State v. Dillard ( 2018 )


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  • IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    STATE 0F DELAWARE )
    )
    )
    v. ) Crim. I.D. No.: 1710003809
    )
    )
    BAKR DILLARD, )
    )
    Defendant. )
    O'PINION
    Submitted: February 22, 2018
    Decided: March 16, 2018
    Upon Consideration of Defendant ’s Motion to Suppress,
    GRANTED.
    Mark A. Dermey, Esquire, Deputy Attorney General, Department of Justice,
    Wilmington, Delaware. Attorneyfor the State.
    Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware. Attorney
    for the Defendant.
    MEDINILLA, J.
    INTRODUCTION
    Defendant Bakr Dillard (“Defendant”) filed this Motion to Suppress after he
    Was pulled over in a minivan for operating a vehicle With improper Window tint.
    During the course of this routine traffic stop, an officer called for a K-9 Unit to
    perform a drug sniff and the canine alerted to the presence of drugs. Defendant
    argues that the officer conducted a second detention unsupported by reasonable
    articulable suspicion in violation of the Fourth and Fourteenth Amendments of the
    United States Constitution, Article I, Section 6 of the DelaWare Constitution, and
    DelaWare statutory laW. For the reasons that folloW, the Court finds that the State
    failed to meet its burden by a preponderance of the evidence to establish that the
    officer had sufficient reasonable articulable suspicion to justify the seizure. As such,
    the Motion to Suppress is GRANTED.
    RELEVANT FACTUAL AND PROCEDURAL BACKGROUNDl
    On October 6, 2017, Officer Wilkers and Officer Vignola of the Wilmington
    Police Department/Operation DISRUPT2 Were traveling in their patrol car and noted
    a minivan With improper Window tint traveling on the 500 block of North Spruce
    l The Court’s recitation is based on the testimony of the State’s Witnesses and/or exhibits presented
    at the Suppression hearing on February 22, 2018.
    2 None of the Witnesses for the State recalled What the acronym stood for even after Defense
    Counsel cross-examined them that it stood for “Dealing with Issues of Stabilization through
    Respect, Understanding, and Promoting Trust.” This is no longer the name of the unit.
    2
    Street. Before pulling the vehicle over, Officer Wilkers ran a check on the vehicle
    and saw that it was registered to a person named Rubin Harper of Wilmington. The
    vehicle did not have a valid window tint waiver so the officer decided to pull the
    vehicle over to issue a traffic citation. Upon signaling the vehicle to stop, Defendant
    pulled over immediately at 4th and Lombard. Upon request, Defendant produced a
    license and registration A female adult passenger also produced valid identification
    Officer Wilkers testified that Defendant’s responses and presentation of documents
    were appropriate. A DELJIS check yielded no issues and Defendant’s license also
    proved valid.
    Officer Wilkers asked Defendant to step out of the vehicle so that the officer
    could ask him additional questions “about the vehicle.” Defendant was not
    handcuffed nor patted-down and instead was asked three questions First, he was
    asked who owned the vehicle and Defendant corroborated what was already known
    to the officer about ownership. Second, when asked where he was coming from,
    Defendant stated “from around 7“‘ Street.” Lastly, Officer Wilkers asked if there
    was “anything illegal” in the vehicle. Defendant responded “no,” and that he would
    not consent to a search of the vehicle.
    Officer Wilkers then ordered Defendant away from the vehicle and directed
    Defendant to remain on a curb. At this time, another DISRUPT unit, Officers
    Rosado and Petrucci, showed up “to assist.”3 Officer Wilkers then returned to his
    vehicle to write the citation for improper window tint.
    At the hearing, the State introduced the audiotape exchange between Officer
    Wilkers and Officer Caez of the K-9 Unit that took place while Defendant was on
    the curb and Officer Wilkers was in his vehicle issuing the ticket. The exchange was
    initiated by Officer Wilkers for assistance from Officer Caez’s “partner” to perform
    an open air sniff and asks, “how fast can you get here?” Officer Caez responded that
    he was approximately three to five minutes away. Officer Caez arrived with the dog
    to perform the open air sniff, and the K-9 alerted to the passenger door handle.
    Officer Wilkers returned to the minivan and opened that passenger door.
    There was a green plant substance in the interior of the door handle area. Officer
    Wilkers then opened the center console and observed additional marijuana and a
    large amount of money. The police stopped the search, transported the vehicle, and
    obtained a search warrant. In the console, upon execution of the search warrant,
    police found a firearm, marijuana, a sports lottery ticket, and $11,000 in cash. The
    police also found forms and documents with Defendant’s name on them. Defendant
    contends that the $11,000 in cash was not his and that he did not sign a property
    receipt for it. Defendant did sign a property receipt for $472 found on his person.
    3 The State did not establish why two more officers were needed to assist for the write-up of a
    traffic ticket, except to suggest it was DISRUPT protocol.
    4
    Defendant is charged with Drug Dealing Marijuana; Possession of a Firearrn
    During the Commission of a Felony; Possession of a Firearrn by a Person Prohibited;
    Possession of Ammunition by a Person Prohibited; Possession of a Deadly Weapon
    with a Removed, Obliterated, or Altered Serial Number; Carrying a Concealed
    Deadly Weapon; Operating a Vehicle with lmproper Window Tinting; and
    Unauthorized Use of a Motor Vehicle.
    Defendant filed this Motion to Suppress on January 22, 2018. The State
    responded on February 16, 2018 and the hearing took place on February 22, 2018.
    Having considered all submissions and the arguments of counsel, the matter is ripe
    for review.
    STANDARD OF REVIEW
    On a motion to suppress, as a general rule, “the defendant bears the burden of
    establishing that the challenged search or seizure violated his rights under the United
    States Constitution, the Delaware Constitution, or the Delaware Code.”4 “However,
    once the defendant has established a basis for his motion, i.e., the search or seizure
    was conducted without a warrant, the burden shifts to the government to show that
    4 State v. Nyala, 
    2014 WL 3565989
    , at *5 (Del. Super. July 17, 2014).
    the search or seizure was reasonable.”5 As is the case here, the burden is on the State
    to establish the reasonableness of the seizure by a preponderance of the evidence.6
    CONTENTIONS OF THE PARTIES
    Defendant argues he was subjected to an impermissible seizure that fits
    squarely within the holding of the 2001 Delaware Supreme Court decision in
    Caldwell v. State,7 and aligns on point with the more recent 2015 decisions of this
    Court in State v. Stanley8 and State v. Chandler.9 Specifically, Defendant argues
    that Officer Wilkers extended the traffic stop to conduct a drug investigation without
    reasonable articulable suspicion to support a second detention.
    The State counters that there was no second detention. lt argues that, unlike
    Stanley and Chana'ler where the traffic ticket had already been issued, here, the
    officer was still in the middle of conducting the traffic stop when the K-9 Unit
    arrived to perform the canine sniff. The State thus argues that since the officer was
    5 United States v. Johnson, 
    63 F.3d 242
    , 245 (3d Cir. 1995). See also State v. Chandler, 
    132 A.3d 133
    , 139 (Del. Super. 2015), as corrected (Del. Super. Apr. 14, 2015) (“On a motion to suppress
    evidence seized during a warrantless search or seizure, the State bears the burden of establishing
    that the challenged search or seizure comported with the rights guaranteed by the United States
    Constitution, the Delaware Constitution, and Delaware statutory law.”).
    6 State v. Abel, 
    2011 WL 5221276
    , at *2 (Del. Super. 2011), aff’d, 
    68 A.3d 1228
    (Del. 2012), as
    amended (Jan. 22, 2013).
    7 
    780 A.2d 1037
    (Del. 2001).
    8 2015 wL 9010669 (Del. super. Dec. 9, 2015).
    9 
    132 A.3d 133
    (Del. Super. Apr. 2, 2015, revised Apr. 14, 2015).
    6
    still writing up the ticket, he did not require reasonable articulable suspicion because
    there was no measurable extension of the duration of the stop. ln the alternative, the
    State argues that if the Court finds there was a measurable extension of the duration
    of the stop, the window tint makes this case different from the other vehicle
    equipment or traffic violations considered in Stanley or Chandler, and that this
    combined with other factors, formed the basis for reasonable articulable suspicion.
    DISCUSSION
    The Fourth and Fourteenth Amendments of the United State Constitution and
    Article I, Section 6 of the Delaware Constitution protect citizens from illegal
    searches and seizures. A traffic stop constitutes such a seizure on a vehicle and those
    within the vehicle.10 As such, the State is required to “demonstrate that the stop and
    any subsequent police investigation were reasonable in the circumstances.”ll A
    traffic stop is reasonable under the Fourth Amendment if it is supported by
    reasonable suspicion or probable cause that a traffic violation has occurred.'2 A
    10 
    Caldwell, 780 A.2d at 1045
    .
    ll 
    Id. at 1045-46.
    '2 State v. Rickards, 
    2 A.3d 147
    , 151 (Del. Super. 2010), ajj”d, 
    30 A.3d 782
    (Del. 2011). See also
    Holden v. State, 
    23 A.3d 843
    , 847 (Del. 2011) (“A police officer who observes a traffic violation
    has probable cause to stop the vehicle and its driver.”); Whren v. United States, 
    517 U.S. 806
    , 810
    (1996). Further, “[t]he case law in Delaware is clear that while probable cause will serve as the
    basis for a traffic stop, only a reasonable articulable suspicion of criminal activity is required.”
    State v. Ellerbe, 
    2014 WL 605481
    , at *3 (Del. Super. Jan. 27, 2014).
    7
    traffic stop must be “justified at its inception by reasonable suspicion of criminal
    activity.” ' 3
    A police officer who observes a traffic violation therefore has probable cause
    to stop the vehicle and detain the driver. However, once stopped, “[t]he scope and
    duration of the detention must be reasonably related to the initial justification for the
    stop.”‘4 The detention must not extend beyond the time reasonably necessary to
    effectuate the purpose of the stop_i.e. the point at which the legitimate investigative
    purpose of the stop is completed15 Any additional investigation “beyond that
    required to complete the purpose of the traffic stop constitutes a separate seizure that
    must be supported by independent facts sufficient to justify the additional
    intrusion.”16 If police prolongs a traffic stop in order to investigate other possible
    crimes beyond the original traffic offense, the stop becomes a second detention.17
    Since the State argues there was no second detention, the Court will consider
    this issue first.
    13 Caldwell, 780 A.2d ar 1046.
    14 
    Holden, 23 A.3d at 847
    .
    '5 Caldwell, 780 A.2d ar 1046_47.
    '6 
    Id. ar1047. I7Id
    Duration and Scope of the Trajjic Stop
    Delaware law provides that the duration and scope of the traffic stop must last
    only as long as reasonably necessary to effectuate the purpose of the stop, at which
    point the legitimate investigative purpose of the traffic stop is completed18 Here,
    there is no dispute that the stop for improper window tint was proper since the officer
    knew even before he pulled the vehicle over that it did not have a valid tint waiver.
    Under 
    11 Del. C
    . § 1902, the officer was also permitted to ask the driver for
    his name, where he was coming from, his destination, and the reason for his trip.
    These questions are appropriate within a reasonable investigation of the traffic stop.
    The officer was well within his authority to conduct the routine checks associated
    with a traffic stop, including to check Defendant’s license and conduct the
    appropriate background checks through DELJIS. The responses from Defendant
    were appropriate and his DELJIS check was valid.
    The officer then asks Defendant to step out of the vehicle to ask him three
    questions. Under Loper, it was also well within legal bounds to request that
    Defendant step out of the vehicle.19 Furthermore, under Arizona v. Johnson, the
    United States Supreme Court held that “[a]n officer’s inquiries into matters unrelated
    18 
    Caldwell, 780 A.2d at 1046
    -50.
    19 See Loper v, State, 
    8 A.3d 1169
    , 1173 (Del. 2010) (holding that asking a passenger to exit the
    vehicle were not beyond the scope of a routine traffic stop).
    to the justification for the traffic stop . . . do not convert the encounter into something
    other than a lawful seizure, so long as those inquiries do not measurably extend the
    duration of the stop.”20 The officer’s questions regarding the vehicle ownership and
    where Defendant was coming from were also appropriate However, under Caldwell,
    “[t]he duration and execution of a traffic stop is necessarily limited by the initial
    purpose of the stop”21 and that “any investigation of the vehicle or its occupants
    beyond that required to complete the purpose of the traffic stop constitutes a separate
    seizure that must be supported by independent facts sufficient to justify the
    additional intrusion.”22
    The State argues that Officer Wilkers’ last inquiry whether there was
    “anything illegal” in the vehicle is commonplace and routinely asked by police
    officers, and should be treated no differently than when a person is asked to step out
    of a vehicle. An exit command from a vehicle has been considered lawful under
    Loper and other cases that have addressed officer safety during traffic stops, and
    considered a de minimis intrusion.23 Yet the justification found in cases such as
    20 Arizona v. Johnson, 
    555 U.S. 323
    , 325 (2009).
    2' 
    Caldwell, 780 A.2d at 1047
    (citing Florida v. Royer, 
    460 U.S. 491
    , 498 (1983)).
    22 
    Id. (citing Ferris
    v. State, 
    735 A.2d 491
    , 499 (Md. 1999)).
    23 See Permsylvania v. Mz'mms, 
    434 U.S. 106
    , 110-11 (1977) (holding that the order to get out of
    the car, issued after the respondent was lawfully detained, was reasonable, and thus permissible
    under the Fourth Amendment where the justification for such order_the officer’s safety-is both
    legitimate and weighty, and the intrusion into respondent’s personal liberty occasioned by the
    10
    Mimms and Loper contemplate the officer’s ability to ask questions regarding officer
    safety. Defendant was not patted down for weapons when he stepped out of the
    vehicle such that officer safety was of concern.
    Our Supreme Court addressed a similar question in Pierce v. State24 to
    determine if the officer’s questions regarding destination, origination, and weapons
    and contraband, rose to the level of a “second detention.” There, the trial court had
    determined that after the officer observed nervous behavior on the part of both
    defendant and his passenger, the officer’s inquiry if there were “any weapons, any
    illegal substances in the vehicle” was a routine question asked as part of an initial
    traffic stop, and therefore, the question itself did not constitute a “second
    detention.”25 The Supreme Court affirmed and held that Defendant could not
    demonstrate error in the trial court’s factual finding that the question was considered
    part of a routine stop,26 However, the Supreme Court interjected that even if the
    “contraband question” was not routine, there was sufficient reasonable articulable
    order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate
    concerns for the officer’s safety).
    24 
    19 A.3d 302
    , 
    2011 WL 1631558
    , at *2 (Del. 2011) (TABLE) (an officer’s question about
    whether there was any contraband in the vehicle during a traffic stop did not constitute a second
    investigative detention because it was a question the officer routinely asked as part of a traffic stop
    and was being done contemporaneous to routine traffic stop).
    25 Id
    26 Id
    ll
    suspicion to ask the question where the Defendant and his passenger exhibited
    stuttered speech, nervous behavior, inconsistent statements regarding destination
    and origination and refused to make eye contact. 27 The officer in Pierce made initial
    observations of both Defendant and his passenger that gave rise to reasonable
    suspicion when he asked his question regarding contraband or weapons.
    Officer Wilker’S question if there was “anything illegal” in the vehicle is
    broader than Pierce and the timing of when the question was asked is also
    distinguishable Unlike a question regarding weapons, which would focus on the
    officer’s safety, this question did not ask a narrow question about weapons or
    contraband lt asked about the universe of illegal things that may be contained in
    the vehicle. Asking whether there is something illegal in the vehicle invites a yes or
    no answer. If yes, then the admission of criminal wrongdoing would have likely led
    Defendant to voluntary consent to a search of the vehicle, as was obtained in Pierce.
    If the answer is no, as here, the officer conceded during his testimony that since he
    did not get consent, he took further steps and decided to call in the K-9 Unit.
    Because of the events that followed, and for purposes of this analysis, this
    Court need not consider whether the third question amounted to a “second
    detention,” but this decision should not be read as aligning with Pierce to suggest
    27 
    Id. at *2
    n.14_
    12
    that the question is acceptable as part of a routine traffic stop. As noted, the facts in
    this case are different not only in the timing and the scope of the question, but also
    because here the officer decided to call in another police unit.
    Calling the K-9
    Under Caldwell “[e]ven where the traffic stop is not formally terminated by
    the issuance of a citation or warning, ‘the legitimating raison d ’etre [of the stop may]
    evaporate if the pursuit is unreasonably attenuated or allowed to lapse into a state of
    suspended animation.”’28 Whether a detention is “unreasonably attenuated” requires
    a fact-intensive inquiry.29 Although questions unrelated to the initial justification
    for the stop might not per se require reasonable suspicion or consent to further
    question, the Delaware Supreme Court has made clear that such inquiries must not
    measurably extend the duration of the stop,30
    The State argues there was no second detention because there was no
    measurable extension of the duration of the stop where the officer was still issuing
    the citation when the dog showed up within minutes of his making the call to the K-
    9 Unit. The State argues that as long as the officer was working on his traffic-related
    28 
    Id. at 1048
    (quoting Charity v. State, 
    753 A.2d 556
    , 572 (Md. Ct. Spec. App. 2000))(emphasis
    added).
    29 101
    30 Murray v. State, 
    45 A.3d 670
    , 675 (Del. May 14, 2012, revised July 10, 2012) (“for something
    to be measurable it need not be large . . . .”).
    13
    task (issuance of the ticket), the contemporaneous exercise of the dog sniff that took
    place did not extend the original detention because it was related to the duration of
    the original stop.
    ln the 2015 decision of Rodrigaez v. United States,31 the Supreme Court of
    the United States reiterated that a traffic stop prolonged beyond the stop’s “mission”
    is unlawful.32 The Court identified the “[t]he critical question” as “not whether the
    dog sniff occurs before or after the officer issues a ticket . . . but whether conducting
    the sniff ‘prolongs’-_i.e., adds time to-the stop.”’33 This measure need not be
    large.
    Here, while processing the ticket for this vehicle violation, this Court heard
    an audio recording where Officer Wilkers took the additional step_and time_to
    make a call to Officer Caez and call for K-9 assistance. He asks Officer Caez how
    fast he can get to his location and that he needs Caez’s canine partner to conduct a
    sniff. Officer Caez responds that he is only several minutes away. This means that
    31 Rodriguez v. United States, 
    135 S. Ct. 1609
    (2015) (holding that absent reasonable suspicion,
    police may not extend an otherwise-completed traffic stop in order to conduct a dog sniff because
    it violates the Constitution’s shield against unreasonable seizures.)
    32 
    Id. at 1616
    (citing Illinois v. Caballes, 
    543 U.S. 405
    , 407 (2005)) (holding that a dog sniff
    conducted during a concededly lawful traffic stop that reveals no information other than the
    location of a substance that no individual has any right to possess does not violate the Fourth
    Amendment). See also, 
    id. at 1615
    (quoting Indianapolis v. Edmond, 
    531 U.S. 32
    , 40-41 (2000))
    (“A dog sniff, by contrast, is a measure aimed at ‘detect[ing] evidence of ordinary criminal
    wrongdoing.”’).
    33 Id
    14
    Officer Wilkers has to wait for the K-9 Unit. Further, unlike in Illinois v. Cal)alles,34
    where the Supreme Court of the United States accepted that a K-9 Unit arrived
    unsolicited and as part of the routine highway stop,35 here, the K-9 Unit was called
    to the scene by the officer. No evidence was presented by the State that this K-9
    was part of this routine stop. Thus, Officer Wilkers detoured from his task of issuing
    the ticket to make the call to Officer Caez and wait for the K-9 Unit to arrive. This
    Court considers this a measurable extension of the initial stop.
    The State’s argument that because the officer was expeditiously working on
    both at the same time and thus no reasonable articulable suspicion was required lacks
    merit, especially where the officer made his intent clear. Two other officers had
    already arrived on the scene when Officer Wilkers decided to call for Officer Caez.
    The purpose of the call was not to have four officers_and a dog-assist with issuing
    a traffic ticket, Officer Wilkers testified that he called for a “Title Dog,” a reference
    to Title 16 of the Delaware Code, and that the intent was to have the canine sniff for
    drugs. He testified and acknowledged that this particular dog, “Storm,” was not able
    to detect for weapons, but only drugs In Rodrigaez, the Supreme Court of the
    United States considered the distinction and significance of K-9 involvement and
    34 543 U.s. 406 (2005).
    35 
    Id. at 406.
    15
    identified that unlike the safety concern identified in Mimms, “[h]ighway and officer
    safety are interests different in kind from the Government’s endeavor to detect crime
    in general or drug trafficking in particular.”36 A dog sniff “is not an ordinary incident
    of a traffic stop . . . . Lacking the same close connection to roadway safety as the
    ordinary inquiries, a dog sniff is not fairly characterized as part of the officer’s traffic
    mission.”37
    On this record, this Court finds the purpose for the traffic stop ended when
    Officer Wilkers decided to call for a Title 16 dog to conduct an open air sniff of the
    vehicle. This call, as the officer conceded, was no longer related to the task of
    issuing a citation for improper window tint and the request for an open air sniff
    obviously changed the scope of his investigation from a traffic stop into a drug
    investigation
    The State fails to meet its burden that the additional call for K-9 assistance
    was within the duration or scope of the initial stop, Because the officer prolonged
    the traffic stop solely to investigate drug related criminal activity, the traffic stop
    ended and became a second detention That second detention was required to be
    based on specific and articulable facts which, taken together with all rational
    36 Id
    37 
    Id. at 1615.
    16
    inferences, raise an objective suspicion of criminal behavior.38 Therefore, the State
    needs to show that there were facts to support reasonable suspicion for the second
    detention/drug investigation to justify the calling of the K-9 Unit.
    No Reasonable Suspicion for the Extended Detention
    The question is whether Officer Wilkers possessed a reasonable articulable
    suspicion that criminal activity was afoot to further extend the detention to call the
    K-9 Unit based on the facts presented “Reasonable suspicion” is a less exacting
    standard than “probable cause.” Officers must be able to identify “specific and
    articulable facts which, taken together with rational inferences from those facts,
    reasonably warrant the belief that a crime is being or has been committed.”39
    Whether reasonable suspicion existed must be evaluated in light 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.”40 A reviewing court should “defer
    38 
    Id. at 1616
    -17 (since the canine sniff was beyond the time the officer needed to issue the written
    ticket, the Court then remanded the case to the Eighth Circuit to consider whether there was
    reasonable suspicion that justified detaining the driver beyond completion of the traffic infraction
    investigation).
    39 Quarles v. State, 
    696 A.2d 1334
    , 1337 (Del. 1997). Delaware has codified this standard for
    investigatory stops and detentions in ll Del. C. § 1902, which requires that a police officer have
    “reasonable ground to suspect a person is committing, has committed, or about to commit a crime”
    before he may stop and detain a person
    
    40 Jones v
    . smie, 
    745 A.2d 856
    , 861 (Del. 1999).
    17
    to the experience and training of law enforcement officers.”4l However, the Court
    should not consider a police officer’s subjective opinion regarding reasonable
    suspicion and must consider the facts under an objective standard.42
    Notably, Officer Wilkers testified that he did not form reasonable articulable
    suspicion until after the dog detected a “hit” on the vehicle’s door.43 Regardless, the
    test requires an objective analysis. The reasonableness of official suspicion must be
    measured by what the officer knew before he seized the defendant.44 “An illegal
    stop cannot be justified by circumstances that arose after its initiation.”45
    Defendant pulled over when directed without incident. His driving did not
    cause concern He produced valid documents. A DELJIS check revealed no issues.
    Defendant did not exhibit any signs of nervousness or provide inconsistent or false
    answers to the officer.46 There was no palpable odor of alcohol or drugs emanating
    41 Woody v. State, 
    765 A.2d 1257
    , 1262 (Del. 2001) (citing 
    Jones, 745 A.2d at 861
    ).
    42 State v. Chandler, 
    132 A.3d 133
    , 141 (Del. Super. Ct. 2015) (citing State v. Miliany-Ojeda, 
    2004 WL 343965
    , at *3 (Del. Super. Feb. 18, 2004)).
    43 The State suggested that Officer Wilkers was “being modest” in his testimony that he actually
    had probable cause at that point. Modesty or not, Officer Wilkers testified as he did.
    44 
    Id. (“If 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.”).
    45 
    Woody, 765 A.2d at 1263
    .
    46 Contra State v. Chandler, 
    132 A.3d 133
    , 149 (Del. Super. 2015) (where court found officer did
    not have reasonable articulable suspicion to extend detention where defendant had multiple cell
    phones in plain view, gave inconsistent answers, was unable to provide details about his
    18
    from the vehicle, his person or passenger. When asked to step out of the vehicle,
    there were no issues of officer safety since he was not patted down He answered
    the questions appropriately while outside of the vehicle. When instructed to sit on
    the curb, Defendant complied Officer Wilkers stated he therefore relied on the facts
    that the Defendant was not the owner of a vehicle with improper window tint, that
    he was coming from “around 7th Street,” and the officer’s knowledge of a prior
    unrelated arrest. Only those facts known to a police officer prior to a seizure may
    be part of the reasonable suspicion analysis.47
    The officer’s knowledge of Defendant’s criminal history can be a factor of
    reasonable suspicion to detain an individual.48 However, such history, by itself, is
    insufficient to establish reasonable suspicion49 Here, the Defendant’s relevant
    “criminal history” was rather an arrest that this officer had made involving a high
    stakes crap game, and the arrest was not drug-related An aggregate $25,000 was
    seized in connection to that arrest which involved several individuals, including
    Defendant. The officer suggests that even though the arrest was not drug-related
    destination was extremely nervous, had an alias, an extensive criminal history, and was driving a
    rental vehicle).
    47 
    Jones, 745 A.2d at 874
    .
    48 Monme v. State, 
    913 A.2d 570
    , 
    2006 WL 3482182
    , at *2 (TABLE).
    49 Id
    19
    and Defendant’s portion was significantly less than the total amount, through his
    training and experience, this money amount is generally associated with drug-related
    activity. The State argues that the holding in State v. Brady50 supports that this Court
    should give great weight and deference to the officer’s knowledge and training in
    the totality of the circumstances analysis. Brady is distinguishable for different
    reasons.
    The Brady defendant was a probationer with a history and familiarity with the
    officer, such that various known violations of his probation were observed by the
    officer to establish the facts he relied upon for reasonable articulable suspicion The
    officer knew that defendant did not possess a license and yet was observed driving.
    The Brady defendant became combative and admitted to using heroin, was observed
    past curfew, and again resisted police contact. The Supreme Court reversed the trial
    court’s granting suppression where the facts supported a finding of reasonable
    articulable suspicion to justify the police conduct of the second seizure. Here, the
    handful of facts available to Officer Wilkers pale in comparison Defendant was not
    a probationer observed committing known violations of his probation The DELJIS
    run proved valid Here, there was no evidence of combative or violent criminal
    behavior on the part of Defendant, or any admission of wrongdoing. That he knew
    50 
    152 A.3d 140
    , 2016 wL 7103408 (Del. 2016) (TABLE).
    20
    Defendant from a prior unrelated drug arrest that the officer thought may be drug-
    related was merely a hunch.
    The second factor was Defendant’s response that he was coming from “around
    7th Street,” known to the officer as a high-crime area. Although the State argued that
    this was a factor that could be considered, Officer Wilkers actually testified that he
    did not consider this factor in his consideration of reasonable suspicion, except to
    say that he knew it was a high-crime area. The fact that Defendant was coming from
    a high-crime area without more is insufficient
    The officer fiirther testified that he was satisfied with Defendant’s response
    about who owned the vehicle, especially since it actually was corroborated by what
    he already knew about the vehicle. Similarly, in State v. Passerini,31 the Court of
    Appeals of Nebraska found that under the totality of the circumstances, police
    officers did not have reasonable suspicion to justify a prolonged detention.52
    Although that case involved a rental vehicle, that court noted that “[t]he fact that [the
    defendant] was driving a rental vehicle is perfectly consistent with law-abiding
    activity, and furthermore, the matching names on the driver’s license and rental
    agreement, coupled with the consistency of [the defendant’s] story as to the
    timeframe of the trip . . . should have dispelled, rather than created, further
    51 State v. Passerini, 
    789 N.W.2d 60
    , 71 (Neb. Ct. App. 2010).
    32 
    Id. at 71.
    21
    suspicion.”33 So too, here, the officer had already checked out who the owner of the
    vehicle was before making the stop, Defendant confirmed that he was not the owner
    of the vehicle. This should have dispelled suspicion, as the answers were consistent
    with what the officer already knew prior to the traffic stop.
    Finally, the State argues that because it is known by law enforcement that
    window tint is used to conceal weapons and guns, that the window tint supplied the
    reasonable suspicion to call the K-9 Unit. lt argues that the officer’s authority to call
    in the K-9 Unit was reasonable because, unlike the motor vehicle violations of
    speeding or equipment violations found in Clzandler and Stanley, respectively,
    “[w]indow tint is different from other equipment violations or even a moving
    infraction in that reasonable police officers know invalid, unapproved tint to be
    associated with the concealment of drugs or weapons or both.”34
    Window tint in and of itself does not seem to have the import described by the
    State. Until relevantly recently, it was even unclear whether an officer’s general
    observation of excessive window tint/being unable to see the occupants inside
    provided the requisite reasonable suspicion to pull over someone for the
    corresponding equipment violation Recent cases such as State v. Moore33 and State
    33 
    Id. at 70
    (noting that the defendant had valid driver’s license and a vehicle properly rented in his
    name, both of which were facts that weighed against the finding of reasonable suspicion).
    34 State’s Resp. at 4.
    33 
    2017 WL 1040709
    (Del. Super. Mar. 16, 2017).
    22
    v. Cannon,36 have helped clarify this area, in describing how a dark tint without a
    medical waiver provides reasonable suspicion for a possible window tint violation,
    even if the officer is not aware of the exact 70% or more light transmission
    standard.37 Nowhere in these opinions does a court reference window tint and the
    connection to possible drugs and/or weapons. ln fact, the case law on window tint
    was originally so convoluted because the statute/standards on window tint refer to
    the necessary degree of transparency or visibility for the driver to see out the
    window, not for officers to see in and other “virtually incomprehensible” safety
    concerns.38 This Court is not convinced that a minivan with improper window tint
    triggers a call for the K-9 Unit without other telling factors that were present in cases
    such as Caldwell,39 Clzandler,60 or Stanley,61 and still did not give rise to reasonable
    articulable suspicion
    Therefore, based on the totality of the circumstances, and on this record, it
    cannot be said that Officer Wilkers had reasonable articulable suspicion that
    36 
    2017 WL 1277677
    (Del. Super. Mar. 30, 2017).
    37 Cannon, 
    2017 WL 1277677
    , at ’1‘4; Moore, 
    2017 WL 1040709
    , at *4.
    38 Cannon, 
    2017 WL 1277677
    , at *2 (citing State v. Wilson, 
    2013 WL 2423094
    , at *2 (Del. Super.
    Mar. 12, 2013)).
    59 
    Caldw€ll, 780 A.2d at 1050-51
    .
    60 
    Chandler, 132 A.3d at 143-49
    .
    61 Stanley, 
    2015 WL 9010669
    , at *4.
    23
    Defendant was engaging in drug-related criminal activity to justify the second
    detention and to call the K-9 Unit. This Court finds that the State fails to meet its
    burden that the officer had the requisite reasonable articulable suspicion to detain
    Defendant to conduct a drug investigation Therefore, the evidence found as a result
    of the second detention must be suppressed
    VI. CONCLUSION
    For the foregoing reasons, Defendant’s Motion to Suppress is GMNTED.
    1 /--
    IT IS SO ORDERED. /
    Vivian L. Medinilla, Jud e
    oc: Prothonotary
    cc: Patrick J. Collins, Esquire
    Mark A. Denney, Deputy Attorney General
    Defendant
    Office of Investigative Services
    24