IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE :

 : ID No. 1808005494

 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 early 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 to wait until the 

police arrived. An officer arrived shortly thereafter.

After a suppression hearing, the Court of Common Pleas held that because the 

paramedic was not a law enforcement officer, he lacked authority to instruct Mr. 

Henry to wait at the scene. On 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 Mr. Henry had committed the crime. Pursuant to 10 Del. C. § 9902(b) and (c), 

the State appealed the trial court’s suppression order.

In this case, the 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 

Pleas need not have addressed the difficult issue of the paramedic’s status in search 

and seizure analysis. Rather, because the court found that the paramedic had 

probable cause to believe that Mr. Henry was under the influence, it should not have 

applied the exclusionary rule regardless of his 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 provided by 10 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 Kent 
3

General, he left the hospital and proceeded onto Loockerman Street. While stopped 

at a traffic light, he noticed that a car to his right remained stopped despite a green 

signal. After the green light cycled through two times, Lieutenant McMillon 

maneuvered his vehicle to look into the car. He thought he could see a body in the 

front seat. He then maneuvered his vehicle behind the car and parked. When doing 

so, he activated his vehicle’s emergency lights to warn vehicles approaching from 

the rear that both vehicles sat 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 wake 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 

person 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 awoke. 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 not 

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 you 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 complete 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, Officer 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. Henry reasonably mistook the paramedic for a police 

officer.4 Finally, the court found that the paramedic illegally detained Mr. Henry

without law enforcement authority.

5

 As a result, it suppressed all evidence after the 

point of detention. 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 car saying they’re on and he walks up and says you got to wait, that’s a 

detention by a State agent, State actor . . . all appearances 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 suppressed evidence. The court then dismissed

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 

citizen during the encounter, and (3) the exclusionary rule 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 an on-duty paramedic.

8

 In denying the 

State’s motion, the court reasoned that Lieutenant McMillon was a state actor while 

on duty.9 It also reasoned that while 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 State then filed this appeal. It submitted its opening brief 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 submitted 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 State’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 essential.”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 appeal is on the record.13

The 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 findings 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 address the State’s appeal in the context of Mr. 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 the 
7

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 response, the Court considered Mr. Henry to have 

waived his right 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 remainder of the record.18

Next, the Court turns to the merits 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 search 

and seizure provision is substantially similar to the federal provision and protects the 

same interests.

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 address 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 Amendment guarantees apply to government action.

22 They generally

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

purely private conduct triggers no search and seizure analysis.

24 On the other hand, 

police conduct that violates United States or Delaware Constitutional 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 side 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 actors. The paramedic’s action in this case falls 

in the latter 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 nonpolice actors, however, their involvement requires a second 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 an 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, houses, 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 Arizona 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

questions 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 Common 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 McMillon was a police officer. 

The exclusionary rule’s remedy does not extend to the deterrence of 

individuals (whether purely private or government employed) that have no law 

enforcement authority from behaving as though they do. Likewise, it does not 

extend to situations where a defendant reasonably believes that the non-police 

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 applicable to that conduct are not one and 

the same and might not inevitably 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 need 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 reasonable 

articulable suspicion.
10

It would be inappropriate to create such a rule because the 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 court-imposed exception to 

what otherwise is a presumption of admissibility. Expanding the exclusionary rule’s

remedy to encompass a defendant’s reasonable perception that a non-police actor 

exercised non-existing law enforcement authority is incorrect. It 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. Henry to remain on site for public safety purposes 

(whether for Mr. Henry’s health or for the safety of others on the roadway). 

However, other civil and criminal remedies and penalties address situations 

unlike 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 

McMillon was a police officer did not require exclusion of evidence on search and 

seizure grounds. Applying 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 paramedic 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 Officer Hudson arrived, he also possessed probable cause to believe 

Mr. Henry was under the influence. The record evidence easily supports those

findings. Namely, the Lieutenant observed Mr. Henry remain unconscious through 

multiple green light cycles at an intersection. 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 paramedic 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