IN THE SUPREME COURT OF THE STATE OF DELAWARE
LAMONT VALENTINE, § § Defendant Below, § No. 15, 2018 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § § Cr. ID. N1603014628 Plaintiff Below, § Appellee. §
Submitted: January 9, 2019 Decided: March 12, 2019
Before VALIHURA, SEITZ, and TRAYNOR, Justices.
ORDER
This 12th day of March 2019, after careful consideration of the parties’ briefs
and the record on appeal, it appears to the Court that:
(1) Lamont Valentine was pulled over on March 19, 2016 by Delaware
State Police Trooper Chase Lawson for speeding. Upon approaching Valentine’s
Dodge Challenger, Lawson smelled marijuana, although Lawson could not tell if it
was burnt or raw marijuana.
(2) Lawson asked Valentine for his license and registration, returned to his
patrol car, and called for backup. Once backup arrived, Lawson asked Valentine to
exit his car while police searched it. (3) As a result of their search, police found a 9mm pistol and 34 rounds of
ammunition in Valentine’s car. Police did not find any marijuana.
(4) Valentine moved to suppress evidence of the pistol and ammunition,
arguing that the smell of marijuana did not provide probable cause to search his car.
The Superior Court denied that motion.
(5) After a bench trial, the Superior Court found Valentine guilty of one
count of possession of a firearm by a person prohibited.1 He was sentenced to a ten-
year minimum mandatory sentence as a repeat offender. Valentine timely appealed
to this court.
***
(6) Valentine first appeals his sentencing as a repeat offender. Valentine
has two prior felony convictions, both from Pennsylvania.
(7) Valentine’s first conviction occurred after a jury found him guilty of
violating 35 PA. CONS. STAT. § 780-113(30), which prohibits “the manufacture,
delivery, or possession with intent to manufacture or deliver, a controlled substance
. . . or knowingly creating, delivering or possessing with intent to deliver, a
counterfeit controlled substance.”
(8) Valentine’s second conviction occurred after he pleaded guilty to
violating 18 PA. CONS. STAT. § 6106(a)(1), which prohibits “carr[ying] a firearm in
1 11 Del. C. § 1448.
2 any vehicle or any person who carries a firearm concealed on or about his person . . .
without a valid and lawfully issued license.”
(9) The State sought to have Valentine sentenced pursuant to 11 Del. C.
§ 1448(e)(1)(c), which provides for enhanced sentencing for those who have been
previously convicted of two or more violent felonies, a term defined in 11 Del. C.
§ 4201(c). Defendants with out-of-state convictions that are “the same as or
equivalent to” a Delaware violent felony are also subject to enhanced sentencing.2
(10) Neither 35 PA. CONS. STAT. § 780-113(30), nor 18 PA. CONS. STAT.
§ 6106(a)(1), however, are “the same as or equivalent to” a Delaware violent felony
statute. As mentioned, 35 PA. CONS. STAT. § 780-113(30) criminalizes, among other
things, manufacturing, delivering, or possessing with intent to deliver controlled
substances and counterfeit controlled substances. Although 16 Del. C. §§ 4754(1)
and 4758 collectively criminalize the acts in 18 PA. CONS. STAT. § 6106(a)(1),
16 Del. C. § 4758—the statute that covers counterfeit controlled substances—is not
a violent felony. And as mentioned, 18 PA. CONS. STAT. § 6106(a)(1) criminalizes
carrying a firearm in a vehicle without a license and carrying a concealed weapon
without a license. Although 11 Del. C. § 1442 criminalizes carrying a concealed
weapon without a license, it does not otherwise criminalize possessing a firearm in
a vehicle if that firearm is not concealed.
2 11 Del. C. § 1448(e)(3).
3 (11) But statutes need not be identical for us to find that a defendant
committed an offense that is “the same as or equivalent to” an offense specified
under Delaware law. If a jury has found facts or the defendant has pleaded guilty to
facts that establish that a defendant committed an offense specified under Delaware
law, then § 1448 will also act to enhance a defendant’s sentence.3
(12) Thus, in addition to statutory definitions, a sentencing court may look
“to a limited class of documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with what elements, a
defendant was convicted of.”4 These documents are called Shepard documents after
Shepard v. United States.5
(13) With respect to Valentine’s conviction under 35 PA. CONS. STAT. § 780-
113(30), the jury verdict sheet, a Shepard document, indicated that he was convicted
of possession with intent to distribute of marijuana specifically.6 Consequently, this
offense is the “same as or equivalent to” a Delaware violent felony.
(14) With respect to Valentine’s conviction under 18 PA. CONS. STAT.
§ 6106(a)(1), however, no Shepard document indicates that Valentine was convicted
for possessing a concealed weapon on his person. The only document in the record
3 See Mathis v. United States, 136 S. Ct. 2243, 2249–52 (2016). 4 Id. at 2249. 5 544 U.S. 13 (2005). 6 App. to Op. Br. A16 (hereafter “A__”).
4 indicating that Valentine had a weapon on his person as opposed to in a vehicle is
the arrest report. But Valentine’s written plea colloquy does not incorporate this
arrest report and only indicates that Valentine pleaded guilty to 18 PA. CONS. STAT.
§ 6106(a)(1).7
(15) Accordingly, Valentine’s conviction under 18 PA. CONS. STAT.
§ 6106(a)(1) is not an offense that is the “same as or equivalent to” any Delaware
violent felony so defined by 11 Del. C. § 4201, and Valentine is not subject to
enhanced sentencing under 11 Del. C. § 1448(e)(1)(c), which requires Valentine to
have been convicted on two or more separate occasions of a violent felony.
(16) Valentine also appeals the denial of his motion to suppress. Under the
Fourth Amendment and under Article I, § 6 of the Delaware Constitution, police may
search a car without a warrant if they have probable cause to believe that the car
contains contraband or evidence of criminal activity.8
(17) Probable cause determinations are made by evaluating the totality of
the circumstances, but Valentine argues that the circumstances here did not add up
to probable cause. According to Valentine, a traffic violation and the odor of
marijuana—without a determination of whether the odor was that of raw or burnt
7 A229–30. 8 Tann v. State, 21 A.3d 23, 27 (Del. 2011); State v. Prouse, 382 A.2d 1359, 1363 (Del. 1978), aff’d, 440 U.S. 648 (1979).
5 marijuana—are insufficient to create probable cause justifying a motor vehicle
search.
(18) Valentine argues that although the odor of marijuana gives a police
officer probable cause under the Fourth Amendment, recent changes to Delaware
law and public attitudes mandate a different result under Article I, § 6 of the
Delaware Constitution. In particular, Valentine cites the Delaware Medical
Marijuana Act9 and House Bill 39, which decriminalized personal use quantities of
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
LAMONT VALENTINE, § § Defendant Below, § No. 15, 2018 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § § Cr. ID. N1603014628 Plaintiff Below, § Appellee. §
Submitted: January 9, 2019 Decided: March 12, 2019
Before VALIHURA, SEITZ, and TRAYNOR, Justices.
ORDER
This 12th day of March 2019, after careful consideration of the parties’ briefs
and the record on appeal, it appears to the Court that:
(1) Lamont Valentine was pulled over on March 19, 2016 by Delaware
State Police Trooper Chase Lawson for speeding. Upon approaching Valentine’s
Dodge Challenger, Lawson smelled marijuana, although Lawson could not tell if it
was burnt or raw marijuana.
(2) Lawson asked Valentine for his license and registration, returned to his
patrol car, and called for backup. Once backup arrived, Lawson asked Valentine to
exit his car while police searched it. (3) As a result of their search, police found a 9mm pistol and 34 rounds of
ammunition in Valentine’s car. Police did not find any marijuana.
(4) Valentine moved to suppress evidence of the pistol and ammunition,
arguing that the smell of marijuana did not provide probable cause to search his car.
The Superior Court denied that motion.
(5) After a bench trial, the Superior Court found Valentine guilty of one
count of possession of a firearm by a person prohibited.1 He was sentenced to a ten-
year minimum mandatory sentence as a repeat offender. Valentine timely appealed
to this court.
***
(6) Valentine first appeals his sentencing as a repeat offender. Valentine
has two prior felony convictions, both from Pennsylvania.
(7) Valentine’s first conviction occurred after a jury found him guilty of
violating 35 PA. CONS. STAT. § 780-113(30), which prohibits “the manufacture,
delivery, or possession with intent to manufacture or deliver, a controlled substance
. . . or knowingly creating, delivering or possessing with intent to deliver, a
counterfeit controlled substance.”
(8) Valentine’s second conviction occurred after he pleaded guilty to
violating 18 PA. CONS. STAT. § 6106(a)(1), which prohibits “carr[ying] a firearm in
1 11 Del. C. § 1448.
2 any vehicle or any person who carries a firearm concealed on or about his person . . .
without a valid and lawfully issued license.”
(9) The State sought to have Valentine sentenced pursuant to 11 Del. C.
§ 1448(e)(1)(c), which provides for enhanced sentencing for those who have been
previously convicted of two or more violent felonies, a term defined in 11 Del. C.
§ 4201(c). Defendants with out-of-state convictions that are “the same as or
equivalent to” a Delaware violent felony are also subject to enhanced sentencing.2
(10) Neither 35 PA. CONS. STAT. § 780-113(30), nor 18 PA. CONS. STAT.
§ 6106(a)(1), however, are “the same as or equivalent to” a Delaware violent felony
statute. As mentioned, 35 PA. CONS. STAT. § 780-113(30) criminalizes, among other
things, manufacturing, delivering, or possessing with intent to deliver controlled
substances and counterfeit controlled substances. Although 16 Del. C. §§ 4754(1)
and 4758 collectively criminalize the acts in 18 PA. CONS. STAT. § 6106(a)(1),
16 Del. C. § 4758—the statute that covers counterfeit controlled substances—is not
a violent felony. And as mentioned, 18 PA. CONS. STAT. § 6106(a)(1) criminalizes
carrying a firearm in a vehicle without a license and carrying a concealed weapon
without a license. Although 11 Del. C. § 1442 criminalizes carrying a concealed
weapon without a license, it does not otherwise criminalize possessing a firearm in
a vehicle if that firearm is not concealed.
2 11 Del. C. § 1448(e)(3).
3 (11) But statutes need not be identical for us to find that a defendant
committed an offense that is “the same as or equivalent to” an offense specified
under Delaware law. If a jury has found facts or the defendant has pleaded guilty to
facts that establish that a defendant committed an offense specified under Delaware
law, then § 1448 will also act to enhance a defendant’s sentence.3
(12) Thus, in addition to statutory definitions, a sentencing court may look
“to a limited class of documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with what elements, a
defendant was convicted of.”4 These documents are called Shepard documents after
Shepard v. United States.5
(13) With respect to Valentine’s conviction under 35 PA. CONS. STAT. § 780-
113(30), the jury verdict sheet, a Shepard document, indicated that he was convicted
of possession with intent to distribute of marijuana specifically.6 Consequently, this
offense is the “same as or equivalent to” a Delaware violent felony.
(14) With respect to Valentine’s conviction under 18 PA. CONS. STAT.
§ 6106(a)(1), however, no Shepard document indicates that Valentine was convicted
for possessing a concealed weapon on his person. The only document in the record
3 See Mathis v. United States, 136 S. Ct. 2243, 2249–52 (2016). 4 Id. at 2249. 5 544 U.S. 13 (2005). 6 App. to Op. Br. A16 (hereafter “A__”).
4 indicating that Valentine had a weapon on his person as opposed to in a vehicle is
the arrest report. But Valentine’s written plea colloquy does not incorporate this
arrest report and only indicates that Valentine pleaded guilty to 18 PA. CONS. STAT.
§ 6106(a)(1).7
(15) Accordingly, Valentine’s conviction under 18 PA. CONS. STAT.
§ 6106(a)(1) is not an offense that is the “same as or equivalent to” any Delaware
violent felony so defined by 11 Del. C. § 4201, and Valentine is not subject to
enhanced sentencing under 11 Del. C. § 1448(e)(1)(c), which requires Valentine to
have been convicted on two or more separate occasions of a violent felony.
(16) Valentine also appeals the denial of his motion to suppress. Under the
Fourth Amendment and under Article I, § 6 of the Delaware Constitution, police may
search a car without a warrant if they have probable cause to believe that the car
contains contraband or evidence of criminal activity.8
(17) Probable cause determinations are made by evaluating the totality of
the circumstances, but Valentine argues that the circumstances here did not add up
to probable cause. According to Valentine, a traffic violation and the odor of
marijuana—without a determination of whether the odor was that of raw or burnt
7 A229–30. 8 Tann v. State, 21 A.3d 23, 27 (Del. 2011); State v. Prouse, 382 A.2d 1359, 1363 (Del. 1978), aff’d, 440 U.S. 648 (1979).
5 marijuana—are insufficient to create probable cause justifying a motor vehicle
search.
(18) Valentine argues that although the odor of marijuana gives a police
officer probable cause under the Fourth Amendment, recent changes to Delaware
law and public attitudes mandate a different result under Article I, § 6 of the
Delaware Constitution. In particular, Valentine cites the Delaware Medical
Marijuana Act9 and House Bill 39, which decriminalized personal use quantities of
marijuana.10 Valentine also cites a number of surveys and events indicating
widespread support for marijuana legalization among Delawareans.
(19) We disagree. Marijuana was, and remains, contraband subject to
forfeiture.11 Use or consumption of marijuana in a moving vehicle is a
misdemeanor.12 That possession of personal uses of marijuana is not a criminal
offense does not render marijuana odors, raw or burnt, irrelevant to determinations
of probable cause. The totality of the circumstances, including Valentine’s speed (32
miles per hour above the speed limit), the time of day (1 a.m.), and the odor gave
Lawson probable cause to believe that Valentine’s car contained contraband, in
particular, marijuana.
9 16 Del. C. §§ 4901A–28A. 10 80 Del. Laws ch. 40 (2015), codified at 16 Del. C. §§ 4701(33), 4764, 4771, 4774, 4795. 11 16 Del. C. § 4764(c); see Florida v. White, 526 U.S. 559, 561 (1999) (warrant not required to seize an automobile for purposes of civil forfeiture; probable cause is sufficient); Carroll v. United States, 267 U.S. 132, 150–52 (1925) (discussing searches and seizures by customs officers). 12 16 Del. C. § 4764(d).
6 ***
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED as to Valentine’s convictions and the denial of his motion to
suppress, VACATED as to Valentine’s sentence, and REMANDED for resentencing.
BY THE COURT:
/s/ Gary F. Traynor Justice