Opinion
09-11-0028.
Decided May 24, 2010.
Susan Mraz Mungavin, Esq., Senior Assistant Public Defender, Attorney for Defendant, Poughkeepsie, New York.
Jessica Z. Segal, Esq., Senior Assistant District Attorney, Poughkeepsie, New York.
Christopher Chesley (hereinafter "Chesley" or "defendant"), is charged with two counts of Driving While Intoxicated [VTL § 1192 (2), (3)], Failing to Keep Right [VTL § 1120(A)] and Failure to Use Designated Lane [VTL § 1128(C)]. He seeks to suppress evidence, including the results of field sobriety tests and a chemical test, as well as statements made before and after arrest. On May 5, 2010, a combined Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including chemical test results and statements. Both Trooper Michael Patterson and Chesley testified. Based upon the credible evidence adduced, the court makes the following findings of fact and conclusions of law.
Findings of Fact
In the early morning hours of October 31, 2009, Trooper Patterson was on a two-man patrol driving a marked State Police patrol car. At 3:27 a.m., he was driving northbound on Route 9 near the Vanderbilt Mansion when he saw a 1994 Chevrolet pick-up truck directly ahead of him. He observed the vehicle cross the double yellow line to the left and the fog line to the right, swerving back and forth two or three times, at one point crossing completely over the double yellow line. Patterson followed the vehicle for a short distance and saw it swerve again. He activated his emergency lights and pulled over the truck.
Upon approaching, Patterson asked the operator, who was the defendant, for his license and registration, which he produced. Patterson smelled the strong odor of alcohol on defendant's breath and watery eyes. When asked if he had been drinking, defendant replied he had drank a scotch and soda at Mahoney's (referring to Mahoney's Irish Pub Restaurant in Poughkeepsie).
Patterson asked defendant to exit the vehicle and proceeded to administer five field sobriety tests (specifically described) which defendant failed. He then gave defendant a portable breathalyzer test, commonly known as the alco-sensor test, and obtained a positive result.
Defendant was first given the Horizontal Gaze Nystagmus test. The defendant's eyes were pulsating and lacked smooth pursuit at maximum deviation. The walk and turn test was conducted on the fog line. Defendant failed to walk heel to toe four times, did not walk in a straight line at times, swayed back and forth, and did an improper turn. Patterson also observed defendant use his arms to balance himself. On the one leg stand, defendant did not raise his right foot high enough and kept using his arms to balance himself. Defendant failed the Romberg balancing test by swaying back and forth. Although he was to count until 30 seconds had passed, he stopped at 19 seconds. On the finger to nose test, his finger repeatedly went to the side of his left and right nostrils, not to the tip of his nose.
After the five field sobriety tests and alco-sensor were administered, Trooper Patterson formed an opinion that defendant was "over the legal limit" and placed him under arrest for Driving While Intoxicated in violation of VTL § 1192(3). He based his opinion upon defendant's cumulative performance on the field sobriety tests, a positive alco-sensor test, the odor of alcohol on his breath, his glassy, watery eyes, and his admission to having consumed alcohol at Mahoney's. After post-arrest Miranda warnings were given, defendant admitted to having "a few" scotch and sodas. According to Trooper Patterson, defendant's car was left by the roadside after he was arrested.
Defendant testified to certain markedly different facts. A friend was in the passenger seat (Trooper Patterson has said defendant was alone in the vehicle). He was stopped 100 yards north of St. Andrews Road on Route 9 after Trooper Patterson had been going southbound and turned around to come after him. That is, he was stopped a considerable distance further south on Route 9 than where Patterson says he was stopped. He saw the trooper directly behind him about three seconds before he was pulled over. Defendant admitted to driving 90% over the fog line in one instance. He neither admitted nor denied crossing the double yellow line. He had been drinking scotch and soda at Mahoney's where he remained for 2-3 hours. He admitted to drinking 3 scotch and sodas there before being stopped by the police at about 3:27 a.m.
A friend accompanied defendant when stopped. After he was arrested, his friend was given a breathalyzer test and the keys were turned over to him. His friend drove the truck up to the police station in Rhinebeck and picked up defendant following his release.
Conclusions of Law
The sworn testimony of Trooper Patterson and defendant offer different versions of the same incident on some of the basic facts such as the location of the stop and whether defendant was driving his truck alone or with another person. Someone is clearly mistaken and has provided inaccurate testimony. Notwithstanding, the court finds both witnesses testified in mostly credible fashion about the incident occurring over six months ago, and there is sufficient agreement about other material facts. The People noted in post-hearing argument that defendant's testimony was silent in the wake of Trooper Patterson's testimony that defendant swerved and crossed the double yellow line two or three times, and thereby had failed to keep right [VTL § 1120(A)].
At a Mapp/Dunaway hearing, the People have the initial burden of going forward to establish facts that demonstrate the arrest of the defendant was supported by probable cause and the contested evidence was legally obtained. In effect, the People must make out a prima facie case providing a legal basis for the police action. The burden then shifts to the defendant to persuade the court, by a preponderance of the evidence, that the seizure was in reality unlawful. People v. Berrios, 28 NY2d 361 (1971). On the testimonial and documentary evidence adduced at the hearing, the defendant falls short in meeting this burden.
Probable cause or reasonable cause to arrest is a common sense standard that has emerged from the case law and has been statutorily defined by CPL § 70.10(2). The terms "reasonable" and "probable" are used interchangeably.
"Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay. CPL § 70.10(2)
The legal standard for determining probable cause is set forth in People v. Carrasquillo, 54 NY2d 248 (1981) which states as follows:
In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such belief must not only be reasonable, but it must appear to be at least more probable than not that a crime has taken place and that the one arrested is its perpetrator, for conduct equally compatible with guilt or innocence will not suffice.
54 NY2d at 252 (1981)
A finding of probable cause does not require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case. Rather it need merely appear more probable than not that a crime has taken place and that the one arrested is the perpetrator. People v. Hill, 146 AD2d 823, 824 (3rd Dept., 1989); see People v. Attebery, 223 AD2d 714,715 (2nd Dept., 1996).
It is well established that in determining whether a police officer has probable cause for an arrest, the emphasis should not be narrowly focused on. . . . any. . . . single factor, but on an evaluation of the totality of circumstances, which takes into account "the realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents." People v. Wright, supra , 8 AD3d 304 , 306-307 (2nd Dept., 2004), People v. Bothwell, 261 A.D. 232, 234 (1st Dept., 1999), quoting People v. Graham, 211 AD2d 55, 58-59 (1st Dept., 1995). In making the determination to arrest, the officer is not obligated to eliminate all possible innocent explanations for incriminating facts [ see, People v. Mercado, 68 NY2d 874, 877 (1986); People v. Daye, 194 AD2d 339, 340 (1st Dept., 1993)]. Moreover, "[a] party may act with probable cause even though mistaken . . . if the party acted reasonably under the circumstances in good faith." People v. Colon, 60 NY2d 78, 82 (1983); Villalobos v. County of Nassau, 15 Misc 3d 135(A), 839 NYS2d 437 (App. Term, 9th and 10th Jud. Dists., 2007)
In People v. Farrell, 89 AD2d 987 (2nd Dept., 1982), the Appellate Division, Second Department articulated the reasonable cause standard as it applies to drinking and driving offenses. The inquiry is:
[W]hether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor.
89 AD2d at 988 (2nd Dept., 1982)
In People v. Asher , 16 Misc 3d 89 , (App. Term, 9th 10th Jud. Dists., 2007), the Court held that probable cause was established to uphold an arrest for Driving While Intoxicated based on credible testimony that the defendant displayed signs of intoxication, failed field sobriety tests and admitted to having had two glasses of wine.
In People v. Gingras, 22 Misc 3d . 22 (App. Term, 2nd Dept., 2008), the defendant was arrested for Driving While Intoxicated. The Justice Court granted suppression of evidence and the People appealed. In reversing and denying defendant's motion to suppress evidence, the Appellate Term stated:
"[w]e find that the People established probable cause for defendant's arrest, at the very least for driving while impaired in violation of Vehicle and Traffic Law § 1192 (1), although defendant was not specifically so charged."[T]he legality of an arrest . . . is not conditioned upon whether the arresting officer specified the correct subdivision of Vehicle and Traffic Law § 1192, or upon his belief as to which subdivision had been violated. All that is required is that [the officer] have had reasonable cause to believe that defendant had violated Vehicle and Traffic Law § 1192" ( People v Hilker, 133 AD2d 986, 987-988 [1987]; see also People v Nesbitt , 1 AD3d 889 , 890 [2003]). .
Further, Vehicle and Traffic Law § 1192 (1) authorizes a conviction upon proof that a defendant, "by voluntarily consuming alcohol, . . . has actually impaired, to any extent, the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver" ( People v Cruz, 48 NY2d 419, 427; see also *24 People v McNamara, 269 AD2d 544, 545; People v Wirtz, 128 AD2d 745, 746; People v Peck, 16 Misc 3d 126[A], 2007 NY Slip Op 51213[U] [App Term, 9th 10th Jud Dists 2007]). Compared to proof of intoxication, the quantum of proof necessary to support a conviction of driving while impaired, and, by implication, the proof required for an arrest therefor, is also "far less rigorous" ( People v Reding, 167 AD2d 716, 717).
See, also People v. Crane, 26 Misc 3d 134(A) (App. Term, 2nd Dept., 2010); People v. Rich, 25 Misc 3d 126(A) (App. Term, 2nd Dept., 2009) (both cases reversing the granting of defendant's motions to suppress, finding in each case probable cause existed to arrest defendant for Driving While Intoxicated).
A traffic stop constitutes a limited seizure of the person of each occupant of the vehicle which, to be constitutional, must be justified at its inception. People v. Banks, 85 NY2d 558, 562 (1995), cert. den. 516 U.S. 868 (1995). The law is clear that the police may lawfully stop a vehicle based on a reasonable suspicion that a traffic infraction has been committed. People v. O'Hare, ___ A.D.3d ___, 2010 WL 1795505, 2010 NY Slip Op 13966 (2nd Dept., 2010); People v. Sluszka , 15 AD3d 421 (2nd Dept., 2005). This is so even if the underlying reason for the stop was to investigate another matter unrelated to the traffic violation. Whren v. United States, 517 U.S. 806, 810 (1996); People v. Edwards , 14 NY3d 741 (2010); People v. Robinson, 97 NY 341, 348-349) (2001); People v. Falquez , 66 AD3d 918 (2nd Dept., 2009). Here, Trooper Patterson's decision to stop the defendant's vehicle was justified by his observation of the defendant repeatedly swerving over the double yellow line and the fogline. People v. Wright , 42 AD3d 942 (2nd Dept., 2007); VTL § 1128)(c).
Defendant argues the crossing of the fog line alone would not have provided a justifiable basis alone to stop his vehicle. The People essentially concede this to be the law. See, People v. Shulman , 14 Misc 3d 129 (A), (App. Term, 2nd Dept., 2006) (crossing over white "boundary" line or "fogline" to the right of the roadway on two occasions was insufficient to establish guilt of violating VTL § 1128(d); People v. Fisher, 20 Misc 3d 1136(A) (Justice Ct., Wapp, 2008) (crossing "fogline" three times held insufficient); People v. Bordeau, 2008 NY Slip Op 52117(U) (Essex Co. Ct., 2008) (single instance of crossing over "fogline" for a period not exceeding three seconds, without more, is not a traffic infraction in violation of VTL § 1128(d), and therefore cannot form the basis for a valid stop of defendant's vehicle).
However, in People v. Davis, 58 AD3d 896 (3rd Dept, 2009), the officer saw a Jeep and followed it for half a mile, observing the Jeep's right front tire travel "partially" on the fog line "three or four times" always remaining in contact with the fog line as it did so. The defendant was stopped for VTL § 1128(a) and ultimately indicted on several felony drug charges. The suppression court held the traffic stop was unjustified inasmuch as the defendant had not violated VTL § 1128(a) as a matter of law. The Appellate Division affirmed, but declined to hold that fog line encroachment can never be the basis for a valid traffic stop as a matter of law. Here, Trooper Patterson saw the defendant's car swerve back and forth across the road 3-4 times, including several times over the double yellow line and several times over the fog line. Defendant admitted to driving "90% over the fog line" in one instance.
The court concludes probable cause was established to stop defendant following Trooper Patterson's observation of at least one traffic infraction by defendant swerving back and forth on the road and failing to keep right. VTL § 1128(a). Thereafter, the court finds sufficient evidence existed in this case to provide the officer with reasonable grounds to believe that defendant had been driving in violation of VTL § 1192, and thereby provided probable cause for the defendant's arrest for Driving While Intoxicated.
A probable cause determination for Driving While Intoxicated, or any crime for that matter, is based on "the totality of the circumstances" [ People v. Fenger , 68 AD3d 1441 (3rd Dept., 2009); People v. Mojica , 62 AD3d 100 , 114 (3rd Dept., 2009)]. Here probable cause to arrest defendant for a violation of VTL, § 1192 was based upon defendant failing five out of five field sobriety tests (which he also did not deny, or at the least did not provide any alternative interpretation of his poor performance on the tests), as well as the positive alco-sensor test, the glassy, water eyes, and his statement to the trooper that he had been at Mahoney's and had consumed alcohol when he was stopped at 3:27 a.m. The evidence obtained as a result of the arrest was, therefore, lawfully obtained.
A defendant who has been temporarily detained pursuant to a routine traffic stop, including suspected driving while intoxicated offenses, is not considered to be in custody for Miranda purposes. People v. Parris , 26 AD3d 393 (2nd Dept.), lv. den. 6 NY3d 851 (2006); People v. Myers, 1 AD3d 383 (2nd Dept., 2003), lv. den. 1 NY3d 631 (2004); People v. MacKenzie , 9 Misc 3d 129(A), (App. Term, 9th and 10th Jud. Dists., 2005). A reasonable initial interrogation during such stop is therefore held to be merely investigatory and does not require Miranda warnings. See, People v. Mackenzie, supra .; People v. Mathis, 136 AD2d 746 (2nd Dept), lv. den., 71 NY2d 899 (1988). Moreover, Miranda warnings are not required before the administration of performance tests. People v. Hager, 69 NY2d 141 (1987); People v. Myers, supra at 383.
Trooper Patterson's temporary roadside detention of the defendant, after stopping the defendant's vehicle for a traffic infraction, was permissible and non-custodial in nature, and he was not required to administer Miranda warnings before conducting a roadside investigation.
The court accordingly determines that defendant's roadside statement shortly before his arrest was voluntary beyond a reasonable doubt [ People v. Anderson, 69 NY 651 (1986)] and admissible at trial. Similarly, his post-arrest statement preceded by Miranda warnings was voluntary made and is admissible.
Accordingly, all evidence obtained as a result of defendant's arrest was lawfully acquired. Defendant's motion to suppress physical evidence and statements is denied in all respects.