Opinion
99953.
Decided June 21, 2004.
The claimant was arrested by a State trooper on September 18, 1998, and charged with Criminal Possession of a Controlled Substance in the Seventh Degree. The accusatory instrument was dismissed in December 1998. The claim alleges causes of action for false arrest and malicious prosecution.
The only testimony at trial was by the claimant. The only other evidence at trial were exhibits offered by the claimant.
The claimant, a 1971 graduate of Cornell University, works as a computer programmer. He testified that after an evening of socializing in Rego Park, Queens, he awoke in the early morning hours of September 18, 1998 at the home of an acquaintance, and left there to return to his home in Malverne on Long Island.
As his car was traveling in an eastbound direction on the Southern Parkway he approached the Tourist Information Center located approximately 10 minutes from his house, when he decided to contact a friend, using one of the public telephones located in the rest area. He had no idea whether or not the area was known as a location for illicit drug use.
He drove into the rest area, passed two parked cars and parked his car front end first in a diagonal parking place next to a telephone. He turned off the engine and headlights before making the phone call. The area was not well lighted, but lights from the traffic on the parkway illuminated the area somewhat. While remaining in his car he leaned out of the vehicle to reach the telephone and placed the call. After three of four rings it struck him that it was very early in the morning and that his friend was probably asleep so he hung up the telephone without talking to his friend or leaving a message.
As he was hanging up the telephone he noticed that an automobile had driven past him and backed up directly at the rear of his vehicle, blocking his car so that he could not pull out of the parking space. He turned around and realized that it was a police vehicle. A State trooper approached his car, stood by the driver's side window, and inquired if he was all right, to which he replied that he was fine. The officer repeated the same question in what the claimant described as an intimidating tone.
Then in a loud and forceful tone the officer asked him a series of questions including: whether he knew the time of day, to which he responded that he was not quite sure; from where he was coming, to which he replied Queens; what he was doing in Queens, to which he replied that he was visiting a friend; what time he had left Queens, to which he responded that he did not know; where he lived, to which he replied Malverne. He denied having told the officer he was coming from Christopher Street in Greenwich Village. At some point the officer asked to see his driver's license and registration. The claimant testified that he was nervous and scared during the questioning.
Based upon documents received in evidence, the time was approximately 4:30 AM.
During the questioning the claimant noticed the officer looking back over his shoulder in the direction of his parked police vehicle. The claimant realized that there was a "very attractive woman officer" positioned by the vehicle.
The officer instructed him to step out of his car and walk to its rear, where he was told to empty his pockets. He emptied his front right pocket which contained a wallet, some change, and a pen. In his front left pocket there was an unlabeled small brown glass vial with a black screw top that contained a liquid that he did not remove from his pocket. The claimant testified that the liquid was a type of sexual stimulant and he was embarrassed to draw attention to it in the presence of the female officer. He had purchased the substance several weeks earlier at a video store in Greenwich Village.
The officer told him to spread his legs and put his hands on the car at which point he conducted a pat down of the claimant and discovered the vial in his pocket. The officer directed him to remove the vial from his pocket and inquired as to the nature of the substance in the bottle. Still embarrassed to divulge that it was a sexual stimulant he did not immediately reply to several inquiries by the officer as to what the substance was. Finally he informed the officer that the liquid was "nothing illegal." The officer asked him how did he know that it was not illegal, to which he replied that he made it his business to be aware of such matters. After further questioning he eventually admitted that the liquid was a sexual stimulant called "poppers." He informed the officer what he believed to be the chemical name of the liquid as "butyl nitrate," but he was unable to recall if he gave this information to the officer in the rest area or subsequently at the State Police station. At some point the officer asked him if he could search the car to which he consented.
The officer informed the claimant that he was under arrest for the possession of a controlled substance. The claimant's hands were cuffed behind his back and he was put in the back seat of the police vehicle and then taken to the State Police station where he was fingerprinted and photographed. At the police station he was handcuffed to a circular metal ring on a wooden bench.
While handcuffed he observed the officers handling the substance contained in the vial with a type of test kit. It appeared to him that the officers were having problems identifying the substance, and even after he informed them that he thought it was butyl nitrate they were still unable to identify the contents of the vial. He overheard a telephone call made by one of the officers to the Nassau County Poison Control. He heard the officer repeat the words butyl nitrate, or some words like butyl nitrate. He said "they might have mispronounced it." The officer on the telephone stated that Poison Control said that a substance called amyl nitrite was a controlled substance.
After approximately one hour the handcuffs were removed and the officer issued the claimant an appearance ticket to appear in court on November 4, 1998, to answer the charge of being in possession of a controlled substance. Although not specified in the appearance ticket, it appears from documents in evidence that the arresting officer concluded that the substance was butyl nitrate. The officer drove the claimant back to his car which had remained at the rest area. Somewhat shaken up by the incident, the claimant drove home and notified his office that he was taking the day off.
He retained the services of an attorney to represent him in the criminal matter. On November 4, 1998, he appeared in court but the case did not proceed. The claimant believed that he was shown a document which set forth the charges against him. He returned to court in December 1998. After speaking to the Assistant District Attorney, his attorney informed him that the case was being dismissed because the liquid in the vial was not a controlled substance.
The accusatory instrument, received in evidence as Exhibit 6, stated that the claimant possessed "a 1 oz. brown colored vial containing a liquid substance. NIK field test and nassau county poison control center confirmed said substance to be butyl nitrate — a central nervous stimulant which can be volatile."
Exhibit 2, a document issued by the New York State Police Mid-Hudson Regional Crime Laboratory, states: "Controlled substances — NEGATIVE. Sample contains isobutylnitrite."
According to an entry in Exhibit 11, New York State Police Arrest Report, charges were dismissed pursuant to Criminal Procedure Law § 170.30(1)(f). The basis for dismissal under that provision is: "There exists some other jurisdictional or legal impediment to conviction of the defendant for the offense charged."
Claimant's two theories of liability, false arrest and malicious prosecution, are separate and distinct causes of action. Broughton v. State of New York, 37 NY2d 451, cert den sub nom. Schanbarger v. Kellogg, 423 US 929. The elements of a false arrest cause of action are: (1) the defendant intended to confine claimant; (2) claimant was conscious of the confinement; (3) claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged.
It is uncontroverted that the claimant has established the first three elements of a claim for false arrest. An arrest without a warrant, as is the case here, is presumptively invalid and the burden therefore shifts to the defendant to establish that the arrest was privileged. Broughton, supra, at 458.
Upon the facts presented, the lawfulness of the claimant's arrest is governed by Criminal Procedure Law § 140.10(1)(a), which authorizes a police officer to arrest a person without a warrant for "[a]ny offense when he has reasonable cause to believe that such person has committed such offense in his presence. . . ."
"The term `reasonable cause' has been equated with `probable cause' as that term is used in the Fourth Amendment of the United States Constitution ( People v. Lombardi, 18 AD2d 177, affd 13 NY2d 1014)." Blanchfield v. State of New York, 104 Misc 2d 21, 25.
In order to meet its burden the defendant relies solely on the claimant's own testimony and evidence which he offered at trial. The defendant called no witnesses, and offered no exhibits. It is the defendant's contention that upon the claimant's case alone, there was reasonable suspicion and probable cause that the claimant had committed a crime.
Other than the claimant's testimony, the only information in the record concerning what might have led the officer to suspect that criminal activity was underway is contained in Exhibit 1, New York State Police Arrest Report signed by the arresting officer, in which it is stated: "While checking the welfare of def[endant] at T.I.C. telephones (which def[endant] was not using) members observed a bulge in the def[endant]'s r[ight] front pocket. Pat down for safety produced a 1 oz. vial w[ith] a liquid substance. NIK field test and Nassau Co. Poison Control ID'd as butyl nitrate — a central nervous system stimulant that can be volatile."
Although it is not included in the foregoing statement, it is established by the claimant's testimony that the discovery of the vial, which was the basis for the arrest, occurred after the officer directed the claimant to get out of his car.
While a police officer is authorized to approach and check a vehicle by inquiry, irrespective of whether there is any indication of criminal activity ( see People v. De Bour, 40 NY2d 210, 223), when a police officer orders a driver out of his parked vehicle it is "at least equivalent to a stop ( People v. Harrison, 57 NY2d 470, 476). This level of intrusion can be justified only by a reasonable suspicion that criminal activity is afoot." People v. Atwood, 105 AD2d 1055. See also People v. Thomas, 275 AD2d 276, 278: "When neither the vehicle nor its occupants is under any restraint, and the police have no grounds for suspicion of these particular individuals, asking a car's occupants to step out of it creates a new, unauthorized restraint [citation omitted]. Consequently, without additional grounds for suspicion, it is improper for police to direct occupants out of a parked car [citation omitted]."
Based upon the testimony of the claimant, which the Court found credible and is not contradicted on the record, at the point at which he was ordered to leave his car, that order was not justified. The facts are that the claimant was lawfully seated in his parked vehicle and upon permissible inquiry by the officer he became somewhat intimidated by the officer's tone and exhibited some nervousness. There is no objective indication whatsoever that Mr. Levine's conduct created a reasonable suspicion that criminal activity was underway.
Even if the discovery of the vial under the circumstances described by the claimant might otherwise constitute reasonable cause to arrest him, the fact that it was discovered subsequent to the impermissible order that he get out of the car compels the opposite conclusion, because "probable cause to make an arrest cannot be based on the fruits of an illegal search or seizure." Blanchfield v. State of New York, supra, at 27.
"The fruit of an illegal search cannot give rise, in a juristic sense, to probable cause to arrest . . . [citations omitted]. Were this not so, the police could subject a person to an egregiously unconstitutional search, and then use the fruits of that search to establish, in a civil suit for false imprisonment, that the arrest was privileged because it was based on probable cause. The absurdity of such a principle is so patent as to require no further discussion." Ostrover v. City of New York, 192 AD2d 115, 118.
Accordingly, the cause of action for false arrest has been established.
The evidence adduced at trial does not, however, establish the cause of action for malicious prosecution. An essential element of malicious prosecution is actual malice. Broughton v. State of New York, 37 NY2d 451. While the officer may have been mistaken as to what the substance was, based upon what the claimant told him it was, and the officer's efforts to ascertain information about it, the evidence is insufficient to support the conclusion that the criminal prosecution was commenced "due to a wrong or improper motive, something other than a desire to see the ends of justice served [citation omitted]." Nardelli v. Stamberg, 44 NY2d 500, 502.
In accordance with the foregoing, the cause of action for malicious prosecution is dismissed; the Court finds the defendant liable for false arrest.
A conference for the purpose of scheduling a date for trial on the issue of damages is hereby scheduled for July 20, 2004 at 10:00 AM.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.