Opinion
18-2011
08-16-2011
The People of the State of New York v. Wes Wallgren, Defendant.
Hon. James R. Farrell Sullivan County District Attorney LHC Sullivan County Courthouse By: Bonnie Mitzner, Esq., of counsel Attorney for the People Greenwald Law Offices By: Gary Greenwald, Esq., of counsel Attorney for the Defendant
Hon. James R. Farrell
Sullivan County District Attorney
LHC Sullivan County Courthouse
By: Bonnie Mitzner, Esq., of counsel
Attorney for the People
Greenwald Law Offices
By: Gary Greenwald, Esq., of counsel
Attorney for the Defendant
Frank J. LaBuda, J.
After a joint pre-trial Huntley and Probable Cause suppression hearing that concluded on July 20,2011, decision was reserved and the People and the defendant were ordered to submit post-hearing findings of fact and conclusions of law.
The defendant submitted a Post-hearing Memorandum of Law.
The People submitted a Findings of Fact and Conclusions of Law.
The defendant thereafter submitted a Post-Hearing Reply Memorandum of Law.
On January 26, 2011, Defendant Wes Wallgren was charged by Indictment #18-2011 with five counts including, driving while intoxicated (count one), resisting arrest (count two), harassment in the second degree (count three), parking upon pavement (count four), and possession of open containers in a motor vehicle (count five).
Defendant moved for suppression of all statements made to a law enforcement officer and suppression of the arrest and all evidence seized pursuant to that arrest.
This Court thereafter, conducted a joint Huntley and Probable Cause suppression hearing.
The credible and believable testimony at said hearing established the following facts. On December 4, 2011, around 1:00 in the morning, New York City Department Of Environmental Protection (DEP) Police Officers Einsfeld and Czenszak were concluding a security check of the Neversink chamber. (New York City Environmental Police patrol all lands and reservoirs thereon owned by New York City). While finishing their security check, the two officers observed a slow-moving vehicle traveling on Hasbrouck Road toward the intersection of Hasbrouck Road and State Route 55 near the Neversink Reservoir (Neversink chamber). The area is rural and unlighted.
The vehicle traveled and stopped between four to six times before reaching the stop sign.
Thereafter, the vehicle made a legal right-hand turn towards Grahamsville. The vehicle continued in the same stop and start manner before pulling over to the side of the road.
Both officers testified that the defendant did not violate any vehicle and traffic laws and they had no police investigative reason to stop or approach the vehicle.
Both Officers, in their marked DEP police vehicle, testified that when they pulled up behind the defendant's vehicle, they intended to conduct a "welfare check". Officer Einsfeld stated that a welfare check concerned the welfare or the well-being of a person. Both officers approached the vehicle, with Officer Einsfeld approaching the driver's side and Officer Czenszak approaching the passenger's side.
See, Hearing Transcript pages 8, 28, 62 , 203-204 and 206.
The law in New York State is clear that the police may approach a person and request basic information, such as identification and destination, as long as they do so "...in a non-threatening manner provided that they have an objective credible reason to approach, not necessarily indicative of criminality." People v Savage, 59 AD3d 817 (3rd Dept., 2009), lv denied 12 NY3d 920(2009).
The police interaction may involve approaching an already stopped vehicle, People v Jaime, 171 AD2d 884 (2nd Dept., 1991); People v Heston, 152 AD2d 999 (4th Dept., 1989) or approaching a person in a street encounter People v Hollman, 79 NY2d 181 (1992); People v Savage, supra.
This Court is mindful and in agreement with the duty of the police to "protect and serve." The police have a duty to protect a community not just from criminality but to aid and protect people and property which may need the assistance of the police for safety or injury purposes.
However, as stated above, the police must have an objective credible reason to approach and not mere whim or pretext.
Officer Einsfeld, who was the officer who made the initial contact with the defendant, made no inquiries about the defendant's welfare. Officer Einsfeld testified that after the defendant said "good evening" to him, he may or may not have responded "good evening" to the defendant. In either case, he immediately asked the defendant for his license and registration without making any inquiry as to the welfare of the defendant or his vehicle.
On the People's direct examination, Officer Einsfeld testified that upon the defendant's greeting to him he detected a strong odor of alcohol on his breath. However, on cross examination Officer Einsfeld undermined his own testimony when he testified that the defendant's greeting to him was "fine" and that he was okay.
Questions Officer Einsfeld asked of the defendant were not questions that concerned a welfare stop; instead, they were specific questions that were investigative in nature of a DWI stop. These questions were not in regard to the welfare of either the defendant or his vehicle, which was the officers' stated reason for pulling up behind the vehicle and activating his take down lights and spotlight.
It is obvious, to this fact finder, that Officer Einsfeld was not concerned about the welfare of the defendant or his vehicle. Officer Einsfeld failed to ask any questions regarding the welfare of the defendant as reflected in the candid record of his testimony. Officer Einsfeld clearly did not ask how the defendant was doing, whether he was lost or injured, whether he was having car problems or whether he needed assistance in any way, shape or form.
Officer Czenszak also testified that the only reason for approaching the vehicle was to conduct a welfare check to determine if the defendant was lost, looking for cell phone reception, or was injured. However, Officer Czenszak testified that he failed to ask any questions concerning the defendant's welfare and, in fact, never asked one single question, at any time that morning including the booking process after the arrest, regarding the defendant's welfare.
Notwithstanding both officers' testimony regarding the welfare check, Officer Einsfeld, upon approaching the driver's window, asked whether the defendant was drinking prior to driving, where the defendant came from and where the defendant was going. These questions were clearly indicative of a DWI investigation, not a welfare check and are designed to solicit incriminating evidence from a motorist.
Officer Einsfeld testified that activating his vehicle's lights this was a safety measure and that the defendant could have started up his car again and drove off . Officer Einsfeld also testified that when a police officer activates the police lights, the person is supposed to stop and is not free to leave until the police speak with the person . By this testimony alone the custodial status of the defendant from the very inception was admitted by the police.
Incredulously postulated, would the police then not be justified in stopping a vehicle that did not "pull over" when confronted with a police vehicle overhead take down lights and spotlights.
See, Hearing Transcript pages 34 and 46.
Moreover, Officer Einsfeld frankly testified that when he asked for the defendant's license and registration the defendant was no longer free to drive away as the police wanted to conduct further questioning of the defendant. Officer Einsfeld wanted to pursue a police line of questioning despite testifying that he believed the defendant was fine.
Interesting, and as a salient point, Officer Einsfeld testified that when the police lights were activated upon approaching the vehicle that the defendant was not free to leave. By this testimony alone the custodial status of the defendant, from the very inception, was admitted by the police. It was at this point, before the police officers even approached the vehicle, that the defendant was, ipso facto, seized and anything said was intended to be used against him.
Officer Czenszak recorded some of the incident on his personal Blackberry cellular device. This recording was played during the hearing and contradicts some of Officer Czenszak's testimony. It was obvious, to this fact finder, from the recording that the defendant spoke cogently, coherently and was not slurring his words. The recording undermined Officer Einsfeld's testimony about the defendant slurring his words, and demonstrates another facet of both officers' inconsistent testimonies. It also establishes the officer's purpose of police questioning of this motorist.
The testimony surrounding the violation of the Vehicle and Traffic Law §1201(a) is equally inconsistent and incredible. The officers wrote in their report that the defendant violated the traffic law by parking on the pavement. However, neither officer testified that the reason the officers approached the vehicle was because of the defendant parking on the pavement, indeed this was not a V & T stop. Both officers testified that it was not a vehicle and traffic stop because the officers were only checking on the welfare of the defendant, not that they stopped or approached the defendant for a vehicle traffic law violation .
Officer Einsfeld testified that the defendant did not violate any vehicle and traffic law at p. 207, L25-208, L4.
The police officers' actions are also inconsistent with their testimony that the approach of the defendant's vehicle was solely for a "welfare check". All testimony showed that the only questioning of the defendant, ab initio, was to determine whether the defendant was driving while intoxicated. Neither officers' sworn testimony was credible, as a matter of fact, regarding the stop being a "welfare check.".
After Officer Einsfeld stopped questioning the defendant, at the scene, Officer Czenszak went over to the driver's side of the defendant's vehicle and asked the defendant to exit the vehicle. Officer Czenszak asked some of the same questions that Officer Einsfeld asked.
Officer Czenszak then proceeded to inform the defendant that he would be administering Field Sobriety Tests (FSTs) to the defendant.
Some of the testimony surrounding the administration of the FSTs is inconsistent. Officer Czenszak testified on direct examination, that he administered four tests, which consisted of the horizontal gaze nystagmus, the vertical gaze test, the one-legged stand and the walk-and-turn tests.
However, according to Officer Czenszak's sworn grand jury testimony and on the defendant's cross-examination of the witness, it is clear that Officer Czenszak never administered the vertical gaze test to the defendant, thereby further undermining the credibility of the witness.
There is inconsistent testimony with regard to how many "clues to intoxication" Officer Czenszak observed when administered the FSTs. The amount of observed clues is relevant because, according to the DWI detection manual that Officers Einsfeld and Czenszak used at training, a person who demonstrates four or more clues is likely to have a BAC of approximately .10 or more . A person who demonstrates three clues is not likely to be intoxicated.
The information regarding the .10 as indicative of intoxication is an outdated law. The standard now is .08. However, this change has not been proven to have influenced the number of clues.
Although FSTs are only tests that are not absolutely determinative of a person's actual intoxication level, the tests do serve as useful tools that give police officers reasonable information to determine if a person has been driving while intoxicated.
Since Officer Czenszak testified that he observed "three or four clues," it is possible that the defendant could have only demonstrated three clues and therefore would be less likely to be intoxicated.
The second test that Officer Czenszak administered was the walk and turn test. Officer Czenszak gave adequate instructions on how to perform the test. The defendant clearly did not follow the directions of the test, and failed.
The third test that Officer Czenszak successfully administered was the one legged stand test. The defendant initially refused to take the test. Thereafter, Officer Czenszak admonished the defendant and stated that if the defendant refused to participate in any further testing, that the defendant would be under arrest.
Officer Czenszak also testified that he offered the defendant an opportunity to blow into the alco-sensor, which the defendant refused. Officer Czenszak was impeached by his grand jury testimony which does not contain any statements or requests whereby Officer Czenszak requested the defendant to blow into the alco-sensor.
The defendant then, with the alleged guidance of Officer Czenszak, took and failed the one legged stand test. Thereafter, at approximately 1:07 a.m., the defendant was placed under arrest and not asked one question regarding health and welfare.
Officer Czenszak then placed the defendant under arrest and the defendant was read his Chemical Test and Miranda warnings. Officer Czenszak testified that he informed the defendant three times that the defendant knew what he was refusing. However, this statement is inconsistent with Officer Einsfeld's written report, which was placed into evidence, of this incident. This report was written by Officer Einsfeld but was also reviewed by Officer Czenszak. Officer Czenszak admitted in his testimony that nowhere in the report does it say that Officer Czenszak asked the defendant three more times whether the defendant understood the consequences of refusing to take a Breathalyzer test.
Officer Czenszak's arbitrary and personal digital recording of the eventual arrest with his Blackberry cellular device illustrates other inconsistencies in the officer's testimony, which further damages the credibility of the witnesses. Although Officer Czenszak was not required to record the incident, Officer Czenszak only recorded those parts of the incident and interrogation he arbitrarily chose to.
What is especially troubling about Officer Czenszak's testimony is that he only recorded some of the incident. He failed to record some of the more important events that occurred during the incident. Most notably, Officer Czenszak failed to record the administration of the Miranda warnings, the Chemical Test (Breathalyzer refusal) warnings, and the incident that took place at the police station. Moreover, Officer Einsfeld and both officers' sergeant were also at the scene. Officer Czenszak could have easily given the phone to and instructed one of the two individuals to record what was going on. Officer Czenszak had no response as to why he did not pursue this scenario as proper police work.
Moreover, the photographs that the officers arbitrarily took at the scene of the incident were incomplete. Officer Einsfeld took pictures of the alcohol that the officers found on the floor of the backseat of the defendant's vehicle.
However, the officers failed to take pictures of other events that were equally or more important to the case. These events include the defendant performing the FSTs, the defendant's vehicle and how it was situated on the roadway, and the actions that took place at the police station.
Both officers testified that they had no way to secure the liquid in the containers, and the officers testified that they sniffed the contents of the bottle and determined that the bottles contained alcohol. Thereafter, the officers poured out the contents of the containers and stored the bottles to be put in evidence bags at a later time.
This testimony is contradictory. Officer Czenszak testified that he was trained to secure evidence at the scene of a crime, not to destroy it. Furthermore, it was unbelievable for Officer Czenszak to conclude that, out of the three police officers at the scene of the crime, not one of them had the ability to secure two containers of alcohol so that they could be admitted into evidence after proper testing. The officers at the scene had reasonable ways to secure the evidence and chose not to use them.
The police intentionally spoliated the evidence. The pouring out of the liquid in the containers is borderline incredible.
The Court of Appeals has stated, time and again, that the stopping or detaining of a vehicle or person, even for a short time, is a seizure implicating constitutional limitations. See, People v Spencer, 84 NY2d 749 (1995).
It is well settled that a person is in custody and under arrest when a reasonable man, innocent of a committing a crime, believes that he his not free to leave. See, People v Paulman, 5 NY3d 122 (2005); People v Harris, 48 NY2d 208 (1979); People v Yukl, 25 NY2d 585 (1969). In the instant matter, in addition to the police officers own testimony that the defendant was not free to leave when they activated their police overheads and spotlights and pulled directly behind defendant's parked car, a reasonable person seeing a marked police car with active lights flashing stopped directly behind his parked car would believe that he is not "free to leave".
A person is under arrest, and not free to leave, when the conduct of the police communicates to a reasonable person that he can not "...ignore the police presence and go about his business." Knapp v Texas, 538 US 626 (2003).
A non-moving vehicle has been seized when a reasonable person would believe, under the circumstances, that a police officers actions place a significant limitation on his freedom of movement. See, People v Ocasio, 85 NY2d 982 (1995).
It is clear to this Court that this incident was simply a pretext stop. It was not a "welfare check" as testified to by the police officers but a DWI stop without a scintilla of reasonable suspicion or an articulable basis that a crime was afoot. See, People v May, 81 NY2d 725 (1992); People v Ingle, 36 NY2d 413 (1975); People v De Bour, 40 NY2d 210 (1976).
This Court finds that the arrest of the defendant was illegal. Said finding is based upon the numerous inconsistencies in the testimony of both police officers, the lack of probable cause to arrest the defendant and that the purpose of the police officers in approaching the defendant's vehicle initially was mere pretext.
Furthermore, this Court finds the testimony of both police officers no credible. As such, the prosecution did not meet the required burden of proof necessary for these hearings.
Therefore, the arrest and everything that flowed therefrom must be suppressed. Wong Sun v United States, 371 US 471 (1963).
Based on the above, it is
ORDERED, that the arrest and everything that flowed therefrom is suppressed, and it is further
ORDERED, that Indictment #18-2011 is dismissed with prejudice.
This shall constitute the Decision and Order of this Court.
Monticello, NY
Hon. Frank J. LaBuda
Sullivan County Court Judge and Surrogate