Opinion
ID. No. 0010013244
Submitted: October 26, 2001.
Decided: November 30, 2001.
Upon Consideration of Defendant's Motion to Suppress — DENIED.
William L. George, Jr., Deputy Attorney General, 820 N. French Street, Wilmington, Delaware, 19801. Attorney for State.
Edmund Daniel Lyons, Esquire, 1526 Gilpin Avenue, P.O. Box 579, Wilmington, Delaware, 19899. Attorney for Defendant.
MEMORANDUM OPINION I. INTRODUCTION
This matter is presently before the Court on defendant's Motion to Suppress Evidence. The motion addresses the propriety of police conduct during the investigation of a single vehicle fatal accident. The issues presented in the motion are complicated by the fact that they arise in the context of a fluid accident-scene investigation involving several police officers, some of whom encountered the defendant when they were unaware of facts or circumstances known or discovered by other officers involved in the investigation. From this frenetic setting, the Court must determine at what point in the investigation the officers' intermittent interaction with a suspect (the driver of the incident vehicle) amounts to a detention such that, depending on the extent of the confinement, some legal basis, e.g. probable cause or perhaps some lesser standard, must be proffered to justify the restriction of liberty.
For the reasons that follow, the Court has concluded that the defendant was detained by the officers at the accident scene, that the detention was limited in scope and justified by a reasonable suspicion of criminal activity, and that the fruits of the detention were lawfully obtained. Accordingly, the motion to suppress is DENIED.
II. FACTS
On August 12, 2000, shortly after midnight, officers from Delaware State Police Troop 6 responded to the scene of a single-vehicle accident on Delaware Route 72.
There were four occupants of the vehicle. The driver was the defendant, Bo R. Kang ("Mr. Kang").
Corporal Jeff Whitmarsh was one of the first police officers to arrive on the scene. While responding to the accident, he became aware through radio transmissions that at least one person was critically injured in the accident. When he arrived on the scene, Corporal Whitmarsh approached several individuals standing together and asked if they had been occupants of the vehicle. When they responded affirmatively, he asked who had been driving. Mr. Kang responded that he was the driver. With this preliminary information in hand, Corporal Whitmarsh went about securing the scene of the accident and assisting with the flow of traffic.
Suppression Hr'g Tr. at 19-20 (June 25, 2001).
After securing the accident scene, Corporal Whitmarsh approached Mr. Kang again "to get a quick gist of what happened." During this conversation, Corporal Whitmarsh detected the odor of alcohol on Mr. Kang's breath. He also noted that Mr. Kang was very emotional and that his eyes were bloodshot and glassy. He told Mr. Kang that he could smell alcohol on his breath and asked him if he had been drinking.
Id. at 21.
Mr. Kang responded: "I'm being truthful, I did drink. I had a few beers earlier at a party." Corporal Whitmarsh then instructed Mr. Kang to remain at the scene while he attended to other aspects of the investigation.
Id. at 24.
Corporal Tracey Lynn Youngblood-Garvey ("Corporal Garvey") arrived at the scene shortly after Corporal Whitmarsh. As best as the Court can discern from the evidence, she encountered Mr. Kang for the first time shortly after his second conversation with Corporal Whitmarsh. She described the encounter as follows:
". . . I remember seeing him standing alone and I knew that I needed to approach him. He was dealing with a lot, and you know, he didn't have a family member around him. And sporadically friends would talk to him, but for the most part he was by himself. So I kinda approached him and put him in my car."
Suppression Hr'g Tr. at 8-9 (June 25, 2001).
Corporal Garvey explained that she requested Mr. Kang to sit in her car because she "wanted a more comfortable place for him to be." She was not aware at the time that Mr. Kang had admitted to another officer that he had consumed alcohol earlier in the evening, nor had she spoken to Corporal Whitmarsh about his observations of Mr. Kang's physical appearance which suggested he had been drinking. She was aware, however, that the passenger who had been critically injured in the accident (a friend of Mr. Kang) had died at the scene. Mr. Kang had been made aware of this unfortunate development by this time as well.
Id. at 10.
Suppression Hr'g Tr. at 9 (June 25, 2001).
Corporal Garvey placed Mr. Kang in the rear of her vehicle and then took her place in the front seat. She did not ask Mr. Kang any questions, nor did she engage him in conversation. She did listen, however, as Mr. Kang offered observations about the accident, all the while becoming increasingly more agitated and upset. For instance, Mr. Kang advised Corporal Garvey that he had not required his passengers to wear seatbelts. He then stated: "[j]ust put me in jail, it's manslaughter, I was trying to beat the light and I was going way too fast."
Id. at 12.
Mr. Kang remained in Corporal Garvey's vehicle for approximately 15 minutes.
While there, he was never advised that he was not free to leave. Nevertheless, Corporal Garvey candidly acknowledged that if Mr. Kang had attempted to leave the scene, she would have told him that he needed to stay in order to be interviewed.
Id.
Id. at 13.
While Mr. Kang sat in Corporal Garvey's vehicle, the Fatal Accident Investigation Response Team ("the FAIR team") arrived at the scene to investigate. Corporal Whitmarsh discussed his findings and observations with Corporal Leonard, who supervised the FAIR team. Corporal Leonard instructed Corporal Whitmarsh to "conduct a DUI investigation." Shortly thereafter, Corporal Whitmarsh retrieved Mr. Kang from Corporal Garvey's vehicle so that he could begin his investigation. Corporal Garvey did not tell Corporal Whitmarsh of the statements Mr. Kang had made to her.
Although Corporal Leonard directed Corporal Whitmarsh to conduct a DUI investigation, the record indicates that Corporal Whitmarsh also was investigating whether Mr. Kang had consumed alcohol while not of legal age to do so. Corporal Whitmarsh testified that at some point during his investigation at the scene he learned that Mr. Kang was under the age of 21. He could not recall, however, when or from whom he received this information.
Id. at 49-50.
Corporal Whitmarsh transported Mr. Kang to the Christiana Hospital to conduct field tests. When asked why he did not administer the field tests at the scene of the accident, Corporal Whitmarsh explained:
"Once I realized that the person had expired in the car and that he was deceased-Mr. Kang was extremely emotional. Not knowing what the ramifications are, and I've been at the troop for a couple of years, I knew what was at stake and I needed to make sure he can have the best opportunity to perform the tests. In my judgment, as a reasonable person, I didn't think that it could be done there at the scene. It was dark, there's a slight incline there, there were so many people at the scene, including the body of the deceased party. And every time Mr. Kang turned and looked fat him and saw the area where the body was lying, he became emotional. He started to cry, he became very upset. If I were in his shoes, I don't think I could perform well. So I made the decision not to do it there and to take him to Christiana Hospital to perform those tests."
Suppression Hr'g Tr. at 28-9 (June 25, 2001).
Once at the hospital, Corporal Whitmarsh directed Mr. Kang in the performance of various DUI field tests, including the alphabet test, the counting test, the nystagmus test, the walk-and-turn test, the heel-to-toe test, the one-leg stand test, and the finger-to-nose test. Mr. Kang failed the nystagmus test, the heel-to-toe test, and the finger-to-nose test. Corporal Whitmarsh asked Mr. Kang if he would consent to a blood test. He agreed and a blood sample was drawn. Although the results of the blood test are not in the record, the Court has assumed with some confidence that the results were not favorable to Mr. Kang.
In addition, Corporal Whitmarsh performed a portable breath test (PBT). The Court has not and will not consider the results of that test for purposes of this motion.
Suppression Hr'g Tr. at 46 (June 25, 2001).
On November 20, 2000, the Grand Jury returned an Indictment against Mr. Kang charging him with Criminal Negligent Homicide in violation of 11 Del. C. § 631 and Driving a Vehicle After Consuming Alcohol in violation of 21 Del. C. § 4177L.
III. DISCUSSION
On a Motion to Suppress, the State bears the burden of establishing that the challenged police conduct comported with the rights guaranteed Mr. Kang by the United States Constitution, the Delaware Constitution, and Delaware statutory law. The burden of proof on a motion to suppress is proof by a preponderance of the evidence. Mr. Kang asks the Court to suppress evidence of statements he made at the scene of the accident, the results of the field tests, and the results of the blood test.
Hunter v. State, Del. Supr., No. 279, 2000, Steele, J. (Aug. 22, 2001) (Mem. Op. at 5-6).
State v. Bien-Aime, Del. Super., Cr. A. No. 1K92-08-326, Toliver, J. (March 17, 1993) (Mem. Op.) (citations omitted).
He alleges that he was detained illegally without probable cause and that the field tests, seizure of his blood, and statements made at the scene are tainted by the illegal detention. The State must establish that this evidence was obtained lawfully.
A. The Constitutionality of 21 Del. C. § 4177L
As a threshold issue, Mr. Kang has challenged the constitutionality of Delaware's so-called "zero tolerance" underage drinking and driving statute, 21 Del. C. § 4177L (the "zero tolerance statute"). He contends that the statute cannot form the basis of criminal charges because it does not prescribe criminal penalties. When applied to Delaware licensed drivers, the penalty is license revocation. The statute does not punish licensed drivers with fines or incarceration.
21 Del. C. § 4177L(a) provides: "Whoever, being under the age of 21 years, drives, operates or has actual physical control of a vehicle, an off-highway vehicle or a moped while consuming or after having consumed alcoholic liquor shall have that person's driver's license and/or privileges revoked for a period of 2 months for the first offense and not less than 6 months nor more than 12 months for each subsequent offense. If the underage person does not have a driver's license and/or privileges, the person shall be fined $200 for the first offense and not less than $400 nor more than $1000 for each subsequent offense."
See 11 Del. C. § 233 (defining "crime" as "an act forbidden by a Statute of this State and punishable upon conviction by . . . imprisonment or fines. . . or other penal discipline").
According to Mr. Kang, any effort to justify the police conduct in this case on the ground that the officers were investigating a possible violation of the zero tolerance statute cannot withstand constitutional scrutiny. His deductive process is straightforward: the zero tolerance statute is not a criminal statute and, therefore, a criminal investigation based on the statute is constitutionally infirm.
Whether a statute is criminal or civil in nature is a question of statutory interpretation. While there is some "curb appeal" to Mr. Kang's argument, the Court is satisfied on careful inspection that the General Assembly intended that Delaware courts treat a violation of § 4177L as a criminal act. The synopsis to House Bill 91 (later enacted as the zero tolerance statute) is illuminating in this regard. It states: "Current law provides for license suspension for minors who possess or consume alcoholic beverages; however, it does not address the minor who drinks and then drives. This Act [ 21 Del. C. § 4177L] provides for enhanced penalties for a minor who not only consumes alcohol but then drives a motor vehicle." The underage consumption statute referenced in the synopsis of the zero tolerance statute is codified in Title 4 (alcoholic liquors), Chapter 9 (criminal offenses and penalties) of the Delaware Code. Clearly, the legislature intended underage consumption to be a crime even though the applicable statute does not prescribe fines or penalties for licensed offenders. The stated goal of the zero tolerance statute was to accent the underage consumption statute by providing "enhanced penalties" for a minor who operates a vehicle after consuming alcohol.
Helman v. State, Del. Supr., ___ A.2d ___, No. 55, 2000, Walsh, J. (2001) (Mem. Op. at 32).
70 Del. Laws, c. 36 §§ 1-18 (1995) (synopsis to House Bill 91).
4 Del. C. § 904(f).
Id. (providing for license revocation for first and subsequent offenses).
70 Del. Laws, c. 36 §§ 1-18 (1995) (synopsis to House Bill 91).
Moreover, the statute authorizes a police officer, upon probable cause to believe that the statute has been violated, to arrest the suspected violator without a warrant. Such powers of arrest are not permitted for civil offenses. In addition, the statute provides for a fine for those offenders who do not possess a driver's license. The Court has been offered no explanation, and can conceive of none, as to why the General Assembly intentionally would draft a statute which differentiates between licensed and unlicenced drivers by making the proscribed conduct a crime for the former and merely a civil offense for the latter.
11 Del. C. § 4177L(c).
11 Del. C. § 4177L(a).
Finally, the Court does not accept the notion that the nature of the penalties prescribed by a statute necessarily dictates whether the statute should be deemed criminal or civil. In Helman, the Delaware Supreme Court considered whether the public notification provisions of Delaware's so-called Megan's law were criminal sanctions such that a retroactive application would violate the Ex Post Facto clauses of the United States and Delaware Constitutions. In deciding whether the public notification provisions of the law impose punishment, the Delaware Supreme Court considered whether the legislature had indicated expressly or implicitly a preference that the statute be considered punitive or remedial. In the absence of clear legislative intent, the Court considered such factors as whether the sanction involved an affirmative disability or restraint; whether it has been regarded as punishment historically; whether its operation will promote the traditional aims of punishment (i.e. retribution and deterrence); whether the behavior to which it applies is a crime; whether it applies only after a finding of scienter; whether an alternative purpose to which it may be connected is assignable to it; and whether it appears excessive in relation to the alternative purpose assigned. The Court in Helman ultimately concluded that public notification was a civil sanction, not a criminal penalty. Conspicuously absent from the Court's analysis is any reference to 11 Del. C. § 233.
Helman at 33-34 (citations omitted).
Id. at 34-35 (citations omitted).
To reiterate, Mr. Kang argues that a zero tolerance violation is not a crime because it is not punishable by those sanctions enumerated in 11 Del. C. § 233 that define a crime.
Applying the factors that the Court considered in Helman to 21 Del. C. § 4177L, the Court is satisfied that the purpose of the zero tolerance statute is to punish and deter underage drinking and driving. In fact, the synopsis to House Bill 91 speaks clearly to the statute's aim to deter such behavior. It states: "Younger drivers place a high value on their drivers' licenses, and the threat of license revocation has proved to be an especially effective sanction for this age group."
70 Del. Laws, c. 36 §§ 1-18 (1995) (synopsis to House Bill 91).
The Court is unwilling to conclude that the zero tolerance statute does not provide a basis upon which the police may conduct a criminal investigation and, if appropriate, initiate criminal proceedings. Accordingly, the Court must reject Mr. Kang's effort to undermine the police investigation in this case by attacking a footing of its statutory foundation.
The Court notes that a possible violation of the zero tolerance statute was only one aspect of the police investigation on the night of the accident. Corporal Whitmarsh also was investigating a possible DUI offense. Accordingly, even if a violation of the zero tolerance statute is not a criminal offense, the police conduct challenged by Mr. Kang in this case may still be justified as lawful steps in the investigation of a DUI offense.
B. Statements Made at the Scene
Mr. Kang seeks an order suppressing the statements he made to Corporal Whitmarsh and to Corporal Garvey because the statements were the product of an illegal detention. Mr. Kang argues that he was in police custody at the time he first encountered Corporal Whitmarsh and continually thereafter. Because the officers lacked probable cause to believe he had committed a crime, Mr. Kang urges the Court to conclude that the detention was unlawful and the police questioning improper.
1. Statements Made to Corporal Whitmarsh
When Corporal Whitmarsh arrived on the scene of the accident, his first priority was to determine whether any of the occupants of the vehicle required medical attention. He assisted the passenger who had sustained critical injuries and then secured the scene in order to facilitate the flow of traffic. As part of his duties as a reporting officer at an accident scene, Corporal Whitmarsh asked the driver of the vehicle to describe the accident. It was during this encounter that Corporal Whitmarsh detected the odor of alcohol on Mr. Kang's breath and noticed that Mr. Kang's eyes were bloodshot and glassy. Corporal Whitmarsh asked Mr. Kang if he had been drinking and Mr. Kang answered affirmatively.
Suppression Hr'g Tr. at 18 (June 25, 2001).
Id. at 19-20.
Id. at 21.
Id.
In order to determine whether a seizure has occurred, the Court must "focus upon the police officer's actions to determine when a reasonable person would have believed he or she was not free to ignore the police presence." After reviewing the factual record sub judice, the Court is satisfied that Mr. Kang was free to ignore Corporal's Whitmarsh's presence when Corporal Whitmarsh was in the preliminary stages of his accident investigation. At that point in time, Mr. Kang had not been told that he could not leave the scene. Corporal Whitmarsh's investigation was not accusatory. Mr. Kang's freedom of movement was not restrained in any way. He was free to respond to Corporal Whitmarsh or to walk away. Accordingly, the Court finds that Mr. Kang was not seized or detained when Corporal Whitmarsh questioned him in the midst of the initial on-the-scene investigation. Mr. Kang's Motion to Suppress the statements made to Corporal Whitmarsh while at the scene of the accident is DENIED.
Jones v. State, Del. Supr., 745 A.2d 856, 869 (1999).
2. The Seizure of Mr. Kang
As stated previously, in order to determine whether a seizure has occurred, the Court must consider whether "a reasonable person would have believed he or she was not free to ignore the police presence." The Court has found that Mr. Kang had not been seized when he made statements to Corporal Whitmarsh about his consumption of alcohol. Corporal Whitmarsh testified, however, that he instructed Mr. Kang to remain at the scene after speaking with him for the second time. At that moment, Mr. Kang was seized. A reasonable person would not have felt free to ignore Corporal Whitmarsh's instruction to remain at the scene.
Id.
See also State v. Dixon, Del. Super., No. 0007020249, Slights, J. (Feb. 15, 2001) (Mem. Op.) (holding that defendant was seized when officers either summoned defendant to their location or ordered other officers to escort defendant to their location); State v. Porter, Del. Super., No. 001001287, Slights, J. (June 20, 2001) (Mem. Op.) (holding that defendant was seized when police ordered him to remove his hands from his pocket after escorting him to the police room at a hospital); Jones, supra, (holding that defendant was seized when ordered by police officer to stop and remove his hands from his coat).
Having concluded that Mr. Kang was seized when Corporal Whitmarsh instructed him to remain at the scene, the Court must determine whether the seizure was an investigatory detention, which must be supported by reasonable grounds to suspect that Mr. Kang had committed or was about to commit a crime, or a custodial arrest, which must be supported by probable cause. The distinction between an arrest and an investigatory detention depends upon the nature and the degree of the intrusion occasioned by the particular encounter. "[A]t some point in the investigative process, police procedures qualitatively and quantitatively can be so intrusive with respect to a subject's freedom of movement and privacy issues as to trigger the full protection of the Fourth and Fourteenth Amendments."
State v. Biddle, Del. Super., No. 9506006939, Barron, J. (Aug. 9, 1996) (Mem. Op), aff'd, Del. Supr., No. 352, 1997, (June 5, 1998) (ORDER).
Id. (citing United States v. Roper, 11th Cir., 702 F.2d 984, 985 (1983)).
Id. at 16 (citing Hayes v. Florida, 460 U.S. 811, 815-16 (1985)).
In order to determine whether a seizure is an investigatory detention or an arrest, the Court must examine "the reasonableness of the level of intrusion under the totality of the circumstances." The following considerations are pertinent to the analysis: (1) the amount of force used by the police; (2) the need for such force; (3) the extent to which the individual's freedom of movement was restrained; (4) the physical treatment of the individual, including whether handcuffs were used; (5) the number of agents involved; (6) the duration of the stop; and (7) whether the target of the stop was suspected of being armed.
Id. at 17 (citing Posr v. Doherty, 2nd Cir., 944 F.2d 91, 98 (1991)).
Id. (citing United States v. Perea, 2nd Cir., 986 F.2d 633, 645 (1993)).
Officer Whitmarsh did not use any force to keep Mr. Kang at the scene of the automobile accident. He did not handcuff Mr. Kang or carefully monitor his movement. He acted without the assistance of other officers each time he interacted with Mr. Kang. And even after Mr. Kang was instructed not to leave, Officer Whitmarsh allowed him to move about the scene freely.
The Court is satisfied that the intrusion upon Mr. Kang was minimal and that the seizure of Mr. Kang amounted to no more than an investigatory detention. In order for an investigatory detention to be lawful, it must be based upon reasonable grounds to suspect that Mr. Kang was committing, had committed, or was about to commit a crime. Here, Corporal Whitmarsh possessed reasonable grounds to suspect that Mr. Kang had committed a crime based on the information known to him at the time of the seizure. Officer Whitmarsh responded to an unexplained, single vehicle accident in which an occupant of the vehicle was critically injured and later died at the scene. The occupants appeared to be young in age. Corporal Whitmarsh learned that Mr. Kang was the driver of the vehicle and detected the odor of alcohol on Mr. Kang's breath while questioning him. He also noted that Mr. Kang's eyes were glassy and bloodshot. Mr. Kang admitted that he had been drinking. These facts gave rise to a reasonable and articulable suspicion that Mr. Kang may have violated 21 Del. C. § 4177 and/or 21 Del. C. § 4177L. The detention of Mr. Kang while Corporal Whitmarsh investigated these possible criminal offenses was lawful.
Mr. Kang argues that State v. Cooley, Del. Supr., 457 A.2d 352 (1983), stands for the proposition that "when a person is detained for investigation, as the State argues Cooley was, the police must have probable cause for detaining him." Id. at 354. Mr. Kang argues that the State must have possessed probable cause in order to detain him. Mr. Kang's reliance upon Cooley is misplaced. A careful review of the trial court's opinions in that case indicate that the detention in question entailed the police transporting the defendant to the police troop, placing him formally under arrest for driving under the influence, administering physical tests, and then an intoxilizer test. After a hearing, the trial court found that the police officer at the scene had probable cause to arrest the defendant for DUI, but that the officer who actually arrested the defendant at the police station had no information that constituted probable cause for the arrest or to administer an intoxilizer test. See State v. Cooley, Del. Super., No. 80-09-0155, Taylor, J. (Nov. 3, 1980) (Letter Op.); State v. Cooley, Del. Super., No. 80-09-0155, Taylor, J. (Dec. 4, 1980) (Letter Op.). The detention in Mr. Kang's case was not an arrest requiring probable cause.
Jones, 745 A.2d at 863.
Officer Whitmarsh, however, did not possess probable cause for a DUI violation or for an underage consumption violation at that point. He did not possess any information that indicated a likelihood that Mr. Kang was intoxicated, nor did he possess any information with regard to Mr. Kang's age.
Mr. Kang has submitted Caldwell v. State, Del. Supr., 780 A.2d 1037 (2001) as further authority for his position, although his submission did not indicate exactly how Caldwell applies here. Caldwell stands for the proposition that any investigation of an occupant of a vehicle beyond that required to complete the purpose of a traffic stop is a separate seizure that must be supported by independent facts sufficient to justify the additional intrusion. Caldwell, 780 A.2d at 1047. The Court has found that the detention of Mr. Kang at the scene was supported by reasonable grounds.
3. Statements Made to Corporal Garvey
By the time Corporal Garvey had contact with Mr. Kang, he had been detained lawfully by Corporal Whitmarsh. Corporal Garvey testified that she "requested that [Mr. Kang] sit in the back of [her] vehicle." Her testimony indicated that, in her mind, once Mr. Kang was placed in her vehicle he was not free to leave the scene, although she did not communicate that sentiment to him.
Suppression Hr'g Tr. at 10 (June 25, 2001).
Had Mr. Kang not been detained lawfully by Officer Whitmarsh at that point, Corporal Garvey's request that Mr. Kang sit in her car would have constituted a seizure. A reasonable person in Mr. Kang's situation only could have believed that Corporal Garvey's "conduct communicated to [him] that [he was] not at liberty to go about [his] business." Under the circumstances then known to Corporal Garvey, the seizure would have been unlawful because the only information known to her at the time of the seizure was that Mr. Kang was the driver of a vehicle involved in a one-car collision and that a passenger had sustained fatal injuries.
Flonnory v. State, Del. Supr., No. 513, 2000, Steele, J. (Nov. 5, 2001) (Opinion at 7).
It is undisputed that Corporal Whitmarsh had not communicated his findings and observations to Corporal Garvey. For her part, Corporal Garvey made no effort to justify her actions with notions of probable cause or reasonable suspicion of criminal activity. Rather, it would appear that she genuinely felt that Mr. Kang's best interests would be served by separating him from the scene. The Court would be reluctant to punish this genuine gesture of human kindness or to dissuade other officers from thinking in these terms. Unfortunately, though, if Corporal Whitmarsh had not already lawfully detained Mr. Kang prior to Corporal Garvey's request that Mr. Kang sit in her police cruiser, the Court would be compelled to determine that her decision to place him in the vehicle and to remain there with him would not have been lawful, and the fruits of that detention would have to be suppressed.
But the Court has determined that Mr. Kang already was lawfully detained when Corporal Garvey asked him to sit in her police cruiser. And her directions to Mr. Kang did not tread appreciably further upon his rights to liberty and privacy. To the extent placing Mr. Kang in the police cruiser increased "the level of intrusion" effected by the detention, the intrusion still did not rise to the level of a custodial arrest. Moving a suspect from one scene to another within the environment of an investigatory detention does not require the officers to renew their reasonable suspicion of criminal activity. The determination made at the outset of the detention will continue to justify the detention in its various phases until such time as the duration of the seizure or the level of intrusion elevates the deprivation of liberty to the status of an arrest. That elevation did not occur here. Accordingly, Mr. Kang's Motion to Suppress statements made to Corporal Garvey is DENIED.
During the suppression hearing, defense counsel and the State agreed that Miranda was not an issue. Suppression Hr'g Tr. at 68 (June 25, 2001). Their stipulation is well-founded as the principles set forth in Miranda are not implicated in this case. The safeguards of Miranda apply to interrogation in a custodial setting. Hammond v. State, Del. Supr., 569 A.2d 81, 92 (1990) (citing Miranda v. Arizona, 384 U.S. 436 (1966)).
See State v. Biddle, supra
C. The Field Test Results
Mr. Kang argues that even if the Court concludes that his detention at the scene of the accident was lawful, the decision by Corporal Whitmarsh to remove him from the scene to the hospital in order to perform field tests constituted a custodial arrest without probable cause. Mr. Kang argues that the fruits of this unlawful arrest, including the results of the field tests, must be suppressed.
An investigatory detention must be minimally intrusive and reasonably related in scope to the circumstances justifying the interference. In limited circumstances, the police may transport a suspect from one location to another without probable cause as part of an investigatory detention when the transportation is reasonable and necessary. For instance, the police may remove a suspect from the scene of the initial stop without transforming the detention into an arrest when it is reasonably necessary for security reasons or when it is known that a crime has been committed and the police transport a suspect for a "show-up".
State v. Maxwell, Del. Super., No. 95-02-1462, Carpenter, J. (Aug. 30, 1996) (ORDER at 5) (citing Hicks v. State, Del. Supr., 631 A.2d 6, 11 (1993) (citing Terry v. Ohio, 392 U.S. 1, 22 (1968))).
Id. at 6.
See U.S. v. Baron, 9th Cir., 860 F.2d 911(1988); Buckingham v. State, Del. Supr., 482 A.2d 327 (1984); State v. Biddle, supra. A "show up" is a confrontation between a suspect and a witness to a crime that commonly occurs within a short time after the crime or under circumstances that would make a lineup impracticable. See Black's Law Dictionary 962 (Abridged 6th ed. 1991).
In order to detain someone to administer field sobriety tests, an officer need only possess a reasonable articulable suspicion of criminal activity. In most instances, police officers administer field sobriety tests to aid in their determination of probable cause for a DUI violation. Corporal Whitmarsh administered the field sobriety tests to Mr. Kang to aid in his investigation and determination of probable cause.
State v. Quinn, Del. Super., Nos. N94-08-1657AC, N94-08-1658AC, Gebelein, J. (Mar. 8, 1995) (Mem. Op. at 4-5); State v. Angelini, Del. Super., No. N84-04-9670T, Martin, J. (Sept. 4, 1984) (Letter Op.).
Suppression Hr'g Tr. at 27-29, 54-56 (June 25, 2001).
Once he determined to administer the field tests to Mr. Kang, Corporal Whitmarsh undertook an evaluation of the conditions at the scene of the accident to determine if they were suitable for the testing to be done. He determined that Mr. Kang would be disadvantaged in the performance of the tests at the accident scene due to a slight incline in the roadway, darkness, the presence of a crowd of people that had arrived at the scene, and Mr. Kang's fragile emotional state after the death of his passenger and the presence of the body at the accident scene. Accordingly, Corporal Whitmarsh transported Mr. Kang to the Christiana Hospital to perform the field tests and conduct his investigation.
Id. at 28-9.
Corporal Whitmarsh communicated his observations and findings to Corporal Leonard, the supervisor of the FAIR team. Suppression Hr'g Tr. at 25 (June 25, 2001). Corporal Whitmarsh's notes indicate that Corporal Leonard directed him to transport Mr. Kang to the hospital to conduct a DUI investigation. Corporal Whitmarsh testified, however, that his notes are inaccurate and that he made the choice to transport Mr. Kang to the hospital after Corporal Leonard directed him to conduct a DUI investigation. Suppression Hr'g Tr. at 54-55, 67-68 (June 25, 2001). The Court finds Corporal Whitmarsh's testimony to be credible in this regard.
It is clear that Corporal Whitmarsh's decision to transport Mr. Kang was based in part on his concern for Mr. Kang. The Court has acknowledged already with respect to Corporal Garvey that good intentions alone cannot justify an unjustified intrusion on the Fourth Amendment rights of an accused. But in this instance the Court is satisfied that objective and reasonable factors support Corporal Whitmarsh's decision to transport Mr. Kang to the hospital to perform field sobriety tests. Under the circumstances, then, the Court concludes that the transportation of Mr. Kang to the hospital to administer field sobriety tests did not convert the investigatory detention into an arrest. Accordingly, the transport to the hospital did not require a predicate determination of probable cause. Mr. Kang's Motion to Suppress the field test results is DENIED.
See Maxwell, supra, at 6.
See Williams v. Shahan, Del. Super., C.A. No. 92A-04-008, Barron, J. (March 10, 1993) (ORDER at 3.) (holding that it was reasonable and necessary to transport suspect to police station to conduct field tests when the roadway was narrow and highly curved, it was raining, and the nearby driveway was unpaved).
While the Court finds that the transportation of Mr. Kang did not constitute a custodial arrest in this situation, the Court notes that Officer Whitmarsh did possess probable cause that Mr. Kang had violated the zero tolerance statute when he transported him. Based on that probable cause, Officer Whitmarsh could have secured a blood sample as evidence of the zero tolerance violation. See 21 Del. C. § 4177L. Officer Whitmarsh, however, was investigating a DUI violation as well, and as part of that investigation deemed it necessary and appropriate to administer field sobriety tests.
C. Blood Test Results
Under Delaware law, the police may administer chemical testing of a person's blood alcohol concentration when they have probable cause to suspect that person has operated a motor vehicle while under the influence of alcohol in violation of 21 Del. C. § 4177 ("a DUI violation"). For its part, the zero tolerance statute expressly contemplates the use of chemical analyses of blood alcohol content when the police have probable cause to believe that a person under the age of 21 has operated a motor vehicle after having consumed alcohol.
State v. Brown, Del. Super., C.A. Nos. N94-08-1734AC, N94-08-1735AC, Goldstein, J. (April 7, 1995) (ORDER at 5) (citing 21 Del. C. § 2740).
The statutory elements of the crimes under investigation by Corporal Whitmarsh animate the probable cause analysis here. Probable cause is measured "not by precise standards, but by the totality of the circumstances through a case by case review of the `factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" To establish probable cause, the police need only present facts which suggest, when those facts are viewed under the totality of the circumstances, that there is a fair probability that the defendant has committed a crime.
State v. Rooney, Del. Super., C.R.A. No. N95-03-2080AC, Goldstein, J. (Oct. 31, 1995) (ORDER at 7) (citing State v. Maxwell, Del. Supr., 624 A.2d 926, 928 (1993)).
State v. Maxwell, Del. Supr., 624 A.2d 926, 930 (1993) (citations omitted).
By the time Corporal Whitmarsh transported Mr. Kang to Christiana Hospital he was investigating not only a possible DUI violation, but also a zero tolerance violation. In regard to his investigation of both crimes, it is helpful once again to review the facts known to Corporal Whitmarsh at the time the testing was initiated: (1) Mr. Kang was the driver of a vehicle involved in a fatal one-vehicle accident; (2) the accident occurred late at night and without any obvious cause; (3) the odor of alcohol was emanating from Mr. Kang's breath; (4) Mr. Kang's eyes were glassy and bloodshot; (5) Mr. Kang was under the age of 21; and (6) Mr. Kang admitted to consuming alcoholic beverages prior to the automobile accident. Thereafter, Mr. Kang's poor performance of the field sobriety tests provided Corporal Whitmarsh with substantial and credible evidence of Mr. Kang's level of intoxication. Based upon the totality of the information known to Corporal Whitmarsh, the Court finds that he possessed probable cause to believe that Mr. Kang had violated both 21 Del. C. § 4177L and 21 Del. C. § 4177 such that a blood test was appropriate.
Although Corporal Leonard instructed Corporal Whitmarsh to do a DUI investigation, Corporal Whitmarsh testified that he knew that Mr. Kang was under the age of 21 and that "it is a zero tolerance [case] without the field test." Suppression Hr'g Tr. at 60-61 (June 25, 2001). Corporal Whitmarsh conducted a full DUI investigation as well, based on reasonable suspicion, and later on probable cause that Mr. Kang had operated a motor vehicle while intoxicated.
Corporal Whitmarsh testified that he learned Mr. Kang was under the age of 21 sometime between the time period when he arrived on the accident scene and when he left with Mr. Kang to go to the hospital. Suppression Hr'g Tr. at 49 (June 25, 2001). Corporal Whitmarsh could not recall from whom he learned that Mr. Kang was under 21, although he recalls that another trooper told him. Id. at 50.
See Slavish v. Division of Motor Vehicles, Del. Super., C.A. No. 88A-SE-2, Gebelein, J. (May 22, 1989) (Mem. Op. at 2)("field tests are administered specifically for the purpose of determining whether a suspect is under the influence").
To be clear, even before conducting any field tests, Corporal Whitmarsh possessed probable cause that Mr. Kang had violated the zero tolerance statute. As a result, Corporal Whitmarsh would have been justified in taking a sample of Mr. Kang's blood for purposes of his investigation of the zero tolerance violation. See 21 Del. C. § 4177L(b). Corporal Whitmarsh, however, was investigating a possible DUI violation as well. For purposes of that investigation, the field test results, in conjunction with the other facts known to him at the time, established probable cause that Mr. Kang was intoxicated. Based on the probable cause for the DUI violation, Corporal Whitmarsh could secure a sample of Mr. Kang's blood. But see State v. Brown, Del. Super., Cr.A. Nos. N94-08-1734AC, N94-08-1735AC, Goldstein, J. (June 1, 1995) (ORDER) (holding that breath tests results would have been admissible for purposes of gathering evidence for the zero tolerance charge but that they should be suppressed because the breath test was administered for purposes of a DUI violation without probable cause that the defendant was intoxicated prior to its administration). In the instant case, the results of the blood test are admissible for both offenses because Corporal Whitmarsh possessed probable cause regarding the DUI violation and the zero tolerance violation before securing a sample of Mr. Kang's blood.
Possessing facts "`sufficient in themselves to warrant a man of reasonable caution'" to conclude that probable cause existed that Mr. Kang was driving under the influence of alcohol, Corporal Whitmarsh lawfully obtained a blood sample from Mr. Kang. Accordingly, Mr. Kang's Motion to Suppress the blood test results is DENIED.
Maxwell, 624 A.2d at 931 (citing Brinegar v. U.S., 338 U.S. 160, 175-6 (1949)).
III. CONCLUSION
The Court concludes that: (i) Mr. Kang was not seized when he made certain statements to Corporal Whitmarsh; (ii) Mr. Kang was lawfully seized for an investigatory detention when he made other statements to Corporal Whitmarsh and Corporal Garvey; (iii) the removal of Mr. Kang from the accident scene to the hospital for purposes of conducting field tests was reasonable and necessary under the circumstances and did not rise to the level of a custodial arrest; and (iv) Corporal Whitmarsh possessed probable cause to secure a sample of Mr. Kang's blood. Accordingly, Mr. Kang's Motion to Suppress statements made to Corporal Whitmarsh and Corporal Garvey, the field test results, and blood test results is DENIED.
IT IS SO ORDERED.
ORDER
This 30th day of November, 2001, for the reasons expressed in the Court's Opinion issued this date,
IT IS ORDERED that the defendant's Motion to Suppress Evidence is DENIED.