IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

S TATE OF DELAWARE )

)

v. ) ID No. 20 11 00 8215

)

ALFRED WESCOTT

, )

)

Defendant. )

Submitted: Ma y 1 9 , 2022

Decided: May 23 , 2022

Upon Defendant ’s Motion for Re argument

DENIED

MEMORANDUM OPINION AND O RDER

Lindsay Taylor, Deputy Attorney General, Department of Justice, 1 3 The Circle,

Georgetown, DE 19 947 , Attorney for State of Delaware.

Tasha M. Stevens

- Gueh, Esquire, Andrew & Stevens

- Gueh , LLC, 115 South

Bedford Street, Georgetown, DE 19947, Attorney for Defendant.

K ARSNITZ, R

. J.1

On April 7, 2022, I denied a motion by Alfred Wescott (“Movant” or

“Westcott”) to s uppress certain evidence (the “Suppression Motion”). My decision

was based in part on the Delaware statutory declaration that nothing in the law

decriminalizing possession of less than one ounce of marijuana “shall be construed

to repeal or modify any law or procedure regarding search or seizure.” 1 On May 16,

2022, Movant filed a letter r equesting that I reconsider that ruling. Although the

letter is captioned as a Request for Reconsideration of Motion to Suppress, I will

treat it as a Motion for Reargument since it ask s me to r evisit m y prior decision on

the Suppression Motion. 2 Moreover, “an application to the court for an order shall

be by motion,” 3 not by a letter, but I will treat the letter as if it were a Motion for

Reargument.

The Superior Court Criminal Rules do not address a Motion for

Reargument . Th e Criminal Rules provide that " [i] n all cases not provided for by

rule or administrative order, the court shall regulate its practice in accordance

with the applicable Superior Court civil rule." 4 Under the Superior Court Civil

Rules, a party must submit a motion for reargument within five days following

1 16 Del. C. § 4764(h).

2 A motion for reconsideration is the procedural vehicle by which a party may seek a review of a

commissioner's ruling by a judge. Super. Ct. Crim. R. 62(a)(4), (b).

3 Super . Ct . Crim. R. 47

. 4 Super

. Ct

. Crim . R. 57(d)

.2

the Court's decision. 5 The time allotted for a motion for reargument cannot be

extended. 6 If a motion for reargument is untimely, the Court lacks jurisdiction to

consider any substantive argument. 7 Movant’s Motion for Reargument was filed

well beyond five days following my April 7, 2022 decision. Th u s, I do not have

jurisdiction to consider the M otion for Reargument

.

Even if the Motion for Reargument had been timely filed, I would deny it. "A

motion for reargument 'will be denied unless the Court has overlooked a controlling

precedent or legal principles, or the Court has misapprehended the law or facts such

as would have changed the outcome of the underlying decision."' 8 "The party

seeking reargument has the burden to demonstrate newly discovered evidence, a

change in the law, or manifest injustice." 9 Movant has not provided any newly

discovered evidence, a change in the law, or shown manifest injustice. M o v a n t

a rgues that a change in federal law should cause me to reconsider my prior ruling.

However, the change in federal law occurred well before the Suppression Motion

5 Super

. Ct

. Civ . R. 59(e)

.

6 Dickens v. State, 852 A.2d 907, 2004 WL 1535814, at *1 (Del. 2004) (Table).

7 Id. at *2 (citing Preform Building Components Inc. v. Edwards, 280 A.2d 697, 698 (Del. 1971));

Boyer v. State, 919 A.2d 516, 2007 WL 452300, at *2 (Del. 2007) (Table) (citing Preform Building

Components Inc., 280 A.2d at 698).

8 Kennedy v. Invacare Corp., 2006 WL 488590, at * 1 (Del. Super. Ct. Jan. 31, 2006) (quoting

Bd. Of M'grs of the Del. Crim. Just. Info. Sys. v. Gannet Co., 2003 WL 1579170, at *1 (Del.

Super. Ct. Jan. 17, 2003)).

9 State v. Williams, 2019 WL 248895, at *2 (Del. Super. Ct. Jan. 16, 2019) (citing Reid v. Hindt,

2008 WL 2943373, at *1 (Del. Super. July 31, 2008)).3

was filed. Movant could have made this argument during the hearing on the

Suppression Motion since th e federal law relied on in the Motion for Reargument

existed at the time of th at hearing

.

Were I to address t he substance of the Motion for Reargument, my decision

of April 7, 2022, would still stand. Movant asserts that

, based on federal law, the State

would have to show that it was able to distinguish the THC c on centration of the

alleged “ shak e” as between marijuana and hemp. Movant is essentially trying to posit

an innocent explanation for small leaves consistent with marijuana . However, t here

is no presumption of innocence when determining probable cause. 10 The "possibility

that there may be a h ypothetically innocent explanation for each of several facts

revealed during the course of an investigation does not preclude the determination

that probable cause exists." 11 The possibility that the small leaves in the vehicle were

hemp rather than marijuana does not vitiate probable cause in this case. There is

nothing to suggest the small leaves were not marijuana. Mo reo ver, the officer's

training and experience

, as well as a positive K

- 9 alert

, certainly suggest that the

small leaves were marijuana. 12

10 State v. Arnold, 2006 WL 488619, at *4 (Del. Super. Feb. 17, 2006); see generally State v.

Schleifer, 2004 WL 343967, at *7 (Del. Super. Feb. 19, 2014)

. 11 State v. Maxwell, 624 A.2d 926,930 (Del. 1993) (citing Ja rvis v. State, 600 A.2d 38, 4 1

- 42

(Del. 1991) )

. 12 See United State v. Bignon, 813 F. App'x 34, 37 (2d. Cir. 2020) (finding probable cause

existed based on the officer's training, experience, and observations despite defendant

claiming substance was hemp and subsequent test results confirmed hemp).4

Delaw are law has "long recognized that '[p]robable caus e is an elusive

concept which avoids precise definition .

. . It lies somewhere between suspicion

and sufficient evidence to convict. "' 13 "[O]bjective facts 'when used by trained

law enforcement officers ... can be combined with permissible deductions from

such facts to form a legitimate basis for suspicion of a particular person and for

action on that suspicion."' 14 "While probable cause is a determi nation only

courts can ultimately make, we give deference to the 'on

- the

- scene conclusion[s]'

of officers. In reviewing these conclusions, we must consider the demands

officers face, in which they may 'draw inferences and make deductions

... that

might well elude an untrained person."' 15

The question is not whether the small leaves were marijuana beyond a

reasonable doubt, or by a preponderance of the evidence, but rather, whether there

was a reasonable basis for the officer to believe, given the totality of the

circumstances, with his training and experience, that the small leaves were

marijuana. The officer testified at the hearing on the Motion to Suppress about

marijuana “ shake. ” Shake is the byprodu ct of manipulating dried marijuana buds,

13 Maxwell, 624 A.2d at 929 (alteration and omission in original) (quoting Hovington v. State,

616 A.2d 829,833 (Del. 1992) and citing State v. Cochran, 372 A.2d 193, 195 (Del. 1977)).

14 Coleman v. State, 562 A.2d 1171, 1176 (Del. 1989) (omission in original) (quoting United

States v. Cortez, 449 U.S. 411, 419 (1981) )

. 15 United States v. Fernandez, 652 F. App'x 110, 113 (3d. Cir. 2016) (alteration and omission

in original) (citations omitted); see also United States v. Jackson, 682 F. App'x 86 (3d.

Cir.2017).5

which happens when doing such things as rolling a marijuana cigarette. In my view,

there was probable cause to search Movant’s vehicle.

For the reasons stated above, I DENY Defendant’s Motion for Re argument.

IT IS SO ORDERED.

/s/ Craig A. Karsnitz

cc: Prothonotary