This Court conducted a combination Probable Cause, Huntley Hearing and a non jury trial on May 19th, 2008, with regard to the charge against the Defendant of Driving While Ability Impaired in violation of section 1192.1 of the Vehicle and Traffic Law. The court combined the two issues at the request and on the consent of both the Defendant and the People and in the interest of judicial economy.

At the end of the Probable Cause, Huntley Hearing phase of the trial, the court ruled from the bench that probable cause existed to stop and detain the defendant and ultimately place him under arrest for Driving While Intoxicated. Notwithstanding that decision, the court advised both counsel, upon their request, that the court would revisit this issue after the submission of memorandum of law and additional oral argument. At the conclusion of the trial and at the request and on consent of both Defense counsel and the Assistant District Attorney, the court's determination was adjourned to give all parties ample opportunity to provide the court with applicable legal precedent and their positions with regard to the probable cause issue. The People voiced concern with the fact that a long delay from the time of trial to the decision would constitute a violation of the Defendant's rights or be grounds for appeal if the Defendant was found guilty. In order to alleviate this concern, the defendant through his counsel not only requested the adjournment but consented thereto and indicated that the defendant would waive any claim that might arise with regard to a delay in the court's final decision.

After a review of the testimony, the People's and Defendant's Memoranda of Law and the cases cited therein the court reconsiders it's determination made at the end of the Probable Cause, Huntley hearing and makes the following findings of fact and conclusions of law.

FINDINGS OF FACTS:

On or about 12 midnight of November 24, 2007, the Defendant Christopher Fisher was stopped by New York State Trooper Jenkins in the Town of Fishkill, County of Dutchess, State of New York. The cause of this stop was an observation made by the Trooper that the Defendant was operating a motor vehicle while using his cell phone. No traffic citation was issued to the Defendant for this violation. During the course of the conversation between the trooper and the Defendant, the Defendant requested directions to a bar in Fishkill by the name of "Sidewinders". Trooper Jenkins testified that at about 3:20 that morning he observed the Defendant traveling [*2]north on Route 9 in the Town of Wappinger, County of Dutchess and State of New York, and he followed the vehicle and observed it cross the fog line at least three times. After observing the aforementioned operation of the defendant's vehicle the Trooper initiated a vehicle and traffic stop. The Defendant was identified as the operator of the motor vehicle. The subsequent events with regard to the Defendant including field sobriety tests, statements with regard to the use of alcohol, etc., are not relevant to the courts decision of probable cause and therefore are not made part of this decision.

On cross examination Trooper Jenkins testified that he followed the Defendant approximately one mile before initiating the vehicle and traffic stop. The Trooper testified he did not recall the prior stop and conversation with the defendant some three hours earlier. The officer further testified on cross examination he had no independent or specific recollection of the incidents of that night and relied solely on his notes and reports made at the time of the incident. Trooper Burgos testified that he was the passenger in Trooper Jenkins vehicle on the night of the incident and that he recalls observing the defendants vehicle at approximately 3:20 AM. He recalled following the defendant traveling north on Route 9 approximately ¾ of a mile and observing the defendant's vehicle cross the fog line only once.

Christopher Fisher, the defendant, testified to the encounter with Trooper Jenkins early in the evening when he requested directions to "Sidewinders". The Defendant testified that he observed a marked New York State Police Vehicle traveling south on Route 9 when he was traveling north and took note as it was 3:20 in the morning and there were no other cars on the road. The Defendant further noted that he observed the New York State Police vehicle make a u-turn and pull up behind him. Trooper Jenkins followed him for approximately one mile before initiating a stop of the Defendant's vehicle. Mr. Fisher stated that after having observed the State Police car, he was particularly cautious about not exceeding the speed limit and he never crossed the fog line. The Defendant further testified his plans changed, he never went to "Sidewinders" but went to another bar by the name of "Celtic House" instead, where he had two bottles of Heineken beer.

CONCLUSIONS OF LAW:

The matter for the courts determination is limited to the issue of whether or not crossing the fog line at 3:20 A.M. constitutes probable cause for the operator of a motor vehicle to be stopped for further investigation. It has long been the law that people have the right to be protected against unreasonable search and seizures. This right has been applied not only to homes and persons, but also to vehicles. The Court of Appeals in People v. Spencer, 48 NY2d, 749, Cert. denied 516 US 905 enunciated this proposition when as part of its Decision it stated "We have stated, time and again that the stop of an automobile is a seizure implicating constitutional limitations," ( citations omitted).

The Court of Appeals recently addressed this issue in some depth in People v. Robinson, 97NY2d341. In that case the court stated that, "We hold that where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate article I, & 12 of the New York State Constitution. In making the determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant." The court [*3]discussed in great detail pretextual stops and concluded that any violation of the Vehicle and Traffic Law is sufficient to give a police officer the right to stop a vehicle. The court stated, "This court has always evaluated the validity of a traffic stop based on probable cause that a driver has committed a traffic violation (emphasis supplied) without regard to the primary motivation of the police officer or an assessment that a reasonable traffic officer would have made the same stop. Where the police have stopped a vehicle for a valid reason, we have upheld police conduct without regard to the reason for the stop (People v. David L., 81 AD2d 893, revd on dissent below 56 NY2d 698 {1982}, cert denied 459 US 866)."

It is impossible for this court to read the Court of Appeals Decision in People v. Robinson (supra), in any manner other than imposing a duty on a police officer to have probable cause to believe that the operator of a motor vehicle was about to commit a crime, was committing a crime or a vehicle and traffic infraction as a necessary predicate for stopping a driver on a public highway. Indeed the court stated, "We noted that police stops of automobiles in this State are legal only pursuant to routine nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime' (id.,at 753)".

This court is bound by the Decision of the Appellate Term Second Department as reported in People v. Shulman 14 Misc. 3rd, 129a. In that case the trial court found that the defendant violated section 1128d of the Vehicle and Traffic Law in that the defendant while operating a motor vehicle crossed the solid white line which separated his lane from the pavement, "the fog line". The Appellate Term in reversing the court held, " crossing a fog line is not prohibited and does not constitute a violation of the New York State Vehicle and Traffic Law."

The People in their Memorandum of Law concede that crossing the fog line is not a Vehicle and traffic violation and further that People v. Robinson (Supra) requires the commission of a traffic infraction to justify a stop. They seek to distinguish the instant case by suggesting that a stop of a vehicle may be valid if there is reasonable suspicion that a crime is being committed or about to be committed. Each of the cases cited by the People for this proposition are clearly distinguishable from the instant case. In People v. Ellis, 169 AD2d 838, the defendant's vehicle was weaving on the highway for ¾'s of a mile. Here Trooper Jenkins had no independent recollection of the Defendant's driving (although his notes indicated the defendant crossed the fog line three times in one mile.) and Trooper Burgos testified that the Defendant crossed the fog line only once. The Defendant himself testified that he was aware of the police presence and never crossed the fog line.

In People v. Ramos, 16 Misc 3d 1129A, the police officer was aware of the fact that the driver did not have a valid license. In People v. Haynes, 34A.D.3d 1212, the officer had prior knowledge that the Defendant was unlicensed. In the instant case the testimony of Trooper Jenkins was that he did not recall the prior stop where the Defendant asked for directions to a bar. Without that prior knowledge there could certainly not be any suspicion of the Defendant's driving while intoxicated. Assuming, arguendo, that Trooper Jenkins did recall the defendant asking for directions to a bar some three hours earlier, that fact alone does not give rise to a "reasonable suspicion" that the driver was committing or was about to commit a crime, see People v. Spencer, 84 NY2d, 749.

Applying the foregoing judicial decisions to the instant case it is clear that the only predicate offered by the People for the stop of the defendant was that he crossed the fog line. Since such operation of a motor vehicle by the defendant is not a violation of the law, the court [*4]must conclude that the police had no probable cause to stop and detain this defendant. Accordingly, since there was no probable cause to stop or detain the defendant this case must be dismissed; given the court's determination it is not necessary to address any other issues.

Carl S. Wolfson, Town Justice

Dated at the Town of Wappinger

The6thday of August, 2008.