State v. Blake, No. 0806028750 (Del.Gen.Sess. 9/14/2009)

• Decision Date: 14 September 2009
• Docket Number: No. 0806028750.,0806028750.
• Parties: STATE OF DELAWARE, Petitioner, v. OGDEN BLAKE, Defendant.
• Court: Court of General Sessions of Delaware

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STATE OF DELAWARE, Petitioner, v. OGDEN BLAKE, Defendant.

No. 0806028750.

Court of Common Pleas of Delaware, New Castle County.

Submitted: February 27, 2009.

Decided: September 14, 2009.

Barzilai K. Axelrod, Esquire, Department of Justice, Wilmington, DE, Attorney for State.

T. Andrew Rosen, Esquire, Office of the Public Defender, Wilmington, DE, Attorney for Respondent.

FINAL ORDER AND OPINION ON DEFENDANT'S MOTION TO SUPPRESS

WILLIAM C. BRADLEY, JUDGE.

A hearing on Defendant's Motion to Suppress was held in this Court on February 5, 2009. After receipt of the evidence and testimony presented, the Court reserved decision and permitted the parties to submit closing arguments in writing. After careful consideration of the arguments, this is the Court's final order and opinion.

Facts

On June 20, 2008, Officer MacDonald and Krystopolski of the Delaware State Police were dispatched by RECOM at 11:42 p.m. to I-495 northbound in reference to a disabled vehicle and/or motorist in distress that was called in by a passerby. The officers, traveling in two marked police vehicles, both arrived on or about 11:46 p.m. at the location of the vehicle. Officer MacDonald testified that he took the Terminal Avenue entryway onto I-495 northbound and located a 1994 Silver Nissan Pathfinder a few hundred yards further up the road. Officer Krystopolsk ined with the Pathfinder while Officer MacDonald drove another 300 yards farther up I-495 and approached the defendant walking away from the Pathfinder in a northerly direction on the shoulder of the road. The defendant as wearing a black t-shirt, dark jeans, and did not have a flashlight. Officer MacDonald testified that I-495 is a controlled access highway and no pedestrian traffic is allowed on any part of the roadway. The officer also testified that he found it odd that the defendant would be walking northbound since the nearest exit was only a few hundred yards to the south and the next northbound exit (i.e. the 12th Street) was approximately 1.5 miles away. Officer MacDonald further stated that I-495 had light to moderate traffic traveling at or around the average speed for that road, which in his experience he noted to be around 80 miles per hour. Officer MacDonald considered it a danger for the defendant to be walking on I-495 and offered to the give the defendant a ride in his patrol car.

Officer MacDonald's first contact with the defendant occurred when the defendant leaned into Officer MacDonald's vehicle to talk. Officer MacDonald noted that he had an initial sense that the defendant seemed disoriented but that he did not form an opinion as to the causation of the disorientation, and did not observe any impairment of the defendant at the time. Officer MacDonald testified that he had the following conversation with the defendant:

Officer: "Is everything OK?"

Defendant: "Yeah, that's my truck, I just ran out of gas."

Officer: "Where are you going?"

Defendant: "I'm just going to walk home and get some gas."

Officer: "I'm going to give you a ride off the interstate, it's not safe to walk at night."

Officer MacDonald stated that his intent in allowing the defendant into his patrol car was to move the defendant off of I-495 for safety. He further stated that, in his experience, once an individual takes him up on his offer for a ride the individual usually then gives him a more specific instruction for a drop off point or requests a tow service, but in this case the defendant did not make a more specific request. Officer MacDonald testified that once the defendant had voluntarily entered into the back of the patrol car and all of the windows were rolled up he immediately detected a strong odor of alcohol. The smell persisted the whole time he drove the defendant to the 12^th Street exit.

Subsequently, Officer MacDonald decided to conduct an investigation at the 12^th Street exit to determine if the defendant had been walking drunk on the highway. The defendant adamantly denied any consumption of alcohol. Officer MacDonald decided that he wanted to administer a Portable Breath Test (P T) to determine if he was accurate in his assessment that the defendant was, at a minimum, intoxicated on the highway. Officer Krystopolski arrived in time to observe Officer MacDonald let the defendant out of the back of the patrol vehicle. The officers had been in communication over their radios and Officer Krystopolski had arrived to perform a DUI investigation given that the defendant appeared disoriented, had a strong odor of alcohol on his breath, and had previously indicated that he had just left his vehicle The vehicle was positively identified as the defendant's based on the defendant's own admission, the fact that the vehicle was registered in the defendant's name, and the fact that the car keys were on the defendant's person were used to subsequently tow it.

Officer Krystopolski testified that the defendant stumbled out of the patrol vehicle. While outside, the defendant consented to take Officer Macdonald's PBT. Officer MacDonald indicated that the defendant "failed" the test. Officer MacDonald did not follow an observation period prior to administering the PBT. Officer Krystopolski then proceeded to conduct the DUI investigation.¹ Officer Krystopolski noted the following about the defendant: slurred and mumbled speech, watery and bloodshot eyes, and a strong odor of alcoholic beverage. Further, the defendant failed the three National Highway Traffic Safety Administration (NHTSA) tests administered to him. He exhibited six clues on the Horizontal Gaze Nystagmus (HGN) test, five on the walk-and-turn test, and two on the one-leg stand test. The officer testified to the statistic accuracy of each of these tests, including the 80% statistical accuracy of the combined HGN and walk-and-turn test failures. The defendant recanted his earlier statement to Officer MacDonald and initially told Officer Krystopolski that he had one beer, laughed, then said he had had two beers, and finally said he had had three beers. Upon completing her roadside investigation, Officer Krystopolski placed the defendant in handcuffs and arrested him for suspicion of DUI (21 Del. C. §4177(a)) and for walking intoxicated on the highway (21 Del. C. §4149).

Analysis

Although a warrantless seizure is presumed unreasonable under the Fourth Amendment, this presumption may be rebutted by showing that a specific exception to the warrant requirement applies.² One exception recognized in Delaware is the non-criminal, non-investigative "community caretaker" or "public safety" doctrine. This doctrine stems from the recognition that, in addition to law enforcement, police officers have a duty to assist in emergency situations and aid those who are in physical...