Opinion
2013-0953
06-12-2014
The People of the State of New York, v. Dylan Vedder, Defendant.
Montgomery County District Attorney (KELLI MCCOSKI, ESQ. of Counsel) ANELLI XAVIER Attorneys for Defendant (MICHAEL VISCOSI, ESQ, of Counsel)
Montgomery County District Attorney
(KELLI MCCOSKI, ESQ. of Counsel)
ANELLI XAVIER
Attorneys for Defendant
(MICHAEL VISCOSI, ESQ, of Counsel)
Howard M. Aison, J.
HOWARD M. AISON, JUDGE: The defendant is charged with driving while intoxicated (VTL §1192 3), failure to keep right, and refusal to take a breath screening test. He was arraigned on December 20, 2013 and entered pleas of not guilty. By Decision and Order of March 19, 2014 the Court granted defendant's motion for a probable cause hearing and a hearing was held on March 31, 2014. The only witness was Deputy Sheriff Jeremy Liggett of the Montgomery County Sheriff's Department. The Court finds that the testimony of Deputy Liggett was candid and forthright and although his conduct was overzealous he did not knowingly engage any improper acts. At the conclusion of the hearing the Court gave each attorney an opportunity to submit a memorandum of law. The Court acknowledges receipt of attorney Viscosi's letter Memorandum of April 03, 2014 and Assistant District Attorney McCoski's letter Memorandum of April 22, 2014.
Findings of Fact
On Friday, December 20, 2013 at approximately 2:45 a.m. Deputy Liggett was stationary in his patrol vehicle in the Town of Amsterdam where he was able to observe the nearby Imperial Lanes bowling alley for the reason, as he testified, that "usually a lot of people [are] drinking there late into the morning." Two vehicles left Imperial Lanes and headed southbound on New York State Route 30. Deputy Liggett followed the vehicles for two miles and observed the defendant's vehicle turn into McDonald's located in the City of Amsterdam. Deputy Liggett parked his vehicle across the street in the Rite Aid parking lot and waited a couple of minutes. He then observed defendant's vehicle leave McDonald's and continue south on New York State Route 30 and make a left turn onto Prospect Street and continue until the intersection of Prospect and Church Streets when it stopped for a red light. When the light turned green defendant signaled appropriately and made a left turn onto Church Street and headed northbound. Prior to this point in time Deputy Liggett did not observe defendant commit any Vehicle and Traffic Law violations. On Church Street defendant's vehicle went into the southbound lane and back into the northbound lane. Deputy Liggett activated his emergency lights and defendant's vehicle continued northbound on Church Street and made a right turn onto Catherine Street and pulled over and stopped.
Deputy Liggett exited his vehicle and walked over to the defendant. The defendant identified himself and upon request produced his driver's license and the vehicle registration from the glove compartment without any difficulty. The defendant stated that he was coming from McDonald's and that he lived on Catherine Street. Deputy Liggett observed that the defendant's eyes were "glassy, bloodshot" and that the vehicle smelled of McDonald's food. Deputy Liggett did not smell the odor of an alcoholic beverage emitting from either the defendant or from the inside of his vehicle. When asked if he knew that he crossed into the southbound lane of Church Street the defendant stated that he was reaching for his food. The defendant's speech "seemed a little slurred" but Deputy Liggett did not know if the reason was that the defendant "was talking quick or, I mean, some people don't open their mouths wide enough when they talk." The defendant said that he did not consume any alcoholic beverages and he answered all other questions asked of him. Deputy Liggett had no difficulty understanding everything the defendant said. Deputy Liggett, believing that the defendant "may have been drinking and driving", requested that the defendant exit his vehicle. The defendant complied and after asking the defendant more questions, making additional observations, and conducting field performance tests Deputy Liggett arrested the defendant for driving while intoxicated.
Conclusions of Law
When a police officer observes a violation of Vehicle and Traffic Law it is well settled that the police officer may stop the vehicle (People v. Ingle, 36 NY2d 413) and require the driver to exit (Pennsylvania v. Mimms, 434 US 106; People v. Thomas, 275 AD2d 276 lv denied 95 NY2d 939; People v. Harrison, 57 NY2d 470). Both the Supreme Court in Mimms and the Court of Appeals in Harrison clearly set forth that the request to exit is permitted for the safety of the police. "And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile" (Pennsylvania v. Mimms, supra 434 US at 110) and "The hazard of accidental injury from passing traffic to an officer standing on the driver's side of the vehicle may also be appreciable in some situations" (Pennsylvania v. Mimms, supra 434 US at 111). "The [Mimms] Court concluded that out of a concern for his own safety the police officer could order the driver out of the vehicle " (People v. Harrison, supra 57 NY2d at 477).
Deputy Liggett's purpose in directing the defendant to exit his vehicle was not for safety reasons but to gather evidence to determine if the defendant should be arrested for a VTL §1192 violation. From the inception of his contact with the defendant's vehicle and based upon the above facts the Court concludes that it was the goal of Deputy Liggett to discover whether the defendant was operating his motor vehicle while either intoxicated or impaired by the voluntary consumption of alcoholic beverages.
Deputy Liggett was authorized to stop defendant's vehicle and detain the defendant. The question to be answered is whether Deputy Liggett was also authorized to require the defendant to exit his vehicle due to the existence of reasonable grounds to believe that defendant was operating the motor vehicle in violation of VTL §1192?
There have been many reported cases dealing with police stopping a vehicle and after making observations of the driver while inside of the vehicle requiring the driver to exit the vehicle and perform field testing. There is a common thread to all of these cases. The police officer either smelled an odor of alcohol coming from the vehicle or smelled an odor of alcohol on the breath of the defendant (People v. Rorris, 52 AD3d 869, lv denied 11 NY3d 741; People v. Kowalski, 291 AD2d 669; People v. Tittensor, 244 AD2d 784; People v McCarthy, 135 AD2d 1113; People v. Freeman, 37 Misc 3d 142[A]; People v. Bici, 32 Misc 3d 136[A], lv denied 18 NY3d 857; People v. Carroll, 28 Misc 3d 1211[A]; People v. Leary, 18 Misc 3d 1107[A]; People v. Khuns, 191 Misc 2d 655).
The facts possessed by Deputy Liggett were that he observed the defendant leave Imperial Lanes and eventually fail to keep right, that he did not stop his vehicle immediately after Deputy Liggett turned on his emergency lights, that his eyes were glassy and bloodshot, and his speech seemed a little slurred. Absent any testimony that Deputy Liggett smelled an odor of alcohol from either the defendant's vehicle or his breath there were no reasonable grounds to believe that the defendant was operating a motor vehicle in violation of VTL §1192 and no authority existed to require the defendant to exit his motor vehicle.
The evidence gathered by Deputy Sheriff Liggett, once the defendant exited his vehicle, did provide probable cause to arrest the defendant for driving while intoxicated. However this evidence may not be used against the defendant at trial as it is fruit of the poisonous tree (Wong Sun v. U.S., 371 US 471.
The fruit of the poisonous tree rule was designed to discipline law-enforcement officers and has no bearing on whether a defendant is guilty or not guilty (People v. Chennault, 20 NY2d 518). It is one of a number of "judicially created tool[s] designed to effectuate rights guaranteed under the Fourth Amendment" and it "provides that evidence which is obtained as a result of illegal police activity may not be used against a defendant at his criminal trial" (People v. Arnau, 58 NY2d 27). The evidence of the defendant operating a motor vehicle in violation of VTL §1192 would not have come to light but for the unlawful request of Deputy Sheriff Liggett requiring defendant to exit his vehicle (Wong Sun, supra 371 US at 488).
When the legality of an arrest is challenged the People have the burden of going forward with evidence of probable cause and the Court must determine whether the People have met their burden using an analysis largely the same that is used in passing on an application for a search warrant (People v. Thomas, 121 AD2d 73, affd 70 NY2d 823). Once the People have met this burden the defendant has the ultimate burden of establishing the illegality of the police conduct by a fair preponderance of the credible evidence (People v. Spann, 82 AD3d 1013). All of the evidence gathered by Deputy Sheriff Liggett once the defendant exited his vehicle was obtained unlawfully and there was no attenuation, independent source, or inevitable discovery to purge the primary taint (People v. Gethers, 86 NY2d 159; People v. Johnson, 79 AD3d 905).
The defendant's motion to suppress all of the evidence regarding the defendant's commission of a VTL §1192 offense obtained after the defendant exited his vehicle is granted as the defendant has met his burden of establishing the illegality of the police conduct by a fair preponderance of the credible evidence.
The above constitutes the Decision and Order of this Court.
Signed thisday of June 2014 at Amsterdam, New York
ENTER
HOWARD M. AISON
CITY COURT JUDGE