Opinion
08090422.
Decided March 16, 2009.
Hon. Michael J. Violante, Niagara County District Attorney.
(Brian D. Seaman, of Counsel), for the People Jon Louis Wilson, Attorney for Defendant.
Procedural Posture:
This court having previously granted hearings pursuant to People vs. May, 81 NY2d 725 and People vs. Huntley, 15 NY2d 72, as well as In limine relief requested by the defendant held the same on March 3, 2009.
Parties Positions :
People assert New York State Trooper Wayne C. Carr had probable cause to arrest the defendant on Driving While Intoxicated charges. Any statements given by the Defendant to Trooper Carr were voluntarily and not a product of coercion, force or promises.
Defendant asserts while Trooper Carr may have had a basis for inquiry as to the welfare of the defendant, no observation of operation was made, nor was defendant on a traveled portion of a roadway. No probable cause existed for the arrest. No time sequence can be given for the B.A.C. reading. Any statements given by Defendant to Carr were given in violation Huntley or Miranda rights.
Definition:
Probable cause ." exists where the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed" Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790. See also People v. Oden 36 NY2d 382, 368 NYS2d 508 (1975)
Standard of Review:
A.Automobile Investigation
In People v. DeBour, 40 NY2d 210 at 223, the Court of Appeals set forth a four-tiered method for evaluating the propriety of encounters initiated by police officers in their criminal law enforcement capacity. Level One permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; Level Two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; Level Three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; Level Four arrest, requires probable cause to believe that the person to be arrested has committed a crime.
B.Voluntariness of Statement
Criminal Procedure Law Section 60.45Issues:
The two issues for this hearing is to determine 1) whether or not New York State Trooper Wayne C. Carr had probable cause to arrest the Defendant, Brian J. Hopkins and 2) were Hopkin's statements voluntarily given to Carr.
Facts:
On September 20, 2008 New York State Trooper Wayne C. Carr was on routine patrol northbound on Beattie Avenue in the Town of Lockport, New York. He observed a parked car on the southbound shoulder of the roadway with its door open and a person (later identified as the defendant, Brian J. Hopkins) slumped over at a forty-five (45o) degree angle towards the door. Carr made a U-turn and went back to the vehicle to check the driver. He approached the defendant, who was the only person in the car, and inquired if he was alright. He thought Hopkins was in distress. The engine of the car was not running. It has no lights on and the transmission was in park. There was no way to determine when the car was last operated although the engine was still warm. Carr inquired if defendant had been operating the vehicle and if Hopkins had been drinking. Defendant admitted to both. Carr then took defendant's keys out of the ignition and requested defendant to take a breath screening test which was positive. Further sobriety tests administered to the defendant were failed by him. Defendant was then placed under arrest for Driving While Intoxicated. Carr made no threats or promises to Hopkins, nor was he restrained in anyway prior to his arrest.
Decision :
A. Automobile Investigation
Approaching an occupied stationary vehicle is a minimal intrusion which is not the equivalent of a stop. See, People v. Harrison, 57 NY2d 470, 457 NYS2d 199, 443 NE2d 447. This situation is analogous to approaching a citizen on the street to request information and therefore the courts use the same four-tiered analysis set forth in People v. DeBour, 40 NY2d 210 at 223, 386 NYS2d 375, 352 NE2d 562 to justify the conduct of the police. See, People v. Ocasio, 85 NY2d 982, 629 NYS2d 161, 652 NE2d 907; People v. Harrison, supra .
Trooper Carr's observations of the Defendant slumped over at a forty-five (45o) angle to an open car door was sufficient to justify the initial approach and inquiry to see if the defendant was the victim of a crime or just in need of aid. See, People v. DeBour, supra at 223, 386 NYS2d 375, 352 NE2d 562; People v. Jaime, 171 AD2d 884, 567 NYS2d 809 [2d Dept. 1991]; People v. Heston, 152 AD2d 999, 543 NYS2d 804 [4th Dept. 1989], Iv. denied 76 NY2d 858, 560 NYS2d 998, 561 NE2d 898.
When Trooper Carr approached the vehicle and woke up the defendant, has was engaged in a public safety function making sure that the defendant was safe. The trooper's subsequent act of inquiry to see if defendant was in distress was justified under the "emergency doctrine." See, People v. Mitchell, 39 NY2d 173, 383 NYS2d 246, 347 NE2d 607, cert. denied sub nom. Mitchell v. New York, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed 2d 1191.
Trooper Carr acted reasonably and responsibly when he directed the defendant to exit the car. The officer's action forestalled the operation of the vehicle by one who may have been drinking. The intrusion was, at most, de minimus, and not violative of defendant's Fourth Amendment rights. See, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331; People v. Key, 81 AD2d 805, 441 NYS2d 390 [1st Dept. 1981], app. dismissed 54 NY2d 813, 443, NYS2d 652, 427 NE2d 949.
The crux of the matter before this court is whether the defendant, who was legally parked, asleep or unconscious behind the wheel of a car with the engine not running, was engaged in the operation of a motor vehicle, while under the influence, within the meaning of the Vehicle and Traffic Law § 1192 justifying his arrest.
The crime of operating a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law §§ 1192(2) and 1192(3) requires that the vehicle be operated by a driver who is intoxicated. Operation may be established by direct evidence or circumstantial evidence. Whereas, here, the Trooper Carr did not actually see the car in motion, the proof of "operation" must be based on circumstantial evidence. See, e.g., People v. Booden, 69 NY2d 185, 513 NYS2d 87, 505 NE2d 598. Our Appellate Courts have indicated the question of operation of the automobile is one that should be left for trial and not decided on a probable cause hearing [See People vs. Khan (2d Dept. 1997) 182 Misc 2d 83, 697 NYS2d 457].
Whether or not the People can prove beyond a reasonable doubt that the defendant operated a motor vehicle on a public highway while in an intoxicated condition should be left for the trier of fact to decide not as a matter of law for the court on motions. The definitions of roadway and highway contained in the Vehicle and Traffic Law, as well as their applicability pursuant to VTL § 1192-7 and the concept of "operation" of a motor vehicle were not fully explored at the probable cause hearing and therefore this court does not rule on those issues. [See this Court's Decision in People v. Balcom, Docket No. 04030113.]
Probable cause existed to arrest the defendant. Trooper Carr met the four stop procedure of Debour. Carr was permitted to request information from the defendant based on the credible reason of concern as to his well being. Once Trooper Carr had a founded suspicion that defendant was driving while intoxicated (from his admissions and actions), Carr had a right to stop and detain the defendant for sobriety tests. Failing those tests, Trooper Carr had probable cause to believe the defendant had committed the crime of driving while intoxicated and could arrest him for it.
B.Voluntariness of Statement
Admissibility of Defendant's statements regarding consumption of beer is dependent upon if it was voluntarily given to Trooper Carr. Huntley ( People v. Huntley, 15 NY2d 72 255 NYS 2nd 838) requires the People to establish, beyond a reasonable doubt, that a statement was voluntarily made. Miranda ( Miranda vs. Arizona 384 US 436, 86-S.Ct. 1602) requires custodial interrogation for involuntariness of the statement. Both cases require defendant to be under arrest and questions being asked to illicit an incriminating response. Trooper Carr observed that the defendant bore common indicia of intoxication. He then asked the Defendant if he had been drinking. Defendant admitted as much. Deputy Carr's actions were akin to a temporary roadside detention for the purpose of investigating the defendant's safety and well-being and were not custodial in nature. See e.g. People vs. Milo, 300 AD2d 680 753 NYS2d 90; People v. McGreal, 190 AD2d 869, 593 NYS2d 868; People v. Mathis, 136 AD2d 746 523 NYS2d 915. In the absence of custodial interrogation, the defendant was not entitled to Miranda warnings prior to being questioned. See, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.1602, 16 L.Ed2d 694; People v. Yukl, 25 NY2d 585, 307 NYS2d 857, 256 NE2d 172.
Trooper Carr made no threats of physical force, nor applied any undue pressure, nor made any promises to the defendant to make his statements involuntary. [CPL § 60.45(2)].
Defendant's motion to dismiss the accusatory instrument is denied. Defendant's motion to suppress his statements is denied. Defendant's motion to suppress the results of the breathalyzer test is denied.