Opinion
07-06-0113.
Decided December 31, 2007.
D. James O'Neil, Esq., O'Neil Burke, LLP, Esqs., Attorneys for Defendant, Poughkeepsie, New York.
William V. Grady, Esq., Allison LaBate, Esq., Of Counsel, Dutchess County District Attorney, Poughkeepsie, New York.
The defendant, Matthew Harper, is charged with two counts of Driving While Intoxicated in violation of VTL § 1192 (2), (3), and Failure to Keep Right in violation of VTL § 1120(a). A pre-trial hearing was ordered to determine defendant's motion to suppress. On September 5, 2007, a Dunaway/Huntley/Mapp hearing was held to determine the admissibility at trial of evidence obtained against the defendant, including chemical test results and statements.
The two witnesses at the hearing were Sgt. Robert J. Benson and Officer Jason Ruscillo of the Hyde Park Police Department, who testified credibly on behalf of the People. Based upon the evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.
Findings of Fact
In the early morning hours of June 7, 2007 at about 1:30 a.m., Sgt. Benson and Officer Ruscillo were on patrol in separate, marked Hyde Park patrol cars working the "A line" tour of duty from 11:00 p.m. to 7:00 a.m. They were dispatched to a domestic incident in progress at the Building 9 of the Hyde Park Ledges apartment complex on Route 9 in the Town of Hyde Park, New York. Upon arrival, they came upon the defendant who was outside the apartment building. He appeared to be very upset and was crying. Sgt. Benson did not recall the defendant showing any signs of intoxication, such as odor of alcohol, stumbling or staggering, glassy or bloodshot eyes. Officer Ruscillo observed the defendant acting in a confused manner. He further detected the odor of alcohol from the defendant and that he had glassy eyes. The officer believed that defendant appeared to be intoxicated.
Further investigation at the scene revealed that the defendant's girlfriend wanted to leave, but he did not want her to go. Defendant told the police that his girlfriend had been drinking alcohol and should not be allowed to drive. The girlfriend's departure was delayed because she was unable to find her cell phone which the defendant stated he had thrown into the bushes. Sgt. Benson assisted for 10-15 minutes in the search for the cell phone. After a fruitless search, the defendant was found to be in possession of the cell phone which was returned to the female. Prior to allowing her to get in her car and drive away, the police gave her an Alco-Sensor test with negative results. No charges were filed against anyone.
After Sgt. Benson left The Ledges, he went to another nearby apartment complex at Royal Crest Apartments located across Route 9 on Scenic Drive. He then observed a gray vehicle with very black windows traveling southbound on Route 9. The windows were so dark that he could not see into the vehicle. While following the vehicle, he observed it cross the yellow line in the middle of the road on three occasions. Each time, the car moved to the left with both tires on the driver's side on the double yellow line in the middle of the road. This occurred in the vicinity of St, James Church, the Hyde Park Town Hall and Dunkin' Donuts. Upon calling in the license plate (Colorado 252 KAJ), it came back as belonging to the defendant, Matthew D. Harper. He pulled over the vehicle, a 2006 Nissan, at about 2:00 a.m. and recognized the driver as the same individual he had encountered at The Ledges. The defendant said he was going to Darby O' Gills, a local bar. The defendant's license and registration was valid. No open containers of alcoholic beverages were observed. Since Sgt. Benson smelled alcohol on defendant's breath, and he had watery, glassy eyes, Sgt. Benson turned the defendant over to Officer Ruscillo for further DWI investigation. He did not administer any Miranda rights at the scene.
Sgt. Benson cited the defendant for Failure to Keep Right in violation of VTL § 1120(a). He did not write a ticket for excessive window tint, as the HPPD tint meter at the police station had dead batteries, and he did not want to write the ticket in the absence of corroboration that a tint meter would have provided.
Officer Ruscillo has been a police officer with the Hyde Park Police Department for two years. He has experience and training in DWI detection and has made 30-35 arrests for Driving While Intoxicated. At about 2:00 a.m. on June 7th, he heard over his radio that Sgt. Benson was involved in a traffic stop with the same individual that had been in the domestic incident at The Ledges a short time before. When Officer Ruscillo arrived at the scene, Sgt. Benson turned over the defendant to him for DWI investigation. He spoke with the defendant who advised him he had not been drinking, and was going to Darby O' Gills. Officer Ruscillo observed the defendant to have glassy eyes, slurred speech and the odor of alcohol on his breath. He had him exit the vehicle to perform several field sobriety tests. He did not advise the defendant of his Miranda rights at the scene.
He first gave the defendant the Horizontal Gaze Nystagmus test. The defendant failed the test in that his eyes lacked smooth pursuit at maximum deviation. The defendant failed the walk and turn test by stepping off the line numerous times and losing his balance. He also failed the one leg stand by raising his arms for balance and miscounting twice. The defendant tested positive for alcohol on the Alco-Sensor test. Officer Ruscillo did not have the defendant perform the Romberg balancing test, the alphabet test, or the finger to nose test.
Based upon the defendant's actions, his slurred speech, the odor of alcohol on his breath, his glassy, bloodshot eyes, his failure to perform any of the three field sobriety tests given, and the positive test on the Alco-Sensor test, defendant was arrested for Driving While Intoxicated.
At the police station, the defendant was given the Miranda warnings at 2:26 a.m. and declined to answer many questions. He stated again he had been driving from his home at The Ledges to Darby O' Gills.
Conclusions of Law
A traffic stop constitutes a limited seizure of the person of each occupant of the vehicle which, to be constitutional, must be justified at its inception. People v. Banks, 85 NY2d 558, 562 (1995), cert. den. 516 U.S. 868 (1995). Sgt. Benson's observation of the defendant's failure to keep to the right of the roadway by driving onto the double yellow line in the middle of Route 9 on three separate occasions within a short distance and time frame provided the officer with a lawful basis for stopping the vehicle. People v. Robinson, 97 NY2d 341 (2001); People v. Wright , 42 AD3d 942 (2nd Dept., 2007); VTL § 1120(a).
Probable cause or reasonable cause to arrest is a common sense standard which has emerged from the case law and has been statutorily defined by CPL § 70.10(2). The terms "reasonable" and "probable" are used interchangeably.
"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. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay. CPL § 70.10(2)
The legal standard for determining probable cause is set forth in People v. Carrasquillo, 54 NY2d 248 (1981) which states as follows:
In passing on whether there was probable cause for an arrest, we consistently have made it plain that the basis for such 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. 54 NY2d at 252 (1981)
A finding of probable cause does not require the same quantum of proof necessary to sustain a conviction, or to establish a prima facie case. Rather it need merely appear more probable than not that a crime has taken place and that the one arrested is the perpetrator. People v. Hill, 146 AD2d 823, 824 (3rd Dept., 1989); see People v. Attebery, 223 AD2d 714, 715 (2nd Dept., 1996). Moreover, in determining whether a police officer has probable cause for an arrest, 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 , 306-307 (2nd Dept., 2004), People v. Bothwell, 261 A.D. 232, 234 (1st Dept., 1999), quoting People v.; Graham, 211 AD2d 55, 58-59 (1st Dept., 1995). In making the determination to arrest, the officer is not obligated to eliminate all possible innocent explanations for incriminating facts [ see, People v. Mercado, 68 NY2d 874, 877 (1986); People v. Daye, 194 AD2d 339, 340 (1st Dept., 1993)]. Moreover, "[a] party may act with probable cause even though mistaken . . . if the party acted reasonably under the circumstances in good faith." People v. Colon, 60 NY2d 78, 82 (1983); Villalobos v. County of Nassau, 15 Misc 3d 135 (A), 839 N.Y.S.2d 437 (App. Term, 9th and 10th Jud. Dists., 2007)
In People v. Farrell, 89 AD2d 987 (2nd Dept., 1982), the Appellate Division, Second Department articulated the reasonable cause standard as it applies to drinking and driving offenses. The inquiry is:
[W]hether, viewing the facts and circumstances as they appeared at the time of arrest, a reasonable person in the position of the officer could have concluded that the motorist had operated the vehicle while under the influence of intoxicating liquor. 89 AD2d at 988 (2nd Dept., 1982)
In People v. Bratcher, 165 AD2d 906 (3rd Dept., 1990), lv. den. 77 NY2d 958 (1991) the Appellate Division, Third Department concluded that there was a valid arrest for driving while intoxicated where the police officer observed defendant's car weaving in its own lane and crossing over into the opposite lane of travel. Thereafter, the officer had "ample opportunity" to observe that the defendant had red, watery eyes, slurred speech, a strong odor of alcohol on his breath, a staggering walk, and a sway while standing.
In People v. McCarthy, 135 AD2d 1113 (4th Dept., 1987), probable cause was established where the defendant's eyes were bloodshot, his speech slurred, and there was a strong odor of alcohol coming from the car. Also, the defendant was given a roadside Alco-Sensor test with positive results. Accord, People v. Blajeski, 125 AD2d 582 (2nd Dept., 1986).
With respect to a roadside Alco-Sensor screening test, it has been held sufficiently reliable for use in determining the presence of alcohol on a pass/fail basis, and to be a factor in a determination as to whether a police officer has probable cause to arrest an individual for driving while intoxicated. People v. Thomas, 121 AD2d 73 (4th Dept., 1986), aff'd 70 NY2d 823 (1987); Smith v. Commissioner of Motor Vehicles, 103 AD2d 865, 866 (3rd Dept., 1984); People v. Schnook, 16 Misc 3d 1113 (A), 2007 WL 2108043 (Suffolk Dist. Ct., 2007) These cases stand for the proposition that a properly functioning, properly administered Alco-Sensor test can help establish probable cause for the arrest of a DWI suspect, but it cannot, in and of itself, establish probable cause for such arrest. Gerstenzang Sills, § 7:14, "Handling a DWI Case in New York — 2007-2008 Edition (Thomson-West, 2007). Such an Also-Sensor screening test is not admissible at trial in a DWI prosecution because the test results are not sufficiently reliable to prove intoxication (i.e. the blood alcohol content reading). People v. Thomas, supra.
The Court concludes that Sgt. Benson initial stop of the defendant for a moving traffic infraction of failing to keep right by crossing onto the double yellow line three times in a short period of time and distance was proper. The reliability of the information conveyed by Sgt. Benson to a fellow officer, Office Ruscillo, may be assumed by the arresting officer in the field. People v. Lypka, 36 NY2d 210 (1975); People v. Ball, 141 AD2d 743, 744 (2nd Dept.,1988).
Officer Ruscillo had probable cause to arrest the defendant for Driving While Intoxicated based upon the indicia of alcohol consumption such as the odor of alcohol on the breath, and watery, glassy eyes, defendant's failure to pass the Horizontal Gaze Nystagmus test, the walk and turn test, and the one leg stand test, along with a positive Alco-Senor screening test for the presence of alcohol.
Officer Ruscillo had also closely observed the defendant at The Ledges outside his apartment for a period of approximately 20 minutes, less than one hour prior to the traffic stop. He had made an initial conclusion at that time that the defendant was intoxicated, based on the odor of alcohol from the defendant, glassy eyes, and his confused manner. These close and direct observations by an experienced and trained police officer, both at The Ledges and at the roadside traffic stop, were sufficient to provide the officer with reasonable grounds to believe that defendant had been driving in violation of VTL § 1192, and provided probable cause for the defendant's arrest for Driving While Intoxicated. The evidence obtained as a result of the lawful arrest should not be suppressed.
A defendant who has been temporarily detained pursuant to a routine traffic stop, including suspected driving while intoxicated offenses, is not considered to be in custody for Miranda purposes. People v. Parris , 26 AD3d 393 (2nd Dept.), lv. den. 6 NY3d 851 (2006); People v. Myers, 1 AD3d 383 (2nd Dept., 2003), lv. den. 1 NY3d 631 (2004); People v. MacKenzie , 9 Misc 3d 129 (A), (App. Term, 9th and 10th Jud. Dists., 2005). A reasonable initial interrogation during such stop is therefore held to be merely investigatory and does not require Miranda warnings. See, People v. Mackenzie, supra.; People v. Mathis, 136 AD2d 746 (2nd Dept), lv. den., 71 NY2d 899 (1988). Moreover, Miranda warnings are not required before the administration of performance tests. People v. Hager, 69 NY2d 141 (1987); People v. Myers, supra at 383.
Sgt. Benson and Officer Ruscillo's temporary roadside detention of the defendant, after defendant was lawfully stopped for a traffic infraction, was permissible and non-custodial in nature, and the officers were not required to administer Miranda warnings before conducting their roadside investigation.
At the police station, following defendant's arrest, Miranda warnings were given, and the defendant executed a written Miranda Warning waiver form at 2:26 a.m. (People's Exhibit "2"). He subsequently declined to answer any questions other than that he had been driving from home to Darby O' Gills.
The Court accordingly determines that both the roadside statement and police station statement were voluntary and admissible at trial. Neither was an admission nor incriminating statement in any event. To the contrary, the defendant denied drinking to Officer Ruscillo during the roadside detention
Based upon the above findings of fact and conclusions of law, the defendant's motion to suppress physical evidence and statements is denied in all respects.