- TR at 31:7-18 (emphasis added).
''4 433 A.2d 1025 (Del. 1981).

30
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

In Martin, our Supreme Court did not solely rely on minimal testimony
regarding a hypothetical search warrant that might have occurred as the result of
probable cause to search a vehicle. The Martin court also relied on the fact that the
officers involved undertook a “saturation investigation” where they: (1) sought and
were granted other warrants related to the case in other states; (2) provided sufficient
basis for those warrants; and (3) determined that consent from one of the witnesses
to search a hotel room, would have been granted if asked for by the police.''

Here, and while not directly on point, the Court finds State v. Brownell'"® to be
instructive. In Brownell, law enforcement responded to a car accident and discovered
the defendant under the influence.''’ Due to the defendant’s condition, the officer
conducted a limited search of the defendant’s vehicle in an attempt to find his license,
registration, and proof of insurance.''’ During that limited search, the officer
discovered, removed, and opened a canister that contained marijuana.'’’ The vehicle
was subsequently towed and an inventory search was conducted.'”” Upon the

defendant’s motion to suppress, the State conceded that the initial seizure of and

"'5 Martin, 433 A.2d at 1031-32.

"6 9005 WL 268043 (Del. Super. Jan. 28, 2005).
"7 Brownell, 2005 WL 268043 at *1.

8 Iq

19 Iq.

° Brownell, 2005 WL 268043 at *1.

31
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

opening of the cannister was improper,'”' but nevertheless argued inevitable

discovery.'” This Court agreed with the State, but further stated:
... Instead of establishing some minimum threshold or knowledge base of the
officer regarding police procedures for an inventory search or even taking the
time to set forth on the record what occurred in this particular case, the State
simply asked the officer if he followed standard operating procedures to which
he answered “yes.” There was no testimony as to his knowledge of those
procedures, no testimony as to what those procedures may entail, or even if the
process is one the officer was trained on during his time in the police
academy. '*?

This Court further stated:
Having no independent basis to find support for an appropriately conducted
inventory search, the Court is left simply to rely upon the officer that he did it
right. In essence, the State has asked the Court to fill in the blanks using the
Court's knowledge of an inventory search which simply is not permissible. The
burden here is upon the State and not the Court. This is particularly
troublesome since the Court finds the credibility of the police officer here was

suspect based upon the previous seizure of the container, his knowledge of its

121 Td,
122 Id,

123 Td.

32
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

contents and his belief that searching for contraband was a legitimate purpose

of inventory searches. !**

As aresult, this Court found that the State failed to establish a sufficient record of the
inventory search and, thus, failed to meet its burden of establishing that the seizure
was lawful.'”

In this case, and notably absent as was the case in Brownell, was testimony
from Tfc. Holl as to his actual knowledge of the standard inventory search
procedures, testimony as to what those inventory search procedures may entail, or
testimony that he was properly trained to conduct such inventory searches. He simply
stated that an inventory search would have been conducted ifthe Defendant had not
been able to produce his insurance information.'*° The Court in Brownell, as in the
present case, also determined that the officer’s credibility was in question.
Furthermore, and, unlike Brownell, neither Tfc. Holl, nor Cpl. Goertz, made any
further attempts to allow Defendant to pull up his proof of insurance information on
his phone once he exited his vehicle.

Tfc. Holl’s testimony regarding a hypothetical inventory search leaves the

Court with only one option, to conjecture that Defendant would been unable to

'24 Brownell, 2005 WL 268043 at *2.
125 Td.

6 See Supra n.113.

33
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

provide proof of insurance, given further opportunity,'”’ and that an inventory search
would have been conducted by a qualified police officer. The Court declines to offer
such conjecture.

Under these circumstances, Defendant was not given ample opportunity to
further produce his proof of insurance. As a result, the Court finds that there is no
way for Tfc. Holl to determine whether (1) Defendant would have been unable to
produce his insurance information during the duration of the traffic stop and (2)
whether the vehicle would have been ultimately towed by law enforcement as a result
of Defendant being unable to produce valid insurance information. Accordingly, the
Court does not agree with the State that the seized evidence would have been
inevitably discovered pursuant to an inventory search. As a result, the Court rejects
the State’s inevitable discovery argument, and finds inevitable discovery, under these
facts, does not apply to the present case.'”8

D. The Defendant’s Motion to Reopen Evidence

Based on the Court’s decision regarding the issues discussed above, it appears

to the Court that Defendant’s motion to reopen evidence is now moot.

'7St. Ex. | at 01:12:57 (Defendant’s phone had been left in the vehicle and he asks Tfe. Holl
to retrieve it.).

"5 The Court further finds that the State has failed to provide an independent basis to find
support for an appropriately conducted inventory search because it failed to demonstrate reasonable,
articulable suspicion for Tfc. Holl to extend the Defendant's traffic stop for a second time and
probable cause to search the vehicle.

34
State v. Matthew D. Frost
Case No. 1810006157
May 28, 2019

CONCLUSION
Therefore, based on the above stated reasons, the Defendant’s Motion to
Suppress is GRANTED. All evidence obtained is ordered to be suppressed as fruit
of the poisonous tree.'”” The Defendant’s Motion to Reopen Evidence is DENIED

Ml OS

Hon. William L. Witham, Jr.
Resident Judge

as moot.

IT IS SO ORDERED.

WLW/dmh

oc: Prothonotary

cc: Lindsay A. Taylor, Esquire
Stephanie H. Blaisdell, Esquire

' See generally Wong Sun v. United States, 371 U.S. 471 (1963).

35