Opinion
Case No. 20010335
10-19-2021
The PEOPLE of the State of New York v. Edward LOUIS, Defendant.
Sandra Doorley, District Attorney, Monroe County (Jacqueline Moyer, of Counsel), for plaintiff. Timothy P. Donaher, Public Defender (Francis Strazzeri, of Counsel), for defendant.
Sandra Doorley, District Attorney, Monroe County (Jacqueline Moyer, of Counsel), for plaintiff.
Timothy P. Donaher, Public Defender (Francis Strazzeri, of Counsel), for defendant.
Thomas J. DiSalvo, J.
The defendant was charged with aggravated driving while intoxicated, VTL § 1192 (2-a), common law driving while intoxicated, VTL § 1192 (3) and per se driving while intoxicated, VTL § 1192 (2) on January 17, 2020. He was arraigned on February 5, 2020 after the public defender was assigned to represent him. It was un-controverted that the accusatory instruments did in fact conform to the requirements of CPL § 110.40 as to facial sufficiency. At arraignment the court was provided with a certified copy of a breath test indicating a finding of .22 of one percent by weight of alcohol in the blood of the defendant. There was no request at that time for a hardship license. As a result, the court suspended the defendant's driver license pending prosecution, pursuant to VTL § 1193(2)(e)(7)(a). Motions submitted by the defense counsel requested Huntley and probable cause hearings. Those hearings were conducted on July 30, 2021.
"Pursuant to the express language of the prompt suspension law, in order to impose a suspension thereunder, the court must make two findings: First, the court ‘must find that the accusatory instrument conforms to the requirements of [CPL §] 100.40,’ VTL § 1193(2)(e)(7)(b) ... Second, the court must find that ‘there exists reasonable cause to believe ... that ... the holder operated a motor vehicle while such holder had .08 of one percent or more by weight of alcohol in his or her blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of [VTL § 1194 ].’ VTL § 1193(2)(e)(7)(b)." (Gertenzang, Handling the DWI Case in New York § 44:3 at 1433-1434 [2019-2020 ed])
See Pringle v. Wolfe , 88 NY2d 426,432, 646 N.Y.S.2d 82,86 [1996] which requires that the chemical test results be provided "to the court in certified, documented form (see, CPLR 4518[c] )".
Facts of the Case.
The People presented Webster Police Officer Skyler Miller as their only witness. Officer Miller testified to being on routine road patrol when he received a dispatch from 911 relative to a reckless driver in the Aldi's parking lot on Ridge Road in the Town of Webster. The officer did not know the name of the person who called in the tip or if the police ever obtained a supporting deposition from said individual. Nevertheless, upon his arrival at that location he discovered a red 2007 Ford F-150 parked in the parking lot. The store was closed and the parking lot lights were apparently unlit at the time. He further observed a person sitting in the driver's seat and staring at the dash board of the said pickup truck. Upon exiting his patrol car he approached the passenger side of said truck. The truck's motor was off, but he observed the engine area to be warm. He saw that the keys were in the ignition. The officer attempted to get the driver's attention by banging on the passenger side window a number of times. The driver eventually noticed the presence of the officer and rolled down the said window after many requests of the officer to do so and after fumbling with the controls. Upon the lowering of the window, Officer Miller detected a strong odor of alcoholic beverage emanating from the truck. The officer asked the individual for his driver license. Instead of producing the license the individual exited his vehicle. When the officer walked over to the driver's side of the truck he observed the individual struggling to get his license out of his wallet. Upon the production of the license Officer Miller was able to identify the driver as the defendant herein. The officer asked the defendant where he was coming from? To which he replied his "house in the City of Rochester". When he was asked where he was going? He replied to his "home in the City of Rochester". When asked how long he was in the parking lot? He replied "only a minute". The officer testified that to that point he had been on the scene about ten minutes. When asked if he had made any other stops, the defendant replied "no". The defendant further admitted to having consumed alcohol, advising the officer that he had consumed "three to four mixed gin drinks".
Officer Miller then requested that the defendant perform certain roadside tests. The defendant agreed to perform the said tests. The tests performed were the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test. None of those tests were successfully completed. In fact the latter two tests had to be discontinued before being completed because of the fear that the defendant would fall and injure himself during their execution. The defendant submitted to a roadside breath test which was positive for the presence of alcohol. There was no testimony of any empty containers of alcohol in the vehicle or discarded nearby, which could have suggested that the defendant had been drinking while parked in Aldi's parking lot. In any event, upon the conclusion of the roadside tests the defendant was arrested for driving while intoxicated.
Issues Presented.
Did the officer have the justification to approach the defendant's parked vehicle to request information based on an anonymous tip?
Did the officer have a founded suspicion that criminal activity was afoot which activated common law right of inquiry?
Was the officer justified in detaining the defendant?
Did the officer have probable cause to arrest the defendant for driving while intoxicated absent having observed the defendant driving the vehicle?
Legal Analysis.
This case is a classic example of the steps an officer must take in approaching a person parked in a vehicle, who is suspected of some violation of the law, when the officer had not witnessed any said violation. "The approach of a parked vehicle by a police officer is governed by the same rules that govern police-civilian street encounters." The Court of Appeals stated that
(Gerstenzang, Handling the DWI Case in New York § 1:2 at 3 [2019-2020 ed])
"In De Bour , we set forth a graduated four-level test for evaluating street encounters initiated by the police: 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 ( De Bour, 40 NY2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; see also People v. Hollman , 79 NY2d 181, 184-185, 581 N.Y.S.2d 619, 590 N.E.2d 204 [1992] )." ( People v. Moore , 6 NY3d 496,498-499, 814 N.Y.S.2d 567,568 [2006] )
The threshold issue is whether the arresting officer could approach the defendant's parked vehicle to request information. The officer did not observe the defendant violate any provision of the law prior to coming upon the defendant's vehicle. The only reason the officer sought out the defendant's vehicle was because of an anonymous tip about a reckless driver in the Aldi's parking lot. Certainly, courts have questioned the general reliability of anonymous tips. It has been held that
"An anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information—such as information suggestive of criminal behavior—so that the police can test the reliability of the tip (see Florida v. J.L. , 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 [2000] ; William II , 98 NY2d at 99, 745 N.Y.S.2d 792, 772 N.E.2d 1150 ). Indeed, in J.L. , a unanimous United States Supreme Court held that an anonymous tip regarding a young Black male standing at a particular bus stop, wearing a plaid shirt and carrying a gun, was insufficient to provide the requisite reasonable suspicion to authorize a stop and frisk of the defendant."
Moore at 499, 569. (See also People v. Proper , 52 Misc 3d 1211 [A], 2016 NY Slip Op. 51111 [U] [Webster Just Ct 2016])
However, in this case the anonymous tip regarding a reckless driver was irrelevant to what the officer independently observed when he arrived on the scene. Despite not observing any reckless driving the officer was duty bound to at least investigate the situation further. Thus the officer went to the Aldi's parking lot at about 10:51 P.M., which was after the store was closed. The officer was faced with a vehicle parked alone in the parking lot of closed store. He observed that a person was behind the wheel of the car, which was not running. The presumed driver did not appear to be alert or even be aware of the officer's presence as he approached the passenger side of the vehicle. Although the motor was off, the front of the vehicle was warm to the touch. In looking through the window, the keys to the vehicle were clearly seen to be in the ignition. The Court of Appeals held that it is proper for a police officer to "... approach a private citizen on the street for the purpose of requesting information." The officer at that point was justified in his level one action of knocking on the passenger side window to get the attention of the driver in an attempt to evaluate the situation. In other words, based on the circumstances described, the officer had an objective, credible reason, not necessarily indicative of criminality, to request information from the driver of the vehicle. There could have been a number of reasons why defendant was parked in the Aldi's vacant parking lot outside of business hours, not the least of which was the possibility of a medical emergency.
(See People v. De Bour , 40 NY2d 210, 213,386 N.Y.S.3d 375,378 [1975] )
The second issue is whether the situation presented to the officer justified a common law right of inquiry. The officer observed the defendant initially to be in a non-responsive state. The driver of the vehicle did not immediately acknowledge the presence of the officer, despite his banging on the passenger side window. When the window was opened he observed a strong odor of alcoholic beverage emanating from the truck. The defendant exited the truck in response to a request by the officer to view his driver license. Then there was the difficulty of the defendant in attempting to remove the license from his wallet. The behavior of the defendant to that point was indicative of an intoxicated driver. That certainly provided the officer with a founded suspicion that criminal activity was afoot. It also gave the officer the right to move to a level two inquiry that involved more intrusive questions, such as "Where are you coming from?" "Where are you going?" "Have you consumed any alcoholic beverages?" To which the defendant responded that he was coming and going to his residence in the City of Rochester and that he had consumed three to four mixed drinks.
Based on the defendant's answers and his manner of answering those questions Officer Miller was justified in moving to a level three inquiry, during which the defendant, although not under arrest, was detained and asked to perform the roadside tests previously listed. However, prior to that point there was no seizure of the defendant. There was no evidence presented at the suppression hearing that indicated that the officer positioned his vehicle to prevent the defendant from moving his vehicle. As a general proposition the defense cites People v. Solano , 46 AD3d 1223, 848 N.Y.S.2d 431 [3rd Dept. 2007]. However, in that case the police car was parked in front of one of two vehicles, effectively boxing in the middle car, where the defendant was located. Again as a general proposition the defendant also cites People v. Nicodemus , 247A.D.2d 833, 669 N.Y.S.2d 98 [4th Dept 1998]. The facts of that case are as follows:
Id. at 1224, 432. See also People v. Layou , 71 AD3d 1382,1383, 897 N.Y.S.2d 325, 327-328 [2010], wherein the court found in that case that "Here, a police officer effectively seized defendant's vehicle when he pulled into the parking lot behind defendant's vehicle in such a manner as to prevent defendant from driving away...."
"On January 30, 1994, at about 2:35 A.M., a Livingston County Deputy Sheriff received a radio dispatch concerning a robbery of a store in Pavilion, a town in Genesee County. The dispatch did not give a description of the robbers and did not mention a vehicle. It stated only that two males, one of whom wore a mask, had left the scene on foot. The Deputy was directed by his sergeant to take a post at the intersection of Routes 20 and 36. Soon thereafter, he observed a white vehicle proceeding along the highway. He followed the vehicle for approximately two miles but was unable to see the license plate number because it was covered with snow. After the vehicle pulled into the driveway of an abandoned house, he pulled in behind it, turned on his takedown lights and sent a radio dispatch for backup. A white female matching the description on the second flyer attempted to exit the vehicle from the driver's side. He ordered her back into the vehicle. When other police officers arrived, the occupants of the vehicle were ordered out with their hands up; one officer had his gun drawn. The officers ordered the occupants, including defendant, to kneel in the snow. The police frisked and handcuffed the occupants, who were then taken to separate patrol cars for questioning. Upon searching the vehicle, the police found a gun and money bag. Miranda rights were given and defendant made a statement admitting the Pavilion robbery."
Id. at 99, 834.
The defendant in that case appealed his conviction. Upon review the Fourth Department held "... that the police lacked reasonable suspicion that the driver or occupants of the vehicle had committed or were about to commit a crime." In addition the stop went immediately to a level four arrest, without any inquiry by the police before ordering the individuals from the vehicle. As stated by the court "Furthermore, the stop was constitutionally invalid because it immediately escalated into a full-blown arrest, requiring probable cause (see, People v. Johnson , 102 AD2d 616, 626, 478 N.Y.S.2d 987, lv. denied 63 NY2d 776 )."
Id. at 100, 835.
The case of People v. Eugenio , 185 AD3d 1050, 128 N.Y.S.3d 233 [2nd Dept 2020] is instructive as it has a fact pattern very similar the facts of the case herein. The court stated that
"At a suppression hearing, a police officer testified that, while on patrol on November 12, 2017, he observed an individual who seemed to be passed out behind the wheel of a parked automobile. The officer approached the driver's side of the vehicle, observed the defendant hunched toward the steering wheel, and noticed that the car was running. The officer repeatedly knocked on the window of the vehicle to wake the defendant, who awoke in under one minute. The officer then asked the defendant to open the door and exit the vehicle. After the defendant exited the vehicle, the officer observed a plastic cup near the center console containing liquid and a bottle of scotch whiskey in the back seat. Moreover, the defendant exhibited several indicia of intoxication and told the officer that he had consumed two 24—ounce beers, leading the officer to place him under arrest."
Id. at 1051, 234-235.
In affirming the decision of the trial court to grant the suppression motion of the defendant the Second Department explained that
"An officer may approach a parked car for an objective, credible reason, not necessarily indicative of criminality (see People v. Harrison , 57 NY2d 470, 475—476, 457 N.Y.S.2d 199, 443 N.E.2d 447 ; People v. Karagoz , 143 AD3d 912, 913, 39 N.Y.S.3d 217 ). Here, the officer, upon observing the defendant unconscious behind the wheel of a parked vehicle with the engine running, had an objective, credible reason, not necessarily indicative of criminality, for his initial approach of the defendant's vehicle, authorizing him to request information from the defendant (see People v. Ocasio , 85 NY2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907 ; People v. De Bour , 40 NY2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). The officer did not, however, request any information; he simply asked the defendant to exit the vehicle. Where, like here, a vehicle is lawfully parked on the street and neither it nor its occupant is under any restraint, and the police have no grounds to suspect the occupant of criminality at that point, requesting the occupant to step out of the vehicle creates a new, unauthorized restraint (see People v. Thomas , 275 AD2d 276, 278, 712 N.Y.S.2d 548 ). Thus, an officer's directive to a defendant to exit a lawfully parked vehicle must be based upon a ‘reasonable belief that [the] defendant was, in fact, ‘involved in criminal acts’ or that he ‘posed some danger’ to the [officer]’ ( People v. Larkin , 62 Misc 3d 62, 66—67, 90 N.Y.S.3d 814 [App Term, 2d Dept, 9th & 10th Jud Dists], quoting People v. Creary , 61 AD3d 887, 889, 877 N.Y.S.2d 208 ; see People v. Hollman , 79 NY2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 )."
Id. at 1051-1052, 235.
In the instant case, Officer Miller never ordered the defendant out of the vehicle. Instead the defendant exited the vehicle on his own accord. It was after that point that the defendant began to exhibit various indicia of intoxication. This allowed the officer to move from a level two encounter to the level three encounter, namely the detention of the defendant, for purposes of performing the various roadside tests.
The officer eventually moved on to a level four encounter, namely the arrest of the defendant for driving while intoxicated. The arrest was based on the officer's observations of the defendant's various physical indicia of intoxication and the defendant's performance on the roadside tests. Nevertheless, the arresting officer did not personally observe the defendant violate any provision of the Vehicle and Traffic Law. Thus the question to be decided is, did the office have the requisite probable cause to make the arrest for driving while intoxicated? Criminal Procedure Law § 70.10(2) states in pertinent part as follows:
"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."
It should be noted that "... although the CPL uses the phrase ‘reasonable cause’ in lieu of the phrase ‘probable cause’ it is well settled that ‘[r]easonable cause means probable cause’ " Thus for purposes of clarity I will hereinafter use the phrase "probable cause".
(Gerstenzang, Handling the DWI Case in New York § 1:31 at 49 [2019-20120 ed])
The Court of Appeals has further interpreted the definition of probable cause. It has stated
"In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such a 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 ( People v. De Bour , 40 NY2d 210, 216, 386 N.Y.S.2d 375, 352 N.E.2d 562, supra ; People v. Corrado , 22 NY2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526 ; La Fave, ‘Street Encounters’ and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich.L.Rev. 40, 73-75). In making such a judgment, we must also bear in mind that ‘[i]n dealing with probable cause we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act’ ( Brinegar v. United States , 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 )."
The key phrases to consider in determining whether there was probable cause to make an arrest are "reasonable belief" and "more probable than not". With those phrases in mind Officer Miller would have had to discount all that he had observed and heard from the defendant up to and through the time he had detained the defendant in order to conclude that he did not have probable cause to arrest the defendant for driving while intoxicated. Thus the obvious conclusion by the officer that it was more probable than not that defendant had driven his vehicle to the Aldi's parking lot in an intoxicated state was reasonable under the circumstances presented at the scene of the arrest.
Conclusion
The officer was justified in approaching the defendant's parked vehicle to request information based on the circumstances presented herein. The indicia of intoxication exhibited by the defendant after he voluntarily exited his vehicle gave the officer a founded suspicion that criminal activity was afoot. As a result, the officer was authorized to enquire further of the defendant. That inquiry permitted the officer to detain the defendant and request that he perform the various roadside tests. The various indicia of intoxication, the defendant's performance on the roadside tests, the statements made by the defendant and the circumstances that presented themselves to the officer during the time of the encounter gave the officer probable cause to arrest the defendant for driving while intoxicated. Thus, the defendant's motion to suppress evidence obtained as a result of the seizure of the defendant is hereby denied. In addition, the statements made to Officer Miller as testified to were voluntarily made during the initial investigatory stages of the encounter. Thus the defendant's motion to suppress any statements made by the defendant is hereby denied. This constitutes the decision and order of this court.
(See also, People v. Huntley , 15 NY2d 72, 255 N.Y.S.2d 838 [1965] )