IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) ) v. ) ) ANDREW S. LOVELL, ) I.D. No. 2107001690 ) Defendant. ) ) ) ) )
Date Submitted: September 9, 2022 Date Decided: September 28, 2022
Upon Defendant’s Motion to Suppress. DENIED, in part, and GRANTED, in part.
ORDER
Dominic Carrera, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.
Richard B. Ferrara, Esquire, Wilmington, Delaware, Attorney for Defendant.
SCOTT, J.
1 Introduction
Before the Court is Defendant Andrew S. Lovell’s (“Defendant”) Motion to
Suppress, brought by counsel. Defendant argues there was no probable cause for the
warrantless arrest of Defendant and thus any evidence seized as a result of the
unlawful arrest of Defendant must be suppressed, any statements made by defendant
should be suppressed because they were a result of a pre-Miranda, custodial
interrogation, and Defendant’s blood sample should be suppressed because it was
obtained without consent or a proper warrant. The State, in turn, argues Miranda
does not apply to Defendant’s statements made after his handcuffs were removed
because he was free to move around the accident scene, and probable cause existed
for the warrant therefore, the evidence should not be suppressed. The Court has
reviewed the motion and the State’s response and held a suppression hearing. For
the following reasons, the Defendant’s Motion is DENIED, in part, and
GRANTED, in part.
Findings of Fact
On July 4, 2021, at approximately 6:46 A.M., Officers of the Delaware State
Police Department responded to the intersection of Polly Drummond Hill Road and
Capitol Trial Road after a report of an alleged accident with injuries. Upon arrival,
the first officer (“First Officer”) on the scene noticed two vehicles in the southbound
lanes of Polly Drummond Hill Road, just north of the intersection. Witnesses on the
2 scene informed First Officer that one of the drivers involved in the collision had fled
to a nearby cemetery, approximately 50 yards away and gave a description of the
clothing the driver was wearing. First Officer searched the cemetery, after not
finding the suspect, First Officer returned to his vehicle where Defendant
approached First Officer from the direction of the cemetery and uttered an
unidentifiable word. Seeing that the Defendant’s clothes matched the description
provided to him by eyewitnesses and the direction Defendant came from, First
Officer immediately tells Defendant to turn around and handcuffs Defendant.
Upon handcuffing Defendant, First Officer notices Defendant’s breath smells
of alcohol, along with his clothing. First Officer observes that Defendant’s eyes were
bloodshot and watery. While bringing the Defendant back to the scene of the
collision, First Officer asks Defendant several questions about the accident and then
turns Defendant over to his partner so First Officer can continue his investigation of
the accident scene. Through his investigation of the accident scene, First Officer
observed several bottles of alcohol in the Defendant’s vehicle.
Defendant’s handcuffs were removed, and he was taken to the front of First
Officer’s vehicle so a DUI investigation could be performed. First Officer noticed
Defendant’s speech was slurred. Defendant made the following statements: When
asked why he was up in the cemetery, Defendant responded, “Because Charlie. . . I
almost killed the guy.” When asked who Charlie was, Defendant responded, “the
3 guy who was driving the truck.” When asked if Defendant knew Charlie, Defendant
responded, “No I was just saying like I’m not going to..” When asked what
Defendant meant when he said he almost killed a guy, Defendant responded “You
can see it look at his [expletive] truck.” When First Officer accuses Defendant of
hitting the victim, Defendant responded, “I know, but what I’m saying is I’m…”
When First Officer accuses Defendant of walking up to the cemetery with the victim
still in his truck, Defendant responded, “No, no I got him out of the car.” When First
Officer stated he did not hear Defendant got the victim out of the car from
eyewitnesses, Defendant responded, “I got him out, I unfolded his seatbelt.” When
asked to perform field sobriety testing, Defendant refused all testing including a
portable breathalyzer at the scene. Defendant was subsequently arrested for
suspicion of DUI.
First Officer applied for a search warrant to obtain Defendant’s blood, which
contained an error regarding the time Defendant said his last drink was. First Officer
reported in the warrant that Defendant said his last alcoholic beverage was at 5 A.M.,
however, Defendant stated is last alcoholic beverage was not at 5 A.M. the morning
of the accident but was at 5 P.M. the night before. The blood warrant was approved,
and Defendant was subsequently indicted and changed with DUI, Vehicular Assault
Second Degree, leaving the scene of an accident-causing injury and various other
traffic offenses.
4 Defendant filed this Motion challenging the constitutionality of his detention,
arrest, and blood warrant. The Court heard argument on this Motion on September
9, 2022.
Discussion
Statements made by Defendant
Law enforcement officials may not subject an individual to custodial
interrogation unless he is advised of specific rights protective of his privilege against
compelling self-incrimination guaranteed by the Fifth Amendment.1 If the police
take a suspect into custody and interrogate him without advising him of his fifth
amendment rights, his answers cannot be introduced into evidence at a subsequent
trial to establish the suspect's guilt.2 A person is in custody for Miranda purposes
when there was a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.3 The burden of proof is on the State to demonstrate
that the Defendant was advised of his Miranda rights and has knowingly and
intelligently waived those rights.4
Defendant was in custody for purposes of Miranda subsequent to being placed
in handcuffs, because there was a restraint on Defendant’s freedom of movement to
1 DeJesus v. State, 655 A.2d 1180, 1189 (Del.1995) citing Miranda v. Arizona, 384 U.S. 486 (1966). 2 Id. at 1190. 3 Id. 4 State v. DeAngelo, 2000 WL 305332, *5 (Del.Super.). 5 the degree associated with a formal arrest. The State concedes the statements made
while Defendant was handcuffs are inadmissible. The issue before the Court is
whether the statements made after his handcuffs were taken off are admissible.
Statements were made regarding the circumstances of the accident elicited by First
Officer, and statements were made to refuse the field sobriety tests.
Defendant’s statements refusing to submit to the field sobriety tests are
admissible “for any relevant purpose, including to show consciousness of guilt.”5
Therefore, Defendant’s request to suppress statements regarding his refusal is
DENIED.
However, Defendant’s statements elicited about the accident are not
admissible because Defendant was still in custody for the purposes of Miranda. In
Terry v. Ohio, the United States Supreme Court held that a seizure occurs “when the
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) ) v. ) ) ANDREW S. LOVELL, ) I.D. No. 2107001690 ) Defendant. ) ) ) ) )
Date Submitted: September 9, 2022 Date Decided: September 28, 2022
Upon Defendant’s Motion to Suppress. DENIED, in part, and GRANTED, in part.
ORDER
Dominic Carrera, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.
Richard B. Ferrara, Esquire, Wilmington, Delaware, Attorney for Defendant.
SCOTT, J.
1 Introduction
Before the Court is Defendant Andrew S. Lovell’s (“Defendant”) Motion to
Suppress, brought by counsel. Defendant argues there was no probable cause for the
warrantless arrest of Defendant and thus any evidence seized as a result of the
unlawful arrest of Defendant must be suppressed, any statements made by defendant
should be suppressed because they were a result of a pre-Miranda, custodial
interrogation, and Defendant’s blood sample should be suppressed because it was
obtained without consent or a proper warrant. The State, in turn, argues Miranda
does not apply to Defendant’s statements made after his handcuffs were removed
because he was free to move around the accident scene, and probable cause existed
for the warrant therefore, the evidence should not be suppressed. The Court has
reviewed the motion and the State’s response and held a suppression hearing. For
the following reasons, the Defendant’s Motion is DENIED, in part, and
GRANTED, in part.
Findings of Fact
On July 4, 2021, at approximately 6:46 A.M., Officers of the Delaware State
Police Department responded to the intersection of Polly Drummond Hill Road and
Capitol Trial Road after a report of an alleged accident with injuries. Upon arrival,
the first officer (“First Officer”) on the scene noticed two vehicles in the southbound
lanes of Polly Drummond Hill Road, just north of the intersection. Witnesses on the
2 scene informed First Officer that one of the drivers involved in the collision had fled
to a nearby cemetery, approximately 50 yards away and gave a description of the
clothing the driver was wearing. First Officer searched the cemetery, after not
finding the suspect, First Officer returned to his vehicle where Defendant
approached First Officer from the direction of the cemetery and uttered an
unidentifiable word. Seeing that the Defendant’s clothes matched the description
provided to him by eyewitnesses and the direction Defendant came from, First
Officer immediately tells Defendant to turn around and handcuffs Defendant.
Upon handcuffing Defendant, First Officer notices Defendant’s breath smells
of alcohol, along with his clothing. First Officer observes that Defendant’s eyes were
bloodshot and watery. While bringing the Defendant back to the scene of the
collision, First Officer asks Defendant several questions about the accident and then
turns Defendant over to his partner so First Officer can continue his investigation of
the accident scene. Through his investigation of the accident scene, First Officer
observed several bottles of alcohol in the Defendant’s vehicle.
Defendant’s handcuffs were removed, and he was taken to the front of First
Officer’s vehicle so a DUI investigation could be performed. First Officer noticed
Defendant’s speech was slurred. Defendant made the following statements: When
asked why he was up in the cemetery, Defendant responded, “Because Charlie. . . I
almost killed the guy.” When asked who Charlie was, Defendant responded, “the
3 guy who was driving the truck.” When asked if Defendant knew Charlie, Defendant
responded, “No I was just saying like I’m not going to..” When asked what
Defendant meant when he said he almost killed a guy, Defendant responded “You
can see it look at his [expletive] truck.” When First Officer accuses Defendant of
hitting the victim, Defendant responded, “I know, but what I’m saying is I’m…”
When First Officer accuses Defendant of walking up to the cemetery with the victim
still in his truck, Defendant responded, “No, no I got him out of the car.” When First
Officer stated he did not hear Defendant got the victim out of the car from
eyewitnesses, Defendant responded, “I got him out, I unfolded his seatbelt.” When
asked to perform field sobriety testing, Defendant refused all testing including a
portable breathalyzer at the scene. Defendant was subsequently arrested for
suspicion of DUI.
First Officer applied for a search warrant to obtain Defendant’s blood, which
contained an error regarding the time Defendant said his last drink was. First Officer
reported in the warrant that Defendant said his last alcoholic beverage was at 5 A.M.,
however, Defendant stated is last alcoholic beverage was not at 5 A.M. the morning
of the accident but was at 5 P.M. the night before. The blood warrant was approved,
and Defendant was subsequently indicted and changed with DUI, Vehicular Assault
Second Degree, leaving the scene of an accident-causing injury and various other
traffic offenses.
4 Defendant filed this Motion challenging the constitutionality of his detention,
arrest, and blood warrant. The Court heard argument on this Motion on September
9, 2022.
Discussion
Statements made by Defendant
Law enforcement officials may not subject an individual to custodial
interrogation unless he is advised of specific rights protective of his privilege against
compelling self-incrimination guaranteed by the Fifth Amendment.1 If the police
take a suspect into custody and interrogate him without advising him of his fifth
amendment rights, his answers cannot be introduced into evidence at a subsequent
trial to establish the suspect's guilt.2 A person is in custody for Miranda purposes
when there was a formal arrest or restraint on freedom of movement of the degree
associated with a formal arrest.3 The burden of proof is on the State to demonstrate
that the Defendant was advised of his Miranda rights and has knowingly and
intelligently waived those rights.4
Defendant was in custody for purposes of Miranda subsequent to being placed
in handcuffs, because there was a restraint on Defendant’s freedom of movement to
1 DeJesus v. State, 655 A.2d 1180, 1189 (Del.1995) citing Miranda v. Arizona, 384 U.S. 486 (1966). 2 Id. at 1190. 3 Id. 4 State v. DeAngelo, 2000 WL 305332, *5 (Del.Super.). 5 the degree associated with a formal arrest. The State concedes the statements made
while Defendant was handcuffs are inadmissible. The issue before the Court is
whether the statements made after his handcuffs were taken off are admissible.
Statements were made regarding the circumstances of the accident elicited by First
Officer, and statements were made to refuse the field sobriety tests.
Defendant’s statements refusing to submit to the field sobriety tests are
admissible “for any relevant purpose, including to show consciousness of guilt.”5
Therefore, Defendant’s request to suppress statements regarding his refusal is
DENIED.
However, Defendant’s statements elicited about the accident are not
admissible because Defendant was still in custody for the purposes of Miranda. In
Terry v. Ohio, the United States Supreme Court held that a seizure occurs “when the
officer, by means of physical force or show of authority, has in some way restrained
the liberty” of the individual.6 Our Supreme Court has recognized and advised the
refined standard in Michigan v. Chesternut,7 calling for this Court to focus not on
whether a reasonable person would feel free to leave but rather on whether the
officer's conduct would “have communicated to a reasonable person that he was not
5 Church v. State, 2010 WL 5342963, at *2 (Del. Dec. 22, 2010). 6 392 U.S. 1, 19 n. 16 (1968). 7 486 U.S. 567 (1988). 6 at liberty to ignore the police presence and go about his business.”8 In relation to
Miranda, this means when an officer’s conduct would communicate to a reasonable
person that he does not have the freedom to ignore the police and continue to do
what he pleases, such as leaving, then Miranda warning are necessary. Even though
the handcuffs were removed from Defendant, no reasonable person in Defendant’s
position would believe they were free to ignore police presence and go about their
business as he was ordered to the front of the vehicle to answer questions and
perform field sobriety tests. Therefore, Defendant was subjected to a custodial
interrogation and his statements made regarding the accident are required to be
suppressed.
The State argued Defendant statements were not a consequence of a custodial
interrogation because the Defendant was not in custody when the handcuffs were
taken off as he was free to move about the accident scene. However, Federal Courts
have found that a defendant is no longer in custody when handcuffs are removed if
the defendant is informed by law enforcement that they are free to leave or they are
not under arrest and advised of their constitutional rights.9 Therefore, if a defendant
8 Id. at 569, 108 S.Ct. 1975; see also Jones v. State, 745 A.2d 856, 862 (Del. 1999); Quarles v. State, Del.Supr., 696 A.2d 1334, 1337 (1997); Robertson v. State, Del.Supr., 596 A.2d 1345, 1351 (1991). 9 In U.S. v. Hyer, police officers executed a search warrant of defendant’s apartment and handcuffed him until the residence was secure. Once secure, defendant was uncuffed and was told he was not under arrest and advised him of his constitutional rights. Defendant indicated he understood his constitutional 7 is told they may leave or are told they are not under arrest and advised of their
constitutional rights when the handcuffs are removed, any statement made would
not implicate Miranda. This set of facts is not present here. In this case, Defendant
was uncuffed and told to go to the front of the vehicle so First Officer could conduct
field sobriety tests. First Officer, nor any other officer on the scene, gave the
Defendant his Miranda warnings before interrogating him (asking the Defendant
about the accident). The State has not carried its burden of proof in demonstrating
that the Defendant was advised of his Miranda warnings before the statements
regarding the accident were made. Consequently, Defendant’s request to suppress
statements elicited by First Officer is GRANTED.
Warrant Error
The State and defense counsel have conceded the remedy for the error in First
Officer reporting the time Defendant said he had his last drink is for the Court to
eliminate the error and determine if probable cause exists within the four corners of
rights and then made oral statements in response to police questioning. The court found the defendant was not in custody, so the protections of Miranda did not attach. United States v. Hyer, 2010 WL 2160911, at *15-17 (E.D. Mo. Apr. 29, 2010), report and recommendation adopted, 2010 WL 2160908 (E.D. Mo. May 28, 2010). In U.S. v. Laws, while a search warrant of defendant’s mother’s home was executed by police, defendant was handcuffed. Defendant was subsequently uncuffed and told he was free to leave by a law enforcement officer because defendant proceeded to answer the questions of the officer. The court found defendant was not in custody when the statements were made, therefore the motion to suppress the statements was denied. The appellate court affirmed the ruling. United States v. L., 819 F.3d 388, 395-96 (8th Cir. 2016). 8 the warrant. With elimination of Defendant’s statement about when he last had an
alcoholic beverage, the affidavit establishes Defendant’s vehicle was involved in the
accident, Defendant fled the scene of the accident, his clothes and breath smelled
strongly of alcohol, his eyes were bloodshot and watery, and there were alcohol
bottles found in the vehicle. Considering all these factors, without any consideration
of when Defendant said he had his last drink, this Court finds there was probable
cause to support granting the blood warrant. Therefore, the request to suppress the
blood results is DENIED.
For the aforementioned reasons, Defendant’s Motion to Suppress is hereby
DENIED, in part, and GRANTED, in part.
/s/ Calvin L. Scott Judge Calvin L. Scott, Jr.