IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. No. 2105013317
)
MONTREZ BROWN, )
)
Defendant. )
)
Submitted: November 30, 2022
Decided: January 11, 2023
OPINION
Upon Defendant’s Motion to Suppress
DENIED
Kevin B. Smith, Esquire, Department of Justice, Dover, Delaware, Attorney for the
State.
Zachary A. George, Esquire, Hudson, Jones, Jaywork & Fisher, Dover, Delaware,
Attorney for Defendant.
Primos, J.
This is the Court’s decision regarding the Motion to Suppress Evidence of
Defendant Montrez Brown (hereinafter “Mr. Brown”). This case involves the
warrantless stop and subsequent search of Mr. Brown’s vehicle. For the reasons that
follow, the Court finds that the initial stop was supported by reasonable suspicion of
a violation of the traffic code and the search of the vehicle was justified by probable
cause that the vehicle contained either contraband (specifically, marijuana) or
evidence of related crimes. Accordingly, Mr. Brown’s motion to suppress is
DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
The facts cited herein are those presented during the suppression hearing held
on October 19, 2022. The State presented testimony from Sergeant Lloyd McCann
(hereinafter “Sergeant McCann”), a Delaware state trooper, and video footage from
the mobile video recorder (“MVR”) device on the front of Sergeant McCann’s state
vehicle.1
On May 25, 2021, shortly after 11 p.m., Sergeant McCann was on patrol in an
unmarked police car, and turned into the Capital Park neighborhood, which he
testified to be a high-crime area.2 A dark sedan driven by Mr. Brown passed
Sergeant McCann’s vehicle, travelling in the opposite direction, and exited the
Capital Park neighborhood.3 Out of his sideview mirror, it looked to Sergeant
McCann as though the sedan’s rear license plate was not illuminated as it passed,4
in violation of 21 Del. C. § 4334(c).5 He made a U-turn and followed the sedan.6
1
The video footage was entered into evidence as State’s Exhibit 1 [hereinafter “Ex. 1”].
2
Suppression Hr’g Tr. (hereinafter “Hr’g Tr.”) at 15:22–19:8.
3
Id. at 18:11–17.
4
Id. at 18:20–23.
5
“Either a tail lamp or a separate lamp shall be so constructed and placed as to illuminate with a
white light the rear registration plate and render it clearly legible from a distance of 50 feet to the
rear.” 21 Del. C. § 4334(c).
6
Hr’g Tr. at 19:12–17.
2
After confirming his suspicion, he activated his emergency lights, initiating a traffic
stop as Mr. Brown’s vehicle turned into a hotel parking lot.7 Mr. Brown’s vehicle
pulled into a parking space and Sergeant McCann stopped his vehicle behind the
sedan.8 He then exited and approached the driver’s side of the sedan. He asked Mr.
Brown about the unilluminated registration plate light, which Mr. Brown attributed
to mechanical or electrical issues with his vehicle.
While speaking with Mr. Brown, Sergeant McCann detected the odor of
marijuana coming from the sedan.9 He returned to his police car and ran routine
inquiries on his computer, checking whether Mr. Brown’s license and registration
were valid and whether there were any outstanding warrants for his arrest. While he
ran his inquiries, he observed that Mr. Brown had previously been charged with
disregarding a police officer’s signal.10 Based on this name and the charge, Sergeant
McCann realized that Montrez Brown was the same individual who had, several
months earlier, led another police officer in a vehicular pursuit (rather than
7
While Mr. Brown’s license plate is illuminated by Sergeant McCann’s headlights for much of
the MVR recording, at roughly 27 seconds into the video, Mr. Brown’s vehicle turns left outside
of the other vehicle’s light, and the plate appears dark and unreadable. See Ex. 1 at 0:26–27.
Sergeant McCann testified on redirect that he was “about 25 feet” from Mr. Brown’s vehicle at
that time. Hr’g Tr. at 74:6–10.
8
On cross-examination, Sergeant McCann did not agree that Mr. Brown’s vehicle was blocked in.
Rather, his testimony was that if Mr. Brown “backed up to the right he could probably get out of
the parking space” but if “he picked [sic] up straight or to the left he would hit my car.” Hr’g Tr.
at 56:5–6 and 56:14–15.
9
Id. at 21:12–15.
10
See 21 Del. C. § 4103(b) (“Any driver who, having received a visual or audible signal from a
police officer identifiable by uniform, by motor vehicle or by a clearly discernible police signal to
bring the driver’s vehicle to a stop, operates the vehicle in disregard of the signal or interferes with
or endangers the operation of the police vehicle or who increases speed or extinguishes the
vehicle’s lights and attempts to flee or elude the police officer shall be guilty of a class G felony,
with a minimum fine of $575 which may not be suspended.”). Upon the State’s request, the Court
takes judicial notice of the fact that Mr. Brown did have a pending charge for disregarding a police
officer’s signal as of May of 2021. Hr’g Tr. at 79:4–8; see D.R.E. 201(b)(2) (“The court may
judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.”).
3
submitting to a routine traffic stop) and ultimately escaped.11 Sergeant McCann also
testified that he was aware of anonymous but uncorroborated tips that Mr. Brown
might have been involved in “drug dealing and/or possession of a firearm.”12
After completing his routine inquiries, Sergeant McCann returned and asked
Mr. Brown to step out of the vehicle. His stated reason for asking Mr. Brown out of
the vehicle was the odor of marijuana.13 When Sergeant McCanna asked “do you
smoke any marijuana,” Mr. Brown answered that he did.14 When asked if he smoked
marijuana in the car, Mr. Brown answered “sometimes” and admitted to having done
so “a long time ago.”15 Upon further questioning, he also admitted to smoking
marijuana earlier that day while wearing the same clothes.16 However, when asked
directly, he denied that there was any marijuana in the vehicle at the time of the
stop.17
At that point, Sergeant McCann told Mr. Brown that he planned to search the
vehicle and that he would then let him go.18 He asked Mr. Brown to turn around and
attempted to place handcuffs on him. He told Mr. Brown that he was detained (as
opposed to under arrest) and that he was going to have Mr. Brown sit in the back of
the police car while the search was conducted.19 When asked why, Sergeant
11
Hr’g Tr. at 22:8–11 and 23:2. Sergeant McCann explained on cross-examination that
information about this pursuit was shared with all the members of the Governor’s Task Force, of
which Sergeant McCann was a member. Id. at 72:7–10.
12
Id. at 23:9–19.
13
Id. at 53:5–20.
14
Ex. 1 at 6:19–21.
15
Id. at 6:22–29; see also Hr’g Tr. at 55:5–7 (“[Question:] Mr. Brown told you that he had smoked
in that vehicle a long time ago. [Answer:] Correct.”).
16
Ex. 1 at 6:30–34.
17
Id. at 6:36–38.
18
See id. at 6:40–45 (“I’m going to search your car real quick, alright, and then I’m going to get
you on your way. So just turn around for me.”).
19
See id. at 6:50–55 (“Sir, I’m just detaining you right now, that’s all. Okay. I’m just going to have
you have a seat in the back of my car, that’s all, while I check yours, that’s all.”).
4
McCann responded “because it smells like marijuana.”20 Mr. Brown started resisting
at that point, lifting his arms over his head to make it difficult to place the handcuffs
on him. He eventually broke free and fled on foot, with Sergeant McCann in pursuit.
Mr. Brown escaped Sergeant McCann but was later apprehended by other state
troopers.21 Meanwhile, Sergeant McCann searched the vehicle Mr. Brown had left
behind.22 Inside, he found a handgun, an extra magazine and ammunition, and
suspected crack cocaine.23 Mr. Brown has since been charged with multiple offenses
related to the possession of drugs, a firearm, and ammunition.
Mr. Brown submitted a motion on September 8, 2022, moving to suppress “all
illegally obtained evidence in this case including a firearm, ammunition, controlled
substances, paraphernalia, identification, scales, currency, and Defendant statements
including those on a civil asset forfeiture form.”24 Mr. Brown argued in his motion
1) that the initial stop was unsupported by reasonable suspicion25 and 2) that even if
the stop was justified, the subsequent arrest and search of the vehicle were not
supported by probable cause.26 The State argued in its response, filed September 21,
2022, that 1) the stop was supported by reasonable suspicion of an equipment
violation27 and 2) that there was probable cause to search the car based on the odor
of marijuana, Mr. Brown’s admissions, and Sergeant McCann’s knowledge of Mr.
Brown’s criminal history.28 The Court held a suppression hearing on October 19,
2022, at which additional issues were raised, including whether the scope of the stop
20
Id. at 6:57–59.
21
Hr’g Tr. at 32:13–22.
22
Sergeant McCann testified that he “believe[s]” he conducted the search “after [Mr. Brown] was
taken into custody.” Id. at 34:12–15.
23
Id. at 33:14–34:4.
24
Mot. to Suppress.
25
Id. ¶¶ 9–12.
26
Id. ¶¶ 13–19.
27
State’s Resp. to Def.’s Mot. to Suppress ¶ 13.
28
Id. ¶¶ 14–16.
5
exceeded its initial justification and whether the amount of force employed turned
the stop into an arrest requiring probable cause.29
STANDARD
In order to justify a warrantless search and seizure, the State must establish by
a preponderance of the evidence that the officer’s actions complied “with the
requirements of the United States Constitution, the Delaware Constitution, and any
applicable statutes.”30 At a suppression hearing, the Court sits as the finder of fact
and evaluates the credibility of the witnesses.31
DISCUSSION
Both the Fourth Amendment of the United States Constitution and Article I,
§ 6 of the Delaware Constitution guarantee the right to be free from unreasonable
searches and seizures.32 On occasion, the Delaware Supreme Court has interpreted
state constitutional protections to extend beyond their federal counterparts, as
interpreted by the United States Supreme Court.33 However, Delaware courts will
“conduct separate analyses for parallel state constitutional provisions only when a
party produces particular and detailed explanations of why a separate analysis is
appropriate.”34
The events leading to the search of Mr. Brown’s vehicle can be broken into
four distinct phases. First, there was the initial traffic stop to investigate an
equipment violation. Second, the stop was extended to investigate the odor of
marijuana, and Mr. Brown was required to step out of his vehicle. Third, Sergeant
McCann attempted to handcuff Mr. Brown and announced his intent to search the
29
Hr’g Tr. at 99:12–100:14.
30
State v. Garnett, 2021 WL 6109797, at *3 (Del. Super. Dec. 23, 2021).
31
Id.
32
Pollard v. State, 284 A.3d 41, 46 (Del. 2022).
33
Id.
34
Backus v. State, 202 A.3d 1126, 2019 WL 327963, at *3 (Del. 2019) (TABLE).
6
vehicle (prompting Mr. Brown’s immediate resistance and flight). Fourth and
finally, Sergeant McCann searched the vehicle that Mr. Brown had left behind. The
Court will address each in turn.
I. Initial Stop of the Vehicle
Mr. Brown first argues that the initial stop of his vehicle was unsupported by
reasonable suspicion and that it was a pretextual stop, i.e., that Sergeant McCann
stopped his vehicle in the hopes of discovering more serious criminal activity than
an unilluminated license plate.
A traffic stop is a seizure within the meaning of the Fourth Amendment and
Article I, § 6.35 Specifically, a routine traffic stop is a form of investigatory detention
(also known as a “Terry stop”), for which an officer must have reasonable suspicion
of criminal activity.36 Delaware police officers possess statutory authority to
conduct investigatory stops pursuant to 11 Del. C. § 1902, which provides that an
officer may stop a person in a public place when the officer has “reasonable ground
to suspect” that the person is “committing, has committed or is about to commit a
crime.”37 Consistent with constitutional requirements, Delaware courts construe
“reasonable ground” to mean “reasonable and articulable suspicion.”38 Whether an
officer has reasonable suspicion is judged “in the context 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.”39 Moreover, an officer must be able to
35
Diggs v. State, 257 A.3d 993, 1004 (Del. 2021).
36
Id.
37
11 Del. C. § 1902(a).
38
Jones v. State, 745 A.2d 856, 861 (Del. 1999).
39
Diggs, 257 A.3d at 1004 (quoting Jones, 745 A.2d at 861).
7
identify “specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant th[e] intrusion.”40
At the outset, it does not affect the analysis if, as Mr. Brown contends,
Sergeant McCann was motivated in whole or in part by a desire to uncover more
serious criminal activity than a mere equipment violation. Both the United States
Supreme Court and the Delaware Supreme Court have rejected the argument that
“pretextual” stops are unreasonable seizures, so long as objective facts support the
officer’s conclusion that reasonable suspicion existed to investigate even a minor
traffic offense.41
Here, Sergeant McCann had a reasonable and articulable suspicion that Mr.
Brown was violating a traffic law, specifically 21 Del. C. § 4334(c), which requires
a vehicle’s license plate to be illuminated and clearly visible from 50 feet away. The
officer’s testimony that the license plate appeared unilluminated from roughly 25
feet behind the vehicle, which was corroborated by the MVR video, is more than
enough to establish that he had reasonable suspicion to initiate a stop at that time.42
Thus, the initial stop was reasonable and did not violate Mr. Brown’s rights under
the Fourth Amendment or Article I, § 6.
40
Jones, 745 A.2d at 861 (alteration in original) (quoting Coleman v. State, 562 A.2d 1171, 1174
(Del. 1989)).
41
See Whren v. United States, 517 U.S. 806, 813–14 (1996) (rejecting the propositions that “the
constitutional reasonableness of traffic stops depends on the actual motivations of the individual
officers involved” or “whether the officer’s conduct deviated materially from usual police
practices, so that a reasonable officer in the same circumstances would not have made the stop for
the reasons given”); Juliano v. State, 254 A.3d 369, 386–87 (Del. 2020) [hereinafter “Juliano I”]
(concluding that Article I, § 6 of the Delaware Constitution does not compel a different result than
Whren).
42
See Malloy v. State, 462 A.2d 1088, 1091 (Del. 1983) (holding that officers’ inability to “see the
plate at a distance of 75 feet” created reasonable suspicion to stop the car and “to investigate the
possible equipment defect” under 21 Del. C. § 4334(c)).
8
II. Extension of the Stop to Investigate the Odor of Marijuana
That the initial stop was reasonable does not end the inquiry. While an officer
may stop a vehicle to investigate even a seemingly minor traffic violation, the
Delaware Supreme Court held in Caldwell v. State that “[t]he duration and execution
of a traffic stop is necessarily limited by the initial purpose of the stop.”43 In a routine
traffic stop, “[o]nce the officer has issued a citation or warning and has run routine
computer checks, the vehicle must be released unless the driver voluntarily consents
to further questioning or the officer uncovers facts that independently warrant
additional investigation.”44 It is the Caldwell rule, rather than a subjective rule
against pretextual stops, that protects motorists from unreasonable intrusions in the
guise of routine traffic code enforcement.45 The Court must engage in a “a fact-
intensive inquiry to ensure that the pursuit of the investigation unrelated to the traffic
violation is not unreasonably attenuated from the initial purpose of the stop.”46
Here, when Sergeant McCann pulled Mr. Brown over, he had reasonable
suspicion only of an equipment violation. However, when he approached the vehicle
to speak with Mr. Brown, he detected the odor of marijuana. “As a general matter,
‘a trained and experienced police officer can develop a justifiable suspicion when an
untrained lay person might not. This frequently comes into play when an officer
relies upon his sense of smell in suspecting that an illegal substance is present.’”47
43
Caldwell v. State, 780 A.2d 1037, 1047 (Del. 2001) (citing Florida v. Royer, 460 U.S. 491, 498
(1983)).
44
Id.
45
See id. at 1048 (“This standard respects the State’s interest in investigating suspicious conduct
during a valid traffic stop, while restricting police officers’ authority to employ marginally
applicable traffic laws as a device to circumvent constitutional search and seizure requirements.”);
Juliano I, 254 A.3d at 389 (“In striking this balance, Caldwell, in our view, provides an appropriate
measure of protection for motorists against arbitrary police conduct of the kind alleged in this
case.”).
46
Juliano I, 254 A.3d at 389.
47
Juliano v. State, 260 A.3d 619, 630 (Del. 2021) (en banc) [hereinafter “Juliano II”] (quoting
Houston v. State, 251 A.3d 102, 114 (Del. 2021)).
9
While possession of a personal use amount of marijuana is no longer a crime in
Delaware, the odor of marijuana emanating from a recently moving motor vehicle is
indicative of at least two possible criminal offenses: consumption of marijuana in a
moving vehicle48 and driving under the influence.49 However, as discussed in more
detail in Part IV of this opinion, the Delaware Supreme Court recently held in
Juliano II that the odor of marijuana alone is insufficient to establish probable cause
to arrest a vehicle’s occupant.50
Nonetheless, since reasonable suspicion is a less stringent standard than
probable cause, the odor of marijuana may provide reasonable suspicion to extend a
stop even where, as here, it would be insufficient to establish probable cause to
arrest.51 That Sergeant McCann knew Mr. Brown had just been driving the sedan
sets this case apart from State v. Rose, in which this Court held, based on the analysis
in Juliano II, that where officers detected the odor of marijuana emanating from a
parked vehicle and the “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.”52 Here, based on the odor of
marijuana emanating from a recently moving vehicle, it was reasonable for Sergeant
McCann to extend the stop to question Mr. Brown about the timing and extent of his
marijuana use. Moreover, the possible innocent explanations for the odor provided
48
16 Del. C. § 4764(d).
49
21 Del. C. § 4177(a)(2).
50
Juliano II, 260 A.3d at 631.
51
See In re D.D., 277 A.3d 949, 964 (Md. 2022) (“[A] particular circumstance or set of
circumstances may satisfy the reasonable suspicion standard but fall short of probable cause. That
is precisely the case with respect to the odor of marijuana.”); Lefebvre v. State, 19 A.3d 287, 295
(Del. 2011) (“[T]he commission of a traffic offense combined with an odor of alcohol, standing
alone, do not constitute probable cause to arrest for a DUI offense. Nevertheless, those two facts
may give rise to a reasonable suspicion of DUI and justify a request that the driver perform some
field sobriety tests.” (internal citation omitted)).
52
2022 WL 2387803, at *6 (Del. Super. June 30, 2022).
10
by Mr. Brown do not negate reasonable suspicion—it is well established that
“reasonable suspicion ‘need not rule out the possibility of innocent conduct.’”53
Finally, Sergeant McCann did not require any additional evidence of criminal
activity, beyond that justifying the extension of the stop, to order Mr. Brown out of
the vehicle. The United States Supreme Court held in Pennsylvania v. Mimms that
an officer does not need an independent justification to order a driver out of a vehicle
under the Fourth Amendment because the additional intrusion, beyond the stop
itself, is “de minimis.”54 The Delaware Supreme Court has yet to hold that Article
I, § 6 compels a different result, and Mr. Brown has not offered a “particular and
detailed” explanation as to why the Delaware Constitution would require more of an
officer to justify ordering a driver out of his vehicle.55 Thus, under the facts of this
case, Sergeant McCann was allowed to extend the stop and to order Mr. Brown out
of the vehicle.
III. Attempt to Handcuff Mr. Brown
Mr. Brown next argues that when Sergeant McCann attempted to handcuff
him, this show of force, combined with the placement of the police car behind his
vehicle, was in effect an arrest without probable cause. Mr. Brown is correct that
“[a]n unreasonably intrusive stop may constitute a de facto arrest requiring probable
53
West v. State, 143 A.3d 712, 717–18 (Del. 2016) (quoting Moore v. State, 997 A.2d 656, 667
(Del. 2010)); see also State v. Francisco Perez, 239 A.3d 975, 984 (N.H. 2020) (“Reasonable
suspicion may be based upon activity that is consistent with both guilty and innocent behavior.”).
54
See Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (“The driver is being asked to expose to
view very little more of his person than is already exposed. The police have already lawfully
decided that the driver shall be briefly detained; the only question is whether he shall spend that
period sitting in the driver’s seat of his car or standing alongside it.”); cf. Backus, 2019 WL 327963,
at *2 (“If an officer can ask a legally stopped driver to exit his vehicle as a matter of course for the
officer’s safety, then, a fortiori, an officer can certainly ask a legally stopped driver to exit his
vehicle when, as here, the officer has a particularized concern for his safety.”).
55
See Backus, 2019 WL 327963, at *3 (declining to “decide whether Article I, § 6 of the Delaware
Constitution produces a different result” because the defendant had “not made any particular
argument that Delaware’s search-and-seizure protections compel a different conclusion than
federal search-and-seizure protections”).
11
cause.”56 For example, in Darling v. State, the Delaware Supreme Court found that
under the “unique circumstances” of that case, in which police carried out “a plan to
surround Darling at gunpoint and order him to the ground,” the officers’ actions went
beyond an investigatory stop and “constituted an arrest under both the United States
Constitution and the Delaware Constitution.”57 This distinction “between a ‘stop’
and an ‘arrest’ is important because an arrest requires probable cause—more than
reasonable, articulable suspicion—in order to be reasonable.”58 A Terry stop crosses
the line to become a de facto arrest “when a reasonable person in the suspect’s
position would have understood the situation to constitute a restraint on freedom of
movement of the degree which the law associates with formal arrest.”59 Mr. Brown
points to two aspects of the stop in particular that he argues make it more akin to a
formal arrest: Detective McCann’s (failed) attempt to handcuff him and the
placement of the police car, which he argues blocked him into the parking spot.
There are no bright line rules for determining when handcuffs may be used in
a Terry stop. However, it is well-settled that there is no per se rule that handcuffs
transform a stop into an arrest.60 As the Delaware Supreme Court stated in Flowers,
56
Flowers v. State, 195 A.3d 18, 25 (Del. 2018); see also United States v. Johnson, 592 F.3d 442,
447–48 (3d Cir. 2010) (“In certain circumstances, it can be difficult to distinguish between
a Terry stop, which requires only reasonable suspicion, and a de facto arrest, which must
be supported by probable cause.”).
57
768 A.2d 463, 465 (Del. 2001).
58
Flowers, 195 A.3d at 25.
59
State v. Murray, 213 A.3d 571, 577 (Del. 2019) (quoting Sornberger v. City of Knoxville, 434
F.3d 1006, 1017 (7th Cir. 2006)).
60
See United States v. Coker, 223 Fed. Appx. 136, 141 (3d Cir. 2007) (“[T]here is no per se rule
that pointing guns at people or handcuffing them constitute[s] an arrest.” (alteration in original)
(quoting Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995))); United States v. Fornia-
Castillo, 408 F.3d 52, 64 (1st Cir. 2005) (“[N]either the use of handcuffs nor the drawing of a
weapon necessarily transforms a valid Terry stop into a de facto arrest.”); United States v. Laing,
889 F.2d 281, 285 (D.C. Cir. 1989) (“The amount of force used to carry out the stop and search
must be reasonable, but may include using handcuffs or forcing the detainee to lie down to prevent
flight, or drawing guns where law officers reasonably believe they are necessary for their
protection.” (internal citations omitted)); United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983)
12
“[a] Terry stop does not turn into a full arrest merely because the officers use
handcuffs and force the suspect to lie down to prevent flight, so long as the police
conduct is reasonable.”61 Other courts have observed that “the trend developing
since Terry has been to include within the rubric of investigatory stops in some
circumstances ‘the use of handcuffs, the placing of suspects in police cruisers, the
drawing of weapons and other measures of force more traditionally associated with
arrest than with investigatory detention.’”62 On the other hand, courts have
cautioned that handcuffs substantially aggravate the intrusiveness of a stop and must
be justified by the particular circumstances, and may not be used as a matter of
course.63
(“[T]he use of handcuffs, if reasonably necessary, while substantially aggravating the intrusiveness
of an investigatory stop, do [sic] not necessarily convert a Terry stop into an arrest necessitating
probable cause.”).
61
Flowers, 195 A.3d at 25 (alteration in original) (quoting United States v. Jones, 973 F.2d 928,
931 (D.C. Cir. 1992)).
62
People v. Archuleta, 980 P.2d 509, 513 (Colo. 1999) (en banc) (quoting United States v. Tilmon,
19 F.3d 1221, 1224–25 (7th Cir.1994)).
63
See United States v. Bailey, 743 F.3d 322, 340 (2d Cir. 2014) (“[J]ust as the law does not
categorically assume that handcuffing transforms every stop into an arrest, so the law does not
categorically assume that every investigatory stop related to particular crimes requires handcuffing
. . .”); Reynolds v. State, 592 So. 2d 1082, 1085 (Fla. 1992) (“We do not suggest that police may
routinely handcuff suspects in order to conduct an investigative stop. Whether such action is
appropriate depends on whether it is a reasonable response to the demands of the situation.”).
Some jurisdictions’ formulations of the rule for de facto arrest appear to require a specific showing
of danger to the officer. See, e.g., Reagan v. Idaho Transp. Dep’t, 502 P.3d 1027, 1035 (Idaho
2021), as amended (Mar. 23, 2021) (“[T]he threshold for showing that handcuffs were a reasonable
precaution for officer safety is high.”); People v. King, 16 P.3d 807, 814 (Colo. 2001) (“[I]n order
to characterize a forceful encounter as an investigatory stop, the prosecution must establish the
existence of specific facts or circumstances that render the degree of force used a reasonable
precaution for the protection and safety of the investigating officers.”); Bailey, 743 F.3d at 340
(“The relevant inquiry is whether police have a reasonable basis to think that the person detained
poses a present physical threat and that handcuffing is the least intrusive means to protect against
that threat.”). However, those cases do not address the use of handcuffs where there was little
particularized danger to the officer but specific reasons to worry that the suspect might flee. The
Court in Bailey, for example, left open “the possibility that, in other cases, the government may be
able to point to circumstances supporting a reasonable basis to think that even an unarmed person
poses a present physical threat or flight risk warranting handcuffing.” Id. (emphasis supplied).
13
In sum, whether a show of force, including the use of handcuffs, is reasonable
depends on the specific facts of the case.64 Courts to address this issue have
identified a wide range of relevant factors, including, inter alia, the nature of the
suspected crime, the suspect’s behavior, the length and location of the stop, the time
of day, and the number of officers and police cars involved.65 However, the
touchstone of the analysis is ultimately the reasonableness of an officer’s actions in
light of the totality of the circumstances, making some “allowance for the fact that
police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is
necessary in a particular situation.”66
Here, the number of officers (one) and time of day (11 p.m.) weigh in favor
of Sergeant McCann’s decision to use handcuffs. Moreover, while Mr. Brown was
initially cooperative, Sergeant McCann knew of a specific incident in which Mr.
Brown had fled instead of submitting to a routine traffic stop, giving rise to a
reasonable inference that he might attempt something similar again. In addition, the
duration of the stop (whatever it might have been had Mr. Brown not fled and
escaped) was only a few minutes, and Mr. Brown spent no time at all actually
handcuffed or in the back of Sergeant McCann’s police vehicle.
Maryland’s intermediate appellate court dealt with comparable facts in Trott
v. State.67 In that case, an officer, while patrolling alone on foot at night, stopped a
burglary suspect on the side of the street.68 The officer radioed for backup, and when
64
See State v. Parks, 95 A.3d 42, 50 (Del. Super. 2014) (“[T]here has been and can be no bright
line drawn between the permissible and impermissible degree of force or modes of restraint for an
investigative detention. Instead, whether the means used to effect or the circumstances of an
investigatory stop were reasonable must be decided on a case-by-case basis.” (internal citation
omitted)).
65
Flowers, 195 A.3d at 29 n.46 (collecting cases and factors).
66
Id. at 29 (quoting Graham v. Connor, 490 U.S. 386, 396–97 (1989)).
67
770 A.2d 1045 (Md. Ct. Spec. App. 2001).
68
Id. at 1048.
14
he gave the suspect’s name, was warned “to hold on to him, because he was going
to run.”69 The officer, worried that the suspect was getting nervous and might have
overheard the radio transmission, placed him in handcuffs.70 The court in Trott
emphasized that “[r]easonable force may be used to prevent a suspect’s flight, and
such force may include handcuffing that suspect.”71 The court found under those
circumstances that the officer’s “use of handcuffs was a justifiable part of his Terry
stop,” in light of, as relevant here, the time of day, that the officer was alone, and the
risk that the suspect might flee.72 Here, like the officer in Trott, Sergeant McCann
was alone at night with a suspect whom he had reason to believe might attempt to
escape an investigatory stop.
Thus, the Court is persuaded that Sergeant McCann’s attempt to place Mr.
Brown in handcuffs was reasonable under the facts and thus did not rise to the level
of a de facto arrest. This does not mean that Delaware police may routinely employ
handcuffs when conducting traffic stops, absent probable cause to arrest.73
However, in the Court’s view, it is especially significant that Sergeant McCann knew
that Mr. Brown had previously led an officer on a vehicular chase and successfully
escaped a traffic stop. This fact, combined with the fact that the officer was alone
with a suspect at night, in the vicinity of a high-crime neighborhood, and preparing
to conduct a search of the vehicle (lawfully, as explained below), leads the Court to
69
Id. at 1048–49.
70
Id.
71
Id. at 1062.
72
Id. at 1063. Trott was later distinguished by Maryland’s highest court in a case in which “there
was no reason to believe that [the suspect] was a flight risk” and “the incident occurred in the
middle of the day.” Longshore v. State, 924 A.2d 1129, 1145 (Md. 2007).
73
See Trott, 770 A.2d at 1063 (“This is not to suggest that every time a police officer handcuffs a
suspect that that restraint is not an arrest. In fact, in most instances, placing a suspect in handcuffs
does amount to an arrest, which must then be supported by probable cause.”).
15
conclude that the use of handcuffs was reasonably calculated to preserve the status
quo and to prevent any attempted flight by Mr. Brown.74
As to the positioning of his vehicle, Sergeant McCann agreed that he was
parked behind Mr. Brown’s vehicle and that Mr. Brown could have hit the police car
if he backed out “[d]epending [on] which way he turned his car” but did not agree
that “the vehicle was blocked into the parking space.”75 Given this equivocal
testimony, the Court is not persuaded that the respective positions of the vehicles
significantly aggravated the intrusiveness of the stop. In any event, as with the use
of handcuffs, limiting Mr. Brown’s ability to make or attempt a quick getaway was
reasonable under the circumstances. In sum, at the point at which Mr. Brown fled
the scene, he was merely stopped, not under arrest, and thus Sergeant McCann did
not need probable cause to arrest in order to justify his actions at that point in the
encounter.76
IV. Warrantless Search of the Vehicle
Finally, Mr. Brown argues that the search of his vehicle was unreasonable and
violated the Fourth Amendment and Article I, § 6. Police may conduct a warrantless
74
Cf. Parks, 95 A.3d at 51 (finding that the “immediate use of handcuffs [was] a reasonable step
to ensure [the suspect] was secure before investigating further” where officers encountered him at
night on a dark bike path).
75
Hr’g Tr. at 69:3–9.
76
Even if the Court were to conclude that the encounter ripened into a de facto arrest without
probable cause, it does not follow that suppression of evidence would be required under the
circumstances presented here. As explained in Part IV of this opinion, the search of the vehicle
stands on its own based on the information known to Sergeant McCann before he attempted to
handcuff Mr. Brown. Therefore, suppression of the evidence found in the vehicle would not be
warranted. Moreover, under the inevitable discovery doctrine, “evidence obtained in the course
of illegal police conduct will not be suppressed so long as the prosecution can prove that the
evidence ‘would have been discovered through legitimate means in the absence of official
misconduct.’” Roy v. State, 62 A.3d 1183, 1189 (Del. 2012) (quoting Cook v. State, 374 A.2d 264,
267–68 (Del. 1977)). Since Sergeant McCann would have had probable cause to arrest Mr. Brown
after finding the firearm and suspected cocaine in the vehicle, the evidence obtained in the course
of Mr. Brown’s flight and subsequent arrest would have been discovered regardless of when
precisely in the encounter the arrest occurred.
16
search of a vehicle so long as they “have probable cause to believe that an automobile
is carrying contraband or evidence.”77 This inquiry is distinct from whether probable
cause exists to arrest—the question with respect to a search is “whether contraband
or evidence will be found in a particular location” rather than “whether a criminal
offense has been or is being committed by the person to be arrested.”78 Probable
cause, like reasonable suspicion, is determined by “evaluating the totality of the
circumstances.”79
Since this case involves a vehicle search based in part on the odor of
marijuana, a brief discussion of recent developments in Delaware law provides an
important backdrop. In 2015, the General Assembly passed into law 16 Del. C. §
4764, which decriminalizes possession of marijuana by adults in personal use
quantities but leaves in place a civil penalty for possession and provides that
marijuana is still subject to civil forfeiture.80 Consumption of marijuana in a moving
vehicle also remains a criminal offense.81 Since then, the Delaware Supreme Court
has issued several decisions clarifying the impact of this legislation on the role that
the odor of marijuana can have in establishing probable cause to justify a search or
seizure.
77
State v. Terry, 227 A.3d 555, 2020 WL 1646775, at *2 (Del. 2020) (TABLE) (quoting Tatman
v. State, 494 A.2d 1249, 1253 (Del. 1985)). This exception to the warrant requirement does not,
contrary to Mr. Brown’s assertion, require the State to prove that exigent circumstances existed.
See id. (“[T]here is no requirement of exigent circumstances to justify such a warrantless search.”
(quoting Tatman, 494 A.2d at 1253)); State v. DuBose, 2016 WL 1590583, at *8 (Del. Super. Apr.
18, 2016) (“Delaware no longer requires a proof of a particular exigency as the mobility of an
automobile is a sufficient exigency to satisfy the requirement.”), aff’d, 152 A.3d 582 (Del. 2016)
(TABLE).
78
Dorsey v. State, 761 A.2d 807, 812 (Del. 2000) (“Probable cause to search and probable cause
to arrest are not fungible legal concepts.”).
79
Pollard, 284 A.3d at 46 (quoting Valentine v. State, 207 A.3d 166, 2019 WL 1178765, at *2
(Del. 2019) (TABLE)).
80
16 Del. C. § 4764(c)(1) and (2); Rose, 2022 WL 2387803, at *5.
81
16 Del. C. § 4764(d).
17
In Valentine v. State, the Delaware Supreme Court upheld a vehicle search
after officers smelled marijuana, emphasizing that “[m]arijuana was, and remains,
contraband subject to forfeiture.”82 Thus, the decriminalization of personal use
possession did “not render marijuana odors, raw or burnt, irrelevant to
determinations of probable cause.”83 On the facts presented, the Court concluded
that the odor of marijuana, combined with the vehicle’s excessive speed and the fact
that it was 1 a.m., was sufficient to establish probable cause to believe that the car
“contained contraband, in particular, marijuana.”84
However, the Court later held in Juliano II that the odor of marijuana in a
vehicle does not alone establish probable cause to place an occupant of the vehicle
under arrest.85 In that case, since the defendant was a passenger and not the owner
of the car, she lacked standing to challenge the search of the vehicle. The court
therefore declined to address “whether the odor of marijuana provided sufficient
probable cause for that search.”86 Thus, the actual holding in Juliano II is a narrow
one, that “under the totality of the circumstances presented by the State in this
unusual case, including the vagueness of the officers’ description of the marijuana
odor, the timing of their detection of that odor, and the absence of any other
observations indicative of criminality, Juliano’s arrest was unreasonable and
therefore violates” the Fourth Amendment and Article I, § 6.87 However, the
analysis in Juliano II suggests that, at least where probable cause is based on
suspicion of criminal activity, courts “must identify the crimes that an objectively
reasonable police officer might suspect to a fair probability” and analyze whether
82
2019 WL 1178765, at *2 (citing 16 Del. C. § 4764(c)).
83
Id.
84
Id.
85
Juliano II, 260 A.3d at 631.
86
Id. n.60.
87
Id. at 622.
18
the odor of marijuana is sufficiently indicative of those crimes under the specific
facts of the case.88
More recently, however, in Pollard v. State, the Delaware Supreme Court
reaffirmed Valentine, indicating that it, rather than Juliano II, governs vehicle
searches.89 In Pollard, the Supreme Court found that under the totality of the
circumstances, “the odor of marijuana emanating from the vehicle, the marijuana
remnants in the console and on the floor of the vehicle, and a larger nugget of
marijuana in the console of the vehicle” were together sufficient to establish
probable cause that the vehicle “contained contraband or evidence of criminal
activity, including consumption of marijuana in a moving vehicle in violation of 16
Del. C. § 4764(d).”90 Nowhere in Pollard does the Court explicitly say either that
the smell of marijuana would—or would not—have been sufficient to justify the
search without the nuggets of marijuana lying in plain view.91
As the foregoing cases show, the distinction between probable cause to arrest
and probable cause to search is especially important when officers search for
marijuana, because marijuana is civil contraband subject to seizure even when
possession is not a crime. Thus, on the facts of this case, a search could be justified
by a fair probability that the car contained evidence of a crime (e.g., driving under
88
Id. at 631–34 (identifying and discussing each of the five “crimes that an objectively reasonable
police officer might suspect to a fair probability Juliano had committed based solely on the odor
of marijuana.”).
89
See Pollard, 284 A.3d at 47 (“[T]he question is whether these facts are sufficient to establish
that the officers had probable cause to believe Pollard’s vehicle contained contraband or evidence
of criminal activity. We conclude that, Valentine v. State, not Juliano, dictates the answer to this
question.”).
90
Id.
91
The Supreme Court simply noted that Pollard’s assertion that “officers conducted the vehicle
search based solely on the odor of marijuana . . . does not in any way address the record developed
at trial.” Id. at 46.
19
the influence or consumption of marijuana in a moving vehicle) or by a fair
probability that there was marijuana in the car.
The State’s position is that the odor of marijuana alone is sufficient to
establish probable cause to search a vehicle for marijuana. However, neither
Valentine nor Pollard relied on the odor of marijuana alone, and the Court need not
do so in this case. In addition to the odor of marijuana, the State points to Mr.
Brown’s previous flight from a traffic stop and his admissions to having smoked
marijuana in the same clothes earlier in the day and to having smoked in the car at
some point.92
A comparison to the facts of Valentine is instructive. The specific holding in
that case was that “[t]he totality of the circumstances, including Valentine’s speed
92
Closing arguments at the suppression hearing also addressed the issue of whether Mr. Brown’s
resistance and flight immediately after learning that Sergeant McCann intended to search the car
could aid in establishing probable cause to search the car. While the Court has identified no
controlling Delaware authority on this point, it finds persuasive the reasoning of the Fourth Circuit
Court of Appeals in United States v. Saafir, in which that court held that “an officer may not
manufacture probable cause by unlawful means, including by way of a false claim of legal
authority that constitutes a threat to violate the Fourth Amendment.” 754 F.3d 262, 266 (4th Cir.
2014) (per curiam). In that case, the court concluded that where an officer’s assertion that he had
probable cause to search a vehicle (when he in fact did not) elicited incriminating statements from
a suspect, those statements could not then be relied upon to establish the probable cause the officer
had lacked before. Id. at 265–66. The court reasoned that “a search is unreasonable—and so
violates the Fourth Amendment—if its justification is grounded in officers[’] ‘engaging or
threatening to engage in conduct that violates the Fourth Amendment.’” Id. at 266 (quoting
Kentucky v. King, 563 U.S. 452, 462 (2011)); see also State v. Ellis, 279 So. 3d 901, 902 (La.
2019) (per curiam) (“[D]efendant’s inculpatory statement and the evidence obtained by the deputy
following the threat of an involuntary search of her person without probable cause, in violation of
the Fourth Amendment, are not admissible”). While Saafir is not binding on this Court, its
reasoning is consistent with the principles underlying the Delaware Supreme Court’s ruling in
Jones v. State, in which it held that “[i]f 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.” Jones, 745 A.2d at 874.
Accordingly, the Court will limit its probable cause inquiry to the time at which Sergeant McCann
stated his intent to search—if, at that time, he had probable cause to search, then the search was
lawful, and if he did not yet have probable cause, then the threat to search cannot be used to
“manufacture” probable cause that was otherwise lacking.
20
(32 miles per hour above the speed limit), the time of day (1 a.m.), and the odor gave
[the officer] probable cause to believe that Valentine’s car contained contraband, in
particular, marijuana.”93 Here, as in Valentine, the odor of marijuana and the time
of day both support a finding of probable cause. Moreover, Mr. Brown’s admissions
as to where and when he smoked marijuana have a closer nexus to the possible
presence of marijuana than the third factor credited by the Supreme Court in
Valentine, that the suspect was speeding.
From the odor and these admissions, Sergeant McCann could infer that Mr.
Brown was a regular user of marijuana and knew that he had consumed marijuana
recently (that day) and that he had previously consumed marijuana in the vehicle.
Taken together, these facts establish a “fair probability” that Mr. Brown might at
very least have had marijuana in the vehicle, even if he was not actively under the
influence or consuming it while the vehicle was moving. Moreover, following those
admissions, Mr. Brown could not then negate probable cause by responding, when
asked directly if he had marijuana in the car, with the self-serving answer that he did
not. A fair probability that there was marijuana in the vehicle is all that is required
under Valentine and Pollard. The Court is satisfied that the State has met that burden
here.
CONCLUSION
In summary, the Court concludes (1) that Sergeant McCann had reasonable
suspicion to initiate the traffic stop to investigate a violation of 21 Del. C. § 4334(c);
(2) that he had reasonable suspicion to extend the traffic stop based upon the odor of
marijuana; (3) that it was reasonable to use handcuffs to prevent the possibility of
flight under the specific facts of this case; and (4) that the totality of the
circumstances, including the odor of marijuana, Mr. Brown’s admissions, and his
93
Valentine, 2019 WL 1178765, at *2.
21
criminal history, together established probable cause for Sergeant McCann to search
the vehicle. Accordingly, the motion to suppress is DENIED.
22