State of Delaware v. Richard L. Tew

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE
Cr. A. No. 1405001614
RICHARD L. TEW,
Defendant.
Submitted: June 9, 2015
Decided: July 6, 2015
James L. Natalie, Esquire
Woloshin, Lynfiifi, iéiiatalie & Gagne, RA”
1823 W. 16th
Wilmington, DE 19806
Attorney for Defendant
Christopher Marques, Esquire
Deputy Attorney General
Delaware Department of Justice
3-111} French Street, 7th Floor
Wilmington, DE 19801
Attorney for the State
DECISION ON DEFENDANT’S MOTION TO SUPPRESS
RENNIE, J.
Defendant Richard L. Tew (“Tew”) stands charged with Driving Under the Influence of
Alcohol (“DUI”), in violation of 21 Del. C. § 4177(a), following a stop at a DUI Sobriety
Checkpoint (the “Checkpoint”) on May 3, 2014. Tew moves to suppress all evidence gathered
by the Delaware State Police. He contends that the Checkpoint was not established pursuant to
the Checkpoint Strikeforce Sobriety Checkpoint Procedures (“Checkpoint Procedures”) adopted
by the State, and therefore, fails to comply with Article 1, Section 6 of the Delaware Constitution
and the Fourth Amendment of the United States Constitution. The Court heard Tew’s motion on
June 2, 2015 and took the matter under advisement. This is the Court’s Opinion on Tew’s
requested relief.
FACTS
Chief Michael Capriglione (“Chief Capriglione”) testified on behalf of the State.1
Delaware’s Checkpoint Strikeforce was established for the purpose of curbing the amount of
accidents and fatalities resulting from incidents of impaired driving. To ensure that its
checkpoints comply with the Fourth Amendment and Article 1, Section 6 of the Delaware
Constitution, the State adopted the Checkpoint Procedures.2
On April 24, 2014, pursuant to the Checkpoint Procedures, Chief Capriglione requested
approval from Lisa Shaw (“Shaw”), the Deputy Director of the Office of Highway Safety
(“OHS”) to establish and conduct a checkpoint at the intersection of Papermill Road and
Winterthur Lane on May 2, 2014 from 10:00 pm. to 2:00 am.3 Chief Capriglione testified that
the proposed location of the checkpoint must meet one of four statistical requirements set forth in
' Chief Capriglione has been a police officer since 1976. He joined the Checkpoint Strikeforce at its inception in
2003. The Court finds Chief Capriglione to be a credible witness.
2 See State’s Ex. 1.
3 State’s Ex. 2.
the Checkpoint Procedures to be approved.4 On April 25, 2014, Shaw approved Chief
Capriglione’s request.5 Her approval memorandum (“Approval Memorandum”) states that a
review of the 2012 Delaware State Police Annual Traffic Statistics6 shows that four impaired
driving personal injury collisions and five impaired driving collisions occurred at or near the
approved location, satisfying two of the four possible statistical qualifiers.7 Based on the
statistics, the request was approved. However, the approval memorandum provided a checkpoint
operation date of “Friday, May 5, 2014” [sic].8
On Friday, May 2, 2014, Chief Capriglione supervised the establishment and operation of
the Checkpoint, which was set to be established at the intersection of Papermill Road and
Winterthur Lane on both sides of Papermill Road. At the hearing, Chief Capriglione testified
that due to concerns for officer safety, as well as the need to alert motorists that a stop was
imminent, he moved the checkpoint further south on Papermill Road.9 At 12:28 am, Tew was
stopped, arrested, and charged with DUI.
PARTIES’ CONTENTIONS
Tew contends that (1) the Checkpoint was impermissibly operated more than 1,000 feet
from its approved location; (2) the Checkpoint was not operated on the date listed in Shaw’s
Approval Memorandum; and (3) the raw data does not support the establishment of a sobriety
checkpoint at the intersection of Papermill Road and Winterthur Lane. According to Tew, these
deficiencies cause the Checkpoint to violate Article 1, Section 6 of the Delaware Constitution
r“ :_—— -
4 See State’s Ex. 1, 1[ 2. The requested location of the checkpoint must meet one of the following criteria in the three
most recent years before the date of the request: (1) One or more impaired driving fatal collisions; (2) Three or more
impaired driving personal injury collisions; (3) Five or more impaired driving collisions; or (4) 5% or more of the
impaired driving citations within the jurisdiction.
5 See State’s Ex. 2, Apr. 25, 2014 Memorandum.
6 See State’s Ex. 3.
7 Idaho
8 State’s Ex. 2, Apr. 25, 2014 Memorandum.
9 Chief Capriglione estimates that the checkpoint stretched a full city block — or 150 yards — in either direction.
3
and the Fourth Amendment of the United States Constitution. Thus, he argues that any evidence
gathered from the Checkpoint should be suppressed.
The State counters that the checkpoint’s establishment and operation is in “reasonable
compliance” with the Checkpoint Procedures. Specifically, the State argues that the Checkpoint
Procedures afford the supervising officer latitude to move the checkpoint out of concern for
officer safety, so long as it remains within a reasonable nexus of the approved location. Next, the
State argues that a mere clerical error in the date should not negate the validity of the checkpoint.
Finally, the State contends that Shaw’s approval memorandum and the statistics from which it
originates carries the State’s burden of showing that the Checkpoint was established in
compliance with the Checkpoint Procedures.
DISCUSSION
On a motion to suppress, the State bears the burden of establishing that the challenged
search or seizure comported with the rights guaranteed to Tew by the United States Constitution,
the Delaware Constitution, and Delaware statutory law.” The burden of proof on a motion to
suppress is proof by a preponderance of the evidence.11
Stopping a vehicle at a checkpoint constitutes a seizure under the Fourth Amendment of
the United States Constitution and Article 1, Section 6 of the Delaware Constitution.12 Whether a
seizure is reasonable depends upon “a balance between the public interest and the individual's
right to personal security from arbitrary interference by law officers.”13 In evaluating the
reasonableness of a sobriety checkpoint, the United States Supreme Court has articulated a test
which balances a state's interest in preventing drunk driving and the effectiveness of sobriety
1° See State v. Matos, 2001 WL 1398585, at *2 (Del.Super. Aug. 6,2001).
11
Idaho
12 See Michigan Dept. of State Police v. Sitz, 496 US. 444 (1990); Bradley v. State, 858 A.2d 960, 2004 WL
1964980 (Del. 2004).
13 Brown v. Texas, 443 US. 47 (1979).
checkpoints as an instrument of prevention versus the level of intrusion on an individual’s
privacy.14
Delaware courts have repeatedly approved the legality and use of sobriety checkpoints.15
Sobriety checkpoints are reasonable seizures when procedures are in existence to ensure that
motorists passing through checkpoints are stopped in a reasonably safe manner and that
sufficient safeguards are in place, limiting the discretion of law enforcement officers with respect
to the location of each checkpoint and the stopping of vehicles.16
Sobriety checkpoints in Delaware are created and operated under certain Delaware OHS
Checkpoint Procedures.17 The Checkpoint Procedures describe the objective criteria used for
choosing the location of the checkpoint, the manner of notifying officials and the procedures for
operating the checkpoint.18 The Procedures address, among other things, selection of the location
in an attempt to ensure that the checkpoint is established pursuant to a neutral plan and that the
discretion of the officers conducting the checkpoint is severely curtailed. 19
To meet the requirements of reasonableness, the State must demonstrate careful
compliance with substantially all of the Guidelines.20 Above all else, the State must demonstrate
careful compliance with those guidelines that limit an officer's discretion to set the location of
the checkpoint, or to stop particular motorists during the checkpoint.21
‘4 Sitz, 496 US. at 455.
15See Bradley v. State, 858 A.2d 960, 2004 WL 1964980 (Del. 2004); State v. Cook, 2013 WL 1092130 (Del. Super-Le
Feb. 13, 2013); State v. Terry, 2013 WL 3833085 (Del. Super. Jul. 18, 2013).
16 Bradley, 2004 WL 1964980, at *1. See also State v. Cook, 2013 WL 1092130, at *5 (Del. Super. Feb. 13, 2013).
1; See State v. McDermott, 1999 WL 1847364, at *2 (Del. Com. P1. Apr. 30, 1999).
19116::-
:2) Bradley, 2004 WL 1964980, at * 1.
Id.
Tew challenges the Checkpoint’s operation. Specifically, he argues that the Checkpoint
was not operated at or near its approved location and as a result, the Checkpoint does not comply
with the Checkpoint Procedures. His argument is unpersuasive. Delaware recognizes that a
supervising officer may move a checkpoint within the area authorized by OHS.22 According to
paragraph three of the Checkpoint Procedures, “[i]f it is unsafe to set up a checkpoint at the
precise location or intersection approved, it is permissible to utilize an adjacent roadway that
serves as an ingress or egress into the problem area.”23 Additionally, the Checkpoint Procedures
allow a location adjustment “to allow approaching traffic ample time to realize that a traffic stop
is imminent.”24 On cross-examination, Chief Capriglione was questioned concerning why the
location of Tew’s arrest was listed as 670 feet south of Winterthur Lane, closer to Odessa Way.
Chief Capriglione responded that he moved the Checkpoint out of dual concerns for officer
safety and to provide notice to approaching motorists that a stop was imminent. Further, the
testimony demonstrated that there were no issues that precluded ingress or egress into the
relocated area. Accordingly, the Court finds that Chief Capriglione’s relocation of the checkpoint
complies with the Checkpoint Procedures.
Next, Tew argues that the Checkpoint should be invalidated because Chief Capriglione
sought approval to operate the Checkpoint on Friday, May 2, 2014; yet it was approved for
“Friday, May 5, 2015.”25 On that point, the State presented testimony that although the A proval
P
22 See State v. Gonzalez —0rtiz, 2007 WL 549907 (Del. Com. Pl. Jan. 30, 2007) (holding that based on safety
concerns, the supervising officer may move the checkpoint within the area authorized by the Office of Highway
Safety).
23 State’s Ex. 1,11 3.
24 Id
25 See State’s Ex. 2.
Memorandum states that approval was granted for Friday, May 5, 2014, when viewed in its
entirety, it is clear that the State intended to operate the Checkpoint on Friday, May 2, 2014.26
The Court recognizes that this oversight was a clerical error. Indeed, May 5, 2014 was not a
Friday as indicated in the Approval Memorandum. Further, Chief Capriglione testified that OHS
sends advance notice of its sobriety checkpoint dates and locations to Delaware’s major news
outlets two times a week and that the notice of the instant Checkpoint set forth the correct date of
Friday, May 2, 2014. Therefore, the Court finds that the clerical error in the approval
memorandum does not invalidate the legitimacy of the Checkpoint.
Raw Data;
Finally, Tew contends that the raw data does not provide a sound foundation for the
establishment of the Checkpoint. For example, on cross examination, Tew’s counsel asked Chief
Capriglione to review the raw data27 and identify the incidents on or near the intersection of
Papermill Road and Winterthur Lane which satisfied the statistical requirements of the
Checkpoint Procedures.28 Chief Capriglione found references to Papermill Road listed only three
times throughout the raw data. Further, the raw data did not identify whether the offenses listed
on Papermill Road were in close proximity to the checkpoint’s location, what the nature of the
offense involved, or its final disposition. Chief Capriglione admitted that there was no way to tell
from the raw data alone which of the incidents involved impaired driving.
Further, Lisa Shaw, the person who could testify to the meaning of the raw data, was not
present. Recognizing this deficiency, the State argued that Shaw’s Approval Memorandum citing
26 State’s Ex. 2.
27 State’s EX. 3.
28 Chief Capriglione had previously testified that the guidelines require a minimum of three impaired driving
collisions; the Approval Memorandum indicated that Papermill Road had five. He also testified that the guidelines
require one fatality from an impaired driving collision; the Approval Memorandum indicated that Papermill Road
had three.
the statistics, coupled with the raw data from which the approval originates, satisfies the State’s
burden of showing that the statistical requirements support the establishment of the checkpoint.
The State’s argument is without merit.
The State’s argument in this case is analogous to its argument in State v. Hollinger, in
which this Court found that the State failed to carry its burden of showing that the checkpoint
was established pursuant to a neutral plan that limited officer discretion as to its location.29 In
Hollinger, the State attempted to prove that the checkpoint and stop of the defendant carefully
complied with the statistical requirements of the Checkpoint Procedures. To prove careful
compliance, the State presented the testimony of an officer who assisted in the checkpoint’s
operation. Notably, the State also introduced an exhibit30 containing, among other things, (1) a
memorandum from Shaw to Chief Capriglione granting approval to establish and operate the
checkpoint, and (2) raw data containing statistics and information relating to DUI arrests for
certain locations throughout Delaware, which the Shaw memorandum purportedly relied on in
approving the checkpoint location.31 In analyzing the weight given to the officer’s testimony, the
Court in Hollinger noted that despite being a credible witness, the officer was “unable to provide
substantive testimony regarding anything contained in [State’s] exhibit 2,” and that his testimony
in connection with State’s exhibit 2 was “mostly speculative and not overly helpful to the Court”
in showing that the checkpoint complied with the Checkpoint Procedures.32 In granting the
defendant’s motion to suppress all evidence seized at the checkpoint, the Court noted that State’s
2" 2012 WL 5208792, at *7—8 (Del. Com. P1. Oct. 10, 2010).
3° Identified as “State’s Exhibit 2.”
31 Id. at *3.
32 Id. at *4.
exhibit 2 was “not so clearly constructed as to present its contents in a way...[in which] the
Court could, without more, hold that the checkpoint was proper.”33
Here, as in Hollinger, the State presented (1) the testimony of Chief Capriglione, (2) the
Approval Memorandum, and (3) the raw data on which the Approval Memorandum is
purportedly based, as evidence of careful compliance with the Checkpoint Procedures. However,
although the State complied with the Hollinger court’s suggestion that the State present the
testimony of the officer who supervised the checkpoint,34 Chief Capriglione was unable to testify
substantively about the raw data which supports the Checkpoint’s establishment. Moreover, there
was no way the Court on its own could ascertain from the raw data the corresponding statistics
that went into the Approval Memorandum. In other words, the Court has no basis of knowing
whether the information set forth in the raw data correlates to the statistics that serve as the basis
for the Approval Memorandum and corresponding checkpoint location.
The State has not demonstrated that the checkpoint complied with the statistical qualifiers
set forth in the Checkpoint Procedures. Without more, the Court cannot rely on the Approval
Memorandum or its corresponding statistics. Therefore, the Court finds that the Checkpoint was
not established pursuant to applicable law or established rules, regulations and guidelines.
Accordingly, Tew’s motion to suppress all evidence gathered at the Checkpoint is GRANTED.
ORDER
For the foregoing reasons, Defendant Richard L. Tew’s Motion to Suppress is
GRANTED.
IT IS so ORDERED this 6‘“ day of July, 2015.
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