Opinion
04-206.
Decided March 16, 2005.
EDWARD M. SHARKEY, ESQ., District Attorney, Cattaraugus County, New York, for the People.
CHARLES E. FAGAN, ESQ., Jamestown, New York, for the Defendant.
Defendant, who was indicted for DWI and related offenses, has moved to suppress all evidence obtained as a result of what she contends was an illegal stop. A hearing was held before this court on February 18, 2005. The court credits the testimony of Officer Previty and makes the following findings of fact and conclusions of law.
Findings of Fact
On June 14, 2004, shortly after 9:00 p.m., Officer Previty was near the intersection of Clinton Street and Wildwood Avenue in Salamanca, New York. He observed defendant's vehicle, which was headed north on Route 417, swerve over the fog line and nearly hit the curb, and then cross the double solid center line and nearly strike a truck. Previty followed and stopped the vehicle and the vehicle hit the curb as it pulled over. Upon approaching the vehicle, Previty observed that defendant, the operator of the vehicle, displayed the usual symptoms of intoxication and defendant was ultimately arrested for DWI.
Defendant's contention is that Wildwood Avenue was flooded with water because of the hard rain in the area between 8:00 p.m. and 9:00 p.m. She claims that the flooding conditions made it necessary for drivers to avoid the puddles and the puddles constitute "obstructions" in the road.
Defendant also alleges that Officer Previty admitted that he lied about what he observed. The court rejects defendant's contention that Officer Previty admitted he lied about the fog line during the hearing. What Officer Previty said is that the photographs that were shown to him at the hearing do not show a fog line where defendant was pulled over. He never said there was not a fog line at any point between where he first observed defendant's vehicle and the location where he pulled the vehicle over.
Conclusions of Law
The bottom line here is that any defendant is free to contend at trial that the reason for her erratic driving was the condition of the highway rather than the effect of excessive alcohol consumption. That simply becomes a jury question. The fact that there may be other explanations for a person's erratic driving has nothing to do with whether it is proper to stop a vehicle when an officer observes the erratic driving.
In People v. Ingle ( 36 NY2d 413, 369 NYS2d 67), the Court of Appeals banned the practice of randomly stopping a motor vehicle for a "routine traffic check." However, the court emphasized that a vehicle may be stopped when a police officer "reasonably suspects a violation of the Vehicle and Traffic Law" ( 36 NY2d at 414, 369 NYS2d at 67). The court further emphasized that the factual basis required to stop a vehicle is minimal, that an actual violation of the law need not be detected, that a vehicle in a "general state of dilapidation" might properly be stopped and that "all that is required is that the stop be not the product of mere whim, caprice or idle curiosity" ( Ingle, 36 NY2d at 420, 369 NYS2d at 74).
That the observation of a traffic violation justifies the stop of a motor vehicle seems almost too elementary to mention ( see, People v. Larkin, 281 AD2d 915, 723 NYS2d 293 [4th Dept. 2001]; People v. Dunnigan, 1 AD3d 930, 767 NYS2d 550 [4th Dept. 2003]; People v. Mundo, 99 NY2d 55, 750 NYS2d 837; People v. Davis, 233 AD2d 148, 649 NYS2d 434 [1st Dept. 1996]); People v. Siler, 288 AD2d 625, 733 NYS2d 501 [3rd Dept. 2001]). Thus, Officer Previty's observations of defendant's erratic driving provided ample reasonable suspicion to stop her vehicle.
Defendant's contention that the "reasonable suspicion" standard of Ingle has been replaced by a "probable cause" standard by Whren v. United States ( 517 US 806) and People v. Robinson ( 97 NY2d 341, 741 NYS2d 147) appears to have been accepted by one trial court in People v. Mandato ( 195 Misc2d 636, 760 NYS2d 809 [App. Term 2003]). This court, however, is not convinced that Robinson intended to elevate the standard for stopping a motor vehicle to probable cause and does not believe the Court of Appeals would have done so in dicta rather than by addressing the issue directly. Further, even if probable cause were required, Officer Previty observed defendant's vehicle commit several vehicle and traffic violations, which was sufficient probable cause to stop the vehicle.
The motion to suppress is denied. This decision shall constitute the order of the court.