Opinion
Argued June 3, 2010.
Decided June 29, 2010.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Genesee County Court (Robert C. Noonan, J.), entered March 27, 2009. The County Court affirmed a judgment of the Town Court of the Town of Batavia (Michael L. Cleveland, J.), which had convicted defendant, upon his plea of guilty, of driving while intoxicated.
At a hearing on defendant's motion to suppress there was evidence that defendant and a friend were riding their motorcycles together when they passed a state trooper heading in the opposite direction. Spotting a burned out tail light on the bike of defendant's companion, the trooper turned around, caught up with the pair and activated his lights to pull the companion over. Defendant stopped first; the companion circled around a parking lot and then came back and stopped near him. The trooper asked defendant if he had identification, but focused his attention on his companion. Although the trooper had no basis to stop or detain defendant, he did not tell him he was free to go and defendant stood by his motorcycle while the trooper administered field sobriety tests to the companion. A deputy sheriff arrived, conversed with defendant, and told the trooper that defendant might be intoxicated. The state trooper asked a second state trooper arriving at the scene for assistance. The second trooper took defendant's identification and, after engaging in conversation with defendant, noticed a strong odor of alcohol coming from defendant. The second trooper then administered sobriety tests, and arrested defendant for driving while intoxicated.
County Court concluded that the trial court's denial of defendant's suppression motion was proper.
Michael M. Mohun, Cowlesville, for appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM.
The order of County Court should be reversed, defendant's motion to suppress granted and the case remitted to Batavia Town Court for further proceedings on the accusatory instruments.
County Court's findings that "the police had no cause to initially stop" defendant and that "it cannot be concluded that defendant stopped voluntarily" have support in the record and are therefore beyond this Court's further review. Accordingly, any evidence flowing from the stop must be suppressed.
SMITH, J. (dissenting). The majority's three-sentence memorandum makes it appear as though deference to findings below that are "beyond this Court's further review" requires us to reverse the lower courts' rulings. But those findings are quoted out of context. I think the facts found below require us to affirm.
Defendant and a friend were traveling together on their motorcycles. A stat e police officer saw that the friend's motorcycle had a burned out tail light, and flashed his emergency lights. Presumably neither driver could tell which motorcycle the officer was flashing his lights at, but when defendant's friend turned onto another street, the officer followed him; defendant stopped where he was, apparently waiting to see what happened to his friend.
Both the officer and defendant's friend returned to where defendant was waiting, and defendant remained in that area for some time, without being told either to stay or to leave. The police officer was joined by others, one of whom noticed that defendant appeared to be intoxicated. Defendant was asked to perform several sobriety tests, which confirmed his intoxication, and he was arrested.
As far as I can deduce from the majority memorandum, these facts are the basis for its conclusion that "any evidence flowing from the stop must be suppressed" (majority op at 737). The conclusion makes no sense to me. I see no indication in this record that any police officer did anything wrong — and indeed, County Court found that "the police officer committed nothing illegal or unreasonable " in stopping defendant's friend's motorcycle. County Court did, as the majority says, find that defendant did not stop "voluntarily," but it clearly did not find that the officer intentionally detained him. At most, the stop was involuntary in the same way that it would be if defendant had been stopped by a flat tire — or, to use County Court's own analogy, if he had been a passenger in a motor vehicle that was stopped because of a traffic infraction by the driver. No right of defendant's was violated, and there is no reason to suppress the evidence against him.
Chief Judge LIPPMAN and Judges CIPARICK, PIGOTT and JONES concur; Judge SMITH dissents and votes to affirm in a separate opinion in which Judges GRAFFEO and READ concur in memorandum.
Order reversed, etc.