IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE :
: ID No. 1 808005494

v. : In and For Kent County

: RONNIER HENRY
, :
: Defendant. :

MEMORANDUM OPINION & ORDER

Submitted: February 13 , 2020 Decided: April 29 , 2020

Upon the State’s Appeal of a Suppression Decision of the Court of Common Pleas

– REVERSED & REMANDED

Christel Duff, Deputy Attorney General, Department of Justice , Dover, Delaware, Attorney for the State

. Ronnier Henry, Seaford, Delaware, Pro Se Defendant

Clark, J

.2

An on

- duty paramedic discovered Defendant Ronnier Henry ’s car sitting at
the intersection of State and Loockerman Street during the e arly morning hours of August 9
, 2018

. As the paramedic approached his car, he observed Mr. Henry lying
unconscious across the front seat. He remained unconscious through multiple green light cycles. When he finally awoke, the paramedic instructed him t o wai t until the police arrived. An officer arrived shortly thereafter. After a suppression hearing, the Court of Common Pleas held that becau se the paramedic was not a law enforcement officer, he lacked authority to instruct Mr. Henry to wait at the scene. O n that basis alone , the court suppressed evidence that Mr. Henry was under the influence

. It did so, notwithstanding its independent finding that the paramedic (and later the officer) possessed probable cause to believe
that M r. Henry had committed the crime

. P ursuant to 10 Del. C . § 9902(b) and (c)
, the State app ealed the trial court’s suppression order

. In this case, t he Court of Common Pleas erred. It incorrectly held that when
the paramedic instructed Mr. Henry to remain at the site without law enforcement authority, it triggered the exclusionary rule ’s remedy

. Here, the Court of Common
Pl eas need not have addressed the difficult issue of the paramedic’s status in search and seizure analysis. Rather, because the co urt found that the paramedic had probable cause to believe that Mr . Henry wa s under the influence
, it should not have applied the exc lusionary rule regardless of hi s status. For these reasons and those that follow, the trial court’s decision must be REVERSED and REMANDED

. A
trial in this matter shall proceed as provide d by 1 0 Del. C. § 9902(c).

Facts of Record
The facts referenced herein are those found by the Court of Common Pleas after a suppression hearing. On the morning of the offense
, Lieutenant McMillon

was an on

- duty paramedic in Kent County. After accompanying a patient to Kent3

General, he le f

t the hospital and proceeded on to Looc kerman Street

. While stopped

at a traffic light, he noticed that a car to his right remained stopped des pite a green signal

. After the green light cycle d through two times , Lieutenant McMillon
maneuvered his vehicle to look into the car. He th ought he could see a body in the
front seat. H e then maneuvered his vehicle behind the car and parked

. When doing so, he activated his vehicle’s emergency lights to warn vehicles ap proaching from
the rear that both vehicles s at just before the intersection.
Lieutenant McMillon then approached the driver ’s side of the car . There, he saw Mr. Henry lying in the front seat, either asleep or unconscious. At first, he tried

to w ake Mr. Henry by shouting but received no response. At that point, the
Lieutenant called for police assistance

. He testified that his training as a paramedic required him to first call for police assistance in the event that the unconscious

per son awoke and became violent

. He also testified that he remained on the scene, in such cases, to render any necessary medical assistance

. Prior to the officer’s arrival, Mr. Henry a woke

. He appeared glassy

- eyed and
confused . He also had slurred speech. The Lieutenant asked Mr. Henry if he knew
where he was and if he needed medical help. Mr. Henry responded that he did no t
know where he was. At first
, Mr. Henry said he felt fine, but then told the paramedic that he may need medical help. At some point during this assessment, Lieutenant McMillon instructed Mr. Henry to remain on the scene until the police arrived. He did so for two reasons : he
remained unsure about whether there was a medical emergency
, 1 and he believed Mr. Henry would be a danger to others if he left the area

. 2

1 State’s App’x to Opening Br., Ex. 5, at A12

. 2 Id. at A16 (explaining, through Lt. McMillon’s testimony during cross

- examination by Mr. Henry, that “the reason why I asked you to wait, sir, is because I felt you were impaired and wasn’t sure if it was medically impaired or whatever it was, but I felt that yo u would be a danger if you continued on; therefore, I asked you to wait”).4

Dover Police Officer Hudson then arrived at the scene . Lieutenant McMillon relayed his observations to the officer . The officer then approached Mr. Henry. He observed that he had glassy and watery eyes, was argumentative, and was extremely talkative. Mr. Henry informed him that he had recently taken oxycodone and drank
alcohol

. At that point, Officer Hudson asked Mr. Henry to comple te field sobriety

tests. Mr. Henry refused

. Based upon the information Lieutenant McMillon relayed
to him , Mr. Henry’s bloodshot and glassy eyes, his admission to taking oxycodone and consuming alcohol, and his argumentative demeanor, Offic er Hudson arrested Mr. Henry. He charged him with Driving under the Influence of a Combination of Alcohol and any Drug

.
Procedural Background On May 14, 2019, the Court of Common Pleas held a suppression hearing at Mr. Henry’s request . At the close of the hearing, it granted Mr. Henry’s suppression
motion. The trial court held that the on

- duty paramedic was a state actor because he worked for a government agency. 3 While focusing on Mr. Henry’s perception of the paramedic, it found that Mr. He nry reasonably mistook the paramedic for a police
officer. 4 Finally, the court found that the paramedic illegally detaine d Mr. Henry without law enforcement authority

. 5 As a result, it suppressed all evidence after the point of deten tion. Given the court’s ruling , the State orally certified that it could

3 Id. at A31. 4 Id. at A30 (comparing the paramedic’s appearance to a police officer because (1) he had a badge and labeled as Kent County Public Safety and a uniform , and (2) he activated the emergency lights on his vehicle. See also id. at A33 (describing Lt. McMillon’s appearance and reasoning that he had “a badge on his chest, a patch on his arm that says Kent County Public Safety and he has lights on his vehicle behind the ca r saying they’re on and he walks u p and sa y s you got to wait, that’s a detention by a State agent, State actor . . . all appearance s he’s a police officer and as a result, when he tells him to wait, he’s not going anywhere, he had no reason to believe he could leave

. ”). 5 Id. at A29.5

not prosecute Mr. Henry without the suppresse d evidence. The court then dismiss ed Mr. Henry’ s charges. 6
Thereafter , the State filed a motion for reargument

. In it, the State argued that the court “misapprehended the law or facts such as would have changed the outcome of the underlying decision.” 7 Namely, the State argued that (1) it did not receive proper notice of the suppression issue, (2) Lieutenant McMillon acted as a private

c it izen during the encounter , and (3) the exclusionary r ule does not apply to the action of private citizens. In a written decision, the trial court denied the State’s motion. It recognized
that Delaware courts have not addressed the issue of whether the exclusionary rule should apply to similar actions taken by a n on

- duty paramedic

. 8 In denying the State’s motion, t he court reasoned that Lieutenant McMillon was a state actor while on duty. 9 It also reasoned that whil e the Lieutenant’s motivation may have been public safety, a reasonable person in Mr. Henry’s position would have believed
Lieutenant McMillon to be a police officer because of his uniform, his emergency lights, and his failure to identify himself as a paramedic. 10
The Sta te then filed this appeal. It submitted its opening bri ef on November 20, 2019. Thereafter, Mr. Henry failed to file an answering brief . At that point , the
Court issued a delinquent brief notice . On February 10, 2020, after Mr. Henry failed

to participate in the appeal, the Court deemed the appeal to be s ubmitted for decision without Mr. Henry’s brief.

6 Id. 7 State’s Mot. for Reargument, at 2 (citing Kennedy v. Invacare , 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006) (quoting Bd. Of Mgrs. of the Criminal Justice Info Sys. v. Gannett Co. , 2003 WL 1579170, at *1 (Del. Super. Jan. 17, 2003)). 8 Sta te’s App’x to Opening Br., Ex. 4, at 3. 9 Id. 10 Id. at 5.6 Standard of Review This matter involves the State’s appeal of an adverse suppression decision. When material evidence is suppressed or excluded before trial, and the State certifies that the evidence is essential to prosecute the case, the court “ shall dismiss the complaint, indictment or information or any count thereof to the proof of which the evidence suppressed or excluded is essenti al .” 11 In that event , “[t] he State shall have an absolute right of appeal to an appellate court . . . and if the appellate court upon review of the order suppressing evidence shall reverse the dismissal, the defendant may be subjected to trial. ” 12 The appe al is on the record. 13

T he standard of review on appeal includes deciding whether there was legal
error and whether the trial court’s decisions were the product of an orderly and logical deductive process.” 14 The Superior Court must accept the trial court’s
factual findi ngs supported by the record, even if it would have made contrary findings or conclusions

. 15 As part of its appellate function, however, the Superior Court reviews questions of law de novo

. This case involves a question of law.

Discussion
The Court must first a ddress the State’s appeal in the context of M r. Henry’s
failure to submit an answering brief. Pursuant to Superior Court Civil Rule 107(f),
when a party fails to participate in appellate briefing , the Superior Court may take
action necessary to expedite the disposition of the case. 16 The Rule provides broad

11 10 Del. C. § 9902(b). 12 Id. at § 9902(c). 13 Super. Ct. Crim. R. 37(f). 14 Onkeo v. State , 957 A.2d 2
, 2008 WL 3906076 , at *1 (Del. 2008) (TABLE). 15 Id. 16 Sup. Ct. Civ. R. 107(f) (explaining “[i] f any brief, memorandum, deposition, affidavit, or any other paper which is or should be a part of a case pending in this Court, is not served and filed within the time and in the manner required by these Rules or in accordance with any order of the Court or stipulation of counsel, the Court may, in its discretion, dismiss the proceeding if the7

discretion that permits the Court to dismiss the proceedings, to consider the filing or its opposition abandoned, or to summarily grant or deny the filing. 17 Here, the State filed a timely notice of appeal and an opening brief. When Mr. Henry failed to file his answering brief, the Court sent him a delinquent brief
notice. After thirty days with no res ponse, the Court considered Mr. Henry to h ave waived his r ight to file a brief. It then considered the appeal to be submitted for
decision based upon the State’s opening brief, the trial court’s written decision, and
the remain der of the record. 18 Next, the Court turns to the m erits of the State’s appeal. In its brief, the State focused on the paramedic’s status when instructing Mr. Henry to remain on site
, because the Court of Common Pleas focused on that in its decision. Accordingly,
this Court must address this threshold issue to a certain extent in order to explain why its decision turns on a different issue: the trial court’s probable cause finding

. When addressing this alleged seizure
, 19 the Court must consider basic principles of Fourth Amendment law that apply to Delaware through the Fourteenth
Amendment to the United States Constitution

. The Delaware Constitution’s s earch and seizure provision is substantially similar to the federal provision and protects the
same interest s

. 20 Namely, Article I, Section 6 of the Delaware Constitution

plaintiff is in default, consider the motion as abandoned, or summarily deny or grant the motion, such as the situation may present itself, or take such other action as it deems necessary to expedite the disposition of the case ”).
17 Id. 18 See Case No. 1808005494, Dkt. 08, Order (directing the case to be decided on the record and the pleading filed). 19 For purposes of the appeal, the Court accepts the lower court’s finding that the paramedic detained Mr. Henry. The lower court did not add ress whether the detention constituted (1) a Terry level detention or (2) an arrest. Because the Court of Common Pleas found probable cause, a sufficient quantum of evidence justified both

. 20 State v. Vouras , 1980 WL 336623, at *2 (Del. Com. Pl. July 29, 1980) (citing State v. Moore
, 187 A .2d 807 (Del. Super. Jan. 9, 1963)).8

guarantees that “[t]he people [of Delaware] shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures[.]” 21
Fourth Amend ment guarantees apply to government action

. 22 They generally do not apply to searches and seizures conducted by a private person. 23 Accordingly,

p urely private conduct triggers no search and seizure analysis

. 24 On the other hand,

p olice conduct that violates United States or Delaware C onstitutional protections trigger both search and seizure analysis and the exclusionary rule’s remedy. The analysis is more complicated regarding what falls in between. Examples of such matters include, on one sid e of the spectrum
, private actor conduct intended to help
law enforcement

. On the other side of the spectrum, an example includes the
conduct of non

- police government actor s

. The paramedic ’ s action in this case falls
in the lat t er category

. When a government employee such as a paramedic or a school principal is involved
, the threshold issue of government action is met

. 25 As non

police actor s , however, their involvement requires a seco nd level of inquiry

. Namely, a court must analyze the nature of the non

- police government conduct and weigh the future deterrent effect of excluding the evidence. 26
Here, Lieutenant McMillon, as a n on

- duty paramedic, was a government

actor. Accordingly, the Fourth Amendment applies to his conduct. 27 However, the

21 Del. Const., Art. 1, § 6

. See also U.S. Const., amend. IV (guaranteeing the right of the people to be “ secure in their persons, house s, papers, and effects, against unreasonable searches and seizures ”). 22 State v. Onumonu , 2001 WL 695539, at *2 (Del. Super. June 18, 2001) (citing United States v. Jacobsen
, 466 U.S. 109, 113 (1984)). 23 Virdin v. State
, 780 A.2d 1024, 1030 (Del. 2001). 24 Id. 25 See New Jersey v. T.L.O.
, 469 U.S. 325 (1985) (explaining that government actors for purposes of the Fourth Amendment are not limited to the police and include government officials generally). 26 See Arizon a v. Evans , 514 U.S. 1 (1995) ( explaining that the issue of exclusion is separate from the consideration of whether the Fourth Amendment has been violated, and that the exclusionary rule should only be applied if it effectively serves its deterrent purpose by the exclusion )

. 27 Virdin
, 780 A.2d at 1030.9

question s of (1) whether the Fourth Amendment applies to certain non

- police governmental activity
, and (2) whether the exclusionary rule applies to that same conduct are not one in the same. 28 Namely, “ the issue of exclusion is separate from whether the Fourth Amendment has been violated . . . and exclusion is appropriate only if the remedial objectives of the [exclusionary] rule are thought most efficaciously served. ” 29 In its decision, the Court of Comm on Pleas erred when concluding that
Lieutenant McMillon’s status , in and of itself, triggered the exclusionary rule. At
the outset , it correctly found that he was a government actor
, but then did not address the second part of the inquiry. It instead applied an evidentiary sanction because a governmental actor , with no actual police authority, told Mr. Henry to remain on
site

. 30 It supported this analysis by focusing only on the reasonableness of Mr. Henry’s perception that Lieutenant McMill on was a police officer. The exclusionary rule ’ s remedy does not extend to the deterrence of
i ndividuals (whether purely private or government employed) that have no law
enforcement a uthority from behaving as though t hey do. Likewise, it does not
extend to s ituations where a defendant reasonably believes that the non

- p olice government employee is a police officer. When the Court of Common Pleas so held,
it cited no authority justifying an application of the exclusionary rule on that basis.

28 Lafave 1 Search and Seizure § 1.8(e) (5th ed). 29 Evans , 514 U.S. at 13

– 14 (citing United States v. Leon , 468 U.S. 897, 906 (1984) and United States v. Calandra
, 414 U.S. 338, 348 (1974)). See also Lafave 1 Search and Seizure § 1.8(e) (5th ed.) (explaining that “ the T.L.O. case made it abundantly clear that the question of whether the Fourth Amendment is applicable to certain non

- police governmental activity and the question of whether the Fourth Amendment's exclusionary rule is applic able to that conduct are not one and the same and might not inevita bly be answered in the same way”). 30 The Court of Common Pleas found this action to constitute a “detention” and then found there to be probable cause to support the detention . The Court n eed not address whether reasonable suspicion would be the floor necessary to justify the detention in this case. The trial court found probable cause which subsumes any requirement that the detention be justified by r easonable articulable suspicion.10

It would be inappropriate to create such a rule because t he exclusionary rule emerged as a judicially created response to Fourth Amendment violations. 31 The rule is “designed to safeguard Fourth Amendment rights generally through its
deterrent effect.” 32 In performing its function, it is a c ourt

- imposed exception to what otherwise is a presumption of admissibility. Expanding the exclusionary rule’s remedy to encompass a defendant’s reasonable perc eption that a non

- police actor
exercised non

- existing law enfo rcement authority is incorrect. I t would serve no defined Fourth Amendment purpose to do so.
Civil and criminal law already provide remedies and penalties to address

concerns generated by persons acting as police officers without authority. To be
clear
, Lieutenant McMillon’ s actions in this case were completely reasonable . He appropriately requested Mr. He nry to remain on site fo r public safety purposes (whether for Mr. Henry’s health or for the safety of others on the roadway). However, o ther civil and criminal remedies and penalties address situations

un like the one at hand. For instance, tort actions for invasion of privacy or false imprisonment exist to address when an actor’s conduct constitutes a wrongful search
or detention. These torts may also encompass someone’s improper assumption of police authority when he or she takes the wrongful action

. Likewise, a private party

or a non

- police governmental actor that improperly detains a person or wrongfully searches their property may also be criminally liable for unlawful imprisonment or criminal trespass

. In any event, Mr. Henry’s reasonable misunderstanding that Lieutenant
Mc Millon was a police officer did not require exclusion of evidence on search and seizure grounds

. A pplyin g the exclusionary rule ’s remedy in this instance
, (1) in

31 Herring v. United States
, 555 U.S. 135 , 139 (2009). 32 Id. at 139

– 40 (quoting Calandra
, 414 U.S. at 348 )

.11

the absence of a full analysis regarding the paramedic’s status, (2) where probable

cause was available to both the paramedi c and the arresting officer
, was legal error. Here, the case turns on the trial court’s probable cause finding; it found that Lieutenant McMillon had probable cause to detain Mr. Henry. The trial court also
found that when Office r Hudson arrived, he also possessed probable cause to believe
Mr. H enry was under the influence. The record evidence easily supports those finding s

. Namely, the Lieuten ant observed Mr. Henry remain unconscious through multiple green light cycles at an intersec tion. Mr. Henry did not know where he was
when he awoke. He also exhibited other indicia of being under the influence.
Given the trial court’s finding of probable cause, it was immaterial whether
the Lieutenant was (1) a private actor, (2) a non

- police governmental actor, or (3) a
law enforcement officer

. Both the p aramedic and the arresting officer detained Mr. Henry based upon facts that provided probable cause that he had driven under the
influence. Such a finding obviated the need to identify Lieutenant McMillon’s

status.

Conclusion
For the reasons discussed, the Court of Common Pleas erred when suppressing the evidence in this case. As a result, the dismissal must be
REVERSED

. The matter is REMANDED and will be subject to trial pursuant to
10 Del. C. § 9902(c).

_________________________ Judge