Opinion
09120008.
Decided April 4, 2010.
ADA Charles F. Pitarresi, for the People.
Mario A. Giacobbe, Esq., for the Defendant.
The traffic stop in this matter was illegal and the accusatory instruments are hereby dismissed.
On December 9, 2009, defendant was arrested for driving while intoxicated and unlawful possession of marijuana, following a traffic stop of his vehicle on Dunnigan Road in the Town of Pendleton. A suppression hearing was conducted on March 10, 2010. Both parties submitted written post-hearing arguments. The arresting officer was the sole witness at the hearing. The Court found his testimony to be credible in all respects.
Shortly after 2:30 a.m. on the date in question, the deputy observed defendant operating his vehicle in a small closed car dealership parking lot on Transit Road. The vehicle was said to have twice entered and exited a parking space. No traffic laws were violated. As this was a car dealership lot, up to a dozen other vehicles were parked in the lot at the time. The deputy's observations were made from across the street, five traffic lanes away.
The commercial establishment in question was obviously closed at the time of the deputy's observations. The officer acknowledged that it would be reasonable for a driver to pull into this parking lot for a host of reasons having no criminal or improper purpose (i.e., to make a call, to examine vehicles for potential purchase, or to check a map).
The defendant was observed exiting the parking lot and turning onto Dunnigan Road. He traveled for short distance before the deputy pulled the vehicle over. Overhead lights of the patrol vehicle were utilized. At no time during the deputy's observations of defendant's car were any traffic laws violated. Indeed, at all times the vehicle traveled at a reasonable speed, did not swerve and was operated in an appropriate manner.
None the less, the deputy elected to pull the vehicle over based on three reasons: the late hour, the defendant backing up more than once in the parking lot and the business there being closed. He felt these factors made defendant's conduct suspicious. On cross-examination, it was also learned that there had been a number of larcenies in the vicinity, targeting similar businesses.
Law enforcement's stop of an automobile utilizing a patrol vehicle's overhead lights is a seizure implicating constitutional limitations. See People v. Ingle, 36 NY2d 413, 418 (1975); accord People v. Spencer, 84 NY2d 749, 752 (1995); People v. Ocasio, 85 NY2d 982, 983 (1995). Indeed, "police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime." Spencer, 84 NY2d at 752-753; see also Ingle, 36 NY2d at 419; People v. Sobotker, 43 NY2d 559, 563-564 (1978); People v. May, 81 NY2d 725, 727 (1992). All surrounding circumstances must be considered, as "innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand." People v. DeBour, 40 NY2d 210, 216 (1976) (considering face to face encounters).
The People rely heavily on the 1997 Third Department decision of People v. Austro ( 239 AD2d 833, 834), where, like our case, the defendant was observed in the early morning hours in a closed auto dealership. Upon seeing the police, defendant Austro drove off. Not emphasized by the People, however, is the fact that Mr. Austro was in the parking lot of the actual auto dealership where several recent larcenies had occurred. id. at 834. No such testimony was elicited in the matter at bar. Compare People v. Westbrook, 289 AD2d 269 (2d Dep't 2001) (where defendant's vehicle was observed after 2 a.m. in a school parking lot, despite signs indicating that unauthorized vehicles would be towed; officer, who had investigated a burglary at that particular school three months before, properly stopped the vehicle as it was turning around); see also People v. Layou, ___ AD3d ___, 2010 NY Slip Op. 2192 (4th Dep't, March 19, 2010) (finding defendant's presence in vehicle at 3:40 a.m. in parking lot in general vicinity of burglary insufficient to establish reasonable suspicion).
Further, this Court takes issue with the Austro court's proclamation that reasonable suspicion can exist from seeing a vehicle "during the hours of darkness in close proximity to a closed commercial establishment, particularly if there had been recent criminal activity involving the establishment or similar ones ." Austro, 239 AD2d at 834 (emphasis added), citing 4 LaFave, Search and Seizure § 9.4 (d), at 162 (3d ed.). This Court finds this to be too broad a net in light of the May / Spencer parameters addressed herein.
While some parking lots of closed commercial establishments, like car dealerships, implicitly invite visitors, others do not. But even entering a parking lot not thought to be visitor friendly' may still not be enough to constitute reasonable suspicion. Compare People v. Stock , 57 AD3d 1424 , 1425 (4th Dep't 2008) (dismissing DWI indictment where police found suspicious the presence of defendant's vehicle after midnight in the empty parking lot of a group home closed for renovations; vehicle improperly pulled over shortly after exiting lot).
The deputy in this matter was honest in his testimony, and was honestly doing his job on the date in question. Many brave souls have attempted to provide bright line Fourth Amendment rules to law enforcement. This Court now joins in this fruitless venture. As the police did not have reasonable suspicion of criminal activity, the seizure was illegal. A parked vehicle committing no traffic violations observed after 2:30 a.m. in the parking lot of a closed car dealership certainly may be approached by the police. However, once the vehicle is in motion, law enforcement must possess reasonable suspicion of criminal activity before a seizure may occur.
Compare Ocasio, 85 NY2d at 984-985 (where the police properly made a DeBour firstlevel request for information of driver stopped at a red light after occupants of vehicle were recently observed at a building where drugs were suspected to have been sold). See also DeBour, 40 NY2d at 223.
For sure, "the right to stop a moving vehicle is distinct from the right to approach the occupants of a parked vehicle." Spencer, 81 NY2d at 753. Like the police in May, nothing prevented the deputy in our matter from making a common law inquiry of defendant while he was still present in the parking lot based on a DeBour second level "founded suspicion that criminal activity [w]as afoot." See DeBour, 40 NY2d at 223; accord People v. Hollman, 79 NY2d 181, 184-185 (1992); May, 81 NY2d at 728. However, the deputy chose to wait until defendant had exited the lot — and was in motion — before acting.
The seizure of defendant's vehicle was illegal. All evidence derived therefrom is suppressed. Both accusatory instruments are dismissed.
IT IS SO ORDERED.