State v. Trager, Def. ID# 0501016623 (Del. Super. 7/28/2006)
| Decision Date | 28 July 2006 |
| Docket Number | Def. ID# 0501016623 |
| Parties | State v. Trager. |
| Court | Delaware Superior Court |
Dear Mrs. Davis and Mr. Mooney:
Pending before the Court is an appeal which the State of Delaware ("the State") has filed pursuant to 10 Del. C. § 99021 seeking a review of a decision of the Court of Common Pleas in and for Sussex County ("CCP") suppressing evidence on the ground no probable cause existed to arrest Juergen Trager ("defendant") on a charge of violating 21 Del. C. § 4177.2 This is my decision on the appeal.
The following evidence was presented regarding the suppression matter.
On January 20, 2005, defendant and his wife were having marital problems and defendant was very upset with his wife. They had had contact throughout the day, both in person and by telephone. At one point, defendant mentioned to his wife that he had a weapon with him and the subject of suicide came up. Ultimately, defendant's wife ended up at her sister-in-law's house and the Delaware State Police became involved. Two Delaware State Police officers went to the sister-in-law's home. When defendant called his wife again, the police had her tell him where she was so that he would come there.
Both defendant's wife and the Delaware State Trooper who testified explained that there is a sharp turn into the sister's driveway with gullies on both sides. Both witnesses testified that defendant negotiated that maneuver with no problems. The only other testimony regarding his driving was that he was driving fast when he turned into the driveway. The remaining testimony concerned what occurred after he got out of his van.
Trooper Mark Windsor, a K-9 Patrol Officer, was present at the scene, to assist the other Delaware State Trooper. When defendant arrived, the other officer was in the residence with the wife, and Trooper Windsor was in the driveway between two vans. He waited about fifteen to twenty minutes when he heard a van traveling at a high rate of speed on the road. The van Transcript of CCP Proceedings on May 23, 2005 at 18 ("Trans. at ___").
Defendant got out of the van. The Trooper did not observe that defendant exhibited any balance problem at that time. When defendant exited the van, the Trooper instructed him to show him his hands and get on the ground. Defendant cursed him, told him he was not going to do anything. Defendant had something in his right hand; the Trooper could not determine what it was. After making two canine announcements, the Trooper deployed his canine. The Officer testified several times that defendant's behavior was very threatening to him and he thought defendant might be armed. The Trooper further explained:
A. After my canine deployed, it engaged his left arm and it took several more attempts for me to ask him and tell him let me see your hand, throw out what you have in your hand and it ended up being a cell phone. So, once that was done, my dog had gotten him to the ground by that point, and I was able to get the dog off on first command and they went in to handcuff him.
Q. Okay. So, did he comply?
A. No, he didn't. I mean, he was fighting my dog.
Later during the hearing, the Trooper provided more detail about defendant fighting with his dog.
Q. ... But when you deployed the canine on him, he stood right there?
A. Uh-huh (affirmative response). Yes, he ...
***
A. He wanted a piece of it supposedly.
***
A. He came to him and the fight was on.
Q. The dog latched onto his arm and you say that he was fighting with the dog and when you say fighting, he wasn't punching and kicking but...
A. He, yeah, he was engaging right with him.
***
A. Which is unheard of really.
After he was handcuffed, the Trooper smelled a strong odor of alcohol from defendant's breath. He smelled it from two or three feet away from defendant. Defendant's eyes were bloodshot and glassy. His speech was loud and slurred.
At 9:15 p.m., the Trooper saw defendant's vehicle. It took about ten minutes with the fight. The Trooper testified that he arrested defendant on the driving under the influence charge at 9:25. "[A]t about 9:25 when I got close to him and I smelled the alcohol, I could see his eyes, the way he was speaking, I said to myself I know I have a case with DUI also." Trans. at 33. The Trooper further clarified:
... When the cuffs were on, it was about 21:25 and that was for the resisting. And then, once I got close enough to him I could smell the alcohol, the bloodshot eyes, the glassy eyes, the way he was talking slurred, I knew at that point that I would be proceeding with also a DUI.
Id,
The Trooper explained that at 9:25, defendant was under arrest for resisting arrest. He clarified again that at 9:25, he arrested defendant on the driving under the influence charge. Id. at 52. Consequently, the Trooper arrested defendant for resisting arrest and driving under the influence at the same time.
Defendant thereafter was taken to the emergency room. There, the two officers were:
just talking to him, the alcohol was very strong and he had made statements that he had smoked some crack cocaine. So, he admitted to me that he had drank about four rum and Cokes and that he had took five hits off of crack cocaine, but he said the he was, I guess, cheated in a way ... because this stuff was junk that he bought, the crack.
According to the Officer, defendant agreed to a blood test and it was taken.
The motion to suppress sought to keep out defendant's admissions regarding alcohol and drug consumption and the results of the drug test. It is not clear from the testimony at what time Miranda warnings were given, although the officer testified he does not give those warnings until he begins interrogating a suspect. Based on the procedural posture of the case, it is not clear if there is any Miranda issue. Thus, this decision does not address any Miranda issue, assuming one even exits.
The Court below then ruled on whether the Trooper had probable cause to arrest defendant on the charge of driving under the influence at the time he arrested defendant.
The arrest occurred, according to the officer, for the DUI at 9:25. ... There were four things that he relied on: the odor being strong, the bloodshot eyes, the fight with the canine, and the speech. After he made those four observations he believed and he testified that he had probable cause to arrest and, in fact, he did make the arrest at 9:25 for the DUI, simultaneous with the arrest for the resisting arrest. ***
***
The DUI, on the other hand, is not quite so clear. I have no erratic driving at all. In fact, the testimony is that the little bit of driving that was observed was good that the maneuvers were sharp and had the gullies on each side; he had no problem executing those maneuvers.
The fact that it sounded like he may have been speeding I give that whatever weight I deem appropriate. It's much easier to determine by visual observation, but I acknowledge that this officer's been out on the road long enough that he probably can get a sense of speed of a vehicle on hearing it. But, I don't think the driving helps me in this determination at all, because really the testimony I have, from two independent witnesses, the little bit of driving they both observed was that he had no difficulty executing the maneuvers.
***
So, I have an odor of alcohol, I have bloodshot eyes and then I have the fight with the dog which quite frankly is not indicative to me of someone who's under the influence. A reasonable officer looking at someone being taken down by a dog who's got their arm in his mouth that to me does not show any type of impairment. It shows a spontaneous reaction to being taken down. So, that does not really help me although that is one of the factors that the officer said he considered in determining whether he had probable cause to arrest.
So, now I have the speech, the odor of alcohol and the bloodshot eyes. I have no driving problems. No balance problems at the scene. So I have to determine whether this officer with this experience, viewing those facts subjectively and reasonably, would believe that he had sufficient evidence to make an arrest for this charge. ***
I'm not convinced that those three factors when combined with the other observations this officer made... and again no balance problems in really being able to execute the driving the maneuvers, and when he took into account what he did know; he knew that this was a person who was upset, involved in a domestic.
Some of the things that he saw, I think, reasonably were things that were exhibited because of this individual being extremely emotionally upset about the situation with his wife. Had there been anything else ..., I would be finding that there was probable cause.
I am not satisfied based on those three factors that were given to me today. While I think they were good ... a hunch and may have established reasonable articulable suspicion I am not satisfied it was enough to arrest for the DUI at the time that arrest occurred at 9:25.
Id. at 75-8. The Court suppressed the evidence.
The State then certified that the suppressed evidence was essential to the prosecution of the case, and filed an appeal with this Court pursuant to 10 Del. C. § 9902.
The applicable standards of review for appeals from CCP to the Superior Court are de novo for legal determinations and "clearly erroneous" for findings of fact. State v. High, Del. Super., C.A. No. 90-09-0243, Toliver, J. (March 7, 1995). If the factual findings of the court below are "sufficiently supported by the record and are the product of an...
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