State v. Bordley ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELA\VARE
STATE OF DELAWARE,
ID No. 1701018212
v. : In and F or Kent County
ERICK G. BORDLEY,
Defendant.
_929 A.2d 390(De1. super. ct. 2006).
proper scope of the traffic stop. For these reasons, Mr. Bordley argues the evidence
should be suppressed.
8. The State responds that the traffic stop was validly initiated and that
Officer Macauley had reasonable suspicion to further detain Mr. Bordley until a K-9
unit could arrive and perform a dog sniff on the vehicle. The State bases this finding
of reasonable suspicion on (l) nervousness, (2) use of a rental vehicle, (3) criminal
history, (4) presence in a high-crime area, (5) unsatisfactory answers to the officer’s
questions, and (6) driving in a circuitous fashion.
9. The burden is on the State to justify a warrantless search or seizure.2 In a
suppression hearing, the Court sits as the finder of fact and evaluates the credibility of
the witnesses.3 The party with whom the burden rests must persuade the Court by a
preponderance of the evidence.4
10. Police are authorized to rely on an informant’s tip 5 as a basis for
probable cause or reasonable suspicion, when shown to be reliable or trustworthy
through the tip’s specificity, corroboration by other facts within the officer’s
knowledge, and ability to predict the future behavior of the suspect. 6
2 State v. Holmes, 2015 WL 5168374, at *3 (Del. Super. Ct. Sept. 3, 2015) ajj"d 149 A.3d 227 (Del.
2016).
3 State v. Hopkz``ns, 2016 WL 6958697, at *2 (Del. Super. Ct. Nov. 28, 2016).
4 State v. Lambert, 2015 WL 3897810, at *3 (Del. Super. Ct. June 22, 2015).
5 State v. Sauna’ers, 2012 WL 6915206, at *3 (Del. Super. Ct. Dec. 28, 2012) (analyzing tip of a
cooperating defendant under an informant framework).
6 Jones v. State, 745 A.2d 856, 870 (Del. 1999) (stating the relevant factors for finding of
reasonable suspicion as “(1) the specificity of the anonymous tip; (2) independent police
corroboration of the facts underlying the tip; and (3) the ability of the tipster to predict future
behavior by the suspect.”).
11. A police officer who observes a trach violation has probable cause to
stop the vehicle and its driver.7 An officer’s subjective intentions play no role in the
Court’s finding of probable cause.8 The scope and duration of a traffic stop must be
reasonably related to its initial justification, 9 namely, addressing the traffic
” 11 an officer
infraction.10 The stop should last “no longer than is necessary[;]
performing a lawful traffic stop may not deviate into investigation of other offenses,
unless the officer observes independent facts sufficient to justify such additional
intrusion.12 A “seizure that is justified solely by the interest in issuing a warning
ticket to the driver can become unlawful if it is prolonged beyond the time reasonably
7 Holden v. State, 23 A.3d 843, 847 (Del. 2011) (citing Whren v. United States, 517 U.S. 806, 810
(1996)).
8 See e.g., Whren v. United States, 517 U.S. 806, 813 (1996); State v. Seth, 2017 WL 2616941 at *3
(Del. Super. Ct. Jun. 16, 2017); State v. Stevens, 2017 WL 2480803, at *2 & n.5 (Del. Super. Ct.
June 8, 2017).
9 Holden, 23 A.3d at 847 (Del. 2011); Caldwell v. State, 780 A.2d 1037, 1046 (Del. 2001); State v.
Chcma'ler, 132 A.3d 133, 140 (Del. Super. Ct. 2015), as corrected (April 14, 2015). See Rodrz'guez
v. United States, 135 S. Ct. 1609, 1621 (2015); Flori``da v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion).
10 “Typically, such inquiries involve checking the driver's license, determining Whether there are
outstanding warrants against the driver, and inspecting the automobile's registration and proof of
insurance.” Rodrz``guez 135 S. Ct. at 1615 (citing Delaware v. Prouse, 440 U.S. 648, 65 8-660
(1979)); Cala'well, 780 A.2d at 1047 (Del. 2001) (describing the tasks to be performed as “issu[ing]
a citation or warning and . . . run[ning] routine computer checks”).
ll Roa'rz``guez 135 S. Ct. at 1614 (“Like a Terry stop, the tolerable duration of police inquiries in the
traffic-stop context is determined by the seizure’s ‘mi``ssion’_to address the traffic violation that
Warranted the stop and attend to related safety concerns . . . . Authority for the seizure ends When
tasks tied to the traffic inhaction are-or reasonably should have been-completed.”) (citations
omitted); Royer, 460 U.S. at 500 (holding that the Fourth Amendment’s “protection is not diluted in
those situations where it has been determined that legitimate law enforcement interests justify a
warrantless search: the search must be limited in scope to that which is justified by the particular
purposes served by the exception.”).
‘2 Caldwell, 780 A.2d at 1047; stare v. Dewm, 2017 wL 2209888, at *2 (Dei. super. Ci. May is,
2017).
required to complete that mission.”13 Naturally, this rule applies when a stop is
prolonged for the purpose of employing a drug sniffing dog: dog sniffs conducted in
relation to traffic stops are unlawful when they prolong the stop.14
12. Despite the above, a traffic stop may be lawfully prolonged when an
officer has reasonable suspicion that would warrant further investigation 15
Reasonable suspicion is determined 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 such an officer’s subjective
interpretation of those facts.”16
13. Here, the Court finds by a preponderance of the proof that Officer
Macauley observed Mr. Bordley commit a traffic infraction: failing to wear his
seatbelt. Thus, the initial traffic stop was validly supported by probable cause. The
Court declines Mr. Bordley’s invitation to analyze the officer’s subjective intent by
following Heath.17
14. When Officer Macauley continued to hold Mr. Bordley, despite having
performed all required actions associated with a trach stop, this further detention
13 Illz``riois. v. Caballes, 125 S. Ct. 834, 837 (1983).
14 ROdriguez, 135 s. Ci. at 1616.
15 ii Dei. C. § 1902; Rodriguez, 135 s. ct. ar i6i4.
16 Jones v. State, 745 A.2d 856, 861 (Del. 1999) (citing United States v. Cortez, 449 U.S. 411, 417-
18 (1981)). See Terry v. Ohio, 392 U.S. l, 21 (1968).
17 This Court has repeatedly declined to follow State v. Heal‘h, 929 A.2d 390 (Del. Super. Ct.
2006). See e.g., State v. Seth, 2017 WL 2616941 (Del. Super. Ct. June 16, 2017); State v. Steveris,
2017 WL 2480803, at *2 & n.5 (Del. Super. Ct. June 87 2017); State v. Hall, 2017 WL 1449915, at
*1 (Del. Super. Ct. Apr. 217 2017); State v. Darlirzg, 2007 WL 1784185, at *4 (Del. Super. Ct. June
8, 2007), as corrected (July 3, 2007). See also Whren v. United States, 517 U.S. 806, 813 (1996)
(“[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis”);
Turrzer v. State, 25 A.3d 774, 777 (Del. 2011) (questioning Heath).
5
was invalid unless independently supported by reasonable suspicion.18 The Court
must therefore turn to consider whether Officer Macauley had reasonable suspicion
warranting the continued detention of Mr. Bordley.
15. As an initial matter, the cooperating defendant’s tip is not supportive of a
finding of reasonable suspicion. No information has been presented to the Court that
the informant has proven to be trustworthy or reliable. Nor was the information
tendered to the police specific: the informant generically advised that Mr. Bordley
was “dealing large quantities of heroin” while saying nothing as to the particulars of
this alleged enterprise. No evidence has been offered showing that the tip was
corroborated by facts within the officer’s knowledge. The tip also had no meaningful
predictive value; although the cooperating defendant identified Mr. Bordley’s vehicle
as a black BMW, and indicated he had some connection to Canterbury Crossing, this
was discernible to any member of the public who had seen Mr. Bordley driving his
car in the area.19
16. With regard to other actions observed by Officer Macauley, Delaware
Courts have held that nervousness, criminal history, and use of a rental vehicle are
not supportive of reasonable suspicion unless used in conjunction with “more
tangible, objectively articulable indicators of criminality.”ZO This Court’s decision in
State v. Chandler 21 is apposite. In Charzdler, the State argued that reasonable
11 Caldwelz v. s¢aie, 780 A.2d 1037, 1047 (Dei. 2001).
19 Alabama v. White, 496 U.S. 325, 332 (1990) (finding a tip’s predictive value to be supportive of
reasonable suspicion when “the anonymous [tip] contained a range of details relating not just to
easily obtained facts and conditions existing at the time of the tip, but to future actions of third
parties ordinarily not easily predicted.”).
211 stare v_ Chandzer, 132 A.3d 133, 144_45 (Dei. super Ct. 2015), as corrected(Apr. 14, 2015);
State v. Mz'liarzy-Ojeda, 2004 WL 343965, at *6 (Del. Super. Ct. Feb. 18, 2004); State v. Huritley,
777 A.2d 249, 256 (Dei. super Ct. May 23, 2000).
21 132 A.3d 133.
suspicion may validly be based on an officer’s observation of “nervous demeanor,
prior use of an alias in 1998, use of a rental vehicle, and prior criminal history.’722 The
Charzdler court determined that even in combination, such factors were not
supportive of a finding of reasonable suspicion to justify prolonged detention of
defendant and his vehicle.23
17. Here, the only additional factors alleged to support a finding of
reasonable suspicion are that Mr. Bordley was in a “high crime area,” that he took a
“circuitous route” to the McDonalds, and that the arresting officer was unsatisfied
with certain of Mr. Bordley’s answers to the officer’s questions regarding his travel
plans. The Court finds these observations are insufficiently supportive of reasonable
suspicion, 24 particularly in light of potential innocent explanations of the above.25
While innocent explanations are not determinative of whether an act is supportive of
22 Id. at 149.
23 161
24 Illz'rioz's v. Wardlow, 528 U.S. 119, 139 (2000) (“presence in a high crime neighborhood is a fact
too generic and susceptible to innocent explanation to satisfy the reasonable suspicion iriquiry”);
Caldwell v. State, 780 A.2d 1037, 1050 (Del. 2001) (“A suspect's nervous behavior and odd
assertion that he did not know the name of his passenger may or may not, in some situations,
provide the officer with reasonable suspicion justifying further limited questioning of the suspect
and his passenger.”); Jorzes v. State, 745 A.2d 856, 871 (Del. 1999) (“Reasonable and articulable
suspicion cannot be based on a defendant's presence in a particular neighborhood at a particular
time of day With no independent evidence that the defendant has committed, is committing or is
about to commit a crime.”); Charzdler, 132 A.3d at 149 (not finding reasonable suspicion to prolong
traffic stop after considering similar factors).
25 In short: many innocent drivers are nervous When they speak to the police, there are many lawful
and irmocent reasons to use a rental vehicle, persons with criminal history are not inherently suspect
to be committing a crime, innocent persons are often present in high-crime areas, persons driving
circuitously may be lost or confused, and, fmally, it is not unheard of for someone to eat breakfast
twice.
probable cause,26 they are relevant to the Court’s consideration of what “common
sense conclusions” can be drawn respecting the conduct of Mr. Bordley in this case.27
18. The Delaware Supreme Court’s decision in Harrz's v. State 28 is
instructive here. In that case, an officer testified that he profiled the defendant, who
was exiting a train station and entering a vehicle outside, as a likely drug courier by
observing certain behaviors and body language that he asserted were often exhibited
by drug couriers.29 The officer in Harrz``s observed that the defendant “(1) looked over
his shoulder[;] (2) met another man in the lobby; (3) used a payphone; (4) ‘popped’
his head up in the backseat; and (5) looked out the rear window.” When prompted,
the officer was unable to provide concrete reasons for why these factors should be
interpreted in a way that justifies the suspicion that criminal activity was afoot.30 The
Harris court determined that “[i]t is possible for factors, although insufficient
individually, to add up to reasonable suspicion, but it is impossible for a combination
of wholly innocent factors to combine into a suspicious conglomeration unless there
are concrete reasons for such an interpretation.”31
26 stare v. stewart 2011 wL 494734, at *4 (Dei. super Ct. Jan. 31, 2011)
(“possible innocent explanations do not preclude a determination that reasonable suspicion for a
detention existed”). See United Stares v. Sokolow, 490 U.S. 1, 10 (1989) (“the relevant inquiry is not
Whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to
particular types of noncriminal acts”) (quoting Illirzoz``s v. Gates, 462 U.S. 213, 243-44 n. l3f
(1983)).
27 United States v. Cortez, 449 U.S. 411, 418 (1981) (articulating that determinations of reasonable
suspicion do not deal with “hard certainties,” but rather with “certain common sense conclusions
about human behavior”).
21 Harrzs v. siare, 806 A.2d 119 (Dei. 2002).
29 Id. at 129.
301d
11Id. aii28.
19. Similarly here, the Court considers Mr. Bordley’s words and actions to
be wholly innocent. The State’s submissions and Officer Macauley’s testimony at the
hearing demonstrated no compelling reason that the factors observed demonstrate the
likelihood of criminal activity. If officers were given authority to detain motorists on
the bases that the State argues are sufficient here, “a very large category of
presumably innocent [persons] . . . would be subject to virtually random seizures.”32
Officer Macauley had no indication that Mr. Bordley or the vehicle were connected
with any tangible indicators of criminal activity.33 The Court finds that a reasonable
officer could have only a hunch that possible illegal drug activity was afoot.
20. Based on the totality of the circumstances, Officer Macauley lacked the
reasonable articulable suspicion required to justify the nirther detention of Mr.
Bordley. The lengthy detention of Mr. Bordley, the dog sniff of the exterior of his
vehicle, and the subsequent search of the interior of his vehicle, all lacked adequate
justification The Court finds that the duration and intrusiveness of the traffic stop
were not reasonably related to the justification for the stop and were not supported by
independent facts justifying the officer’s conduct.
21. As a result of this search and seizure that exceeded the lawful duration
and scope afforded for trach stops, police discovered contraband evidence in the
vehicle and a large quantity of United States currency on Mr. Bordley’s person.
Because these discoveries occurred following, and by exploitation of, the unlawfully
protracted and intrusive detention, Mr. Bordley’s rights under the Fourth Amendment
of the United States Constitution and Article I, Section 6 of the Delaware
32 Reial v. Geargza, 448 U.s. 433, 441 (1981)).
33 sea stare v. Chaaailer, 132 A.3d 1337 149 (Dei. super Ct. Apr. 2, 2015), as carreaea(Apr. 14,
2015).
Constitution were violated, and all evidence gathered as a result of the traffic stop and
subsequent search must be suppressed.?'4
WHEREFORE, Defendant Erick Bordley’s motion to suppress is hereby
GRANTED.
IT IS SO ORDERED.
/s/ Noel Eason Primos
Judge
NEP:jb
34 Calawall v. s¢a¢a, 780 A.2d 1037, 1051-52(De1. 2001 ).
10