Procedural History

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 [d]ecision 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 . . . 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 . . . 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 . . . 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 1128[ . . . ] of the Vehicle and Traffic Law in that the defendant while [*3]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 [lower] court held, "crossing a fog line is not prohibited and does not constitute a violation of the New York State Vehicle and Traffic Law."For the reasons articulated, supra, it is the ruling of this Court that the officer did not have probable cause to stop defendant. Defendant's motion is granted in toto. The remaining charges in this case are dismissed.

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