State v. Halko

• Decision Date: 28 December 1962
• Citation: 55 Del. 385,188 A.2d 100
• Parties: , 55 Del. 385 STATE of Delaware v. John J. HALKO, Jr., (two cases).
• Court: Delaware Superior Court

Page 100

188 A.2d 100

5 Storey 385, 55 Del. 385

STATE of Delaware v. John J. HALKO, Jr., (two cases).

Superior Court of Delaware, New Castle County.

Dec. 28, 1962.

W. Laird Stabler, Jr., Deputy Atty. Gen., Wilmington, for the State.

Edmund D. Lyons (of Morris, James, Hitchens & Williams), Wilmington, for defendant.

LYNCH, Judge.

The record in this case shows Criminal Informations were filed against defendant on August 29, 1960, charging violations of certain criminal statutes noted above.

Defendant was arraigned before this Court on September 9, 1960 and he waived arraignment and entered pleas of not guilty. No efforts were then made by defendant to challenge his 'detention' or his 'arrest' or the 'search' then or before his first trial; it was not until his conviction was reversed on an erroneous charge on 'alibi' that these motions were filed. He was subsequently tried on these informations by the Court and a jury and found guilty on all charges.

On appeal (---- Storey ----, 175 A.2d 42) his convictions were reversed on the single ground that the Trial Court erred in his charge to the jury that the burden was on defendant to prove an alibi, which was part of his defense. In its opinion the Supreme Court held, however, 175 A.2d at 46, defendant's detention and arrest and ensuing 'search' were lawful. The Court noted----

'We have had occasion to consider the provisions of the Uniform Arrest Act (11 Del.C. § 1902) in recent cases. * * * Its provisions are clearly applicable to the case before us. A driver of a motor vehicle complains to the police that another driver, apparently intoxicated, has collided with his car and with a stop sign. At two o'clock in the morning the police find that driver in his car, slumped over the wheel unconscious with the lights on. The car is in front of his office or business premises; not his home. To hold that he was not 'abroad' within the meaning of the statute would be to emasculate it. To say that the driver is immune from detention under the statute because he has made himself too drunk to understand or answer the statutory questions approaches the absurd.

'The officers were clearly justified in detaining the defendant.

'* * * But this is not all. In our opinion, the detention of the defendant was proper as a lawful arrest. The statute authorizing police officers to arrest 'upon view' for violations of the motor vehicle laws (21 Del.C. § 701) constitutes an exception to the general law (11 Del.C. § 62) authorizing arrest without warrant for any crime upon 'probable cause'. See the discussion of the two statutes in Rickards v. State, 6 Terry 573, 45 Del. 573, 580-582, 77 A.2d 199. The motor vehicle statute, providing for arrest 'on view', derives from Section 15 of the act of April 4, 1907 (24 Del.L. c. 144). Over half a century ago the motor vehicle certainly did not present the problem of law enforcement that it now presents. (The speed limit was twenty miles an hour.) The section embodies the common law rule of arrest (Rickards v. State, supra); surely the common law is capable of adapting itself to present day needs. The facts of this case (outlined above) establish that the officers knew from view--from their own senses--that the man at the wheel of his car was drunk. They knew that he was outside a place of business at two o'clock Sunday morning. The headlights were on. How did the car get there? It was a reasonable inference that he drove it there. And, finally, the officers were informed by another driver--who was present at the scene--that the man at the wheel had been driving the car.

'In these circumstances, is it reasonable to say that the officers should have left the scene and gone to a magistrate to swear out a warrant? We do not think that the statute should be construed to require such a manifestly unreasonable course.

'In State v. Koil, 103 W.Va. 19, 136 S.E. 510, 511, the case of State v. Lutz, 85 W.Va. 330, 101 S.E. 434, is cited for the following holding (syllabus):

"An offense can be said to be said to be committed in the presence of an officer only when he sees it with his own eyes, or sees one or more of a series of acts constituting the offense, and is aided by his other senses or by information as to the others.'

'These cases are not in point on the facts, but the above holding (perhaps only dictum) seems to us to embody a sensible rule under modern conditions. The common law rule of arrest on view embodies the historical distinction between felonies and misdemeanors. This distinction has become largely arbitrary and dependent on legislative definition. Brooks v. Taylor, [2 Storey 138, 52 Del. 138], 154 A.2d 386. To adhere blindly to an arbitrary distinction in applying the law of arrest seems to us unjustified. We do not mean that a police officer may arrest solely on suspicion of violation of the motor vehicle laws, as he may arrest on suspicion of felony; the language of the act of assembly--'on view'--controls. But we do say that this arbitrary distinction justifies a liberal and reasonable interpretation of the phrase 'on view'. When, as here, a police officer sees for himself a driver dead drunk at the wheel of his car, under circumstances indicating that the car has recently been operated and he is assured by another driver that the man at the wheel had actually been driving, we are of opinion that the arrest is made for a violation 'on view' within the meaning of the statute.

'Since the detention and arrest was lawful, it follows that the search of the car was lawful.'

After his conviction was reversed defendant changed counsel and on February 6, 1962 defendant filed a motion to suppress evidence found on him and in his car when he was arrested and for its return.

It appears from the first motion and the hearings that early on the morning of October 18, 1959 Troopers Stoops and Klair of the Delaware State Police went to investigate a complaint of drunken driving in the area of Maryland Avenue and Boxwood Road. They arrived at 15 Brookside Drive and there observed a motor vehicle parked before the private property of H & S Manufacturing Company, a Delaware corporation. Defendant owns all the stock of this corporation.

The complaint which brought the officers to 15 Brookside Drive was initiated by one William D. Forestieri, Jr. He complained that his car had been struck at the intersection of Middleborough Road, Maryland Avenue and Boxwood Road. When the Troopers arrived at the scene of the accident they were met by Mr. Forestieri, a Mr. Paul Perry and two policemen of the City of Wilmington. At this time (approximately 2:25 A.M., October 18, 1959) no warrants of any kind had issued for the arrest of the defendant. The officers opened the car door, removed Mr. Halko from his vehicle and took him into custody, and in the course of doing so they removed from Mr. Halko's vehicle an empty Sautern Wine Bottle and the stub of a parking ticket issued by the Wilmington Parking Authority they also removed a 'folder', either from the defendant or from his vehicle.

Brookside Drive is located in Ashley, a suburban subdivision almost immediately adjoining the City of Wilmington. Ashley has been such a subdivision since about 1915. Plots of the subdivision and deeds of dedication of the streets in the subdivision--including Brookside Drive--are in and among the records of the Recorder of Deeds, New Castle County. A portion of one such plot appears as Appendix A of this opinion and illustrates the curve of Brookside Drive. H & S Manufacturing Company occupies lots 1 to 4 in Block B of Ashley and the location of these lots show on the plot.

I hold that I can so I do take Judicial Notice of such records and plots and what they disclose. Included in such records are large plots showing Brookside Drive. Brookside Drive is shown to be 40 feet in width--from building line to building line and it has a strip of asphalt paving approximating 19 feet in width; it is maintained by the State Highway Department. This strip goes down the center of Brookside Drive, leaving about 10 feet of macadamized shoulders on either side of the paved portion and stretching out to the building lines on the two sides of the Drive.

Brookside Drive starts at Maryland Avenue, a highly important and much travelled highway leading into Wilmington from many towns and subdivisions located on the south, east and southeast of Wilmington.

As stated, Brookside Drive was laid out with many curves of varying radii and it assumes a somewhat irregular course as it goes east from Maryland Avenue to its ultimate terminus. The property of H & S Manufacturing Company fronts on Brookside Drive and because of one curve of the Drive, the west end of the H & S building is four feet from the edge of the macadamized portion of Brookside Drive, while the east end of its building is some 12 feet from this macadamized shoulder.

One viewing Brookside Drive from Maryland Avenue looking to the east sees no fences or other obstructions along the building line in front of the H & S property; there is no pavement in front of this property. The general appearance of Brookside Drive is illustrated by a photograph which appears as Appendix B of this opinion. Traffic seems to flow in both directions along and over the entire area--the paved area, the macadamized area and in the areas lying in between the edges of the macadamized portions and building lines clear up to the very front doors of the buildings fronting on Brookside Drive. H & S Manufacturing Company has posted 'No Parking' and 'No Trespassing' signs on the front of its building--but these signs give no notice to the public as to what is the restricted area and would hardly be discernible at night or in the early morning hours.

Cars are parked head in, backed in and parallel to the building lines, and when counsel and the Court were on the site when photographs were taken in May of 1962, preparatory and incident to one hearing on ...