IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR K

ENT COUNTY STATE OF DELAWARE ) ) v. ) ) ) MARLOW E. HOLME S, ) 1501015446 ) ) Defendant. )

Submi tted: Augus t 3, 2015 Decided : Septem

ber 3, 2015 OPINION UPON DEFEN

DANT’S MOTION TO SUPPRESS GRANTED Zachary A. George, Esquire, Departm ent of Justice, for the State. J’Aim e L. W alker, P

ublic Def ender’ s Offic e, for t

he Defe ndant CLARK , J.
I. INTRODUCTION Before the Court i s Marlow Holmes’ (“Defendant’ s”) Motion to Sup press all evidence seized as a result of what the Defendant alleges was an unlawful search a nd seizure of his person and property following a traffic s top tha t coincided with an independent

undercove

r drug inve stigation. The Defendant argues that the evidence2

was obtained in violation of the Four th Am endme nt of the United Stat es Constitut

ion and Artic le I, §6 of t

he Delaw are Const

itution. A

suppression

hearing w as held

on August 3, 201 5. At the hea rin g, th e Sta te ca lle d on e wit nes s to tes tif y–the offic er in charge of the unde

rcover dr ug investiga

tion. The State did notpresent as witnesses the officers involved in th e traff ic stop or subse quent sear ch and arr est at issue . The primary issues in thi s case invo lve whether the State ’s burde n in a mot ion to suppre ss
can be met sol ely b y hear say a nd whe ther the circumstances of this case require applicati on of the collective knowledge doctrine. The presentation of evidence at this suppression

hearing pr

ovided the in verse of t

he typi cal situat

ion inv olvin g an undercove

r office r. Her e, the und ercover

officer provided al l of the te stimony and the arresti ng andsearching officers did not appear or testify at the hearing. In light of the law, the fact s of this ca se, and th e parties ’ subm issions, the Defendant's motion is GRANTED
. II. FINDINGS OF FACT All testimony and evidence in the suppression

motion came from

the testim

ony of Detective Scott Hurd (“ Detective Hurd”). In early January 2015, Detective Hurd
was working und ercover

as a part of th e Dover Po lice De partm ent’s D rug Vice

and Organized Crime Unit. A t that time, Detective H

urd was contacted by a confidential1 According to Detective Hurd’s testimony , the CI, known as No. 496, was past-proven and

reliable. 3 inform ant 1 (“CI”) who told him that a black male known as Car ol ina was se lling cocaine in the downtown Dover area. Accordi ng to the CI, the man in question had
aprostheticleg which

he used to st

ore and transport cocaine. The CI also informed Detecti ve Hurd that

Carolina dr ove a blue Ford Crown Victoria with Delawar e registra tion HP31970. With that

information, Detective Hurd conducted a Delaware Criminal Justice inq

uiry c heck that c on firm ed Defendant Holmes as the re gistered
owner of the Crown Victoria. Pursuan t to that inquir y, D etective

Hurd obta

ined a pictu re of Defendant Holm es. De tective H

urd showed

the pictur

e to theCI wh o positively identifie d Defend ant Holm es as Car olina. A month l ong investiga

tion of Carolina followed which cul minat

ed on the da

te in questi on. On January 26, 2015, the CI contacted Detect ive Hurd a

nd informed him that the Defendant was in possession of cocain e on Division S treet in D over. D etective Hurd used the C I ’s cell

phone to cont act the D efendant. Accordi ng to Dete ctive Hurd, the Def

endant conf

irme d that he w as in possess ion of cocaine a

nd asked how muchDetect

ive Hurd n eeded. D etective Hurd aske d for a “

ball gam e” which is slang for 3.5 grams of cocaine. The De fendant sa id he did not have the

requeste d quantity2 Accord ing to De tective H urd’s te stimony , “people ” is a common t erm in the

drug wo rld fo r a de al er ’s so ur ce of

su pp ly. 4 at that time, but would go to Sm yrna to me et with his “people” 2 and retur n in approximatel y an hour with t he request ed drugs. Meanwhile, Detective Hurd and his partner established surveillance in the 300 block of Divisio n Street

and identifie d the Def

endant. They

observed t

he Defe ndant getinto the front passenger seat of a white Chevrolet Tahoe with Delaware registra tion. The Ta

hoe headed

West on Division

Street a nd Detec tive Hurd

and his partner followed . The T ahoe then st opped at the

Dover Express Ga s Station and the Hamlet Shoppin g Center befo re entering northbo und Rout e One toward Smyrna. From there, Detect

ive Hurd f

ollowed the

Tahoe ont

o Northboun d Route One and then onto Southbound Route 13 via the N orth Sm

yrna exit. From

Route 13, the Tahoepulled into t

he Shore S top Gas sta

tion. All the occupa

nts remained in the vehicle and after a few minut es, the Ta hoe left th e Shore S top gas stat ion and continued Southbound

on Route 13 before entering the Valero gas station in Smyrna. Detecti ve Hurd obser ve d the Def endant exit

the vehicl e and ente

r the busine ss throughaside door. After a few m inutes, the Defendant returned to the vehicle which then proceeded North again on Route 13 to the Shore Stop gas station for a se cond time.5

Detecti ve Hurd wa

tched as th e vehicle

parked at

the gas pum

ps . The driver exi ted the Tahoe an d entered the business . Meanw hile, the Defenda nt exited th e vehicle and walke d to a white Chevrolet Silverado parked at t he a dja cen t fu el p ump
a nd entered the front passenger seat. The Defendant rem ained in the Silverado fo r
afew minutes before exiting and returning to the Tahoe. T he Tahoe exited the gas stationand Dete ctive Hur d fol lowed it. As the T ahoe enter ed Southbound

Route One, Detective Hu rd contin ued to fol low it toward Dover. Accordi ng to Detec tive Hurd , based on his trainin g and six y ears of undercover exper ience, he believed h e had just witnesse d the Def

endant m eet his coc aine supplie r. His belief was grounded in the inf ormation desc ribed abo ve. Detecti ve Hurd testified adamantly that he did not relay the above-mentioned inform ation to other of

ficers, ho wever. The re was n o testim ony at t he hearin g involving contact between D etective Hurd and any other officer. In the poli ce repor t, attached as an exhib it to Defendant’s Motion to Suppress, there was a single reference addressingcontact a

mong of ficers. That lone

reference state d that Detective Hurd radioed other off

icers w hen he ente

red Southbo u nd Rout e 1 to retur n to Dover

to make them, including Officer Mar tinek, “aware

of our location.” No other tes timo ny, evidence, or refe

rence in the police

report e vidences th e sharing of any of the abovementionedinformation. I n fact, the testim ony at t he hearin g conclusive ly established6

this inform

ation was not relayed to other officers outside the undercover vehicle. Detecti ve Hurd next

testifie d that Office r Ma rti nek , fr om t he Dover Police Departm ent, independently observed a seatbelt violation in the Tahoe and stopped the Tahoe. Due to his undercover capacity, Detective Hurd did not partic ipate in the stop but watched from a distance of appro ximat ely f ifty y ards. D etective

Hurd did not witnes s any facts relev ant to a seat belt vio lation in the Tahoe at i ssue. Atsome point afte

r the stop of

the vehicl e by O fficer

Martinek , Dete ctive Hurd, still from

approxim

ately fifty yards away , observe d as Off icer Ha nnon and his K-9 partner arrived o n scene and c onducted a s niff of the

vehicle. At that ti me, all of the occupants were removed from the vehicle. Detective Hurd testified that he was later inform ed that the

dog alerte d the presence of dru gs on the fron t passenger

side door of the Tahoe. Detect

ive Hurd a

lso testifie d that the of

ficers l ater inf

orme d him that at the sce ne the y perform ed backgro und checks o n the occupa nts. De tective Hurd did not rec all the re sults of the check s. The o fficer s on the scene, n ot Detec tive Hurd, made

the decisi on to take th e occupant s and thevehicle in to custo dy. Detect ive Hurd was unabl e to testif y as towho m ade the de cision for the arre st or the pr

ecise
reason for it. He did tes tify, however , that Offic er Stagg later told him that officer safety was an issue an d that the Defenda nt appear ed to be ext

reme ly ner

vous while still in the vehicl e and repeat edly asked to use the bat hroom.3 State v. Chandler , 2015 WL 1731 508, a t *3 (D el.S uper. April 2, 201 5)(ci ting Hunter v.

State , 783 A.2d 558, 560(Del. 2001)). 7 The occupants and the vehicle were transported to the D ove r Police Dep art me ntso a thorough search could be conducted. Once there, Detective Hurd searched the vehicl e but

no contraba

nd was loc ated. A ccording to Detec tive Hurd , he was tol d that at som

e point, hi s supervisor, Detective Dickinson authorized strip searches of

all the vehicle’ s occupants . Dete ctive Hur d indicate d he was no t present when the decisi on was made and did not recal l the rea sons that were given for perform ing the str ip s earc hes . He wa s to ld b y f ello w offic ers that a

search of

the Defenda ntuncovered a clear

knotted plas tic bag hidden in his left prost hetic leg, and that a field tes t returne d positive f or cocain e at whic h point the Defendant was read his Miranda rights. The Defendant was then charged with Aggravated Possession, Drug Dealing , and Posses sion of Dru g Paraphern alia.

III. STANDARD

OF REVIEW In evaluatin g a mot

ion to suppre ss evidence

seized dur

ing a war rantless search
o r seizure , the Sta

te bears the burden o f establis hing that the challenge d search o r seizure was performed

in a m anner so a s to protec t the individu al rights guaranteed by the Unite d States C onstitution, the Dela ware C onstitution a

nd state sta

tutes. 3 The Statemust pe

rsuade the

Court that

an initial stop, arrest a

nd sear ch we re la wful by a4 Id . (Ci ting State v. Abel , 2011 WL 5221276, a

t *2 (Del. Super. Oct.31, 2011) aff’d, 68 A.3d 1228 (Del. 2012), a s Amended (Jan.22, 2013)).

5 U.S. Const. amend. IV; Del. Const. art. I , § 6.
6 Caldwell

v. State , 780 A.2d 1037, 1045- 46 (Del . 2001 ) (cit ing Terry v. O hio , 392 U.S. 1, 16–19 (1968) ( “[T]he police officer must be able to point to s pecific an d articulable facts which, taken together with rational inferenc es from those facts, reasonably warrant that intrusion.”)).
7 Chandler , 2015 WL 173 1508 , at *4 (quot ing Holden v . State , 23 A.3d 8 43, 847 (D el. 2011)). 8 preponderance of the evidence. 4 IV. DISCUSSION A. Legal stan dard for a traffi c stop The Fourth Am

endme nt of the United Stat es Constitut

ion a nd A rticle I , Secti on 6 of the De laware

Constitution , protec t individuals from unreasona

ble searches and seizures
. 5 When it

come s to a traf

fic stop, “the State m

ust demonstrate that

the stop and an y subse quent police investigat

ion were reasonabl e under the

circum stanc es . First, the stop m

ust be just

ified at i ts inceptio n by re ason able suspicion of criminal activity as defined in Terry v. Ohio .” 6 Delaw are cour ts consiste ntly de fine rea sonable suspicion as an “ officer 's ability

to point to specificand articulable facts which, taken togetherwith ration al inference s from those fact s, reasonab ly warrant the in trusion .” 7 Courts must e valuate th e intrusion “thro ugh the eyes of a reasonable, trained police officer in the sam

e or sim ilar cir cumst ances, combi ning objec tive facts with such an8 Holden v . State , 23 A. 3d 843 , 847 ( Del. 2 011) ( citi ng Jones v. Stat e , 7 45 A.2d 856, 861

(Del. 1999) (emphasis added).

9 Thompson v. State , 539 A.2d 1055, 1056 (Del. 1988) (citing 11 Del. C. §1904(b)(1).
10 State v. M

axwell , 624 A.2d 926, 929 (Del. 1993) (internal quotations omitted).
11 State v. Manley , 706 A.2d 535, 5 38-39 (Del. Super. 1996) (internal citations omit ted)(e

mphasis added); see also , Carter v. S tate , 814 A.2d 4 43, 445 (Del . 2002) ("Fo r a n arrest ing officer to have pr

obable cause, the officer's knowledge must be sufficient for a prudent person to believe that an individual had committed or was committing an offens e.") ( emphasis added). 9 officer's subjective interpretation of those facts .” 8 B. Legal standard for a warrant less arr est where a rrestin g officers had personal knowled ge In Delaware, a police officer is authorized to make a warrantles s arrest for a felony when there is “reasonable ground to believe that the person

to be arrested has
comm itted a felony

...” “[R ]easona

ble ground

to believe,” as used in that statute, has been construed to mean probable cause. 9 Probable cause “is an elusive concept which avoids precise definition.... It lies somewhere

be t ween suspi cion and s ufficient evidence t o convict ." 10 Furthermore,

“ [a]rresting officers have ‘proba ble cause ’ to make an ar

rest .. . whene ver the f

acts and circumstances within the officers' kn owledge and of which t hey had reasona

bly trustwor thy information wer

e suffici ent to warra

nt a prudent

personin believing that the arreste es had com

mitte d or wer

e com mitti ng an of

fense." 11 The test

involves a12 Maxwell, 624 A.2d at 928; see also Wong Sun v. United States , 371 U.S. 471, 479 (1963) (“The quantum of information whichconstitutes probable cause—evidence which ‘would wa rrant a man of reasonable caution in the belief' that a felony ha s been committed—must be measured by the facts of the particular case." ).

13 Maxwell , 624 A.2d at 930.
14 State v. Cooley , 457 A.2d 352, 355 (Del. 1983).
15 Id
. 16 Id
. 10 case-by -caseanaly sis of the “ tota li ty of the circumstan ces.” 12 As such, “police are only required

to present

facts which suggest, when those facts are viewed un der the totality of the circumstances, that there is a f air probability that the defendant has committed a crime.” 13 C. Legal standard for a warrantless arrest where arresting officer’s justifi cation

in based

on kn owledge com

munic ated by f

ellow officers. Arresti ng officers are “entitled to rely on information rela yed to [them ] through official channels when arresti ng [a susp ect].” 14 In other w ords, “ [t]he a rresti n g officer himse lf need not be a pprised of t he underly ing circum stances w hich gave r ise to a conclusion

of probab le cause.” 15 An arre sting offic er is fre e to “ac t in the belief that his fellow office r's judgment is co rrect.” 16 However, if “ no officer connected to the arrest knows th e facts which might just ify it, [ i
. e ., probable cause] no officer17 Id . (Emphasis added).
18 Id.
19 As indicated above, Detective Hurd had six y ears ex perience as an undercover drug investigator. On the day in question, Detective Hurd was informed that the Defendant wa s dealing cocaine in the Dover area from a past-prove n, relia ble sourc e. The De

fendant was per sonally contacted by Detective Hurd and corroborated the fact that he was selling cocaine. The Defendant himself provided DetectiveHurd with his plan to

travel to Smyr na and ba ck to acquire the requested amount o f cocai n e. Meanwhile, Detective Hurd established surveillanc e of the Defendant and followedhim on the trip to Smyrna as described. A long the way , the Tahoe carry ing the Defendant stopped for gas in Dover. By the time the Tahoe reached Smy rna, it stopp ed at two more gas stations– on e of them twice–without getting gas. On the last stop, the Def endant was observed entering a vehicle parked at an adjacent pump fo r a brief period of time. After the meeting , the Defendant got back in the Tahoe a nd headed directly

back to Dover. 11 exercises the judg ment required as a substit ute for judi cial appro val.” 17 In the absence of comm

unication amongst a team of officers , the stop or arrest of an individual by an officer not possessing any such knowledge is improper. 18 D. Detect

ive Hurd ha d the pe rsonal k nowledge su fficien t to establish probable cause, but it was n ot relaye d to the arrestin g officers. In the prese nt case, the State ’s only witness w as Detec tive Hurd . At the suppression

hearing, the thrust of the State’s case c entered o n the inform ation obtained by Detective

Hurd duri ng his underc over invest igationand survei llance of the Defenda

nt. In lig ht of

the afor emen tioned lega

l principle s, the Cou

rt is persuaded that Detect

ive Hurd h ad p ersonal kno wledge suf ficient to support a f

inding of probable cause which would have allowed him, or som

eone at his direction , to arr est the Defenda

nt without a

warra nt. 19 However, Detect

ive Hurd d

id not parti cipate in20 Cooley, 457 A.2d at 353.
21 Id
. 22 Id
. 23 Id . (The Court determined that the Defendant was not taken into custody or ar

rested at that time.). 12 the stop or subse quent arr est of the Defenda nt. Bec ause the le gality of any
warran tless arr est hinges on what wa s known by

the arre sting offic er at the time of the arrest, Detective Hurd’ s testimony can only be considered if

that information was known by the

arresting officers. In other words, if the inform ation uncovered during Detecti ve Hurd’ s investig ati on was neve r relay ed to his fe llow offi cers, i t logically couldnot have formed a basis for the arresting officers’ probable ca use deter minat ion. This asp ect o f th e su ppr ess ion moti on i s co ntr oll ed b y State v. Cooley
. 20 In that case, the Dela

ware S uprem

e Court determ

ined whet

her probab le cause existed to arrest a Defe ndant and toadmin iste r an intoxil yzer test in a dr

iving under t

he influence case. O n the night in question, in Cooley , State Trooper Shama ny arrived on scene and identified the Defendant as a driver of one of the vehicles involved in
an accident
. 21 At the scene, Trooper Shamany detected a strong sm

ell of alcohol

on the Defenda

nt’s bre ath and note d that he ap peared tobe incoher ent. 22 Tr oope r Sham any helped him

into a police ca r but did not p lace him

under arr est or m ention that he was beingdetained p ending inves tigation into the acci dent. 23 Other officers24 Id
. 25 Id . at 355.
26 Id
. 13 arrived on site to aid in the inv estigati on. Witnesses on the scen e were identifie d and direc ted to the nearby StatePolice Troop for state ments . Two of t he witnes ses offer

ed to take the Defendant with them to the Troop , and

Trooper Sham any ac cepted the ir

offer. 24 Sometime thereaf ter, one of the other o fficer s who late r arrive d at the scene, Corp oral McD erby, establish e d radio contact w ith the Troop and directed the desk se

rgeant, Sergean

t Thom pson, to arrest t he Defe ndant when

he arriv ed for dri ving under th e influenc e of alcoh ol. SergeantThom

pson, at th e Troop desk, had no firsthand knowledge to justify the Defenda

nt’s ar rest. T he focus of

the Court’ s inquiry

shifted to whether the dir ecting officer , Corpor al McDe rby, had probabl e cause toorder the arrest o f the Defenda nt. 25 In care fully

reviewing the facts, the Suprem e Court held in that case that since Tr ooper Sham

any (1 ) was the on ly officer possessing sufficient facts to reach
aconclusion r

egarding pr

obable ca use and (2) she

did not communicate them to either Th ompson

or McDerby, a

nd furthermore (3) Trooper S hamany did not direct th e Defend ant’s arrest, t h at there was not pr obable cau se for suc h an arre st. 26 Because of the absence of comm

unication between officer s, it followed that the defendant was27 Id. at 356 (internal citations omitted).
28 Id . at 35 5 (quo ting State v. S choenbn eelt , 368 A.2d 117, 119 (Conn. 1976)).
29 Id . at 355-56 (quoting Com. v. Gambit , 418 A.2d 554, 557 (Pa. Super. Ct. 1980) aff'd , 462 A.2d 211 (Pa. 1983)). 14 arrested without probable cause. Defendant’s arrest at the T roop by an officer possessing neither facts shared with him by an officer

regardin g probable c ause nor
an ord er by a fellow officer possessing such information violated both the Unite d States a nd Delaw are Const

itutions. 27 The Delaw are Supr

eme Court, in Cooley , also re jected the State 's alter

native argum ent that even if the arresting off i cer, T hompson , did not ha

ve knowled ge of sufficie ntfacts amounting to probable cau se, Sham any' s knowledge could neverthel ess be im

puted to Thom

pson since "the collective knowledge of an entire organizat ion may be imputed to an ind ividual officer....” 28 In rej ecting tha t argum ent, whilerecogniz ing the viabi lity of the collec tive knowle dge do ctri ne, the Court explained t

hat the Statemisund erstands t

hat principle here. To say in the abstract that probable cause is to be eva luated on the basis of the

collectiv e inform ation of t he p oli ce ig nor es t he u nde rlyi ng assum ption—and factual real ity— that there is some comm unication between tho se officer s, who do know fa

cts am ounting to pro bable cause, a nd those who do n ot.. ..[I]nform

ation scattered among various officers in a police departm ent cannot subst

itute for possession of

the neces sary facts by a single o fficer related to the arres t. 2930 Id
. 15

The Court reasoned thatthe collective knowledge doctrine appropriately appliedin situations where i nform ation heldby se ver al o ffic ers i s act ual ly (n ot c ons tru cti vel y) pooled to make a prob able caus e determ ination. 30 In summ ary, on a motion to suppress challengin g the suffi ciency of a stop or
warran tless arrest f

or lack of probable c ause, the

State ca n satisfy its burden i n on e of two way s. The S tate can present evidence that the arresting officers themselves possessed the requis ite knowle dge to esta blish probab le cause, or by i ntr oduc ing evidence thata fellow police officer with the requisite knowledge comm unicated that inform ation to, and/or

directed the offic ers on sce ne to m ake the ar rest. Under the lat ter, t he State must persuade the Court that the requisite knowledge was in fact
comm unicated in order to rely upon the collective knowledge doctrine. Otherwise, itfollows that the arresting officer a cted without re asonable su spicion or pr obable
cause. Turning to the rec ord in the case at h and, ther

e is no evidence

that the a rresting officers had the benefit of Detective Hurd’s information or t h at they arreste d the Defenda ntat his direction. In fact, Detective Hurd adam antly maintained

thathe did not relay thi s inform ati on. The s ole refe rence to a

ny com munic ation betw een the offic ers is foun d in De tecti ve Hur d’s police report, attached to Defe ndant’s M otion16

as “Exhibit A.” Accordi ng to the re port, whi le follow ing the Def endant bac k to Dover, Detect

ive Hurd “ contacte d Offic er Anthony Digirolom

o, Aaro n Dickinson , Chris Bumga

rner, P eter Mar

tinek, Josh Boesen

berg, D aniel Stagg, Thom as Hannon and K-9 partner Mina to making [sic] them aware of our locati on. ” Any potential inference suggesting th at the aforementioned notation is evidence that Detective Hurd relayed the r es ults of his un dercover investigat

ion to his fe llow offi cers, or that it p layed a r oll in the ini tial stop an d events tha t followe d, is contradicted by his testimony. During the suppression

hearing, the follow ing exchang e took placeon directexam ination: Q. All right. On the tr affic stop topic, w hat was th e reason f

or the stop? A. I believe

Office r Martine k observed a

seatbelt v iolation. Q. Okay.



## . . . Q. Did Mart

inek tell y ou about the s eatbelt vi olation? A. Yes, he

did. Q. Was he the one tha t conducted

the actua l stop? A. There w ere seve

ral offi cers ther

e that cond

ucted the t

rafficstop. Q. Who lea

d them , though? A. I believe

it was O fficer

Martinek
. Q. Did yo u arrive imm ediately or shortly

after th e stop? A. I d id not go to the actual traffic stop location. I observe d it fro m a n und isc los ed l oca tio n du e to my unde rco ver cap acit y. On cross- exam

ination, D etective

Hurd fur ther testi fied as f

ollows:17

Q. Andwas that your de cision, totake him into custody at that time, or was that Off icer Mar tinek? A. There was neve

r really a conversation that was taking place between he and I. You'd have to ask Officer Martinek on tha t scene be cause he might -- I do know

that Off icer Sta gg observed

him be comin g extrem

ely nervous, Mr. Hol mes, and he was tr ying to use the bathroom at that time. S o for safety concerns for the of

ficers, I know he w as taken in to cus tod y. I ne ver sai d, ta ke h im in to c ust ody. Q. Okay. A. If that’s what you’ re looking for. Q. Okay. And you never had a convers ation w ith any of the officers conducting the traf

fic stop regar

ding taking a

ny of the par

ties present in the vehicle into custody at that time? A. That's correct . I did not h ave any convers ation.



## . . . Q. Okay. W

ho authorized the strip search of everyone in the vehicle? A. Our super

visor at the

time , Dete ctive Aa

ron Dicki nson. Q. Anddo you

recall the reasons that

were r equested toconduct tha

t strip search? A. I don't recall the reasonings of the – Q. I'm so rry? A. No, I don 't reca

ll the rea sonings. O f the strip search? Q. Yes. A. I do not recall that. I don't know who -- I don't know who even t

o ask, to be honest w ith you, because I wasn't back to the police department ye

t when they

brought eve

ryone back. As indicated above, w hile arresti ng office rs “n eed not be a

pprised of the underly ing circumstances which gav e rise to a conclusion of probable cause” and are

" entit led to rely on information relayed to [them] through official channels when arrestin g [a sus pect]", a condition precedent requires that the arresting officers rec eiv e31 Cooley , 457 A.2d at 355.
32 Holden , 23 A.3d at 847. 18 the information in the

first place. 31 The Court is c onstrained by the record be fore it. In the pre sent case , there is no evidenc e that the arrestin g officer s were p rivy to the inform ation discovere d by Detective H urd’s und ercover

investiga

tion, As such, Detecti ve Hurd’ s information could n ot have pla yed a role in the

arresti ng offic er’s reasonabl e suspici on or prob able cause d eterminations
. E. The traf

fic stop Apart f rom t he signific ant

incrim inating obse

rvations of

Detect ive Hurd, t

he analyses independently m ay hing e on thelegality

of the spec ific tra

ffic stopand the drug detection

dog’s re ported ale

rt and othe

r observa tions of the

D efendant at the
sce ne of the stop. In order to initiate

a traff ic stop, th e stop m

ust be just

ified at i ts inception by a rea son abl e art icu lab le s usp ici on o f cri minal acti vit y. A police officer who observes a traffic violation–like the seat belt violation in this case–has probable cause to st

op the vehic le and its oc cupants. 32 The Defenda

nt argues t

hat the stopwas pre textual, and there fore unla w ful. State v. Hea th held that w hen a stop is motivated by an unrelate d purpose, and absent that purpose the

stop would

not have been made , that stopis pretext ual and33 State v. H eath , 929 A.2d 390, 402-03 (Del. Super. 2006).
34 Turner v. State , 25 A.3d 774, 777 (Del. 2011).
35 Id
. 36 Id
. 37 Id
. 19 unlawful. 33 Howeve

r, despit e opportu nities to do so, the Delaware Supreme Court has declined t

o adopt the

hold ing in Heath . For ins tance, i n Turner v. State , the Defenda ntalso argue d that the

traffic stop was pr

etextual, and pursuan

t to the holding in Heath , that such a stop violates Article 1, Section 6 of the Delaware Constitution
. 34 The Sup reme Court in Turner , declined to follow Heath , noting “[t]hat decision was not appealed , and Heath has not been followed in any other Supe rior Cour t decisions. [The Defenda

nt] cannot rely

on Heath as a basis for his constitutional cl aim.” 3 5 Instead, th e Court focu sed on th e reality of a vio lation, fi nding th at, [the arresti ng officer] witnessed [the Defendant] in the front passenger seatof the Grand Ma

rquis with an unfastened seatbe lt, in viola tion of 21 Del
. C . § 4802( a )(2). T

hese fac ts constitut

e a reas onable ar

ticulable suspicion that Tann , the driver , com mitte d a traff

ic violation. Therefore, the offic ers had pr

obable ca use to conduc t a traff

ic stop. 36 Without expressly

rejec ting Heath , the Cou rt e mph asi zed , “th e De law are Sup reme Courtrecogniz es an offi cer's di scretion in conductin g a traff

ic stop and does not rely
on an officer's actual, subjective m otives to determine the reasonablen ess of a n officer's con duct.” 3720

In light of Turner v. State , the Defendant’s pretex tual claim is reje cted. Moreover, the fact s of recor d in this cas e establis h that any information posses sed by Detecti ve Hurd wa s not relayed to Off icer Mar tinek. A ccordingly , the stop c ould not be pretextual since there was no other alleged motive for the stop other than what was later relayed to the testi fying officer to be a seatbel t violati on. Here, because t he Co urt did not he ar testim ony or r eceive r eports fr om the arrestin g officers, the record is devoid of any first hand acco u nt of the inc ident in question. The officer who made the stop did not testify. Likewise, the officers who
ar rested and searched the Defendant did not testify. Theref ore, the C ourt m

us t dete rmine

if the Sta

te is capa ble of m eeting its b urden stri ctly on the basis o f th e police officers’ hearsay

statem ents , as relayed by Detective Hurd, who was neither included in the stop or

in contact

w ith the stoppi ng/arres ting offic ers at the time of the stop
. F. Justific ationfor the stop, ar rest, an d search based solely upon uncorro borated

hearsay Before discussing whether the State ca n meet its burden

for the initial tra

ffic stop and subse quent arr

est and search ba sed entire ly on the uncorroborated hearsay statem ents between officers, the Court finds it helpful to identify the r elev ant tes timo ny. As is often the case with seco ndhand infor matio n, the bre adth and21

specific ity of Detective Hurd’s knowledge with regards to the circum stances surroundingthe traf

fic stop is limited. On cross-exam ination, Detective Hurd testified as follow s: Q. Okay . Do y ou have a c opy of t he traff ic citati on issued to Mr. Irvi n? A. No, I do not. I

did not issue the traf

fic cita tion, so I d on't have a

copy of it. Q. Would y ou be able t o pull that up? A. I believe

Office r Martine k could do tha

t. Q. Okay . You do not

have the c apability

to do that? A. I j ust got back on the road after si x year s. I don' t know if I can do tha t or not. Q. Okay. How soon after this traf fic stop did y ou and y our partne r, I gue ss, arrive a t the traf fic stop? A. We neve

r arrive d at the tr affic stop location. Q. Okay. A. W e observed t

he traff ic stop loca

tion from an undisclos ed locatio n. I f you want to getin specifics, it was approximately 50 yards from

where it took place. Q. Okay. So you don't ha ve any persona l knowled ge on the IDs thatwere taken fro m eve

ryone in the vehic le and any

warra nt checks? A. That's c orrect. I don't ha ve any knowledge

of that. Q. Okay . Do y ou know if a nyone ha d any ou tstanding w arrants? A. I do not know

that. Q. Okay . And the n you te stified tha t you don' t feel co mfor

table test ifying regarding the K-9 sniff or search of the vehicle? A. That's c orrect.



## . . . Q. Okay. So you w ould not be ab le to t esti fy per sonally as to any behavior observed of anybody in the vehicle? A. No.



## . . .22

Q. Okay. Haveyou had opportunity to review the K-9 activity use of force report? A. No, I ha

ve not. Q. Okay. Are

you familiar

with these? A. No, I' m not. Q. Okay. Do you

know if they notat

e the weather

conditions in

that repor

t? A. I’m not fam

iliar. Q. Okay. W

ho authorized the strip search of everyone in the vehicle? A. Our super

visor at the

time , Dete ctive Aa

ron Dicki nson. Q. And do you re call the r easons that

were r equested toconduct tha

t strip search? A. I don't recall the reasonings of the – Q. I'm so rry? A. No, I don 't reca

ll the rea sonings. O f the strip search? Q. Yes. A. I do not rec a ll that. I don't knowwho -- I

don't knowwho even t

o ask, to be honest with you, because Iwasn't back to the police department y et when they

brought eve

ryone back. The onl y other r eferenc e to the circum stances sur rounding the

stop and lat

er arre st
was contained in Detective Hurd’s police report. With the exception of

a notation t

o “See Hannon’ s supplem

ent for f urther”– which wa s not

subm itted into th e record

– Detective Hurd’s report provides no additional evidence. A suppression

hearing is not a trial where strict rules of evidence must a pply and where the concern is guilt beyond a reasonable doubt. The rules of evidence are relaxed, because “ [t]ria

ls are ne cessari ly surrounded with evidentiary rules developed to safeguar

d men f rom du bious and unjust con victions. But befor e the trial we deal38 Schramm v. State , 366 A.2d 1185, 1192 (Del. 1976) (internal quotations omitted).
39 State v. Demby , 1995 WL 717619, at *5 (Del. Super. Nov. 28, 1995) (emphasis added); see also Brown v. State, 249 A.2d 269, 272 (De l. 19 68) (holding similarly, in the c ontext of a violation of probation hearing, that pure hear say, without some additional compet ent evidenc e, is not alone sufficient to support the finding of a violation).

40 Garner v . State , 314 A.2d 908, 913 (Del. 1973).
41 Id
. 23 onl y with proba

bilities tha

t are not t

echnical ; they are the f

actual an d practi ca l considera tions of every day li fe on which reasonable and prudent men, not legal technicia ns, act.” 38 As such, during a supp ression hearing,"[h]earsay in for ma tion may form the basis of probabl e causeif sufficiently corroborated by other facts with in the officer's direct k

nowledge. ” 39 Gene rall y, when it c omes t o a probable

causedeterm

ination at a

suppression hearing, hear s ay sta

teme nts typi cally

come from incrim inating re ports given t

o the police by i nform ants or wi tnesses. In such scenarios, “ [p]roba ble cause is not established solely

by all egations of

past reli ability ; something more is needed.” 40 The
sa me holds true when the hea rsay statem

ent is betw een two po lice off icers. Pu t simp ly, the Court “

may not accep t a police officer 's conclus ion that pro bable c ause for arrest e xists without oppo rtunity to exam ine in detail t

he grounds upo n the basis of which he re ached that conclusi on.” 41 In the pre sent case , all re levant evi dence ste mm ing from the stop is based on24

hearsay which is uncorro borated a nd lacking in

detail. Followingthe initial stop for
aseatbelt v iolation, Detecti ve Hurd w as told that ID checks wereperform ed on the occupants of the vehi cle. H e did not know the result s of those in quiries, or if any of the occupants h ad outstandi ng warra nts. He was not fam iliar wi th any o f the arr

esting officer s’ reports and did not feel comfortable testify ing about K-9 procedures beca u se he was not f

amili ar wit

h them. Ad ditionally , as the s top unfolded , the Cour t could not ascerta in what the arresting officers said, how the occupants responded, or what those officer s were t

hinking. W

ithout at le ast

some corroborating details other than hearsay as to exactly

what transpire d, theCourt is lef t sol ely with Detect ive Hu rd’s
assum ptions and conclusions. While the State is permitted to rely on hearsay in even largepart to show that p olice act ion met t he appropr

iate lega l standard (s), unde

r the circumstances o f this case, i ts burden cannot be predicated entirely on he arsay. G. The Inevitable discovery doctrine does not apply in th is case In response t o questions posed by the Court a

t the motion heari ng, the St ate made the alter native ar gument that even i f the Cour

t found that the stop and subsequent

investigation did comport with the Defendant’s Constitutional rights, the inevitable discover y doctr

ine should ap ply to pr

event excl

usion. Ba sed upon the record of th is case, the C ourt dis agrees. The exc l usionary

rule act s “as a rem

edy fo r a violati on of a def endant's r ight42 Jones v. State , 745 A .2d 85 6, 872 -73 (D el. 19 99) (ci ting Mapp v. Ohi o , 367 U.S. 643

(1961); Wong Sun v. United States , 371 U.S. 471(1963)).

43 Id . at 873.
44 Lopez-Va

zquez v. S tate , 956 A.2d 1280, 1292 (Del. 2008) (internal citations omitted).
45 State v. Lambert, 2015 WL 3897810 a

t *6-7 (De

l. Super. Jun

e 22, 2015 ); State v. Parks , 95 A.3d 4 2, 51 ( Del. S uper. 2014) (citi ng Cook v. St ate , 374 A.2d

264, 267–6 8 (Del. 1 977); Martin v. State , 433 A.2d 1025 (Del. 19 81); Rew v. Sta te , 1993 WL 61705 (Del. Feb. 25, 1993); Hardin v. State , 844 A.2d

982 (Del . 2004); Thomas v. S tate , 8 A.3d 11 95 (Del. 2010); Roy v. State , 62 A.3d 1183 (Del.2012)). 25 to be free of ill egal search es and seiz ures. It provide s for the e xclusion from trial of any evidence recovered or derived from an illegal search and s eizure.” 42 However, the Delaware Suprem

e Court has recognized occasions where “offi cia l mi sconduct shouldnot fatally taint evidence that would have been discovered absent that official misco nduct.” 43 Rather, “tai nt may be purged a

nd the evide nce m ay be admis sible throughone of t he d oct rin al ex cep tio ns t o th e ex clu sio nar y r ule, suc h as the independent

source doctrine, the in evitable d iscovery doctrine, the exigent circumstances d octrine, an d the atten uation d octrine.” 44 Delawareaccepts and consistently applies the inevitable discovery

exception to th e exclusionary rule. 45 This exc eption provi des that “ evidence, obtained i n th e
courseof illegal

police con duct, wi ll not be suppr essed if th e prosecu tion can pr ove that the incri min ating evidence would have been discov ered thro ugh legitim ate46 Id . (quo ting Cook , 374 A.2d at 267–68) (emphasis added). 26 means in the abs ence of offic ial miscondu ct.” 46 In the present case, the Court i s not persua ded that the

incrim inating evidence would have been discovered through legitimate means in the absence of off icial misco nduct. There i s a signific ant diffe rence between w hat could ha ve happene d and what would have

happened. Accord

ing to Dete ctive Hur

d, the inve stigation int

o the Defenda nt was a m

onth-long investigat

ion. On c ross-exa

minat ion, Det ectiveHurd testified as follow s: Q. Okay. If Officer Martinek had not observe d an allege d traffi c violation, was y our plan j ust to conduc t surveilla nce all da y on Mr . Holm

es? A. I probably

would have

watche d hi m a li ttle bit long er just t o see if he would have

went bac k to that loc ation. Q. What loc ation? A. To the West Division Street area. Q. Okay. A. Anddepending on what I sa w, I m ight h ave had s omeone

stop him based upon what I saw. I mean, I can't speculate after the traffic stop , but the sea

tbelt viola

tion was ob served, so that's what we w ent with. If a plan ce rtain wa s set in m

otion to appr

ehend the Def endant had the tra

ffic stop not occurred, it cannot be found in the record. Det ective H urd’ s testim ony establishes that it was uncertain as to whether an arrest t hat day would have

occurre d,
or whether his mon th-long unde

rcover in vestigation

would have

continued. Perhaps Detecti ve Hurd wou ld have ar rested D efendant upon his retu rn to Dove

r, or on t he27

other hand, the underc over offi cer m ay hav e set up add itional buy s in an atte mpt to apprehend

Defendant’s supplier. Speculation does not establish inevitability. There
was no evidence

in the hear

ing perm itting even an inference tha t an arrest was imm inent. Accordingly, the inevitable discovery doctrine is not ap plicable as a m eans to validate t

he stop of th e Defenda

nt or his subse quent arr

est and sea

rch. Ba sed upon the aforem

entioned, it follow s that all e vid enc e obtained as a result of that illegal search and s eizure is h ereby suppres sed. V. CONCLUS ION For all of the

reasons li sted above, the Defenda nt’s Moti on to Suppre ss is GRANTED
. IT IS SO ORDERED.

/s/Jeffr ey J C lark Judge