Alex J. Smalls Chief Judge
Allison Abessinio, Esquire
Deputy Attorney General
Department of Justice
820 North French Street
Wilmington, DE 19801
Attorney for the State Richard B. Ferrara, Esquire
Ferrara & Haley
1716 Wawaset Street
Wilmington, DE 19806
Attorney for Defendant DECISION ON DEFENDANT'S MOTION TO SUPPRESS
Defendant, Dennis P. Drain, hereinafter ("Drain") brings this motion pursuant to Court of Common Pleas Criminal Rule 12 to suppress his arrest and detention for Driving While Under the Influence of Alcohol. Drain alleged the State did not have reasonable articulable suspicion to approach his vehicle. Additionally, Drain argues that the facts fail to establish a basis for the Court to find probable cause for the arrest.
The facts indicate that on January 25, 2013 at approximately 11:30 p.m., Cpl. Joshua Marley of the Delaware State Police was dispatched to the Wawa store on Naamans Road regarding a person asleep in a red Ford 250 truck in the parking lot. When he arrived, he observed a vehicle which fit that description parked in front of the store with a male sleeping upright in the driver seat. The vehicle was not running. He approached the vehicle, knocked on the window, and after approximately 30 seconds to one (1) minute, Drain woke up and opened the driver's side door of the vehicle.
Cpl. Marley testified when the door to the vehicle opened, he detected a strong odor of alcoholic beverage and saw keys on the floor directly below the defendant's legs. The defendant appeared confused. When the defendant exited the vehicle, he stumbled slightly using the door for balance. Cpl. Marley testified also he observed the defendant's eyes were glassy and watery, and his clothing was somewhat in disarray. His speech was fair and he had no difficulty understanding his words. They walked to the rear of the defendant's vehicle and he did not experience any difficulty walking. However, while waiting to administer the field test, defendant had difficulty maintaining his balance.
When asked where he had come from, the defendant stated he came from home to the Wawa to get milk for his cream of wheat. When asked how much he had to drink, the defendant stated he had red wine and two shots of Crown Royal at home.
Cpl. Marley testified he administered the non-NHTSA approved alphabet test where defendant was asked to recite letters a to r, which he missed and transposed the letters. He administered the approved NHTSA Horizontal Gaze Nystagmus (HGN) test. The test was administered in the Wawa parking lot, which was moderately lit; therefore, he used his flashlight for illumination. He checked the defendant's eyes for false positives and equal size. He also explained the basis of the test.
In administering the HGN, Cpl. Marley testified he used his pen 12-15 inches from the defendant's nose, slightly above the eye, and instructed him to follow the tip of the pen with his eyes and not turn his head. He stated he was looking for 6 clues, 3 clues in each eye, lack of smooth pursuit, distinct and sustained Nystagmus at maximum deviation, and onset of Nystagmus at 45 degrees. At the conclusion, he detected 3 clues in each eye for a total of 6 clues.
Cpl. Marley testified that he did not administer the walk-and-turn test and the balance test because the NHTSA instruction that such test should not be administered to individuals 65 and older.
During cross examination, Cpl. Marley testified the parking lot was fairly well lit, however, his report reflected the area was dark well-lighted. He stated the flashlight was used for safety reasons. Also, the vehicle was not running and the keys were on the floor board. He did not check the engine to determine if it was warm to the touch. He did not use the keys on the floor board to attempt to start the vehicle. Additionally, he was not present at any time when the vehicle was started or attempted to be started. He stated he was not certain he was there when the vehicle was towed. The only information that the keys would start the vehicle is the fact that they were on the floor board. He also testified he was not aware of the "community caretaker doctrine.
Cpl. Marley testified he asked the defendant where he was coming from. The odor of alcohol was present the entire time, but may have dissipated after the defendant was out of the vehicle for a period. The Officer also testified that he did inquire of any head injuries, and during the HGN test, he used his flashlight. The defendant did not have any difficulty walking to the rear of the vehicle. The defendant informed him that he had prior injuries.
On re-direct, Cpl. Marley testified it never occurred to him to attempt to use the keys to start the vehicle.
Analysis
When considering a motion to suppress evidence under Court of Common Pleas, Criminal Rule 12(b)(3), the State bears the burden of establishing that the challenged search and seizure comport, with federal and state constitutional rights and Delaware statutory law. State v. Porter 2004 WL 2415166, (Del. Super.) State v. Frank, C.A. No. 1209000032, J. Davis (Del. Super.), 2014. The burden of proof is by a preponderance of the evidence.
Drain argues that the initial intrusion must be suppressed because the Officer did not have reasonable articulable suspicion that he had committed or was about to commit an offense. Before the Court addressed the issue whether the stop is supported by reasonable articulable suspicion or otherwise justified, it must determine whether a stop actually occurred. A person is stopped or seized when the officer, by means of show of authority, has in some way restrained the liberty of an individual. The determination focuses its inquiry on whether a reasonable person would have believed that he or she was not free to ignore the police presence. In these proceedings, Trooper Marley testified that after he knocked on defendant's truck window, he directed the defendant to get out of the vehicle. Therefore, the defendant was stopped or detained because no reasonable person would believe he was free to disregard this order by the police.
Once it is clear that a stop occurred, the State is required to provide legal justification for such intrusion. Here, the State argues that the Trooper approached the vehicle because of a call that a man was sleeping in the vehicle in a Wawa parking lot. Thus, in essence, the State relies upon the Community Caretaker Doctrine as a basis for the stop.
The Delaware Supreme Court concluding the role of the police in a modern society is not limited merely to the detection and prevention of criminal activity, but also encompasses a non-investigative, non-criminal role to ensure the safety and welfare of our citizens, adopted the Community Caretaker Doctrine, in State v. Williams, 962 A.2d 210 (Del. Supr. 2008). The Court stated, to ensure that investigations conducted in Delaware under this doctrine are reasonable, it outlined three elements:
(1) First, if there are objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in apparent peril, distress, or need of assistance, the officer may stop and investigate for the purpose of assisting the person.
(2) Second, if the citizen is in need of aid, then the officer may take appropriate action to render assistance to mitigate peril.
(3) Third, once however, the officer is assured that the citizen is not in peril or is no longer in need of assistance or that peril has been mitigated, the caretaking function is over and any further detention constitutes an unreasonable seizure unless the officer has a warrant, or some exception to the warrant requirement applies, such as a reasonable, articulable suspicion of criminal activity.
Under this doctrine, the initial inquiry focused on the reason for the Officer's decision to approach the defendant. Here, the Officer was dispatched on a call that a person was sleeping in a vehicle. Any reasonable officer would think that a person in a vehicle in a parking lot may have suffered a medical emergency or some other peril which requires attention. Further, when the Officer arrived, he observed the defendant asleep as reported. It was reasonable for him to inquire further and knocking on the window to arouse him is reasonable and prudent. Therefore, the first element of the doctrine is met and supported by the facts.
Defendant argues, however, that since the Officer had no knowledge of the Community Caretaker Doctrine, the State cannot rely upon this as a basis to support the initial stop. This argument is misplaced because the first element of the doctrine does not require the Officer to have personal knowledge thereof. Reliance thereon is determined upon an analysis of the Officer's subjective actions reviewed objectively of whether an experienced officer would believe the citizen is in peril. Here, the facts are such that a reasonable officer would inquire into defendant's sleeping in the truck.
The second element of the doctrine does not require analysis because the facts do not indicate the defendant was in need of assistance, even though the initial facts support the intrusion
The third element of the doctrine requires that when the Officer is assured by the facts that a peril no longer exists, no further detention is justified unless by independent facts which support reasonable articulable suspicion of criminal activity. Here, the Trooper testified when the defendant opened the truck door, he immediately smelled a strong odor of alcohol and observed keys on the vehicle floor between the driver's legs. These facts, when considered with the dispatch call, are sufficient for a reasonable officer to inquire further. Therefore, defendant's motion to suppress the initial detention is denied.
Defendant also moves to suppress on the arrest on the basis the Trooper did not have probable cause at the time he was taken into custody. The Trooper testified when he first observed the defendant, he was asleep in the driver's seat of the vehicle. He knocked on the window and it took a few minutes to wake the defendant. When he asked him out of the truck, he stumbled as he exited the vehicle. The defendant's eyes were watery and glazed, and his clothing was somewhat disarranged. When asked whether he had been drinking, he stated he had some wine and two drinks of Crown Royal alcoholic beverage at home.
The Trooper administered the alphabet test and the HGN test. NHTSA has not determined there is no correlation in one's performance on the alphabet test and impairment. Therefore, considering the results of defendant's performance on this test, it is of little value. The Trooper also testified he administered the HGN test and detected six (6) clues, which indicate the presence of alcohol. He did not administer the Balance nor the Walk-and-Turn tests because of defendant's age and indication he had a prior back injury. The result of the HGN test, watery eyes, strong odor of alcohol, stumbling when exiting the vehicle, disarranged clothing, and asleep in the parking lot of a convenience store, is sufficient for a reasonable officer to conclude a driver was impaired and to take him into custody for further testing.
The final issue raised by defendant is that the State failed to establish he had physical control of the vehicle. Defendant argues that there were no keys in the ignition, the Trooper did not check to determine if the engine was warm, as evidence of recent driving, and further there is no evidence that the keys in the vehicle could start the vehicle in which he was sleeping.
The conduct which constitutes physical control as that term is used in 21 Del. C. § 4177(c)(3) has been the subject of numerous judicial decisions in this State. The Delaware Supreme Court in Bodner v. State, 752 A.2d 1169 (Del. Supr. 2000) held:
"The broadest conduct that has been criminalized by the General Assembly is having actual, physical control of a vehicle that is capable of being driven or operated on Delaware's highways by a person who is under the
influence of alcohol. Conversely, a person cannot be properly convicted of driving while under the influence of alcohol by having actual physical control of an inoperable motor vehicle. Temporary inoperability however does not necessarily preclude criminal liability. Consequently, the nature and duration of the motor vehicle's inoperability is a factor that must be evaluated by the trier-of-fact with all the other surrounding circumstances."
Defendant argues relying upon Bodner that because the trooper did not use the keys on the floor to attempt to start the vehicle, the State is unable to prove that the vehicle was operable. This argument however overlooks the fact that the vehicle was parked at a convenient store and defendant stated he had just come from home to get milk.
This case is more similar to the facts in Baker v. state, 2002 WL 128728 (Del. Super.) where the Court held:
When considering whether or not the defendant was in physical control of the motor vehicle, the fact finder may consider the following:
1) The defendant's location in or by the vehicle,
2) The location of the ignition keys;
3) Whether the defendant had been a passenger in the vehicle before it came to rest;
4) Who owned the vehicle;
5) The extent to which the vehicle was operable; and
6) If inoperable, whether the vehicle might have been rendered operable without too much difficulty, so as to be a danger to persons or property.
In this case the keys were found on the floor, given they were not used to attempt to start the vehicle. But, the defendant was behind the vehicle, the vehicle was parked directly in front of the store, and the defendant stated he had just come from home to get milk. Additionally, there are no facts to indicate the vehicle was inoperable. Based upon these facts, there is a sufficient basis to conclude the defendant was in physical control of the vehicle.
Accordingly, the defendant's motion to suppress his arrest is DENIED.
So Ordered
/s/_________
Alex J. Smalls
Chief Judge Drain-OP (Mot to Supp.) - Mar 2014