IN THE SUPREME COURT OF THE STATE OF DELAWARE

ROBERT POTTS, §

§ No. 611, 2018

Defendant Below, §

Appellant, § Court Below–Superior Court 

§ of the State of Delaware

v. §

§ Cr. ID No. 1709011232 (N)

STATE OF DELAWARE, §

§

Plaintiff Below, §

Appellee. §

Submitted: October 11, 2019

 Decided: December 30, 2019

Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

ORDER

Upon careful consideration of the parties’ briefs and the record below, 

it appears to the Court that:

(1) In 2018, a Superior Court jury found the appellant, Robert Potts, 

guilty of possession of a firearm by a person prohibited (“PFBPP”), 

possession of ammunition by a person prohibited (“PABPP”), carrying a 

concealed deadly weapon (“CCDW”), drug dealing, and possession of a 

firearm during the commission of a felony (“PFDCF”). On appeal, Potts 

claims that the Superior Court erroneously denied his suppression motion. 

We find no error and affirm.
2

(2) At approximately 10:30 p.m. on September 16, 2017, 

Wilmington Police Detective Matthew Rosaio was on routine patrol in an 

unmarked police vehicle in the City of Wilmington. As he waited at the red 

light controlling the intersection of Seventh and Washington Streets, 

Detective Rosaio observed a black Chrysler cross his line of sight, heading 

southbound on Washington Street. Detective Rosaio noted that the vehicle’s 

registration plate did not appear to be illuminated as required by Delaware 

law.

1

 Detective Rosaio made a right-hand turn onto Washington Street and 

began following the Chrysler. After Detective Rosaio confirmed that the

Chrysler’s tail lamp was not illuminated, he stopped the vehicle.

(3) As Detective Rosaio approached the stopped car, the driver—

later identified as Potts—thrust his head out of the driver’s side window and 

shouted something to the effect of, “Why are you pulling me over?” Detective 

Rosaio advised Potts that he had stopped Potts for an equipment violation. 

Potts responded that he could not be detained “for that.” After Detective 

Rosaio asked Potts for his license, registration, and proof of insurance, Potts 

stated he “had all that” and reached into the back seat area toward a duffle bag 

 

1

21 Del. C. § 4334 (c) (“Either a tail lamp or a separate lamp shall be so constructed and 

placed as to illuminate with a white light the rear registration plate and render it clearly 

legible from a distance of 50 feet to the rear. Any tail lamp or tail lamps, together with any 

separate lamp for illuminating the rear registration plate, shall be so wired as to be lighted 

whenever the head lamps or auxiliary driving lamps are lighted.”)
3

that lay on the floorboard. Potts pulled the opaque bag into his lap and opened 

it. As Potts reached into the bag—and before he handed Detective Rosaio any

identifying documentation—Detective Rosaio asked if Potts had a weapon on 

him. Potts answered in the affirmative and stated that he was going to hand 

the weapon to Detective Rosaio. Detective Rosaio ultimately seized Potts’

weapon as well as a large quantity of heroin from the vehicle.

(4) Potts was thereafter indicted by a Superior Court grand jury for 

PFBPP, PABPP, CCDW, drug dealing, PFDCF, illegal possession of a 

controlled substance, and resisting arrest. Potts moved to suppress the 

evidence seized from his vehicle on the grounds that Detective Rosaio’s 

inquiry regarding the presence of weapons in the vehicle improperly exceeded 

the scope of the traffic stop. 

(5) At a suppression hearing held on February 2, 2018, the Superior 

Court heard testimony from Detective Rosaio and Potts. At the conclusion of 

the hearing, the Superior Court issued an oral ruling denying Potts’ motion. 

Although Potts had presented some evidence that the vehicle’s tail lamp had 

been functioning three weeks earlier when it was inspected at the Division of 

Motor Vehicles, the trial judge found Detective Rosaio’s testimony that the 

vehicle’s registration plate was not illuminated to be credible. The trial judge 

noted that Detective Rosaio had later inspected the Chrysler and found that 
4

the tail lamp was damaged, and documented this damage in a supplemental 

police report. Accordingly, the trial judge found that the officer had 

articulated probable cause for stopping the vehicle because the vehicle’s 

registration plate was not illuminated.2 The trial judge next found that, 

whether Detective Rosaio’s question about Potts’ possession of a weapon 

constituted routine questioning or not, the question was justified by the totality 

of the circumstances. 

(6) The case proceeded to a jury trial. Prior to trial, the State 

dismissed the charge of illegal possession of a controlled substance and, 

during the trial, the Superior Court granted Potts’ motion to dismiss the 

resisting arrest charge. The jury found Potts guilty of the remaining charges 

and he was sentenced to an aggregate of twelve years of Level V incarceration, 

followed by decreasing levels of supervision. This appeal followed.

(7) On appeal, Potts claims the Superior Court erroneously denied 

his suppression motion for a number of reasons. First, Potts claims that the 

Superior Court abused its discretion in denying the motion to suppress 

because: (i) the traffic stop was pretextual; (ii) the evidence seized from the 

search incident to his arrest for resisting arrest should have been suppressed

 

2 The trial court need only have found reasonable articulable suspicion for the stop. Clay 

v. State, 164 A.3d 907, 915-16 (Del. 2017).
5

because the Superior Court ultimately dismissed the resisting arrest charge; 

and (iii) Detective Rosaio’s questioning exceeded the scope of routine 

questioning and was not justified by the circumstances. Second, Potts argues 

the Superior Court abused its discretion by ignoring the ambiguous language 

of 21 Del. C. § 4334 and because the uncontradicted evidence presented below 

established that Potts’ vehicle’s tail lamp was functional on September 16, 

2017. Third, Potts contends that the Superior Court erred in ignoring the 

definition of “routine questioning” in 11 Del. C. § 1902.3 

(8) This Court generally reviews a trial court’s denial of a motion to 

suppress evidence for abuse of discretion.4 To the extent that the claim of 

error is for an alleged violation of a constitutional right, we conduct a de novo

review.5 We will not, however, disturb a trial court’s factual findings absent 

clear error.6

(9) Potts’ arguments are unavailing. We will not review Potts’ claim

that the language of 21 Del. C. § 4334 is ambiguous or his claim that the 

 

3

11 Del. C. § 1902(a) (“A peace officer may stop any person abroad, or in a public place, 

who the officer has reasonable ground to suspect is committing, has committed or is about 

to commit a crime, and may demand the person’s name, address, business abroad and

destination.”).

4 Lopez-Vazquez v. State, 956 A.2d 1280, 1284 (Del. 2008).

5

Id. at 1284-85.

6

Id. at 1285.
6

Superior Court ignored 11 Del. C. § 1902 when considering his motion to 

suppress because he did not raise them below.

7

 

(10) Although Potts now claims that the search of his car was invalid 

because the charge of resisting arrest was later dismissed, his motion to 

suppress did not challenge the search of his car. Accordingly, this Court 

reviews the claim for plain error. Under this standard, “the error complained 

of must be so clearly prejudicial to substantial rights as to jeopardize the

fairness and integrity of the trial process.”8 “[T]he doctrine of plain error is 

limited to material defects which are apparent on the face of the record; which 

are basic, serious and fundamental in their character, and which clearly 

deprive an accused of a substantial right, or which clearly show manifest 

injustice.”9 There is no such error here. The testimony at the suppression 

hearing was limited to Detective Rosaio’s initial detention of Potts and did not 

touch upon the circumstances that led to Potts’ arrest. Accordingly, there is 

no material defect apparent from the face of the record to support an argument 

 

7 Del. Supr. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented 

for review; provided, however, that when the interests of justice so require, the Court may 

consider and determine any question not so presented.”); Delaware Elec. Coop., Inc. v. 

Duphily, 703 A.2d 1202, 1206 (Del. 1997) (“It is a basic tenet of appellate practice that an 

appellate court reviews only matters considered in the first instance by a trial court. Parties 

are not free to advance arguments for the first time on appeal.”).

8 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).

9

Id.
7

that Potts was deprived of a substantial right or that clearly shows manifest 

injustice.

(11) Potts’ remaining claims lack merit. Although Potts did not 

explicitly argue that the traffic stop was pretextual below, the Superior Court 

correctly noted that an officer’s subjective intentions play no role in a Fourth 

Amendment analysis.10 The record reflects that there was conflicting 

evidence about whether the tail lamp was working properly on September 16, 

2017. The Superior Court’s finding—reached only after considering the 

evidence presented by both the State and Potts—that the lamp was not 

functional was not clearly erroneous. Finally, we agree with the Superior 

Court’s conclusion that Detective Rosaio’s question of whether Potts 

possessed a weapon was justified in light of the totality of the circumstances.

11

 

Those circumstances included the following facts: (i) at the time of the stop, 

Detective Rosaio was unable to trace Potts’ vehicle because the registration 

tag was not visible; (ii) Potts “shouted”12 at Detective Rosaio in a manner that 

 

10 Murray v. State, 45 A.3d 670, 674 (Del. 2012) (“[U]nder the Fourth Amendment of the 

United States Constitution, the police may of course pull over a vehicle for breaking the 

law, even if the officers harbor a different subjective motivation.”).

11 See Pierce v. State, 2011 WL 1631558, at * 2 n. 14 (Del. Apr. 29, 2011). See also 

Murray, 45 A.3d at 674-75 (noting that United States Supreme Court precedent has held 

that an officer’s inquiries into matters unrelated to the justification for a traffic spot were 

permissible when they were “measures taken for self-protection at the very start of the 

traffic stop.”)

12 App. to the State’s Ans. Br. at B37.
8

the Superior Court characterized as “confrontational;” (iii) at the time of the 

stop, Potts was as-yet unidentified;13 and (iv) Potts recovered from the rear 

floorboard area an opaque duffle-sized bag and opened it before complying 

with the officer’s request that Potts produce identification.

NOW, THEREFORE, IT IS ORDERED that the judgment of the 

Superior Court is AFFIRMED.

BY THE COURT:

/s/ Karen L. Valihura

Justice

 

13 At the suppression hearing, Potts testified that he immediately handed Detective Rosaio 

his driver’s license when Detective Rosaio approached the car. The Superior Court found 

Detective Rosaio’s testimony that Potts stated that his identification was in the bag located 

on the rear floorboard to be credible. We give great deference to a trial court’s credibility 

determinations. Banther v. State, 823 A.2d 467, 483 (Del. 2003).