Thomas v. State

• Court: Superior Court of Delaware
• Decided: January 16, 2024
• Docket: N19M-01-094 N19M-12-202 N21M-06-074 MBO
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TERRY THOMAS JR., ) ) Plaintiff, ) ) v. ) Case Nos. N19M-01-094 ) N19M-12-202 ) N21M-06-074 STATE OF DELAWARE, ) ) Defendant. )

Submitted: October 6, 2023 Decided: January 16, 2024

ORDER

John W. Donahue IV, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

Terry Thomas, Jr., Howard R. Young Correctional Institution, Wilmington, Delaware, pro se.

O’CONNOR, M., Commissioner. INTRODUCTION

This matter came before the Court upon three petitions for return of property

filed by Plaintiff Terry A. Thomas Jr. (“Plaintiff”) pursuant to 16 Del. C. §4784(j)

and Superior Court Civil Rule 71.3. Plaintiff seeks the return of $12,170.00 seized

on January 5, 2019; $8,832.00 seized on October 10, 2019; and $6,053.00 seized on

April 28, 2021. On April 12, 2023, May 24, 2023, and June 22, 2023, the Court

convened a bench trial, and at the conclusion of the trial the Court reserved decision.

This is my decision after considering the presentations of the parties, the record, and

evidence presented at trial.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff has sought the return of property seized by New Castle County Police

Department (“NCCPD”) officers during three separate traffic stops.1 Each traffic

stop and seizure will be considered independently, based on the information the

police officers were aware of at each traffic stop and the immediate investigation

conducted thereafter. The traffic stops and accompanying seizures will be addressed

sequentially, below.

1 The three Petitions for Return of Property were consolidated for purposes of trial. To the extent this Order refers to transcript citations, the docket item number for the transcript relates to Civil Action No. N19M-01-094. 1 1. The January 5, 2019 Traffic Stop.

On January 5, 2019, NCCPD Detective Matthew Arnold (“Detective Arnold”)

was working as a member of the NCCPD’s Mobile Enforcement Team (“MET

Team”).2 At approximately 8:30 p.m., Detective Arnold observed a white Cadillac

fail to maintain its lane of travel on Airport Road, and conducted a traffic stop due

to the traffic violation.3 As Detective Arnold approached the Cadillac, he detected

an odor of marijuana emanating from the vehicle.4 Plaintiff was driving the vehicle,

and a minor was in the front passenger seat. After removing the Plaintiff and minor

from the car, Detective Arnold, with the assistance of other MET Team members,

searched the vehicle. In the trunk, Detective Arnold located multiple duffle bags,

one of which contained ten bundles of United States currency totaling $9,980.00.5

The police also recovered $2,190.00 from Plaintiff’s pants pocket.6 In a separate

duffel bag in the trunk, Detective Arnold observed marijuana residue.7 A search of

the interior of the car and the minor resulted in the discovery of marijuana residue

2 Detective Arnold began his law enforcement career with NCCPD in March 2013. (Docket Item (“D.I.”) 38, April 12, 2023 Trial Tr. at 13:2-6). Detective Arnold has received training on drug identification and made more than one hundred marijuana related arrests (Id. at 34:10 – 35:14.). The MET Team focuses on addressing quality of life issues such as prostitution, loitering, illicit drug use, car burglaries, and “anything where the crime numbers seem to be higher in one concentrated area than others.” Id. at 13:22 – 14:1. 3 Id. at 14:17 – 15:3. 4 Id. at 16:2-3. 5 Id. at 18:2-10. State’s Ex. 2, Photo. The currency was bundled in $1,000.00 increments, except for one bundle, which contained $980.00. 6 Id. at 18:11-21. State’s Ex. 1, Photo. 7 Id. at 18:24-19:2. The residue was neither recovered nor tested by the MET Team officers. 2 in the center console, and the recovery of a small amount of marijuana from the

minor’s pocket. 8

On scene, Detective Arnold questioned Plaintiff about his employment and

the source of the currency. When asked for the name of his employer, Plaintiff first

told the detective he worked for “Duncan and Sons,” but when asked where the

business was located, he could not provide an address.9 Plaintiff then claimed he

owned a business called “American Automotive.”10 Detective Arnold then

conducted business license checks for “Duncan and Sons” and “American

Automotive,” and he could not confirm a business license for either entity.11 Plaintiff

next claimed his business was “AmeriKingz Automotive.”12 When Detective Arnold

asked Plaintiff why he possessed the currency, Plaintiff generically stated that he

needed cash on hand to operate his business.13 After giving Plaintiff multiple

opportunities to explain in detail why he possessed cash on that particular night,

Plaintiff did not provide Detective Arnold a specific reason for possessing

$12,170.00.14

8 Id. at 19:3-6. 9 Id. at 25:3-10. 10 Id. at 25:11-14. 11 Id. at 25:14-19. 12 Id. at 25:20 – 26-1. Detective Arnold subsequently confirmed AmeriKingz Automotive had a valid business license. Also see Plaintiff’s Ex. 3, Business License. 13 Id. at 26:15-19. 14 Id. at 26:15 – 27:1. 3 Detective Arnold seized the currency, and when he arrived back at NCCPD

headquarters, he enlisted the assistance of NCCPD Corporal Paul Smack (“Corporal

Smack”), and his canine partner “Thor” to conduct a “sniff test” on the currency –

the sniff test involves commanding the canine to search for the odor of illegal

substances on the currency. To conduct the sniff test, the canine handler directs the

canine to conduct a pre-sniff of the location where the currency would later be

hidden, typically a room with several lockers.15 If the canine does not indicate the

presence of drugs in the area, which was the case here, the handler and canine exit

the area and another officer, on this occasion Detective Arnold, would then hide the

currency in one or more lockers and leave the room.16 Once the currency is hidden,

the handler and canine would return to the room and conduct the sniff test – the

handler then directs the canine to smell for the presence of controlled substances on

the currency in the locker room.17 The canine’s positive response would indicate the

presence of illicit drugs on the seized money, and the handler would report the

positive finding to the investigating detective.18

Corporal Smack described the standard protocol followed in this

investigation, and after Detective Arnold hid the seized currency in different lockers

15 Id. at 148:8-21. 16 Id. at 148:8 – 149:17. 17 Id. at 149:8 – 149:17. 18 Id. at 24:11-22. 4 at NCCPD headquarters, Corporal Smack gave Thor a command to conduct the sniff

test. Corporal Smack observed Thor alerting to the two lockers where Detective

Arnold had hidden the currency.19 After explaining the process of a sniff test, and

reviewing Thor’s training and experience, Corporal Smack opined that the sniff test

conducted by Thor on January 5, 2019 evidenced a positive result for the presence

of illegal controlled substances on the currency seized from Plaintiff.20

At the conclusion of the investigation, Detective Arnold cited Plaintiff for a

traffic violation and seized $12,170.00 and a Samsung cellphone.21 Detective

Arnold, relying upon his training and experience, and considering all of the

aforementioned facts, opined that Plaintiff had just completed a drug transaction,

delivering a quantity of marijuana to buyer(s), which resulted in Plaintiff being in

possession of the seized currency.22

19 Id. at 142:15 – 143: 5. Thor is a dual-purpose canine, trained to track suspects and detect various narcotics, including marijuana. Id. at 143:6-15. Beginning in 2016 and through the present day, Thor has undergone consistent training and received several certifications. Id. at 143:19 – 144:5. State’s Exhibit 17, Canine Certifications. After a review of the State’s foundational testimony for the admissibility of the sniff test results, the State presented sufficient evidence to demonstrate Thor’s training and reliability requirements were satisfied to detect the presence of concealed drugs consistently and accurately, and the evidence is admissible. 20 After the money was placed in two separate lockers, Thor alerted on the two lockers containing the seized money. Id. at 148:8 – 151:14. 21 Detective Arnold obtained a search warrant for the cellphone, but the police were unable to access data on the cellphone. Detective Arnold returned the cellphone to Plaintiff without searching it. Id. at 29:2-20. 22 Id. at 55:5-15. 5 2. The October 10, 2019 Traffic Stop.

On October 10, 2019 at approximately 10:55 p.m., Detective Arnold was

working with the MET Team in an unmarked police vehicle when he observed a

black Cadillac in the vicinity of Christiana Road and the Rambleton Acres

neighborhood.23 As the Cadillac exited Rambleton Acres, Detective Arnold

observed the driver fail to signal 300 feet prior to negotiating a turn in violation of

21 Del. C. § 4155(b).24 Detective Arnold alerted other MET Team members of the

traffic violation, and one or more marked NCCPD police vehicles conducted a traffic

stop of the black Cadillac in a Shell gas station at the intersection of Airport Road

and Christiana Road.25 Plaintiff was the operator of the black Cadillac, and he was

accompanied by an adult male passenger.26

Upon approaching the black Cadillac, the MET Team officers detected an odor

of marijuana emanating from the vehicle.27 The officers eventually searched the

trunk of the black Cadillac and seized approximately three pounds of marijuana

23 Id. at 39:8-12. 24 Id. at 40:16-21. See generally 25 Id. at 40:12-25. Detective Arnold explained, subsequent to the January 5, 2019 car stop but during the month of January 2019, he conducted an NCIC inquiry on Plaintiff which revealed Plaintiff had been convicted on March 22, 2012 of felony possession of a controlled substance. State’s Ex. 9, Superior Court Sentencing Order, State of Delaware v. Terry Thomas, Case No. 1110015834. 26 D.I. 38, April 12, 2023 Trial Tr. at 41:6-15. 27 Id. at 41:19-23. 6 packaged in multiple plastic bags.28 A search of Plaintiff’s pants pockets resulted in

the seizure of $8,832.00.29 The money was rubber-banded in at least seven bundles,

along with a wad of loose currency.30 When Detective Arnold asked Plaintiff to

explain the source of the currency, Plaintiff claimed to have acquired the money from

selling catalytic converters.31 The police arrested Plaintiff for possession of three

pounds of marijuana, 32 and seized $8,832.00, a Samsung cellphone, and an Apple

iPhone.33

Detective Arnold brought the seized currency back to NCCPD headquarters.

After Plaintiff’s apprehension on October 10, 2019, and continuing into the early

morning of October 11, 2019, Corporal Smack and Thor were again tasked with

conducting a sniff test on the currency in the men’s locker room of the Gilliam

Building.34 Following the same standard procedure described supra during the

28 The marijuana was found in a white trash bag which contained three other plastic bags containing marijuana. State’s Ex. 4, Photo; Ex. 5, Photo; D.I. 38, April 12, 2023 Trial Tr. at 46:21 – 47:7. 29 Id. at 42:3-8. 30 Id. at 42:3-14; State’s Ex. 7, Photo of currency; D.I. 38, April 12, 2023 Trial Tr. at 45:16-21. 31 Id. at 42:23 - 43:4. Plaintiff disclosed he did not have receipts or documentation for the seized money or business transactions information, but asserted nonetheless his primary source of income was selling catalytic converters. Id. at 43:5-9. 32 Id. at 46:7-20. See also State’s Exhibits 4-6, Photos. The suspected marijuana was analyzed by the State of Delaware Division of Forensic Science Forensic Chemistry Unit, which confirmed the substance was, in fact, marijuana. Additionally, during trial Plaintiff admitted possessing the marijuana in the trunk of the vehicle – but he claimed the “weed wasn’t all mine.” D.I. 39, May 24, 2023 Trial Tr. at 69:15-21. 33 Plaintiff told the police that the Samsung cellphone was his, and the iPhone belonged to his girlfriend, Sunday Grubb. D.I. 38, April 12, 2023 Trial Tr. at 46:7-11; 57:14-19. Later during the hearing, he testified the iPhone was his cellphone. Id. at 79:13-24. 34 Id. at 151:25 – 152:23. 7 January 5, 2019 sniff test, Thor completed a pre-scan of the Gilliam Building locker

room at 0027 hours. Detective Arnold then placed the seized currency in a locker,

and at 0038 hours, Thor performed the sniff test, alerting on the locker where

Detective Arnold hid the $8,832.00, indicating the odor of controlled substances on

the currency.35

Detective Arnold subsequently arrested Plaintiff for Possession of a

Controlled Substance in a Tier I Quantity with an Aggravating Factor, in violation

of 16 Del. C. § 4754; Drug Dealing, in violation of 16 Del. C. § 4754; Failure to

Signal 300’ before Turning a Motor Vehicle, in violation of 21 Del. C. § 4155; and

Improper Display of a License Plate, in violation of 21 Del. C. § 2126.36

Just after Plaintiff’s detention on October 10, 2019, and continuing NCCPD’s

investigation into Plaintiff’s drug dealing activity, a phone data extraction was

conducted on the seized Samsung and iPhone cellphones.37 The extractions

produced two reports, one for each cellphone.38 Once an extraction report was

35 Id. at 151:15 – 153:16. After a review of Corporal Smack’s testimony for the admissibility of the sniff test which occurred the early morning of October 11, 2019, the State presented sufficient evidence to demonstrate Thor’s training and reliability requirements were satisfied to detect the presence of concealed drugs consistently and accurately during this second sniff test in October 2019. 36 As noted supra at fn. 25, Detective Arnold was aware that Plaintiff had a prior felony drug conviction, and that prior felony conviction contributed to the Detective’s belief that Plaintiff was “carrying a larger amount of [marijuana] than what would usually be considered for personal use.” Id. at 50:19 – 51:20; 53:22 – 54:6. 37 Id. at 58:1-16. 38 Id. 8 created, the police utilized software to search for specific keywords, producing a

refined report based on specific search term(s).39

With respect to the Samsung cellphone, NCCPD created a report reflecting

results of keyword search for the words “bud,” “oz,” and “Terry.” Detective Arnold

explained that the search for the word “bud” was performed because “bud” is a

common term for marijuana.40 The Samsung extraction report for “bud” revealed

multiple text messages documenting Plaintiff’s attempts to sell or deliver

marijuana.41 Specifically, on December 27, 2018, the Samsung phone received an

inquiry to Plaintiff asking: “U got bud, need 1/8??.”42 In an outgoing message on

December 29, 2018, Plaintiff texted “I got great deal on bud limited time only.” On

September 9, 2019, an incoming message to Plaintiff stated “Yo wyd I need some

bud,” and on September 30, 2019, an incoming message to Plaintiff asked, “What’s

the name of this bud?”43

NCCPD also searched the Samsung extraction report for the keyword “oz”

(ounce).44 Detective Arnold explained marijuana is commonly bought and sold in

ounce quantities.45 The report included the following references to “oz:” (a) on July

39 Id. at 58:9-25 – 59:4. All cellphone extraction reports were admitted into evidence without objection. Id. at 70:3-5; 75:20-25; 76:3; 79:13-25; and 81:2-6. 40 Id. at 59:11. 41 Id. at 61:10-15. 42 State’s Ex. 10, Samsung Extraction Report for keyword “bud.” 43 Id. 44 State’s Ex. 11, Samsung Extraction Report for keyword “oz.” 45 D.I. 38, April 12, 2023 Trial Tr. at 67:5-17; 69:5-13. 9 6, 2019, Plaintiff sent two outgoing messages informing the recipient “Oz 150” and

“I need 150 and oz all [the] way up,”46 indicating Plaintiff was selling marijuana for

$150 per ounce,47 (b) on July 20, 2019, an incoming message to Plaintiff read “Front

me oz?” (c) on July 23, 2019, another incoming message reads: “All good, can you

bring me an oz? I don’t have money till the morning tho;”48 and (d) on October 7,

2019, just three days before the October 10, 2019 traffic stop, an incoming message

to Plaintiff at 11:56 AM said “I need oz.”49 The Samsung extraction report details

incoming and outgoing text messages which reflect a prospective buyer asking

Plaintiff to sell marijuana, or Plaintiff offering marijuana for sale to a buyer.

NCCPD also conducted a keyword search on the seized iPhone for “QWAP,”

or a quarter pound of marijuana.50 The iPhone extraction report searching the term

QWAP includes references to sales of marijuana in quarter pound quantities for the

time period of October 6, 2019 to October 11, 2019 (encompassing the October 10,

2019 arrest). Specifically, relevant to the October 10, 2019 car stop, there are

46 Id. 47 Id. at 70:25 – 71:13. On October 10, 2019, Plaintiff was arrested in possession of approximately three pounds of marijuana. Assuming Plaintiff sold an ounce of marijuana for $150.00, or, as discussed supra, a quarter pound of marijuana for $600.00, the street value of the marijuana seized on October 10, 2019 was $7,200.00. 48 Id. 49 State’s Ex. 11, NCCPD Extraction Report. 50 D.I. 38, April 12, 2023 Trial Tr. at 74:25 – 75:7. Also see State’s Ex. 13 (iPhone Extraction Report for keyword “QUAP”). While Plaintiff maintained the iPhone was not his phone, the iPhone was in his possession, and many text messages on the iPhone demonstrated that Plaintiff, as “Terry,” was using the iPhone, for legal and illegal purposes. See State’s Ex. 13 & State’s Ex. 18. Under these circumstances, Plaintiff’s purported denial of ownership of the iPhone is irrelevant. 10 twenty-seven text messages between October 6, 2019 and October 11, 2019, with

eighteen incoming and nine outgoing messages, where Plaintiff agrees to deliver a

“QUAP” and an “extra 8gs” to a buyer on October 9, 2019 at 7:58 pm and informs

the prospective purchaser the price is $600.00. The next day, which was the day of

Plaintiff’s detention and arrest -- October 10, 2019, at 3:01 p.m., the same individual

“need[ed] another quap.” Detective Arnold concluded, based on his training and

experience, as well as the facts and reasonable inferences which were developed

during Plaintiff’s October 10, 2019 detention and investigation, these exchanges

memorialized Plaintiff selling quarter pound quantities of marijuana on the dates

referenced in the extraction reports.51

On November 2, 2020, Plaintiff pled guilty to one count of Aggravated

Possession of Marijuana with an Aggravating Factor, a felony, and this Court

sentenced Plaintiff to 8 years Level V suspended for 18 months level II probation.52

51 D.I. 38, April 12, 2023 Trial Tr. at 84:6 – 88:19. NCCPD also conducted a keyword search on the seized Samsung cellphone for the name “Terry,” to connect Plaintiff to the Samsung cellphone. See State’s Ex. 12. As discussed in fn. 33, Plaintiff admitted the Samsung cellphone was his phone. Additionally, the State offered into evidence the iPhone extraction report searching for the keyword “Terry.” See State’s Ex. 18. That report includes incoming and outgoing text messages sent by and to “Terry” from January 23, 2019 to October 11, 2019. Id. 52 See State’s Ex. 8, Superior Court Case No. 19110006607, Sentence Order, Truth in Sentencing Guilty Plea Form, and Immediate Sentencing Form. 11 3. The April 27, 2021 MET Team investigation and the April 28, 2021 traffic

stop.

On April 27, 2021, Detective Jacob Gruber of the MET Team was conducting

surveillance on a residence at 16 Defoe Circle, Newark, Delaware.53 The subject of

that investigation was Thomas Epperson (“Epperson”), described by Detective

Gruber as “a constant nuisance, a known drug user, [and] a known drug dealer.”54

At that time, the police had received intelligence that Epperson was “selling drugs

out of the residence of 16 Defoe [Circle] . . ..”55

While conducting surveillance, Detective Gruber observed Plaintiff park the

same black Cadillac stopped by the MET Team on October 10, 2019 directly in front

of Epperson’s house.56 Plaintiff exited the driver’s seat of the Cadillac and

responded to the trunk.57 As he did so, Epperson and a female exited the residence,

joining Plaintiff at the vehicle.58 After a short conversation, Plaintiff removed a bag

from the trunk of the vehicle and carried the bag into Epperson’s house as he,

53 Id. at 123:16 – 124:24. Detective Gruber was a member of the MET Team and was present at all three car stops and seizures addressed in this Order. Id. at 121:25 -- 122:17. Prior to the November 5, 2019 stop, Detective Gruber had no personal knowledge of the Plaintiff. Id. at 122:18-20. On April 27, 2021, Detective Gruber was aware of Plaintiff’s involvement in drug dealing due to Plaintiff’s 2019 vehicle stops and seizures. Id. at 126:10-14. 54 Id. at 124:21 – 125:5. 55 Id. at 125:6 – 125:7. 56 Id. at 125:15-25. 57 Id. at 126:4-6. Also see State’s Ex. 15, Photo. 58 Id. at 126:6-23. Also see State’s Ex. 15, Photo. 12 Epperson and the female went inside the residence.59 Just a short while later,

Plaintiff exited the residence alone, without the bag he removed from the trunk and

brought into the house, entered the driver’s seat of the Cadillac, and drove off.60

Detective Gruber concluded, based on his observations as well as his

knowledge and prior experience, that Plaintiff’s conduct was “indicative of a drug

deal.”61 Detective Gruber explained:

Like I said, everything, all the factors that went into my observations that day. I’m aware of Mr. Epperson. I am aware of [Plaintiff] from previous investigations. I’m aware that [Plaintiff has] been arrested in possession of drugs. I’m aware that [Plaintiff has] been in possession of a lot of drugs, three pounds of marijuana. I’m aware that I personally have arrested and been present for Mr. Epperson being in possession of a large quantity of drugs as well. So that day when I see two people that I am aware have a long drug history, indicative of them dealing drugs, and I see what I see, which is one individual, who I’m aware has a history of dealing drugs, take a bag out of their vehicle and go into another person’s house, who has a history of dealing drugs, and then they come back out a short time after without that bag, that is indicative to me of a drug deal.62

The next day, April 28, 2021, NCCPD Sergeant Tim Golden (“Sergeant

Golden”), supervisor of the MET Team, was conducting surveillance as a black

Cadillac approached his location in a shopping center at the MAX Mini-mart on

59 Id. at 127:2-6. The money seized by the NCCPD at the January 5, 2019 traffic stop was seized from a bag in the trunk; the approximate three pounds of marijuana seized during the October 10, 2019 traffic stop was seized from two bags within a larger bag in the trunk; Plaintiff was observed removing a bag from the trunk and carrying it into a known drug dealer’s residence; and the MET Team discovered and seized marijuana from Plaintiff’s trunk on April 28, 2021. 60 Id. at 127:6-9. Also see State’s Ex. 15 & 16, April 27, 2021, Photos. 61 Id. at 127:18. 62 Id. at 139:15 – 140:10. 13 River’s End Drive.63 As the Cadillac passed Sergeant Golden, he recognized the

vehicle and license plate as being Plaintiff’s black Cadillac observed by Detective

Gruber on April 27, 2021.64 As Sergeant Golden attempted to exit the shopping

center to follow Plaintiff, Plaintiff accelerated the Cadillac at an extremely high rate

of speed on Rivers End Drive.65 Sergeant Golden was already familiar with Plaintiff

-- as a supervisor, he was aware of Detective Gruber’s observations of Plaintiff from

April 27, 2021 -- and Plaintiff was “known throughout the area for his illegal

activities.”66

As Sergeant Golden was driving to catch up to Plaintiff, he saw him make a

right-hand turn onto Route 7 southbound without using a turn signal.67 Sergeant

Golden eventually caught up to Plaintiff in the area of Route 7 and Route 40,68

activating his fully marked Chevrolet Tahoe’s emergency equipment to stop Plaintiff

for suspected motor vehicle violations. As soon as the emergency equipment was

activated, Plaintiff pulled into a Ruby Tuesday restaurant parking lot, and the police

began a traffic stop.69

63 Id. at 169:9-23. 64 Id. at 171:1-11; 172:7-15. 65 Id. at 171:12-21. 66 Id. at 172:23 – 173:3. 67 Id. at 174:5-14. 68 Id. at 174:24 – 175:8. 69 Id. at 175:4-8. 14 As Plaintiff’s vehicle was initially stopped in the parking lot, Sergeant Golden

observed Plaintiff leaning back and to the right while in the driver’s seat. To

Sergeant Golden, this indicated Plaintiff was either reaching for a weapon or trying

to conceal contraband.70 As Sergeant Golden moved closer to the driver’s side of

the vehicle, Detective Gruber, who also arrived on scene, approached on the

passenger side, where an adult male sat.71 Upon reaching the vehicle, Sergeant

Golden smelled a strong and distinct odor of raw marijuana, and to address his

concern regarding Plaintiff’s behavior in the driver’s seat, Sergeant Golden removed

Plaintiff from the vehicle.72 When Plaintiff exited the vehicle, his pants and belt

were unbuckled, and his zipper was down.73 Plaintiff was directed to the rear of the

vehicle and placed into handcuffs.74

Before Plaintiff was placed into a patrol vehicle, Officer Knotts (“Knotts”)

patted him down and removed $453.00 from his pants pockets.75 When asked how

much currency he had in his possession, Plaintiff responded a “couple hundred

bucks.”76 As Knotts continued to pat down Plaintiff, he felt a foreign object in

70 Id. at 175:20 – 176:1. Plaintiff conceded to concealing the $5,600.00 in his boxer shorts, claiming that on prior traffic stops, the police confiscated money “for no reason.” D.I. 39, May 24, 2023 Trial Tr. at 73:7-9. 71 D.I. 38, April 12, 2023 Trial Tr. at 176:2-10. 72 Id. at 176:10-15. 73 Id. at 176:15-24. 74 Id. at 177:2-18. 75 Id. at 178:19-25. 76 Id. at 179:5-7. 15 Plaintiff’s groin area.77 Sergeant Golden reached into Plaintiff’s boxer shorts and

removed a large amount of cash folded together, banded by a rubber band,78 later

determined to be $5,600.00.79 At the scene, when asked how much money he had in

his pockets and the amount of money he attempted to hide in his boxer shorts,

Plaintiff could not provide an exact amount to the police.80

A contemporaneous search of the vehicle resulted in the seizure of a bag of

marijuana concealed inside a compartment behind the dashboard radio controls.81

Additionally, the front passenger had a bookbag at his feet; from the inside of the

bookbag, the police seized marijuana, a digital scale, and packaging baggies.82 In

the trunk of the vehicle, the police found a box pushed almost up against the rear

back seats within the car which contained marijuana in at least two plastic bags.83

The marijuana seized from the trunk was packaged in clear plastic bags, and those

77 Id. at 179:18-20. 78 Id. at 179:24 – 180:6. See also State’s Ex. 19, Photo. 79 Id. at 182:11-22; State’s Ex. 19, Photo. The police seized $6,053.00 from Plaintiff on April 28, 2021. Id. at 184:23-25. 80 Id. at 199:14 – 200:10. 81 Id. at 185:10 - 186:3. See also State’s Ex. 26 & 27. 82 Id. at 189:5-13. The passenger initially only claimed ownership of the marijuana in the backpack found at his feet in the vehicle. Id. at 197:25 – 198:5. It was only after the police discovered additional marijuana in a center console compartment (which the passenger could not open) and trunk (the passenger “forgot” the marijuana in the trunk) that the passenger expressed ownership of all seized marijuana. Id. at 198:5-15. Considering the officer’s testimony regarding the passenger’s claims and memory deficits during the traffic stop, the passenger’s claim that all of the marijuana seized from within the vehicle belonged to him is not credible. 83 Id. at 191:10-17; 192:15-21; 196:9-15. See also State’s Ex. 14, December 13, 2021 Forensic Laboratory Report. Officer Gruber explained, based on his training and experience, finding a large Ziplock bag with marijuana inside it indicates a drug dealer would “carry a larger amount [of marijuana] and then break that up into smaller amounts to sell.” Id. at 227:5-9. 16 clear plastic bags had red and green tops, respectively.84 And, the color and type of

bags recovered in the trunk were consistent with the bag containing marijuana found

in the center console of the vehicle and the bag containing marijuana discovered in

the passenger’s backpack.85 The police also seized two cell phones.86

Plaintiff testified that the seized currency in his possession at each traffic stop

was lawfully earned business proceeds. He claimed his business required him to

carry large amounts of currency so that he could make on the spot cash offers to

purchase automobiles from prospective sellers. Being able to immediately offer cash

to a prospective seller allowed Plaintiff to quickly close a purchase. Plaintiff also

claimed to earn income from providing mechanic’s services and selling vehicles and

vehicle parts (motors, transmissions, etc.) At times, he would buy a car, remove the

catalytic converter, and then sell the catalytic converter and/or the vehicle to a

junkyard for recycling. Plaintiff also presented evidence from William “Dave”

Aldridge, who claimed to have given Plaintiff two loans – a $5,000.00 loan in

December 2018 for Plaintiff to purchase a tow truck, and a $7,000.00 loan in

September 2019.87 With respect to the April 28, 2021 seizure, Plaintiff claimed that

84 Id. at 192:19 – 193:14. 85 The marijuana found on April 28, 2021 in at least four separate baggies was tested by the Delaware Division of Forensic Science and determined to be marijuana. See State’s Ex. 14, Dec. 13, 2021 Controlled Substances Laboratory Report. 86 D.I. 38, April 12, 2023 Trial Tr. at 216:2-4. 87 State’s Ex. 34, Note. Aldridge’s claim to loan Plaintiff $5,000.00 in September 2018 for a tow truck is inconsistent with Plaintiff’s claim that he was shopping for a tow truck in September 2019. And, beyond this inconsistency, Plaintiff’s claim of a loan is suspect, as Plaintiff had 17 he possessed the currency to pay for a construction project at his mother’s home in

Newark, Delaware.

As is discussed further below, I found the State’s witnesses credible and their

testimony consistent. I did not reach the same conclusion as to Plaintiff’s testimony

and the evidence presented to rebut the presumption of forfeiture. Plaintiff’s

testimonial and documentary evidence was muddled and incomplete, and neither

Plaintiff nor his witnesses provided credible evidence to rebut the presumption of

forfeiture.

STANDARD OF REVIEW

Civil forfeitures are governed by provisions of 16 Del. C. § 4784, a statute

intended by Delaware’s Legislature to “cripple the trafficking and sale of illegal

drugs.”88 Section 4784 authorizes law enforcement to seize and forfeit personal

property which has been used in the perpetration of drug related crimes. 89 To

establish forfeitability of currency pursuant to 16 Del. C. § 4784, the State has the

initial burden of demonstrating probable cause that the money subject to forfeiture

written Aldridge a letter from prison prior to the trial, telling him “I need someone to come to my hearing and tell the judge they loaned me $5K back in 2019 so I can get the whole $27K back.” See State’s Ex. 33, Letter. Under the circumstances, Plaintiff’s credibility, and the letter, which does not reference a loan, is suspect, and Aldridge’s claim of advancing Plaintiff a loan, is not credible. 88 In the Matter of $13,584.00 in United States Currency, Petitioner Jeffrey Crippen, 2018 WL 6839753, at *3 (Del. Super. Dec. 28, 2018), quoting In the Matter of One 1987 Toyota, 621 A.2d 796, 798 (Del. Super. May 15, 1992). 89 Jackson v. State, 2016 WL 3960279, at *1 (Del. Super. July 19, 2016). 18 was found in close proximity to forfeitable controlled substances,90 was found to

have trace amounts of controlled substances on the money,91 or the money was

“furnished or intended to be furnished in exchange for illegal substances, or the

profits or proceeds of sales related thereto.”92 This Court has previously held that

“[t]he probable cause standard for forfeiture is essentially the same as that applied

in Fourth Amendment search and seizure cases.”93

Pursuant to § 4784(a)(7), the State “does not need to establish a specific illegal

drug transaction, but rather, need only to demonstrate reasonable grounds to believe

that a substantial connection exists between the seized cash and drug dealing.” 94

With respect to § 4784(a)(7)(b), the statute does not specify the minimum amount of

a controlled substance necessary to establish a “trace” amount – a minimum amount

is sufficient. And, a positive hit by a trained canine has been repeatedly recognized

as sufficient evidence to meet the trace amount requirement.95 Finally, the State can

institute civil forfeiture proceedings pursuant to Superior Court Civil Rule 71.3,

90 16 Del. C. § 4784(a)(7)(a). 91 16 Del. C. § 4784(a)(7)(b). 92 State v. Worley, 2019 WL 169427, at *2 (Del. Super. Jan. 11, 2019), citing In the Matter of $13,584 in United States Currency Petitioner Jeffrey Crippen, 2018 WL 6839753, at *6; In the Matter of $2,500 United States Currency, 2018 WL 5117805, at *3 (Del. Super. Oct. 19, 2018). 93 In the matter of $5,662 United States Currency, Petitioner: Royce Brown, 714 A.2d 106, 110 (Del. Super. Mar. 10, 1998), quoting In the Matter of One 1987 Toyota, 621 A.2d 796. 94 State v. Worley, 2019 WL 169427, at *3 (Del. Super. Jan. 11, 2019), citing In Re: Matter of $5,662. U.S. Currency, Petitioner: Royce Brown, 714 A.2d at 113. 95 See In the Matter of $13,584 in United States Currency Petitioner Jeffrey Crippen, 2018 WL 6839753, at *5; United States v. Carr, 25 F.3d 1194, 1203 (3d Cir. 1994). 19 regardless of (a) whether a Petitioner had been arrested and charged with criminal

offenses, and (b) whether the State successfully prosecuted a Petitioner through

conviction. In fact, the acquittal or dismissal of charges in a criminal proceeding

does not preclude the commencement of civil forfeiture proceedings.96

If the State satisfies its burden, the burden then shifts to the Plaintiff to prove

by a preponderance of the evidence (1) a possessory interest in the property, and (2)

that the property was unlawfully seized or was not subject to forfeiture.97

DISCUSSION

a. The State established probable cause for the seizure of the currency

during the three vehicle stops.

With respect to all three seizures, this Court concludes the State has demonstrated

probable cause to seize Plaintiff’s currency and to institute forfeiture proceedings.

1. The January 5, 2019 Seizure.

a. The State has established probable cause that the seized funds were subject to forfeiture.

As to the first seizure on January 5, 2019, two independent sources establish

probable cause for the seizure of the currency and the institution of forfeiture

proceedings. First, the State’s evidence established probable cause that the seized

Super. Ct. R. Civ. Pro. 71.3(f)(2). 96

16 Del. C. § 4784(j); also see State v. Worley, 2019 WL 169427, at *2, citing Scott v. State, 2003 97

WL 21538033, at *5 (Del. Super. May 16, 2003). 20 money was “furnished or intended to be furnished, in exchange for a controlled

substance or drug paraphernalia” satisfying 16 Del. C. § 4784(a)(7). And, the State

also satisfied 16 Del. C. § 4784(a)(7)(b), because through the sniff test, the State’s

demonstrated probable cause for the existence of trace elements of illegal drugs

present on the seized currency.

On January 5, 2019, Detective Arnold conducted a traffic stop after observing

Plaintiff commit a traffic offense. As he approached the vehicle, he detected an odor

of marijuana emanating from the car. A subsequent search of the vehicle resulted in

the recovery of $9,980.00 from ten bundles of currency found in a duffel bag in the

trunk, and $2,190.00 from Plaintiff’s pants pocket. The police also discovered, in a

separate duffel bag in the trunk, marijuana residue, they observed additional

marijuana residue in the center console of the vehicle, and a small amount of

marijuana in the minor passenger’s pocket.

A subsequent canine sniff test on the currency evidenced the presence of trace

amounts of illicit drugs on the currency.

When asked why he had so much currency in his possession, Plaintiff claimed

to work at “Duncan and Sons” and “American Automotive,” two businesses that, if

they existed at all, did not have a valid business license. Plaintiff eventually

provided Detective Arnold the name of a third business – Amerikingz Automotive,

and generically claimed this was his business and he needed cash to operate it.

21 The record also reflects that on January 5, 2019, Plaintiff failed to provide

Detective Arnold any specific reason for possessing more than $12,000 -- Plaintiff

did not claim the money was proceeds from any prior specific legitimate business

transaction and did not tell the officer what he intended to do with the money.

Taking all of the aforementioned information into consideration, and based on his

training an experience, Detective Arnold opined that Plaintiff had just completed a

drug transaction, delivering a significant amount of marijuana to a buyer, which

resulted in Plaintiff being in possession of more than $12,000.00.

b. The Plaintiff has failed to rebut, by a preponderance of the evidence, the presumption of forfeiture.

In the Petition for Return of Property regarding the January 5, 2019 seizure,

plaintiff generically asserted the seized money was from “multiple clients and

business transactions.”98 At trial, Plaintiff claimed that the currency seized on

January 5, 2019 was “acquired multiple ways.”99 To support his assertion, Plaintiff

entered into evidence incomplete and uncorroborated documents -- handwritten

receipts with little to no detail billing for mechanic’s work, sales of vehicle parts

(notes including sales of an “LS Motor,” “RIC Rims”, “Jeep parts,” and “200

R4”),100 and proceeds from selling two vehicles (a 1997 Jeep and 1989 Ford) for

98 Terry Thomas Jr. v. State, C.A. No. N19M-01-094, Petition for Return of Property, ¶ 4(b). 99 D.I. 39, May 24, 2023 Trial Tr. at 58:24- 59:1. 100 See Plaintiff’s Ex. 9, Receipts. Plaintiff offered no additional testimonial or documentary evidence to corroborate his incomplete business receipts, and two receipts purportedly evidencing parts sales occurred on January 5, 2019, the same day as the traffic stop and seizure. Plaintiff 22 $7,000.00.101 With respect to the vehicle sales, Plaintiff produced two “Seller’s

Report of Sale” documents that were neither completely filled in nor signed by the

vehicle’s seller.102

Despite Plaintiff being unable to recall, at the traffic stop, the source or

purpose of possessing more than $12,000.00, Plaintiff’s wife, Sunday Grubb

(“Grubb”), testified Plaintiff possessed the cash on January 5, 2019 with the

intention of purchasing a tow truck in Delaware City, Delaware. At trial, Grubb

could not recall the seller’s asking price for the tow truck but believed “it would’ve

been $8,000.00 or $10,000.00 dollars.”103 She later testified the owner of the tow

truck was asking $15,000.00 for the vehicle.104

Grubb also testified that on January 5, 2019, the day of the car stop and

seizure, she and Plaintiff returned to Delaware City with a mechanic so the mechanic

could evaluate the tow truck. Eventually, according to Grubb, the purchase was

abandoned when the mechanic advised the truck had a lot of rust.105

failed to recall these alleged business transactions when the police asked him to explain the source and/or purpose of the money. 101 Plaintiff claimed on December 20, 2018, he was paid $3,000.00 by Sylvia DeHoff for the installation of a motor and transmission (Id. at 63:20-23), and on December 12, 2018, he was paid $2,000.00 by Brian Sullivan for a “motor and transmission.” (Id. at 64:14-17). Plaintiff failed to produce any competent corroborating evidence of either business transaction. 102 See Plaintiff’s Ex. 10. The title for the 1989 Ford truck is dated January 4, 2019, and just one day later, Plaintiff could not recall this $4,500.00 cash transaction when the police asked him for the source of the currency in his possession. 103 D.I. 38, April 23, 2023 Trial Tr. at 249:4-7. 104 Id. at 249:14-17. 105 Id. at 251:22 – 252:9. 23 At trial, Plaintiff also claimed he possessed the $9,980.00 seized from the

trunk of the vehicle because he went to potentially purchase a tow truck from Most

Wanted Towing.106 He also claimed the money was “acquired multiple ways,”107

evidenced by the incomplete business receipts admitted during his testimony.108

Based on the evidence presented, Plaintiff has failed to demonstrate, by a

preponderance of the evidence, that the seized funds were not subject to forfeiture.

When asked by Detective Arnold to identify a legitimate source of the seized

currency on January 5, 2019, Plaintiff provided the Detective three purported

employers, the first two of which could not be found during a business license check,

and despite being given multiple opportunities to do so, he failed to provide the

specific source of the currency. At trial, he offered evidence that the money was to

purchase a tow truck – an explanation, that if true, would have been at the front of

his mind on January 5, 2019. Considering these circumstances, Plaintiff’s and

Grubb’s testimony in shopping for a tow truck is not credible.

Moreover, Plaintiff also provides dated receipts that he received $4,500.00

from “Janice Brock” on January 4, 2019,109 and sold vehicle parts totaling $900.00

106 D.I. 39, May 24, 2023 Trial Tr. 57:17-25. 107 Id., at 58:24 – 59-1. 108 Plaintiff’s Ex. 9 and 10. Plaintiff indicated that he does not have a Delaware dealer’s license, and he suggested it was illegal for him to sell vehicles without a Delaware dealer’s license. Id. at 61:19-25. 109 Plaintiff’s Ex. 10, Seller’s Report of Sale. Plaintiff claimed he sold a van, which was in his name, to John Brock, for $4,500.00 on January 4, 2019. DI 39, May 24, 2023 Trial Tr. at 62:25 – 63:4. 24 on January 5, 2019.110 His inability at the scene of the car stop to recall any specific

financial transaction on January 4th or 5th, 2019 in selling cars and/or parts to explain

the currency in his possession on the same day as the seizure is not credible. A

reasonable person would recall at least some of these financial transactions when

questioned by the police about the possession and source of a large amount of

currency. And, as noted above, the documentary receipts are incomplete and are not

corroborated by bank records111 or any other documentary evidence. As one

example, Plaintiff’s submission of the State of Delaware Division of Motor Vehicle’s

Seller’s Report of Sale for vehicle sale transactions are unsigned by the vehicle

sellers.112 Plaintiff’s testimony and incomplete documentary evidence does not

credibly establish, by a preponderance of the evidence, that the money seized was

obtained from a lawful source and is not subject to forfeiture.

2. The October 10, 2019 seizure.

Before addressing the merits of Plaintiff’s claim that the seized funds are not

subject to forfeiture, the Court will address a discovery violation revealed during the

State’s cross-examination of Plaintiff at trial.

110 Plaintiff’s Ex. 9, Receipts. 111 Plaintiff did not offer into evidence any 2019 bank records, but the bank records admitted into evidence suggested Plaintiff may have been improperly receiving unemployment benefits from the State of Delaware. 112 Plaintiff’s Ex. 10, Seller’s Report of Sale. Plaintiff admitted he does not have a dealer’s license to sell vehicles in Delaware, and despite Plaintiff describing his activity as “illegal,” Plaintiff continued to sell vehicles without a dealer’s license. DI 39, May 24, 2023 Trial Tr. at 61:19 – 62:1. 25 a. Discovery Violation.

On May 24, 2023, the State was cross-examining Plaintiff about the currency

seized during the second car stop in 2019, when the following exchange occurred:

Question: Okay, so you did not have a business – you did not have a banking account for your business, correct? Answer: No, Sir. Question: All right, and you didn’t have any business ledgers either, did you? Answer: What do you – what’s a business ledger? Question: Well, somewhere where you would keep a ledger of all of your business. Answer: Yes, I do. Question: And do you recall when the State asked you in interrogatories for a copy of such ledger? Answer: No, I don’t, but I, that sounds like something that’s in there. I don’t – Question: Okay, and so, do you remember the State asking “please send me any and all documentation that shows legal receipt of the cash,” and your response was, “as the sole owner and proprietor of a fledgling business, I do not maintain a formal ledger or accounting statement which I can provide.” Do you remember that? Answer: Yes. I wasn’t providing it for you guys. Just like when [Detective Arnold] asked me where’s my business, I wasn’t going to provide that because [the police] sit out there and [they] harass me. This is – these are the things that these officers do. Question: Okay, so are you telling the Court that your response to the interrogatory was not truthful? Answer: Can you read it again? Question: As the sole owner and proprietor of a fledgling business, I do not maintain a formal ledger or accounting statement which I can provide. Answer: Yes, I was not providing it for you. Question: Okay, so you’re saying you do have a ledger or accounting system that you could have provided? Answer: Yes, I have books where I keep documents. Buy, sales, catalytic converters, how much money I got from my CAD guy, how much money I got from EMR, which is the junk scrap yard on Route 9. 26 Question: And you’ve chosen to hide that from the State? Answer: I’m not, I didn’t hide it. I chose not to send it to you. I chose to send you the receipts and documentation where the money came from. Question: And this was back in November 2019, correct? So, between 2019 and within a year [of May 24, 2023] you had access to this ledger? Answer: Yes. I’m pretty sure, yeah. Question: So, you could’ve provided it? Answer: Yes, I could’ve.113

While the State did not seek a sanction for Plaintiff’s discovery violation, the

violation was only brought to light on the final day of trial, during the cross-

examination of Plaintiff. Plaintiff’s testimony establishes he willfully chose to

falsely answer an interrogatory and failed to produce requested documentary

evidence – business records -- which are relevant to a critical issue of these Petitions

for Return of Property -- whether the currency possessed by Plaintiff was acquired

and possessed by lawful means and not subject to the presumption of forfeiture.

As the Delaware Supreme Court discussed in Holt v. Holt, this Court has an

obligation to address willful discovery violations:

Discovery abuse has no place in our courts, and the protection of litigants, the public, and the bar demands nothing less than that our trial courts be diligent in promptly and effectively taking corrective action to “secure the just, speedy and inexpensive determination of every proceeding” before them.114

113 Id. at 110:4 -112:13. 114 Holt v. Holt, 472 A.2d 820, 824 (Del. 1984), quoting Del Super. Ct. R. Civ. Pro. 1. 27 While there are a range of discovery violations and remedies available based on the

violation,115 a trial court’s response to a discovery violation should serve two

purposes: (a) to penalize the violating party, and (b) to “deter those who may be

tempted to abuse the legal system by their irresponsible conduct.”116

Plaintiff instituted these three Petitions for Return of Property, and chose to

proceed pro se. In so doing, he chose to forgo the assistance of counsel in answering

the State’s interrogatories, and admitted under oath that he willfully chose to deny

the existence of pertinent business records and did not provide them to the State. By

doing so, Plaintiff impeded the pursuit of justice and the State’s ability to defend at

least one of these Petitions for Return of Property, and negatively impacted his

credibility as a litigant and witness.

Plaintiff’s refusal to truthfully answer the interrogatory and provide the State

the business ledgers will result in an additional Court imposed sanction – a negative

inference will be implied as to the existence of business records which could

corroborate Plaintiff’s testimony or evidence. And, if such records were produced

in discovery, the records would not support a claim by Plaintiff that such documents

corroborate or support his testimony or other evidence.

115 The remedies available for discovery violations include, but are not limited to, the entry of default judgment; the entry of an evidence preclusion order; the Court’s imposition of adverse factual determinations and/or adverse inferences from the evidence presented; and modifications to the burden of proof. Terramar Retail Centers, LLC v. Marion # 2 Seaport Trust, U/A/D June 21, 2002, 2018 WL 6331622, at *9-11 (Del. Ch. Dec. 4, 2018). 116 Hoag v. Amex Assurance Co., 953 A.2d 713, 717 (Del. 2008), quoting Holt, 472 A.2d at 820. 28 This corrective action is limited to the October 10, 2019 Petition for Return

of Property, because that is the specific litigation where the discovery violation was

uncovered by the State. It is intended to punish Plaintiff for his willful

noncompliance with discovery and to discourage future litigants from engaging in

similar willful conduct which is detrimental to the administration of justice and the

just, speedy and inexpensive determination of this proceeding.

b. The State has established probable cause that the seized funds were subject to forfeiture.

The October 10, 2019 traffic stop and seizure is supported by probable cause

that the seized currency is subject to forfeiture, and Plaintiff has failed to establish,

by a preponderance of the evidence, that the money is not subject to forfeiture.

On October 10, 2019, as the police walked upon Plaintiff’s black Cadillac,

they detected an odor of marijuana emanating from the vehicle. Upon searching the

vehicle, the police seized (a) approximately three pounds of marijuana from the

trunk, (b) two cell phones, and (c) $8,832.00. When Detective Arnold asked Plaintiff

to provide a source for the currency, Plaintiff claimed he earned the money selling

catalytic converters. Upon return to NCCPD, a canine sniff test on the seized

currency resulted in a positive alert for the presence of trace amounts of illegal

substances on the money. Furthermore, the phone data extraction reports uncovered

damning texts between Plaintiff and others evidencing numerous marijuana sales

and solicitations occurring at and around the time of the car stop, in quantities from 29 an ounce to a quarter pound of marijuana. Finally, the October 10, 2019 vehicle stop

conducted by the MET Team was the second seizure within a year involving the

Plaintiff’s possession of a large quantity of currency tainted by trace amounts of

illegal substances.117

Based on the evidence admitted at trial, the State has established probable

cause that the seized money was “furnished or intended to be furnished, in exchange

for a controlled substance or drug paraphernalia,” pursuant to 16 Del. C. §

4784(a)(7). And, the same evidence, through the testimony of Corporal Smack,

established probable cause for the existence of trace elements of illegal drugs present

on the currency, satisfying 16 Del. C. § 4784(a)(7)(b).

c. The Plaintiff has failed to rebut, by a preponderance of the evidence, the presumption of forfeiture.

Plaintiff contends the seized currency is not subject to forfeiture. At the car

stop and seizure, Plaintiff claimed the money was earned through the sale of

“catalytic converters.” And, in the Petition for Return of Property, Plaintiff

generically claimed the “[c]urrency [was] received on October 11, 2019 through [a]

lawful business transaction between Brendan McGhee and AMERIKINGZ

AUTOMOTIVE.”118

117 As the second seizure involved many of the same police officers from the January 2019 vehicle stop and seizure the police were able to rely upon their collective prior knowledge of Plaintiff when formulating probable cause to seize the Plaintiff’s property in October 2019. 118 Terry Thomas v. State, C.A. No. N19M-12-202, Petition for Return of Property, ¶ 8. 30 At trial, Jason Miller (“Miller”) testified that he and Plaintiff had a business

deal involving the sale of “10 or 11 cars,” for a sale price of $800 per car.119 Miller

claimed that on October 10, 2019, his business, BBJ Towing, negotiated the sale of

the eleven vehicles and on that same day, Miller towed three of the eleven cars. The

next day, Miller towed the remaining eight cars.120 According to Miller, the plan was

for Plaintiff to come to Rambleton Acres to receive payment on October 11, 2019.121

Miller specifically denied being present when Plaintiff was paid,122 but he believed

Plaintiff was paid on October 11, 2019.123

Consistent with Miller’s testimony, Plaintiff testified that on October 10,

2019, he made a “deal with BBJ for the purchase of eleven cars.”124 He explained he

sold the cars to BBJ Towing for $800.00 each because the cars had catalytic

converters.125 Plaintiff testified three cars were towed on October 10, and the

remaining cars were towed October 11. Once all eleven cars were towed, Plaintiff

went to Rambleton Acres on October 11, 2019 and picked up the “rest of the total

money.”126 He also claimed Jason Miller was present when he was paid.127

119 D.I. 39, May 24, 2023 Trial Tr. at 6:5-12. Miller testified his business partners purchased cars from Plaintiff. He did not specifically mention catalytic converters. 120 Id. at 6:12-15. 121 Id. at 7:4-12; 11:24-25, 12:7. 122 Id. 123 Id. at 14:12-25 -- 15:1-4. 124 Id. at 66:15-17. 125 Id. at 66:17-19. 126 Id. at 66: 21-25. 127 Id. at 67:3-5. 31 To explain the three pounds of marijuana seized from the vehicle, Plaintiff

claimed he and his two friends, Shanaal and Andy, were just “potheads,” growing

weed in a basement.128 But, the quantity of marijuana, its street value and packaging,

and Plaintiff’s text messages tell a different story. Plaintiff possessed three pounds

of marijuana at the time of the car stop, with a street value of at least $7,200.00.129

Thor alerted to the presence of illegal drugs on the currency, and the Samsung and

iPhone data extraction reports document Plaintiff engaging in multiple marijuana

sales and solicitations in the days leading up to, and the day of, the vehicle stop on

October 10, 2019. The text messages demonstrate Plaintiff was a marijuana dealer.

Plaintiff has failed to demonstrate by a preponderance of the evidence, (1) the

seized currency was the product of a legitimate business transaction, and (2) the

seized currency was not subject to forfeiture. First, the car stop and seizure of

currency from Plaintiff’s vehicle occurred on October 10, 2019, not on October 11,

2019. It was on October 10 that Detective Arnold observed Plaintiff commit a traffic

violation, searched his vehicle and seized three pounds of marijuana and the

currency. In the Petition for Return of Property for this seizure, and during Plaintiff’s

testimony, Plaintiff specifically claims he sold eleven vehicles for $8,800.00 and

128 Id. at 69:12-21. Plaintiff did not address any of the text messages recovered from the Samsung and iPhone cellphones indicating marijuana dealing. 129 The street value of the marijuana, as noted supra at fn. 47, was calculated using Plaintiff’s selling price for a quarter pound of marijuana ($600.00), or an ounce of marijuana ($150.00), as indicated in the cellphone extraction reports. 32 received payment on October 11, 2019. And, the payment for the eleven cars was

confirmed by Miller as October 11, 2019. Plaintiff may have been paid $8,800.00

for selling eleven cars, but the sale and transfer of vehicles, and resulting payment,

occurred at least one day after the police seized the currency on October 10, 2019.

Plaintiff has failed to overcome, by a preponderance of the evidence, the

presumption of forfeiture.

3. The April 28, 2021 Traffic Stop.

a. The State has established probable cause that the seized funds were subject to forfeiture.

As to the final seizure on April 28, 2021, the State has established probable

cause for the seizure of the currency and the institution of forfeiture proceedings.

The State’s evidence established probable cause that the seized money was

“furnished or intended to be furnished, in exchange for a controlled substance or

drug paraphernalia” satisfying 16 Del. C. § 4784(a)(7).

The evidence supporting probable cause begins with the observations of

Detective Gruber on April 27, 2021, one day prior, when Detective Gruber observed

what he believed to be a marijuana delivery from Plaintiff to a known drug dealer

and user, Thomas Epperson, on April 27, 2021.130 On that date, Plaintiff drove the

130 Plaintiff claimed he and Epperson have been friends since he was 11 or 12 years old, their relationship has “nothing to do with drugs,” and he had no knowledge of Epperson’s involvement with drug dealing from his residence. Id. at 84:1 – 85:7. 33 same car, and removed the suspected package of drugs from the same trunk where

the police recovered three pounds of marijuana on October 10, 2019, and brought

the package inside Epperson’s residence, and left shortly after without it.

On the very next day, April 28, 2021, Sergeant Golden recognized Plaintiff’s

car, pursued the same, and eventually pulled the vehicle over in a Ruby Tuesday

parking lot. As he approached the vehicle on foot, he noted a strong odor of raw

marijuana. And, as Sergeant Golden explained, he believed Plaintiff was either

actively concealing contraband or reaching for a weapon immediately before being

contacted by the NCCPD officers. When removed from the vehicle, Plaintiff’s pants

and belt were unbuckled and his zipper was down. The initial search of Plaintiff

resulted in the discovery and seizure of $453.00 from his pants pocket, and when he

was initially asked how much money he had, before being comprehensively

searched, Plaintiff told the officer “a couple hundred bucks.” A subsequent search

of Plaintiff resulted in the seizure of $5,600.00, which was banded with a rubber

band and hidden in his groin. Plaintiff had just hidden the bundled currency down

his pants and attempted to mislead the police in the amount of money he possessed

at the time of the vehicle stop.

When searching the vehicle, the police recovered bags of marijuana in: (a) a

concealed compartment in the center console; (b) in the passenger’s bookbag; and

(c) in a box in the trunk of the vehicle. The bags containing the marijuana were

34 consistent in color and type, and the passenger’s backpack included a digital scale

and additional plastic baggies. Although the passenger claimed ownership of all of

the recovered marijuana, his assertion of ownership was not credible. More

specifically, his claim of ownership of the separate bags of marijuana evolved as the

search of the vehicle evolved. As to the marijuana found with the digital scale and

additional baggies in the passenger’s backpack, he immediately claimed ownership

of his backpack and its contents. But, after that, marijuana was discovered in at least

two separate and distinct locations in the vehicle that the passenger was seemingly

unaware of until the contraband was discovered by the police. For example, the

passenger did not know how to access the dashboard compartment of Plaintiff’s

vehicle where the police found a bag of marijuana, and it was only after the police

found the marijuana in the concealed dashboard compartment that the passenger

claimed the bag of marijuana was his. Then, the passenger asserted ownership of

the bags of marijuana found in the trunk of Plaintiff’s vehicle only after that

marijuana was discovered by the police. There is an obvious disconnect between

the passenger’s claim to possess all the marijuana in the vehicle and his lack of

knowledge of the existence of the marijuana in different locations in the vehicle, and

how to access the compartment in the dashboard. The passenger’s claims of

ownership of the marijuana recovered in the vehicle, as relayed by the officers on

scene, is not credible.

35 Based on the foregoing, the State established probable cause that the seized

money was “found in close proximity to forfeitable controlled substances” pursuant

to 16 Del. C. § 4784(a)(7)(a) and/or was “furnished or intended to be furnished, in

exchange for a controlled substance or drug paraphernalia” pursuant to 16 Del. C. §

4784(a)(7).

b. The Plaintiff has failed to rebut, by a preponderance of the evidence, the presumption of forfeiture.

In the Petition for Return of Property, Plaintiff attempts to rebut the

presumption of forfeiture by claiming the currency was “personal property and the

proceeds from a vehicle sale conducted by AMERIKINGZ AUTOMOTIVE.”131

At trial, Plaintiff claimed to have sold a Ford E-350 van on April 27, 2021,132

and 1987 Monte Carlo and a 1979 El Camino on April 28, 2021,133 but he has not

provided any admissible documentary evidence (business receipts, Sellers Report of

Sale, DMV records, vehicle titles, sales contracts, etc.) or admissible corroborating

evidence (the testimony of a buyer or a witness to the transactions) to support his

claim that vehicle sales actually occurred and the money constituted proceeds from

vehicle sales. Plaintiff expects this Court to accept his testimony as proof of business

transactions to rebut the presumption of forfeitability, but his interactions with the

131 Terry Thomas v. State of Delaware, C.A. No. N21M-06-074, Petition for Return of Property, ¶ 3. 132 D.I. 39, May 24, 2023 Trial Tr. at 76:1-5. 133 Id. at 74:9-13. 36 police and his testimony was proven to be deceptive, unreliable, untrustworthy, and

not credible, and his claims of legitimate business transactions are not supported by

complete sales records, and in many instances, no business records at all.

Finally, to explain possessing $6,053.00 on April 28, 2023, Plaintiff claims

the money was intended to pay for renovations to his mother’s house, specifically

concrete being delivered pursuant to a contract with “F Brother’s Services” -- to

complete remodeling and construction work at his family’s home at 34 Ruben’s

Circle, Newark, Delaware. More specifically, Plaintiff and his mother testified a

remodeling contract was executed for work to be completed located at 34 Ruben’s

Circle, and Plaintiff testified he was supposed to bring the contractor $5,600.00 on

April 28, 2021 for a concrete delivery.134 To support this claim, Plaintiff relies in

part upon an August 11, 2020 estimate to replace the roof on the residence for

$8,000.00.135 The proposal included labor and materials and required a 50%

deposit.136

On August 22, 2020, a second estimate was prepared, which included the

aforementioned roofing work as well as remodeling to the kitchen, bedrooms, living

room, laundry room, bathrooms, flooring and plumbing.137 The contract price was

134 Id. at 70:19-23. 135 To support this claim, Plaintiff relies on several documents (labeled proposals or invoices) from F Brothers Contracting with different dates, and those documents have been admitted as one exhibit. See Plaintiff’s Ex. 5. 136 Id. 137 Id. 37 $41,000.00, and required a 50% deposit/payment, followed by a 25% payment

“through the middle” and 25% final payment at the end of the project.138 An August

22, 2020 receipt for $20,500 payment was also submitted into evidence.139

On January 8, 2021, a “Second Contract” was prepared, billable to Plaintiff’s

mother, Ivanetta Thomas.140 This contract includes “concrete front house sidewalk

entrance,” remodeling of the back room, back yard patio, a second-floor deck, and

constructing a shed.141 But, unlike the prior estimates/invoices, it is silent as to

payment terms, deposit dates, and a completion date, etc.142 As Plaintiff conceded

during cross-examination, Plaintiff’s Ex. 5 does not require a specific deposit for or

prepayment of concrete on a specific date,143 does not require a specific payment of

$5,600.00,144 and does not corroborate Plaintiff’s testimony regarding the need for

payment of a deposit to complete the concrete work on April 28, 2021.

Again, the Court finds Plaintiff’s uncorroborated testimony lacking

credibility, as the construction invoices do not require prepayment of a deposit or

materials before work is completed. Under these circumstances, Plaintiff has failed

to rebut, by a preponderance of the evidence, the presumption of forfeitability,

138 Id. 139 Id. 140 Id. 141 Id. 142 Id. 143 D.I. 39, May 24, 2023 Trial Tr. at 94:3-10. 144 Id. at 94:12 – 95:2. 38 particularly when (a) one day prior, he is observed by Detective Gruber delivering a

package assumed to contain illicit substances to a known drug dealer and drug user,

Thomas Epperson; (b) at the car stop, Plaintiff misled the police about the amount

of money in his possession and attempted to hide $5,600.00 in his boxer shorts;145

(c) Plaintiff never told the police the money was intended to pay for concrete

work;146 (d) the police located and seized multiple baggies of marijuana in Plaintiff’s

vehicle in at least three separate locations; (e) Plaintiff was driving a vehicle with a

passenger who was in possession of a scale, marijuana, and baggies in a backpack;

(f) the passenger incredibly claimed ownership of marijuana concealed in a

dashboard compartment of Plaintiff’s vehicle (which the passenger was unable to

open), and ownership of marijuana in the trunk of Plaintiff’s vehicle (which the

passenger failed to disclose prior to it being discovered by law enforcement); and

(g) if the money was actually for a concrete deposit, which is not documented in or

required by the contract or invoices in Plaintiff’s Ex. 5, Plaintiff had no credible

reason to obscure the total amount of money in his possession or hide a large wad of

currency in his boxer shorts. Plaintiff’s reason for possessing the money (to pay for

concrete) could have been corroborated by the police when seized, if Plaintiff had

simply explained the circumstances and provided the officers the remodeling

145 Id. at 102:25 – 103:2 (“I was trying to conceal my money, so I wouldn’t tell them I had six grand.”) 146 Id. at 100:3-11. 39 contractor’s phone number. But he did not. Instead, Plaintiff misled the police about

the amount of money he possessed, and then attempted to hide the money from the

police, engaging in additional deceptive behavior.

CONCLUSION

Under the circumstances of each seizure, considered independently, the State

has established probable cause that the currency seized on January 5, 2019, October

10, 2019 and April 28, 2021 belonged to Plaintiff and was subject to forfeiture

pursuant to the Chapter 47 of Delaware’s Uniformed Controlled Substances Act.

Plaintiff has failed, by a preponderance of the evidence, to rebut the presumption in

favor of forfeiture and the three Petitions for Return of Property are DENIED.

IT IS SO ORDERED, this 16th day of January, 2024.

Martin B. O’Connor Commissioner