Opinion
No. 1785–2013.
10-31-2014
The PEOPLE of the State of New York, v. Lawrence WHITE, Defendant.
Kalle Condliffe, Esq., The Legal Aid Society, Justin Daly, Assistant District Attorney, Office of the Bronx District Attorney.
Kalle Condliffe, Esq., The Legal Aid Society, Justin Daly, Assistant District Attorney, Office of the Bronx District Attorney.
Opinion
RICHARD L. PRICE, J.
Defendant is charged with operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192[2] and [3 ], both as “E” felonies, two counts of aggravated unlicensed operation of a motor vehicle in the first degree (VTL 511[3][a][i] ) and other related charges. Defendant moved for suppression of physical evidence recovered from his vehicle, the results of the chemical blood-alcohol breath test, and statements made by him to the arresting officer on the basis that they were unlawfully obtained in violation of the Fourth Amendment of the United States Constitution and article I, § 12, of the New York State Constitution, claiming they were improper and fruits of an unlawful arrest. Specifically, the defendant contends that: (1) his arrest was not supported by the requisite probable cause; (2) there was an insufficient basis to request he submit to a chemical breath test; (3) the results of the Intoxilyzer must be suppressed as a violation of VTL 1194(2)(a) ; (4) the search of his vehicle and recovery of a bottle of alcohol was unlawful; (5) his statements were the product of a custodial interrogation obtained without Miranda warnings.
The District Attorney contends that the defendant's arrest was based upon sufficient probable cause, that there was a legally sufficient basis upon which to administer the Intoxilyzer test, that it was administered in accordance with VTL 1194(2)(a), that the search of defendant's vehicle was proper, and that any statements made in connection with his arrest were not subject to the Miranda requirement.
On October 22, 2014, this court conducted a combined Mapp/Huntley/Dunaway hearing. The People called one witnesses: Police Officer Fredery Alvarez (PO Alvarez), assigned to the 50 Precinct. Upon the close of testimony, this court adjourned the matter until October 23, 2014, at which time oral argument was heard from both the defendant and the People. This court finds the testimony of PO Alvarez credible to the extent indicated herein. The defendant did not call any witnesses.
By decision and order dated November 8, 2013, Justice Judith Lieb, in deciding defendant's omnibus motion, ordered that a combined pre-trial Mapp/Huntley/Dunaway hearing be conducted. As part of that decision, Justice Lieb also ordered that a hearing be conducted to establish that the chemical breath test was administered in accordance with VTL 1194(2). Neither party, however, litigated this issue.
Based upon the evidence presented, and the parties' arguments, this court finds that: (1) defendant's arrest was supported by probable cause; (2) there was a reasonable basis to request he submit to a chemical blood-alcohol breath test; (3) the Intoxilyzer test was administered in compliance with VTL 1194(2)(a) ; (4) the People failed to satisfy their burden of establishing that the recovery of a bottle of E & J alcohol from his vehicle was lawful; and, (4) defendant' statement, “I had a few sips,” was the product of the unlawful search and obtained pursuant to a custodial interrogation absent the requisite Miranda waiver.
Findings of Fact
May 3, 2013, PO Alvarez, and his partner, PO Reyes, assigned to the 42 Precinct Bronx Impact Response Team, were dressed in full uniform and on routine patrol in a marked police vehicle (H.4). At approximately 10:13 p.m., POs Alvarez and Reyes were in the vicinity of Freeman Street and Southern Boulevard in Bronx County when PO Alvarez observed the defendant driving a Black, 2010 Chrysler with “heavily tinted windows” travelling westbound on Freeman Avenue. PO Alvarez, who was driving, testified that he followed the defendant's vehicle, stopping him approximately three blocks later on Freeman Avenue and Chisholm Street (H.6).
PO Alvarez testified that after pulling over the defendant, he approached the vehicle on the driver's side while PO Reyes approached on the passenger's side. PO Alvarez stated that upon approaching the vehicle, he asked the defendant for his license and registration. Unable to produce them, the defendant, who was alone in the vehicle, replied, “I am suspended” (H.7). PO Alvarez stated at that point he smelled the odor of alcohol emanating from the defendant's breath, and observed him to have “red ... bloodshot, watery eyes, [and] slurred speech.” PO Alvarez testified he then ordered the defendant out of the car, and instructed him to stand at the rear of the vehicle. Upon PO Alvarez's request for identification, the defendant produced an EBT benefit card bearing his photograph and date of birth. PO Alvarez then verified that the defendant's license had in fact been suspended (H.6).
At this point, according to PO Alvarez, PO Reyes recovered a bottle of E & J alcohol from inside the defendant's vehicle whereupon PO Alvarez asked the defendant if he had been drinking, to which the defendant replied, “I had a few sips” (H.7). PO Alvarez then asked the defendant whether he had been previously arrested for DWI, to which the defendant responded in the affirmative. PO Alvarez then tested the window tinting of the defendant's vehicle with a tint meter. The result was that it permitted only 27% light to pass through, which was well below the legal limit (H.8). PO Alvarez stated that he issued the defendant a summons for the illegal tinting. Sergeant Alston, who had arrived at the location, administered a Portable Breathalyzer Test (PBT) to the defendant (H.7, 13). The defendant blew a .10, was placed under arrest for operating a motor vehicle while under the influence of alcohol (H.9).
The defendant was subsequently transported to the 45 Precinct for the purpose of administering an Intoxilyzer breath test. PO Alvarez further verified that the defendant's license was indeed suspended, and Sergeant Alston administered the Intoxilyzer breath test; the defendant blew a .09 (H.9–10). PO Alvarez then transported the defendant to the 42 Precinct for arrest processing (H.11).
Conclusions of Law
Probable Cause
CPL 140.10(1)(b) provides, “[s]ubject to the provisions of subsection two, a police officer may arrest a person for: A crime when he has reasonable cause to believe that such person has committed such crime, whether in his presence or otherwise.” Probable cause, or reasonable cause, does not require proof “sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed ... The legal conclusion is to be made after considering all of the facts and circumstances together” (People v. Bigelow, 66 N.Y.2d 417, 423 [1985], quoting People v. McRay, 51 N.Y.2d 594, 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015 ; see also People v. Maldonado, 86 N.Y.2d 631, 635 [1995] ).
At a suppression hearing, the People have the burden of presenting evidence of reasonable cause to show the legality of the police conduct (People v. Baldwin, 25 N.Y.2d 66 [1969] ; People v. Malinsky, 15 N.Y.2d 86 [1965] ). The People must, therefore, demonstrate that the police acted with probable cause when they arrested the defendant (People v. Bouton, 28 N.Y.2d 130 [1980]; People v. Berrios, 28 N.Y.2d 361 [1974] ). Once this burden has been met, the defendant is responsible for proving the conduct was illegal (Berrios, 28 N.Y.2d at 361, 321 N.Y.S.2d 884, 270 N.E.2d 709 ; Baldwin, 25 N.Y.2d at 66, 302 N.Y.S.2d 571, 250 N.E.2d 62 ). Evidence obtained by an unconstitutional search is inadmissible and vitiates conviction (see Mapp v. Ohio, 367 U.S. 643 [1961] ).
In sustaining their burden, the People must demonstrate that the circumstances authorized the officer's behavior. In assessing the scope of intrusion permissible under a given set of circumstances, the New York Constitution contemplates weighing the officer's safety and the public interest against the individual's personal liberty (People v. De Bour, 40 N.Y.2d 210 [1976] [citing Terry v. Ohio's federal requirement of balancing the interests involved in a police inquiry] ). In contrast to the Federal Constitution's emphasis on officer safety in search and seizure matters, the New York Constitution affords greater protection to an individual's privacy (see Peter Preiser, 2010 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 140.50 ). Accordingly, New York has adopted standards considerably more protective of individual liberty than federal precedent mandates (id. ).
De Bour establishes the basic framework for measuring the intrusiveness of a police action in New York (id. ). The first level of intrusion permits a law enforcement officer to approach a citizen and request information provided there is an objective, credible, and articulable reason to do so (id. at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ). The second level, the common-law right of inquiry, permits a momentary stop when there is a “founded suspicion that criminal activity is afoot” (id. ). Under the third level, an officer may forcibly stop and detain a person when such officer has a reasonable suspicion that the individual has committed, is committing, or is about to commit a felony or misdemeanor (id. ). Finally, an officer may initiate an arrest when there is probable cause to believe that an individual has committed, is committing, or is about to commit a crime (id. ).
Regarding automobile stops, the police must possess an articulable basis for requesting information from occupants of a vehicle that has been approached but not seized (People v. Ocasio, 85 N.Y.2d 982 [1995] ). In other words, there must be an objective, credible reason not necessarily indicative of criminality (id. ). Initial questioning, limited to a request for identification, is consistent with a request for information (People v. Hollman, 79 N.Y.2d 181, 185, 191 [1992] ). Therefore, an officer's demand for a license constitutes a level-one request for information (People v. Thomas, 19 A.D.3d 32, 792 N.Y.S.2d 472 [1st Dept 2005] ).
Here, the People presented sufficient evidence that the approach of the defendant was proper based upon the observations of PO Alvarez. He observed the defendant driving with heavily tinted windows in violation of VTL 375(12)(a)-(b). PO Alvarez further observed the defendant, who was the sole occupant of the vehicle, to have red, watery, bloodshot eyes with an odor of alcohol emanating from him, and slurred speech. And, in response to PO Alvarez's request for the defendant's license and registration, the defendant responded that it had been suspended.
Defendant contends the absence of any testimony that PO Alvarez remembers the specific window that was tinted or whether the windows were up or down prevents him from affirmatively establishing that he indeed stopped him as a result of a traffic violation. This, however, is simply incorrect.
The record sufficiently establishes that the window was tinted in violation of the Vehicle and Traffic Law. PO Alvarez's initial observations regarding such tinting, verification that the defendant's license had been suspended, the odor of alcohol emanating from him his bloodshot and watery eyes, slurred speech, along with the results of both the PBT and Intoxilyzer provided PO Alvarez with reasonable suspicion that the defendant was intoxicated, and had recently committed a violation of the Vehicle and Traffic Law (see DeBour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 ; People v. Ingle, 36 N.Y.2d 413 [1975] ). His conclusion, then, that the there was probable cause to arrest the defendant for operating a motor vehicle while intoxicated or for violating VTL 375 was entirely justified (see Bigelow, 66 N.Y.2d at 423, 497 N.Y.S.2d 630, 488 N.E.2d 451 ; People v. Goodell, 164 A.D.2d 321, 323–324, 565 N.Y.S.2d 929 [4th Dept 1990] ; affd, 79 N.Y.2d 869 [1992] ; People v. Farrell, 89 A.D.2d 987, 988, 454 N.Y.S.2d 306 [2d Dept 1982] ). Accordingly, there was no need for the People to provide proof of which window the officer tested or observed to be tinted.
Further, since PO Alvarez's observations provided reasonable cause to believe the defendant had operated a motor vehicle while intoxicated, it follows that his arrest and subsequent request that he submit to a chemical blood-alcohol breath test were proper (see People v. Johnson, 134 Misc.2d 474, 511 N.Y.S.2d 773 [Crim Ct, Queens County 1987, Johnson J.] ). Defendant's challenge to the legality of his stop, arrest, and basis for submission to an Intoxilyzer breath test therefore fails.
Finaly, observations by police officers, and chemical analysis tests, or the refusal thereof (VTL 1194[2][a], [b] ) present no expectation of privacy (see Katz v. U.S., 389 U.S. 347 [1967] ; People v. Mercado, 68 N.Y.2d 874 [1986] ). As such, defendant's motion to suppress the results of his Intoxilyzer chemical blood-alcohol analysis test as the having been requested without a reasonable basis to do so is therefore denied.
Chemical Blood–Alcohol Content Test
In his omnibus motion, defendant also moved to suppress the chemical breath test claiming that the results were obtained in violation of the so-called two-hour rule contained in VTL 1194(2)(a). This court disagrees. Certainly, where a chemical breath test is administered within two hours of an arrest, implied consent is deemed to have been given. When more than two hours have passed between an arrest and the administering of the Intoxilyzer test, however, the Court of Appeals held that “the two-hour limitation contained in Vehicle and Traffic Law § 1194(2)(a) has no application ... [when the] defendant expressly and voluntarily consented to administration of the ... test” (People v. Atkins, 85 N.Y.2d 1007, 1008–9 [1995] ). Citing its prior decision in People v. Ward (307 N.Y. 73 [1974] ), the Court stated that the “deemed consent” statute “had no application where the defendant expressly and voluntarily consented” to the test (see Atkins, 85 N.Y.2d at 1008, 630 N.Y.S.2d 965, 654 N.E.2d 1213 ). It further noted that the statute was “concerned, not with those who consented to take the test, but those who were required to submit,” and added that the court found it “difficult to perceive any necessity for the protections embodied in [the deemed consent statute] where the driver freely volunteers to take the test” (Atkins at 1008–9, 630 N.Y.S.2d 965, 654 N.E.2d 1213 ). It appears, then, that when an Intoxilyzer test is administered more than two hours after an arrest, admissibility of the test results rests on whether express consent was given. Where express consent is not established, then the reliability of those results must be shown.
Here, defense counsel, despite having sought and obtained a hearing on this issue, neither litigated nor argued it. More problematically, the People ignored it. As noted, it is People who bear the initial burden at suppression hearings. Yet, the People elicited no testimony and offered no evidence that the Intoxilyzer breath test was administered in compliance with VTL 1194(2)(a). Such disregard aside, this court takes judicial notice of the accusatory instrument, the IDTU Intoxilyer report, and other related documents on file, which indicate that PO Alvarez first stopped the defendant on May 3, 2013, at 10:13 PM, and further indicate that the Intoxilyzer test was administered on May 3, 2013, at 11:29 PM. Notwithstanding the People's failure to satisfy their burden on this issue, it appears the test was administered in accordance with VTL 1194(2)(a). And, given that defendant neither objected to such failure nor sought suppression as a consequence of it, suppression of the Intoxilyzer test results is denied.
Recovery of the E & J Bottle of Alcohol
Upon approaching an otherwise lawfully stopped vehicle, a law enforcement officer is permitted to open any of its doors, require the defendant to turn the ignition off, or order him/her to step out (People v. David L, 56 N.Y.2d 698, 451 [1982] ; People v. Diaz, 41 N.Y.2d 876 [1977] ; People v. Robinson, 74 N.Y.2d 773 [1989] ). New York courts have held that once a vehicle's occupants are outside, a search is conducted when an officer “breaches the plane of the doorway” (People v. Hernandez, 656 N.Y.2d 12 [1st Dept 1997] ). Of course, an officer may only conduct such a search when there is a lawful basis to do so. Here, the paucity of PO Alvarez's testimony regarding the recovery of the E & J bottle leaves this court to speculate whether it was observed in plain view upon his approach, discovered pursuant to a lawful search, or recovered pursuant to an otherwise unlawful search. Given the dearth of evidence presented on this issue, the People failed to establish the legality of its recovery.
a. Automobile Exception
Generally, there is a reduced expectation of privacy in automobiles such that in certain cases, they are exempt from the warrant requirement (Pennsylvania v. Labron, 518 U.S. 938 [1996] ). In assessing the propriety of the “automobile exception” to the warrant requirement, the Court of Appeals enumerated the proper inquiry as “whether the circumstances gave the officer probable cause to search the vehicle (People v. Blasich, 73 N.Y.2d 673 [1989] ) (emphasis supplied).
The defendant argues this exception is inapplicable because the defendant was secured outside and at the rear of the vehicle. PO Alvarez neither articulated a fear for his safety nor a suspicion that defendant's vehicle contained any evidence or contraband. Notwithstanding the assistant district attorney's argument that “the officers have to search the vehicle to make sure that there is no bombs in it, to make sure the vehicle is safe to keep at the precinct, the police officers would have recovered this E & J bottle” (H.62), not one shred of factual support evidence was elicited from PO Alvarez to support it. The mere unsupported assertion by the People that officers were “only doing their jobs,” that the officer “didn't say that they searched the whole vehicle ... [and] didn't say they were looking for any type of contraband” (H.61) is woefully insufficient to rely on the automobile exception.
b. Search Incident to Arrest
When officers have reason to believe evidence related to a crime for which the defendant was arrested is located in the passenger compartment of a vehicle, the police may search it in (Arizona v. Gant, 556 U.S. 332 [2009] ). To be clear, Gant flatly rejected the wholesale search of vehicle passenger compartments whenever a suspect was arrested. Rather, a permissible search required some showing it was necessary to ensure the officer's safety and/or preclude the suspect from destroying evidence, or, as indicated, be reasonably believed to contain evidence related to the crime (Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 ). Such showing, of course, must be supported by specifically articulated facts.
Here, the defendant was stopped for driving with unlawfully tinted windows, and issued a summons (H.9). PO Alvarez testified that he observed indicia of intoxication upon speaking with the defendant and instructing him to step out of the vehicle (H.7). As noted, PO Alvarez provided no testimony that the safety of him or his partner were ever at risk. More problematically, though, no testimony was elicited from PO Alvarez as to his or PO Reyes' belief the passenger compartment contained evidence that the defendant was operating a vehicle while intoxicated. There was no testimony that either of them observed anything in the passenger compartment. There was no testimony that the defendant made any furtive movement or reached for an object. The fact that the defendant was observed to have bloodshot and watery eyes, slurred speech and smelled of alcohol surely provided probable cause that he was driving drunk. But that, by itself, hardly provides a basis to believe he was consuming alcohol contemporaneous with driving; it is nothing beyond speculative.
The People would have this court believe that the basis for PO Reyes' search was defendant's statement that he “had a few sips.” In his post-hearing argument, the assistant district attorney explained:
And these E & J bottles are completely relevant to the proceeding at hand because it verifies the defendant's own statement that he had sips of E & J, and verifies that the defendant was possibly intoxicated at the time that he was driving this vehicle (H.62).
True, the defendant stated that he “had a few sips,” but that was in response to PO Alvarez asking whether he had been drinking, which was precipitated by PO Reyes' recovery of the E & J bottle. As for any facts and circumstances supporting PO Reyes' basis to search the passenger compartment, there simply are none in the record.
c. Inevitable/Inventory Discovery
The People's argument that recovery of the E & J bottle would have been subject to inevitable discovery or an inventory search also fails. The assistant district attorney asserted:
[T]he fact is when the defendant's [sic] being placed under arrest, a police officer has to drive his car to the precinct no matter what, and the police officer would have seen the E & J bottles inside the vehicle at that point.... So whether it happened at the scene or whether it happened on the way to the 4–5 or the 4–2 Precinct or whether it happened at the precinct later on when the officers have to search the vehicle to make sure that there is no bombs in it, to make sure the vehicle is safe to keep at the precinct the police officers would have recovered this E & J bottle (H.61–62).
First, as a matter of law, the “inevitable discovery” exception to the exclusionary rule, established in People v. Fitzpatrick (32 N.Y.2d 499 [1973] ), is inapplicable. While the exclusionary rule prohibits use in court of evidence procured by officers in violation of the constitutionally-protected rights of the accused (Wong Sun v. United States, 371 U.S. 471, 485 [1963] ), the inevitable discovery doctrine permits admission of evidence discovered through unlawful police conduct provided the prosecution establishes by a very high degree of probability that, had the illegal police conduct not occurred, a lawful series of events would have taken place that would have led to the inevitable discovery of the evidence (Fitzpatrick at 506, 346 N.Y.S.2d 793, 300 N.E.2d 139 ).
Significantly, the Court of Appeals narrowed the inevitable discovery doctrine to exclude primary evidence, applying it only to secondary evidence (the product of primary evidence) only (see, e.g., People v. Stith, 69 N.Y.2d 313, 314 [1987] [holding that the officers' discovery of a gun pursuant to an illegally obtained statement was so attenuated from the illegal police action so as not to significantly “taint” the evidence] ). Here, the bottle of alcohol was obtained as a direct result of PO Reyes' unlawful search. Even if the police would have inevitably searched the vehicle and discovered it at the precinct, such discovery would be a primary result of the illegal police conduct, and therefore not subject to the inevitable discovery rule (Nardone v. United States, 308 U.S. 338, 341 [1939] ).
Nevertheless, it is significant to note that no testimony was elicited supporting the People's claim that officers drove the vehicle to the precinct, searched for bombs, or ultimately would have discovered the bottle. The People offered no property invoice vouchers and elicited no testimony that the defendant's vehicle was seized, searched, impounded or vouchered. In fact, according to defense counsel, the defendant's wife drove the vehicle home from the location where he had been stopped, a position unrefuted by the People.
Statements
Fundamental to American jurisprudence is the precept that any custodial interrogation conducted by law enforcement agents must be preceded by the warnings enunciated by the Supreme Court of the United States in Miranda v. Arizona (384 U.S. 436 [1966] ). Specifically, such agents must inform a person in custody of his right to remain silent and to have an attorney present during any questioning (id ). A suspect may, of course, waive his Miranda rights by voluntarily, knowingly, and intelligently relinquishing those rights after having been made aware of them (People v. Anderson, 42 N.Y.2d 35 [1977] ; People v. Leonti, 18 N.Y.2d 384 [1966], cert denied 389 U.S. 1007 [1967] ; People v. Medina, 123 A.D.2d 331, 506 N.Y.S.2d 226 [2d Dept 1986] ). The burden, however, of establishing the voluntariness of a suspect's statement beyond a reasonable doubt at a Huntley hearing is on the People (People v. Holland, 48 N.Y.2d 861 [1979] ; Anderson, 42 N.Y.2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318 ; People v. Huntley, 15 N.Y.2d 72 [1965] ) and here, this courts finds they satisfied it only as to the defendant's statement “I am suspended.”
a. Custody
In deciding whether a defendant was in custody prior to receiving his warnings, the subjective beliefs of the defendant are not to be the determinative factor. The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant's position (People v. Yukl, 25 N.Y.2d 585, 589 [1969] ; People v. Rodney P., 21 N.Y.2d 1 [1969] ; People v. DeJesus, 32 A.D.3d 753, 821 N.Y.S.2d 551 [1st Dept 2006] ; People v. Robbins, 236 A.D.2d 823, 654 N.Y.S.2d 494 [4th Dept], lv denied 90 N.Y.2d 863 [1997] ; People v. Lynch, 178 A.D.2d 779, 781, 578 N.Y.S.2d 268 [3d Dept 1991), lv denied 79 N.Y.2d 949 [1992] ).
In making such an assessment, courts must consider the “totality of the circumstances” (People v. Centano, 76 N.Y.2d 837 [1990] ; see also Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). Among such circumstances is whether the defendant voluntarily appeared at, or accompanied officers to, the police precinct and whether questioning is conducted in a non-coercive atmosphere (People v. Acquaah, 167 A.D.2d 313, 562 N.Y.S.2d 62 [1st Dept 1990], app denied 78 N.Y.2d 961 [1991] ; People v. Davis, 161 A.D.2d 395, 555 N.Y.S.2d 328 [1st Dept 1990], app denied 76 N.Y.2d 955 [1990] ). Based on the defendant's admission that his license was suspended in conjunction with PO Alvarez's observations that he was intoxicated, it is axiomatic that the defendant was in custody after he had been removed from the vehicle.
b. Interrogation
A suspect is subjected to interrogation when he is confronted with “express questioning or its functional equivalent” (Rhode Island v. Innis, 446 U.S. 291 [1980] ). The “functional equivalent” of express questioning is “words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect” (Innis at 301). The Court of Appeals similarly held that
[w]hat constitutes “interrogation” of a suspect ... is determined not by the subjective intent of the police, but by whether an objective observer with the same knowledge concerning the suspect as the police had would conclude that the remark or conduct of the police was reasonably likely to elicit a response (People v. Ferro, 63 N.Y.2d 316 [1984], cert denied 427 U.S. 1007 [1985] ).
Statements made at a preliminary stage of an investigation in response to a law enforcement agent's general inquiry are not usually considered the product of an interrogation (People v. Johnson, 59 N.Y.2d 1014 [1983] ; People v. Chestnut, 51 N.Y.2d 14 [1980] ; People v. Huffman, 41 N.Y.2d 29 [1976] ). Also exempted from interrogation are spontaneous statements that were essentially forced upon law enforcement agents and not the product of any inducement, provocation, encouragement or acquiescence on their part (People v. Maerling, 46 N.Y.2d 289 [1978] ).
Thus, as to the propriety of the defendant's statement “I am suspended,” this court concludes it was not the product of a custodial interrogation (see People v. Zapata, 41 A.D.3d 109, 837 N.Y.S.2d 110 [1st Dept 2007] ; People v. Garcia, 19 A.D.3d 200, 797 N.Y.S.2d 48 [1st Dept 2005] ). Defendant's statement that he “had a few sips,” however, was made in response to a custodial interrogation by PO Alvarez.
When questioning is conducted in a coercive atmosphere, the defendant is considered to be “in custody” and interrogated for the purposes of Miranda (People v. Acquaah, 167 A.D.2d 313, 562 N.Y.S.2d 62 [1st Dept 1990], app denied 78 N.Y.2d 961 [1991] ; People v. Davis, 161 A.D.2d 395, 555 N.Y.S.2d 328 [1st Dept], app denied 76 N.Y.2d 955 [1990] ). Ostensibly, PO Alvarez's purpose for asking the defendant whether he had been drinking was to confirm his suspicion that the defendant was intoxicated. Since PO Reyes had already recovered the bottle, the defendant would have been hard pressed to respond in a manner other than the affirmative. His interrogation of the defendant, then, was subject to the dictates of Miranda.
With regard to defendant's statement that he had been previously arrested for DWI, the People concede it would be unduly prejudicial and therefore conceded it would be inappropriate to introduce at trial.
c. Fruit of the Poisonous Tree
Evidence obtained as an indirect result of a Fourth Amendment violation is inadmissible under the “fruit of the poisonous tree” doctrine (Nardone, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 ). As indicated, the defendant's statement that he “had a few sips” was elicited from the defendant immediately upon PO Reyes search yielding the E & J bottle. Since his court concluded the People failed to establish the lawfulness of that search, and that search precipitated PO Alvarez asking the defendant whether he had been drinking, it was unlawfully obtained separate and apart from it having also been obtained in violation of Miranda.
Conclusion
This court finds that viewing the evidence in the light most favorable to the People (see People v. Williams, 84 N.Y.2d 925 [1994] ; see also People v. Contes, 60 N.Y.2d 620 [1983] ), they have satisfied their burden of demonstrating by a preponderance of the evidence that the stop and subsequent arrest of the defendant was lawful, that the request for a chemical blood-alcohol breath test was proper, and that it was administered in accordance with VTL 1194(2). Additionally, defendant's statement, “I am suspended,” was not the product of a custodial interrogation. Defendant's motion to suppress in this regard is denied.
For the reasons set forth above, however, defendant's motion to suppress the bottle of E & J alcohol and his subsequent statement, “I had a few sips,” along with any testimony relating to them is granted.
This shall constitute the decision and order of this court.