Opinion
11-04897.
Decided July 25, 2011.
The attorneys were Jimmie McCurdy (ADA) and Robert Hardies (private counsel).
The defendant has raised constitutional challenges to evidence secured after the stop of his motor vehicle. At the hearing on that issue, the arresting officer was candid regarding the observations which formed his basis for two moving violation citations. While the court credits that testimony, it is clear neither validate the stop. First, the officer was not in a position to testify to facts supporting the VTL § 1163(b) charge since he saw the left rear portion of the defendant's vehicle only once it had entered the intersection after turning left in front of the officer. Second, since the vehicle was never observed weaving outside its lane of travel, the VTL § 1128(a) charge is not sustainable. Accordingly, the precise issue for this court to decide is whether it is constitutionally unreasonable for an officer to stop a moving vehicle after observing it repeatedly weaving entirely within a single lane of travel as it traveled a little more than a mile down a four lane city street. For the reasons which follow, the court finds it may not constitute a constitutional violation as long as a public safety concern is the reason proffered by the officer for the stop of the defendant's vehicle and a judge determines objectively that the circumstances presented by operation of the vehicle presented a clear and immediate threat to public safety.
Transcript of the Ingle/Mapp/Huntley hearing held June 21 2011 at page six, lines 15-18 [hereinafter referred to as "transcript"].
Transcript at pages 31-34.
Transcript at page 34-35.
While the evaluation employed by courts may differ from case to case, there is still only one constitutional standard for the stop of a moving vehicle — the reasonableness of the official action. As noted by Mr. Justice White in Delaware v. Prouse, The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of "reasonableness" upon the exercise of discretion by government officials, including law enforcement agents, in order to safeguard the privacy and security of individuals against arbitrary invasions. Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against an objective standard, whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon some quantum of individualized suspicion, other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not subject to the discretion of the official in the field.
Within the last two months, the Supreme Court reminded us all that "[t]he Fourth Amendment expressly imposes two requirements: All searches and seizures must be reasonable." Kentucky v. King, — US-, 131 S.Ct. 1849, 1852 (2011). In addressing warrants, the court went on to note that the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Id (internal quotation marks and citations omitted).
Delaware v. Prouse 440 U.S. 648, 653-655 (1979).
Within the last two months, the Supreme Court reminded us all that "[t]he Fourth Amendment expressly imposes two requirements: All searches and seizures must be reasonable." Kentucky v. King, — US-, 131 S.Ct. 1849, 1852 (2011). In addressing warrants, the court went on to note that the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Id (internal quotation marks and citations omitted).
Delaware v. Prouse 440 U.S. 648, 653-655 (1979).
For over eighty-five years, it has been clear it would be unreasonable to require that officers always obtain a search warrant before stopping a moving vehicle. The analytical scale in New York for automobile stops includes probable cause in some situations and reasonable suspicion in others. Consistent with Delaware v. Prouse, this court is also of the opinion that a finding by a court that the officer's expressed reason for the stop "is based upon specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion" may provide a constitutional basis for pulling over a vehicle. In such a case, the stop of the vehicle is not indiscriminate. Rather, it is justified if it is based upon specific concerns harbored by an officer based on observations relating to the operation of a particular vehicle. The court's responsibility is to then measure that testimony against an objective standard to determine whether "the interest of the State in insuring highway safety" justifies the stop constitutionally.
Carroll v. United States, 267 US 132 (1925). Over forty years ago, the Supreme Court observed that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions." Katz v. U.S., 389 U.S. 347, 357 (1967).
See 2011 Edition, Barry Kamins, New York Search and Seizure § 5.02 (Matthew Bender, rev. edition) and cases cited therein.
People v. Ingle, 36 NY2d 413, 420 (1975), citing Terry v. Ohio, 392 US 1, 21.
Ingle at 420.
While initially this "public safety" standard may seem contrary to pronouncements in recent decisions that an officer must either have probable cause to believe a traffic violation has been committed or reasonable suspicion that a crime has or is being committed in order to stop a car, this court disagrees with that restrictive view.
The Fourth Department decision in People v. Rose , 67 AD3d 1447 (4th Dept., 2009) is often cited for that proposition. However, the precise ruling by the court was that the officer made a mistake of law concerning the defendant's use of high beams and that such a mistake could not be the basis for probable cause. The court specifically noted that "there was no evidence that defendant's flashing of the high beams interfered in any way with the driver of the approaching vehicle." Id. at 1449. Thus, this court believes that Rose should not be read as precluding the possibility of a public safety automobile exception to the warrant requirement. The citation to Robinson does not require that conclusion and the citation to Spencer belies such a position since the Court of Appeals in Spencer noted that "[t]he record is devoid of any indication that the suspect presented an imminent threat to public safety." People v. Spencer, 84 NY2d 749, 757 (1995). The precise ruling in Spencer was that a motor vehicle cannot be stopped to request information about a crime which occurred days earlier.
Courts are charged with deciding the particular controversy before them, on the specific facts of the case before them. Only in rare and carefully circumscribed situations do we issue advisory opinions. A rule which may be workable in one context might be entirely unsuitable in another. While it may be tempting in a case such as this to decide by analogy and it is certainly easier for judges to draw a "bright-line" rule, those avenues do not necessarily yield a just result.
Four years before Delaware v. Prouse, the Court of Appeals issued a decision regarding "routine traffic stops," noting, as did the Supreme Court, that the public safety responsibilities of law enforcement justify the use of "roadblocks, checkpoints, weighing stations" without any individualized suspicion at all. Importantly, the court went on to observe that for an officer to have a particularized reason to stop a vehicle "[a]n actual violation of the Vehicle and Traffic Law need not be detectable." There is nothing in the more recent Court of Appeals holding in People v. Robinson which reverses sub silentio or calls into question its analysis in that earlier decision in People v. Ingle. In fact, the Robinson majority cited with approval People v. David L., which reminded courts that "We must always hold in mind that it is only unreasonable searches and seizures from which the individual is protected under the Federal and State Constitutions ( US Const, 14th, 15th Amdts; NY Const, art I, § 12). In determining the unreasonableness of a search and seizure the total circumstances must be considered." This case presents "Public Safety" issues not analogous to the situation presented in Robinson which addressed the discrete issue of "pre-text" stops wherein the Court of Appeals found that when there is probable cause to believe an offense has been committed the subjective state of mind of the officer making the stop is irrelevant. By contrast, in a "Public Safety" case, the officer's conclusion that public safety was being imperiled by what was being observed is a critical factor in the court's measurement of the objective reasonableness of the stop.
Ingle at 420.
Ingle at 420.
People v. Robinson, 97 NY2d 341 (2001).
People v. David L. 81 AD2d 893, 895 (2nd Dept., 1981) (from dissenting opinion) revd on dissent below 56 NY2d 698 (1982) cert denied 459 US 866, cited in Robinson at 350.
Ingle at 420.
Ingle at 420.
People v. Robinson, 97 NY2d 341 (2001).
People v. David L. 81 AD2d 893, 895 (2nd Dept., 1981) (from dissenting opinion) revd on dissent below 56 NY2d 698 (1982) cert denied 459 US 866, cited in Robinson at 350.
That the ruling in Robinson is limited to the issue before the court is evident from a ruling two years after Robinson wherein the Court of Appeals held that an appellate division had improperly applied the Robinson decision in an "inventory search" case. In addition, support for a "Public Safety" automobile exception to the warrant requirement which allows a stop if the officer believes that a specific driver's actions are endangering public safety can be found in a1994 civil case decided by the Court of Appeals before Robinson.. In that case, the Court observed that the officer was justified in pursuing the defendant "in the interest of stopping a motorist whose conduct on the road presented a clear and immediate threat to public safety" This "Public Safety" automobile exception to the warrant requirement was also applied by the Third Department in a case where the officer stopped the defendant's car because he observed it "going very slow, [with]short, jerky movements." Citing Supreme Court and Court of Appeals cases, the Appellate Division found that "the unusual behavior of the car constituted sufficiently specific and articulable facts from which the officer's suspicion that the driver may have been intoxicated was a rational inference' justifying the stop."
The Court noted "the Appellate Division improperly applied the law governing pretext stops to inventory searches." People v. Johnson, 1 NY3d 252, 257 (2003).
Saarinen v. Kerr, 84 NY2d 494, 503 (1994). Even though the driver was later seen violating the vehicle and traffic law which provided probable cause for the attempted stop which preceeded the chase, the court was clear to point out that "[e]ven if [the defendant] was not impaired, it is clear that his driving posed a threat to the public safety. Under these circumstances, the officer should have the right to use whatever means are necessary, short of the proscribed recklessness, to overtake and stop the offending driver." Id.
People v. Dearstyne, 50 AD2d 1029 (3rd Dept., 1975).
Dearstyne at 1030.
In this case, the court has no difficulty imagining the threat to public safety posed by the defendant's constant weaving within his lane of travel for over a mile on a four lane city street. It is important to note that the threat to public safety would not be diminished if the reason for the driver's seeming inability to control the car was due to diabetic shock, muscle spasms, a blood clot or coronary issues. Accordingly a standard which requires the officer believe a violation of law has been or is being committed inadequately addresses the public safety issue presented. Had the officer in this case testified that the basis for his stop was the constant weaving within the lane which fostered a concern regarding the condition of the driver and the safety of others on the highway, this court would find that the stop was reasonable under the Fourth Amendment and deny suppression. No such evidence, however, was elicited and the court cannot superimpose its assessment onto the officer's testimony. The record is what the record is.
A "Public Safety" automobile exception to the warrant requirement would require a hearing court to find "facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude [ that the operation of the vehicle presented a clear and immediate threat to public safety]." Moreover, in evaluating hearing testimony "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 , 8 AD3d 304 , 306-07(2nd Dept., 2004) (citations and internal punctuation omitted) (language in italics substituted for criminal activity language). Such a standard would not require "proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that [ the manner in which the vehicle was being operated presented a clear and immediate threat to the safety of the operator of the vehicle, his or her passengers, others on or property adjacent to the highway.]". People v. McRay, 51 NY2d 594, 602 (1980) (citations omitted) (portion in italics between the brackets inserted in place of ciminal activity references).
A recent decision by the Third Department underscores this point. In People v. Davis, the court could not find that the lower court's ruling was clearly erroneous in a case wherein the vehicle was alleged to have touched the fog line three or four times. Nonetheless, the court "decline[d] to hold that fog line encroachment can never be the basis for a valid traffic stop as a matter of law." The court further noted the officer "did not indicate that, for example, the defendant was weaving, driving erratically or even that he drove onto the shoulder of the road." This focus on other factors not present in the record would seem to suggest that had one or more been present the "totality of the circumstances" affecting the officer's decision to stop the vehicle would have been broader. In that case, as in this, there was apparently no testimony about the specific public safety concerns which the officer had based on his observations.
People v. Davis, 58 AD3d 896 (3rd Dept., 2009).
Davis at 898.
Davis at 898.
This case underscores the need for a more robust discussion of the public safety function performed by those law enforcement officers who patrol our highways. Although this court is certainly not suggesting that weaving once or twice within one's lane without more supports a vehicle stop, it is not prepared to hold that repeatedly weaving entirely within a lane can never by itself provide such a justification. To do so would un-necessarily constrain police officers who are sworn to serve and protect the community.
See People v. Ramos, 16 Misc 3d 1129(A) (Rochester City Court, Castro, J. 2007).
People v. Lochan, 23 Misc 3d 1106(A) (NYC Criminal Court, Lopez, J., 2009).
People v. Culcross, 184 Misc 2d 67 (Monroe County Court, Egan, J., 2000).
Mr. Justice Clark in the watershed Fourth Amendment case Mapp v. Ohio, which spawned hearings such as was held in this case, observed in the opinion that "[t]here is no war between the Constitution and common sense." A moving vehicle is a dangerous instrument which in the skip of a heartbeat can become a deadly weapon. A rule that requires that an officer not stop a car weaving constantly entirely within a lane for a mile or more until it strays over the line and strikes a pedestrian, another car or light pole makes absolutely no sense! Just as Frederick Douglass reminded us "it is easier to build a strong child, than to fix a broken man," we should remember that police officers serve and protect the community best when they pro-actively prevent mayhem instead of cleaning up after it and investigating its cause. Since Appellate Division cases in New York have found that an officer can stop a vehicle if he or she observes "a dangling license plate, an improper license plate, an expired license plate, no license plate, no front plate, no license plate light, a bent license plate, an obscured license plate," it makes no sense that an officer may not stop a car when he or she believes that the motorist's conduct on the road presents a clear and immediate threat to public safety. Those concerned that allowing a "public safety" automobile exception will open the floodgates are reminded that such an exception to the warrant requirement would still be subject to measurement by a judicially reviewed objective standard. Fourth Amendment jurisprudence based on common sense should let the police do their job serving and protecting the community and trust judges to do theirs by determining if "facts and circumstances which, when viewed as a whole, would lead a reasonable person possessing the same expertise as the arresting officer to conclude that the operation of the vehicle presented a clear and immediate threat to public safety."
Mapp v. Ohio, 367 U.S. 643, 657 (1961).
2011 Edition, Barry Kamins, New York Search and Seizure § 5.02[1][a] (Matthew Bender, rev. edition) (footonote citations omitted).
Accordingly, after due deliberation and careful consideration, the court finds that the record is insufficient to find the stop of the defendant's vehicle was based on probable cause to believe a traffic violation had been committed, is insufficient to find reasonable suspicion to believe a crime was being committed and is insufficient to find that the reason for the officer's stop of the vehicle was his belief that the driver's actions presented a clear and immediate threat to the public precluding an objective "Public Safety" finding by the court. Thus, the court suppresses all evidence which flows from the stop of the vehicle.
The foregoing constitutes the decision and order of the court.