State v. Rose

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. )
) C.A. No. 1911004775
JEFFREY ROSE, )
)
Defendant. )

Submitted: March 11, 2022
Decided: June 30, 2022

Upon Defendant Jeffrey Rose’s Motion to Suppress: GRANTED
1. Police officers patrolling a Wilmington neighborhood at night smelled

marijuana while they drove past a parked car occupied by one individual. The

officers did not see any indication that marijuana was being smoked in the car and

never saw anyone operating the vehicle. After a single pass around the block, the

officers detained the vehicle’s occupant, who then allegedly spontaneously

confessed to a variety of crimes. The defendant now moves to suppress all the

evidence obtained through his detention and subsequent arrest, arguing the officers’

detection of an odor of marijuana associated with his parked vehicle was not

reasonable suspicion to permit an investigative detention. Because a vaguely

described odor of marijuana connected with a parked vehicle did not give the officers

reasonable articulable suspicion to believe criminal activity was afoot, the motion to

suppress is granted.

1
FACTUAL & PROCEDURAL BACKGROUND

2. The State offered the following facts at an evidentiary hearing

conducted on November 5, 2021. On November 8, 2019, three law enforcement

officers assigned to Wilmington Police Department’s Safe Streets division (“Safe

Streets”) were conducting “proactive patrol” in Wilmington’s Southbridge area.

Safe Streets is a joint task force comprised of officers assigned to Wilmington Police

Department and Probation & Parole.1 On the night in question, Sergeant Matthew

Rosaio and Detective James Wiggins were paired with Probation Officer Justin

Phelps2 (collectively, the “Safe Streets officers”) and were patrolling their assigned

area in an unmarked black Chevy Tahoe (the “Tahoe”). At the evidentiary hearing,

Sergeant Rosaio described “proactive patrol” as “actively driving around in some of

the more high-crime areas that are known throughout the city … looking for anything

of a criminal nature or that would be suspicious that would require some sort of

further investigation.”3

3. The Safe Streets officers’ encounter with Defendant Jeffrey Rose

(“Defendant”) occurred in the 1300 block of B Street, which is intersected by

Bradford and Claymont streets. The Ezion Fair Church and Hicks Park sit on the

1
Other officers have described Safe Streets as targeting “’violent offenders, . . . guns[,] and drugs,’
by, among other things, making traffic stops for minor violations and ‘tak[ing] every traffic stop
as far as [they] can.’” See Juliano v. State, 260 A.3d 619, 622-23 (Del. 2021).
2
Officer Phelps did not testify at the evidentiary hearing relating to the pending motion to suppress.
3
State v. Rose, ID 1911004775 (Transcript) (Nov. 5, 2021) (hereinafter, “Tr.”) 9-10.
2
Bradford Street end of the block, and the Neighborhood House Community Center

sits on the Claymont Street end of the block. Between Bradford Street and Claymont

Street is the largely residential area of B Street.4 At approximately 10:00 p.m., when

the events in question occurred, B Street was quiet, with little-to-no pedestrian or

vehicle activity. The south side of B Street contains some residences, while the north

side is vacant. 5 The Safe Streets officers did not have any tips or intelligence that

criminal activity was occurring in the area at that time, but they view the

neighborhood as a high-drug area that typically is quiet and dark at that time of

night.6

4. When they turned onto B Street from Bradford Street, the Safe Streets

officers were travelling at approximately 10 to 15 mph, with all four windows of the

Tahoe down. According to their testimony, Sergeant Rosaio and Detective Wiggins,

who were in the front of the Tahoe, both “began detecting an odor of what [they

have] learned through [their] training and experience to be marijuana.”7 Sergeant

Rosaio noticed a black Chrysler (the “Chrysler”) parked midway up the block across

from the residential houses.8 There were no other vehicles parked on the street.9

According to the Safe Streets officers, the odor of marijuana intensified as the Tahoe

4
Id. 12-14, 48-55.
5
Id. 38, 74.
6
Id. 10, 38, 75.
7
Id. 17, 78.
8
Id. 50-51, 55.
9
Id. 77-78.
3
approached the Chrysler. Sergeant Rosaio observed a black male sitting in the

driver’s seat, leaned back, with the window open. The Safe Streets officers did not

see any smoke or other indication that the vehicle’s occupant was using marijuana

at the time.10 Sergeant Rosaio could not classify the marijuana smell as raw or

burnt.11 According to the officers, they did not see anyone else in the vehicle when

they drove past it.

5. The Tahoe continued past the Chrysler and, according to testimony, the

marijuana smell dissipated. Sergeant Rosaio and Detective Wiggins apparently were

both able to detect a strengthening and weakening of the odor as the Tahoe continued

down B Street.12 In fact, Detective Wiggins testified to their shared observations

regarding what “we,” i.e. he and Sergeant Rosaio, smelled.13 At this time, the Safe

Streets officers, intent on further investigating the smell of marijuana, circled the

block and again turned onto B Street from Bradford. At that time, Sergeant Rosaio

and Detective Wiggins testified they “began detecting the same odor of marijuana

to the same extent that [they] did the first time.”14

6. After circling the block, Sergeant Rosaio, who was driving the Tahoe,

stopped in the roadway about 15 to 20 feet behind the Chrysler. The Safe Streets

10
Id. 57-59.
11
Id. 57.
12
Id. 21-22, 80.
13
See id. 80. (“We drove passed [sic] the vehicle. As we got close, we smelled it stronger. We
kept going.”)
14
Id. 22, 82.
4
officers did not activate their lights or sirens, and Sergeant Rosaio conceded

Defendant could not have been known the Tahoe’s occupants were law enforcement

officers.15 All three Safe Streets officers exited the Tahoe simultaneously and began

approaching the Chrysler.16 As they approached, Defendant “quickly exited” the

driver’s side of the vehicle carrying a bookbag.17 Believing Defendant was about to

flee the scene, Sergeant Rosaio ordered Defendant to stop, drop the bookbag, and

put up his hands.18

7. According to Sergeant Rosaio and Detective Wiggins, Defendant

complied with that order and then “spontaneously uttered without being

questioned”19 that he (1) had an outstanding capias, (2) previously smoked

marijuana, and (3) had ecstasy and psychedelics in the bookbag. 20 Defendant

immediately was taken into custody and handcuffed, all within 30 seconds of the

Safe Streets officers exiting the Tahoe.21 While the officers were circling the block,

a passenger apparently entered the Chrysler.22 That person also was taken into

custody, and a gray bottle containing Xanax and ecstasy was recovered from the

15
Id. 62.
16
Id. 23.
17
Id. 23-24.
18
Id. 24-25; 83.
19
Id. 66-67.
20
Id. 25, 83.
21
Id. 26-28, 69-70.
22
The officers did not see this occur and did not indicate they were aware of the passenger’s
presence when they detained Defendant. See id. at 26, 58, 84.
5
passenger’s seat.23 The officers later confirmed that Defendant had an outstanding

capias. Upon further investigation, no marijuana or related paraphernalia was found

in the Chrysler.24 In fact, there was no evidence that anything ever had been smoked

in the car.

8. During the evidentiary hearing, Defendant challenged the officers’

testimony.25 For example, it is undisputed that, at some point during the interaction,

additional Safe Streets units were called to the scene. But Defendant disagreed with

the timing of when those officers arrived and some other aspects to the Safe Streets

officers’ testimony. Defendant testified that two vehicles simultaneously stopped

near his parked car – the Tahoe and a grey car. Frightened, Defendant exited the car

and saw law enforcement officers wearing police vests and pointing weapons at him.

Defendant then stopped in accordance with Sergeant Rosaio’s instructions.

Defendant also denies volunteering that he had an outstanding capias, drugs, or

previously smoked marijuana.

9. On January 6, 2020, Defendant was indicted for Drug Dealing and

Aggravated Possession in connection with the drugs seized during his arrest. On

August 17, 2020, Defendant’s counsel filed a motion to suppress all the evidence

23
Id. 26, 70, 84-85.
24
Id. 26, 68.
25
The interaction between Defendant and the Safe Streets officers was not captured on body worn
cameras, and the Safe Streets’ dedicated radio channel does not record or otherwise memorialize
officers’ communications.
6
seized by the Safe Streets officers following Defendant’s detention and arrest on

November 8, 2019 (the “Motion”). In connection with that Motion, Defendant

sought discovery regarding similar traffic stops conducted by Safe Streets. The

Court entered orders on February 8, 2021, and June 17, 2021, permitting some of the

requested discovery. An evidentiary hearing was held on November 5, 2021, after

which the parties submitted supplemental briefing refining their arguments in light

of the discovery and testimony.

PARTIES’ CONTENTIONS

10. In his Motion to Suppress,26 Defendant argues the Safe Streets officers’

decision to stop him was pretextual and, even if it was not pretextual, the officers

lacked reasonable articulable suspicion to detain him based solely on the odor of

marijuana.27 Defendant alternatively argues that he was arrested, rather than

detained, when he was ordered to place his hands in the air.28 In his post-hearing

memoranda, Defendant reiterates his argument that the odor of marijuana the

officers described, standing alone, does not amount to reasonable articulable

suspicion to detain—or probable cause to arrest—him. Defendant contends

Delaware’s 2015 decriminalization of possession and use of a small amount of

marijuana changed the legal landscape and compels the conclusion that the odor of

26
D.I. 8.
27
Id. ¶¶ 4-5, 8-9.
28
Id. ¶ 8.
7
marijuana does not point to criminality.29 Moreover, Defendant asserts that law

enforcement’s or the Court’s reliance on the amorphous and subjective nature of an

“odor” of marijuana “exacerbates the practice of targeting motorists based upon

race.”30 For all those reasons, Defendant urges the Court to suppress all evidence

seized by Wilmington Police following Defendant’s detention or arrest.31

11. The State, on the other hand, argues the Safe Streets officers possessed

reasonable articulable suspicion to detain Defendant based on their detection of the

odor of marijuana coming from his car and the fact that the vehicle was parked “on

a dark, somewhat desolate street in a high-crime, high-drug area, at a time of night

where community members would not be congregating in the area.”32 The State also

asserts the State Street officers had probable cause to arrest Defendant based on his

admissions to having a capias, smoking marijuana, and possessing ecstasy. Finally,

the State argues Delaware’s decriminalization of possession of personal use amounts

of marijuana did not alter standards for probable cause or reasonable articulable

suspicion.33 The State therefore contends Defendant’s Motion should be denied.

29
D.I. 60 at 9-11.
30
Id. at 12-13.
31
D.I. 8.
32
D.I. 59 at 2.
33
Id. at 3 (citing 16 Del. C. § 4764(h) (“Nothing contained herein shall be construed to repeal or
modify any law or procedure regarding search and seizure.”)).
8
DISCUSSION

12. The United States Constitution’s Fourth Amendment guarantees “[t]he

right of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures[.]”34 Courts distinguish two types of seizures

that law enforcement may conduct under the Constitution: an investigatory detention

and an arrest. Law enforcement may detain an individual for investigatory purposes

only if (i) the detention is supported by reasonable articulable suspicion of criminal

activity, and (ii) the seizure is of limited scope and duration.35

13. Under Delaware law, a person is detained or “seized” within the

meaning of Article I, § 6 of the Delaware Constitution when a reasonable person

would have believed he or she was not free to ignore the police presence. 36 The

State concedes Defendant was detained at the moment Sergeant Rosaio ordered him

to freeze, drop the bookbag, and put his hands in the air.37 The State also concedes

Defendant was arrested shortly thereafter when he was placed in handcuffs after

34
U.S. Cost. Amend. IV. See Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that the Fourteenth
Amendment makes the Fourth Amendment applicable to the states). Article I, § 6 of the Delaware
Constitution similarly provides: “The people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures . . . .”
35
Terry v. Ohio, 392 U.S. 1, 21 (1968); Jones v. State, 745 A.2d 856, 861 (Del. 1999).
36
Jones, 745 A.2d at 869. Delaware has declined to adopt the United States Supreme Court’s
definition of seizure as articulated in California v. Hodari D., 499 U.S. 621 (1991). See Jones,
745 A.2d at 868.
37
D.I. 59 at 2.
9
purportedly spontaneously confessing to smoking marijuana, possessing ecstasy,

and having an outstanding capias.38

14. The first question raised in Defendant’s Motion, and the one the Court

finds dispositive, is whether the Safe Streets officers has reasonable articulable

suspicion to detain Defendant at the time they ordered him to freeze. Whether law

enforcement had reasonable suspicion to detain a person is evaluated based on 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

the officer’s subjective interpretation of those facts.39 Reasonable suspicion is a

“less demanding” standard than probable cause and requires a showing considerably

less than proof by a preponderance of the evidence.40 The State bears the burden of

proving the law enforcement officers possessed reasonable articulable suspicion at

the time the seizure occurred.41

15. To justify Defendant’s detention, the officers’ suspicion must have

been that criminal activity was afoot.42 Reasonable suspicion requires “some

minimal level of objective justification” and must amount to something more than

an officer’s inchoate, vague suspicion.43 An officer must point to specific and

38
Id. at 3.
39
Illinois v. Wardlow, 528 U.S. 119, 123 (2000); Jones, 745 A.2d at 861.
40
U.S. v. Sokolow, 490 U.S. 1, 7 (1989).
41
Hunter v. State, 783 A.2d 558, 560 (Del. 2001).
42
Bryant v. State, 2017 WL 568345, at *1, n.1 (Del. Feb. 8, 2017).
43
I.N.S. v. Delgado, 466 U.S. 210, 217 (1984)
10
articulable facts that, taken with the rational inferences to be drawn from those facts,

reasonably justify the intrusion.44 In this case, the only facts preceding Defendant’s

detention that the Safe Streets officers articulated were (1) a car occupied by one

person, parked on a residential street at night in an area known for drug activity, and

(2) the odor of marijuana associated with that car.45 Everything that happened after

the detention, including Defendant’s purported confession, the discovery of drugs in

the bookbag and car, the absence of marijuana in the car, and Defendant’s

outstanding capias, is not relevant to this analysis.

16. Defendant fairly questions the reliability of the Safe Streets officers’

testimony regarding their ability to connect the odor of marijuana to the Chrysler.

Although law enforcement officers receive specialized training that enables them to

detect drug activity that might not be apparent to a civilian, neither Sergeant Rosaio

nor Detective Wiggins testified that they received specialized training regarding the

location or varying intensity of drug odors.46 But the Court need not reach that

44
Terry, 392 U.S. at 21; Coleman v. State, 562 A.2d 1171, 1174 (Del. 1989).
45
Defendant’s action in leaving the car after the Tahoe pulled up behind him cannot be considered
as evidence that he was attempting to flee from the police, since the State concedes Defendant
could not have known the Tahoe was occupied by law enforcement. Compare Jones, 745 A.2d at
861, n.18 (noting flight or evasive action by a defendant who was aware he was being followed by
police could be considered in determining whether there was reasonable articulable suspicion to
detain defendant).
46
Whether even the best training could give a law enforcement officer the olfactory ability of a
bloodhound remains an open question for the Court. The Court shares Defendant’s skepticism
that law enforcement, traveling at 10-15 mph, could detect the concentration and dissipation of an
odor of marijuana and pinpoint that odor to a parked car.
11
credibility issue because, even accepting the officers’ testimony at face value, their

vague description of the odor of marijuana does not rise to the level of reasonable

articulable suspicion permitting Defendant’s detention.

17. This is true, at least in part, because merely possessing a small amount

of marijuana no longer is a crime in Delaware. Delaware’s law regarding the use

and consumption of marijuana has shifted over the last decade.47 In 2015, the

General Assembly decriminalized the possession of personal use quantities of

marijuana by adults.48 Under the current law, which was in effect at the time

Defendant was detained, adults found in possession of one ounce or less of marijuana

are subject to a monetary civil penalty but not a criminal charge.49 Use or

consumption of marijuana by an adult in a moving vehicle is an unclassified

misdemeanor.50

18. On two recent occasions, the Delaware Supreme Court has addressed

the odor of marijuana and its relevance to determining whether law enforcement had

47
The State argues that the decriminalization of marijuana did not change the constitutional
analysis of probable cause or reasonable suspicion, pointing to 16 Del. C. § 4764(h). It is unclear
whether the State raised this argument in Juliano, but the Supreme Court at least implicitly rejected
that conclusion by analyzing probable cause based on “the crimes that an objectively reasonable
police officer might suspect to a fair probability [a person] had committed based solely on the odor
of marijuana.” Juliano, 260 A.3d at 631. In any event, a statute cannot alter the scope of the
Constitution or the meaning of reasonable suspicion. Perhaps for that reason, the State did not
focus its arguments on this statute, and this section of the statute has no bearing on the Court’s
analysis.
48
2015 Del. Laws Ch. 38 (H.B. 39); 16 Del. C. § 4764.
49
16 Del. C. §§ 4701, 4764.
50
Id. § 4764(d).
12
probable cause to arrest a person or conduct a warrantless search of a vehicle. 51 In

Valentine v. State,52 the Delaware Supreme Court held that, although possession of

a personal use amount of marijuana is not a criminal offense, the odor of marijuana

is not “irrelevant to determinations of probable cause.”53 The Valentine Court held

that the totality of the circumstances, including the defendant’s speed before he was

pulled over, the time of day, and the odor of marijuana gave law enforcement officers

probable cause to believe Valentine’s car contained contraband, particularly

marijuana.54

19. Two years later, in Juliano v. State,55 the Delaware Supreme Court held

that law enforcement officers did not have probable cause to arrest a vehicle’s

passenger based solely on the officers’ detection of an odor of marijuana emanating

from the vehicle during a traffic stop.56 In Juliano, the officers conducted a traffic

stop and, upon approaching the vehicle, almost immediately ordered all the

occupants out of the vehicle and placed them under arrest. Those arrests and

attendant searches of the passengers were based exclusively on the odor of marijuana

that one officer detected in the vehicle.57 In analyzing the case, the Supreme Court

51
Juliano v. State, 260 A.3d 619 (Del. 2021); Valentine v. State, 2019 WL 1178765 (Del. 2019).
52
2019 WL 1178765 (Del. 2019).
53
Id. at *2.
54
Id.
55
260 A.3d 619 (Del. 2021).
56
Id. at 622.
57
Id. at 623, 625.
13
considered “the crimes that an objectively reasonable police officer might suspect to

a fair probability [a person] had committed based solely on the odor of marijuana.”58

Relevant to the pending Motion, the Supreme Court held that the officers’ vague

description of an odor of marijuana emanating from the front of the vehicle did not

amount to probable cause to believe the defendant had consumed marijuana in a

moving vehicle when the officers did not provide any testimony (i) that the odor was

raw or burnt, or (ii) make any observations suggesting the defendant was under the

influence or recently consumed marijuana.59 The Court also held vague testimony

regarding a strong odor of marijuana does not permit a reasonable inference that the

officers suspected the defendant possessed anything more than a personal use

amount of marijuana.60 Accordingly, because an amorphous description about an

odor of marijuana in the front of the vehicle did not allow an objectively reasonable

police officer to suspect to a fair probability that the defendant had committed a

crime, the Court concluded the officers lacked probable cause to arrest the

defendant.61

20. After Juliano, the State must articulate something more than a vague

description of a marijuana odor in order to carry its burden of establishing probable

58
Id. at 631.
59
Id. at 632, 634.
60
Id. at 634.
61
Id. at 631, 634-35.
14
cause for an arrest or warrantless vehicle search. But the question raised by the

pending Motion is whether the Safe Streets officers had reasonable suspicion to

detain Defendant. Reasonable articulable suspicion is a lower standard than

probable cause, and the Delaware Supreme Court has not had the occasion to address

whether the odor of marijuana, standing alone, can rise to the level of reasonable

articulable suspicion. Nevertheless, courts in other jurisdictions where possession

of marijuana has been decriminalized have addressed this issue but have reached

different conclusions.

21. In State v. Francisco Perez62, the New Hampshire Supreme Court held

that although the decriminalization of marijuana in that state did not make the odor

of marijuana irrelevant to determining reasonable articulable suspicion, the changes

to the law were “significant given the standard for reasonable, articulable

suspicion.”63 The Francisco Perez court held “decriminalization . . . affect[s] the

reasonableness of the officer’s actions” after detecting an odor of marijuana, and the

court refused to hold that the odor of marijuana, standing alone, gave law

enforcement officers reasonable articulable suspicion of criminal activity.64 The

court ultimately held, however, that the odor of marijuana, coupled with officers’

other observations, including the defendant’s (i) slowness in stopping the vehicle,

62
239 A.3d 975 (N.H. 2020).
63
Id. at 983-84.
64
Id. at 985-86.
15
(ii) possession of three cell phones, (iii) nervous behavior, (iv) criminal record, and

(v) use of a rented vehicle, satisfied the reasonable articulable suspicion standard. 65

In contrast, in In re D.D., the Maryland Court of Appeals held that although the odor

of marijuana alone does not give police probable cause to arrest an individual, it does

amount to reasonable articulable suspicion to support a brief investigatory

detention.66

22. Here, the analysis in Juliano provides a helpful framework for resolving

whether the Safe Streets officers possessed reasonable suspicion that Defendant had

engaged in criminal activity. First, because Defendant’s vehicle was parked,67 and

the State Streets officers never saw Defendant operating the vehicle, they did not

have reasonable suspicion that he had used or consumed marijuana in a moving

vehicle or that he was driving under the influence. Second, courts repeatedly have

found that the odor of marijuana alone does not allow law enforcement to evaluate

the amount of marijuana a person might possess; the State in Juliano in fact

65
Id. at 986.
66
In re D.D., 2022 WL 2207895, at *9-10 (Md. Jun. 21, 2022). This decision was issued after
briefing in this case was complete. The parties in their supplemental briefing cited the Maryland
Court of Special Appeals’ decision, in which the intermediate appellate court held the odor of
marijuana, standing alone, was not reasonable articulable suspicion of criminal activity. See In re
D.D., 250 A.3d 284 (Md. Ct. Spec. App. Apr. 28, 2021). See also Com. v. Rodriguez, 37 N.E.3d
611 (Mass. 2015) (holding on state constitutional grounds that odor of marijuana provided
reasonable suspicion that a driver had committed a civil violation, but did not justify a traffic stop
to enforce the civil penalty for possession of marijuana).
67
The State did not provide any evidence that Defendant’s car was running when it was observed
by law enforcement.
16
acknowledged that the odor of marijuana on a person only indicates they smoked

marijuana at some indeterminate point in the past.68 And the State Streets officers

here did not take the time to attempt to observe any factors indicating Defendant was

engaged in drug dealing. Accordingly, the Safe Streets officers’ detection of

marijuana, which they could not distinguish as raw or burnt, could not have

amounted to a reasonable suspicion that Defendant possessed more than an ounce of

marijuana, if he possessed it at all.

23. Perhaps recognizing the paucity of the Safe Streets officers’ testimony

regarding the marijuana odor, the State points out that the residential street was quiet,

dark, and in an area known for drug crimes.69 But none of those factors change the

foregoing analysis. That is, the time of night, lack of other people on the street, or

the type of neighborhood do not make it more reasonable for police to suspect

Defendant possessed more than an ounce of marijuana or was dealing drugs. Indeed,

to credit the State’s argument that the neighborhood or time of day permit the

detention of any person to whom police attribute a vaguely described odor of

marijuana would allow police to conduct investigatory stops entirely untethered

from any constitutional restraints.

68
Juliano, 260 A.3d 619, 634. See also Rodriguez, 37 N.E.3d at 618 (acknowledging “significant
possibility that the odor of burnt marijuana may be present on a person or in a vehicle, but the drug
itself is not.”); Lewis v. State, 233 A.3d 86, 101-02 (Md. 2020) (“the odor of marijuana alone does
not indicate the quantity, if any, of marijuana in someone’s possession.”).
69
D.I. 59 at 2.
17
 24. To summarize, the Court finds that a vaguely described odor of

marijuana associated with a parked vehicle, without any further credible testimony

regarding whether the odor was burnt or raw and without any other facts suggesting

the vehicle’s occupant was engaged in criminal activity, does not amount to

reasonable articulable suspicion justifying an investigatory detention of the vehicle’s

occupant. Accordingly, Defendant Jeffrey Rose’s Motion to Suppress is

GRANTED. IT IS SO ORDERED.

/s/ Abigail M. LeGrow
Abigail M. LeGrow, Judge

Original to Prothonotary
cc: Andrew Vella, Deputy Attorney General
Julia Mayer, Deputy Attorney General
Thomas Foley, Esquire

18