The Defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192.2, Driving While Intoxicated as an Unclassified Misdemeanor, and one (1) count of violating Town of Hempstead Ordinance §78.15, In the Park After Dark.

On November 30, 2006, upon stipulation by both parties, this Court conducted a Huntley and Dunaway hearing. The Huntley hearing pertained to statements allegedly made by the Defendant to the Police prior to his arrest, namely:

"I was at Croxley Ale House in Rockville Centre, they have 10 cent wings on Wednesdays. I had about four beers then I went to Finch' Lounge and I had about two beers. I was driving home to Wantagh. Yeah, I was by myself when I stopped and got our of the car and was walking home. No, I have not drank for about an hour at Finch's. It's over there somewhere, I'm not sure. I don't know I think they are in the car. I was driving my car home and I stopped to take a nap on the corner. I saw you guys with lights and I ran away."

The People called one witness at the hearing, Police Officer Brian McCarthy of the Nassau County Police Department. The Defendant did not call any witnesses. After the hearing, and at this Court's direction, both the People and the Defendant submitted a Post-Hearing Memorandum. After a review of the hearing submissions, and based on the testimony of Police Officer Brian McCarthy, this Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT:

This Court finds the testimony of Police Officer Brian McCarthy to be credible. Police Officer Brian McCarthy is an eleven and a half year veteran of the Nassau County Police Department. [*2]

On April 6, 2006, Police Officer Brian McCarthy and his partner were patrolling the 8th precinct of Nassau County, in plain clothes, in an unmarked Police car. At approximately 4:30 a.m. they received a radio call regarding a "suspicious" car at 138 Wantagh Avenue, Levittown, New York. They proceeded to the address, which was a private house, and spoke with the homeowner Maura Evans. Ms. Evans indicated that a car had been left in her driveway and she did not know who it belonged to. Officer McCarthy observed a red 1997 Buick automobile parked in Ms. Evans' circular driveway with the rear end of the car blocking the sidewalk. Ms. Evans told the Police that she did not see anyone operate the vehicle, did not know what time the vehicle was left there, and did not know anything more about the circumstances surrounding the presence of the vehicle in her driveway.

Officer McCarthy felt the hood of the car and noticed that it was warm. He determined that the vehicle was locked and observed keys on the front seat of the car. Officer McCarthy performed a registration check on the vehicle and found that the vehicle was registered and titled to a woman. Officer McCarthy testified that at that point, no crime had been committed. Officer McCarthy and his partner then left the location and drove around the area to see if they "could find the driver or occupants of the vehicle." Specifically, Officer McCarthy testified that he was going to drive around Levittown and look for anybody walking in the area, stop them, and ask them if they had been an occupant in the vehicle.

Approximately fifteen minutes later, while driving on Wantagh Avenue, Officer McCarthy observed a man (whom he identified in Court as the Defendant) inside Michael Rosenberg Memorial Park. According to the testimony, the Defendant seemed to be jogging around in a circle, inside the park. Officer McCarthy testified that the park was located about a half hour away from the location of the car which they previously viewed. Notwithstanding Officer McCarthy's statement that the Defendant was not committing any crime or violation, he stopped his car, walked over to the park, and "called the Defendant over to interview him." Officer McCarthy testified that he was "taking a shot as to whether the Defendant was connected with the vehicle." Again, at that point, it was Officer McCarthy's opinion that the man was not committing any crime or violation and there was no ostensible connection between the Defendant and the vehicle left at 138 Wantagh Avenue.

After the Defendant came over to the Officers, Officer McCarthy asked the Defendant for identification. Officer McCarthy observed that the Defendant had a strong odor of alcohol on his breath, was unsteady on his feet, and had bloodshot and glassy eyes. Officer McCarthy found the Defendant to be cooperative. Officer McCarthy then brought the Defendant out to the street by the Police car to perform Standardized Field Sobriety Tests and to further question the Defendant. Officer McCarthy asked the Defendant a series of questions, namely: where he was coming from, what he had been doing, if he had anything to drink, and where he had been drinking. Officer McCarthy testified that the Defendant stated that: "he had been drinking at Croxley's Ale House earlier in the evening. He had been drinking about four beers, it was ten cent wings night. He was driving, he was on his way driving home when he stopped the car to take a nap. He saw their lights and ran away. That he had not had anything to drink since he left his car and he had not had a drink for about an hour." The Defendant did not know where his car was and thought he left his keys in the car. [*3]

Officer McCarthy asked the Defendant to perform the Horizontal Gaze Nystagmus test, and the Portable Breath test. Officer McCarthy indicated that the Defendant exhibited positive clues for intoxication during the Horizontal Gaze Nystagmus test and had a Portable Breath test reading of .20 percent. The Defendant was then arrested and charged with Driving While Intoxicated.

The 4th Amendment to the United States Constitution guarantees that Citizens shall be free of unreasonable searches and seizures, of individual liberty and privacy, and the right to be left alone.

The landmark Court of Appeals decision in the case of People v. DeBour, 40 NY2d 210, 352 N.E.2d 562 (1976), firmly established that "Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present," and "the police may not justify a stop by a subsequently acquired suspicion resulting from the stop."

The case at bar poses unusual circumstances. Although the Defendant was charged with Driving While Intoxicated, the facts do not involve a car stop but rather a street encounter between the Police and the Defendant. The Police responded to a call of a "suspicious" vehicle located in the driveway of a residence located at 138 Wantagh Avenue, Levittown, New York. Upon arriving at the scene, the Police found a car parked in the driveway of a private house without the permission of the owner. No crime had been committed and the Officer found nothing "suspicious" about the car. They found that the car was properly registered to a woman. At that point, the car could have simply been towed away. There was no need for any further Police action. For some inexplicable reason, the Police instead began an "investigation" to find the owner or occupants of the car. They decided that they would drive around the town and stop anyone walking on the street to determine whether the car belonged to them. There was no basis from the circumstances presented, i.e., a car innocuously parked in someone's driveway, for the Police to drive around Levittown in search of the driver.

At the moment the Police left the address located at 138 Wantagh Avenue, by their own admission they were off to investigate a non-crime. At a half hours distance from the location of the abandoned car, the Police spotted a man jogging in a park. Based on the testimony of Police Officer McCarthy, the Defendant was committing no crime and there was no reason to stop him. There was no reason or basis to believe that he had any connection to the car. Moreover, the car was registered to a woman. Nevertheless, the Defendant was called over by the Police, asked questions, and later arrested. The Police were first investigating a crime that had not occurred and later stopped an individual for no reason other than to inquire as to whether he was involved in the crime that did not occur. The legal standards related to these facts are obviously grounded in the law relating to street encounters and not those relating to car stops. [*4]

The well established and often quoted DeBour four level test for evaluating street encounters between the Police and an individual are as follows:

Level 1:Request for Information-which requires that the Police have an Objective Credible Reason for the request and the interaction;

Level 2: Common Law Right of Inquiry-which requires that the Police have a Founded Suspicion that Criminal Activity is Afoot;

Level 3: Stop and Detain-which requires that the Police have a Reasonable Suspicion that the specific individual is committing or has committed a Felony or Misdemeanor;

Level 4: Arrest-which requires that the Police have Probable Cause that the specific individual is committing or has committed a Felony of Misdemeanor.

The cases which interpret these levels are legion. A step by step evaluation of the specific facts in each case must be measured against the 4th Amendment to the United States Constitution, the levels set forth in DeBour, and more recently, the Court of Appeal decision in People v. Calvin Moore, 6 NY3d 496, 814 N.Y.S.2d 567 (2006.)

INFORMATION AT THE SCENE:

The only information provided to the Police at the scene was that a car was left in someone's driveway. There is no information as to who left the car, when the car was left, or why the car was left. The Police determined that the hood was warm, the car was locked and some type of keys were left in the car. The car was properly registered, inspected, and titled to a woman. No crime had been committed. There was no indication or evidence that anyone had been injured, that there was an accident or that anyone needed Police or medical assistance. The only logical course of action at that point would have been to either leave the car there until someone returned for it, or have the car towed out of the driveway. Alternately, the Police could sit and wait by the driveway to see if anyone returned to the car. The Police could have also simply attempted to contact the car owner since they had her name and address from the registration. The Police conduct in driving off into the night in search of an unknown person who may or may not be walking around the streets seems to defy reason. Moreover, their method of arbitrarily stopping pedestrians who happened to be walking around and asking them questions about a car which had no connection with any crime is without legal basis.

INFORMATION AT THE PARK:

The Police observed a man jogging in a park approximately a half hours distance from the [*5]abandoned car. The Police knew that the registered owner of the car was a woman. They call a man over and question him. It is clear that the Police were not calling him over just to request information. They were calling him over to question him about the car. The Police conduct at that point was not a Level 1 encounter as set for by the Court in DeBour; it was a Level 2 encounter. However, the Police did not possess any facts or basis to believe that the Defendant was connected to the car. In fact, the Police testified that the man was not doing anything wrong. Using the DeBour Level 2 encounter as a guideline, the Police must have a "suspicion that criminal activity is afoot." In this case, the Police did not have any suspicion that any criminal activity was afoot at the point that they spotted the Defendant. For arguments sake, as to the requirements for a Debour Level 3 encounter, the Police did not have a reasonable suspicion that the Defendant was involved in a felony or misdemeanor at the point that they spotted the Defendant. There was absolutely no connection in fact, in time or location between the abandoned car and the Defendant. No factual explanation justifying the Police conduct was provided at the hearing.

This Court finds that the initial information received by Police Officer Brian McCarthy from Ms. Evans did not provide a reasonable basis justifying him driving around Levittown in search of a driver and certainly did not justify him arbitrarily stopping people and asking them questions simply because they happened to be walking in the area.

This Court further finds that the Defendant jogging in a park located miles away from the location of the abandoned vehicle did not give the Police the requisite factual basis for a Level 2 or Level 3 encounter; therefore, there was neither a common law right of inquiry, nor reasonable suspicion to stop and detain the Defendant. The moment the Police called the Defendant over and began asking him pointed questions, the Police were outside the scope of the permissible street encounter as set forth by the Court of Appeals in Debour.



STATEMENT BY THE DEFENDANT:

Since the statements allegedly made by the Defendant occurred after the Police improperly stopped him, the statement are the "fruits of the poisonous tree" as established by the United States Supreme Court in the landmark decision of Wong Sun v. United States, 371 U.S. 471 (1963.) The statements are therefore suppressed.

OBSERVATIONS OF THE DEFENDANT:

All observations of the Defendant by the Police occurring after the stop of the Defendant are similarly suppressed as "fruits of the poisonous tree."

ARREST OF THE DEFENDANT:

Whether the arrest of the Defendant is lawful rests upon whether the Police first had [*6]reasonable suspicion to stop him and next whether they had probable cause to arrest him. This Court finds that there was no probable cause to arrest the Defendant prior to the Police stopping him. In fact, other than the Defendant's own statements, there is no proof of operation of the vehicle by the Defendant, nor any other evidence linking the Defendant with the charge of Driving While Intoxicated. As the Court of Appeals established in People v. Debour, the stop and arrest can not be justified or validated by "subsequently acquired suspicion resulting from the stop." In light of the lack of reasonable suspicion for the stop, the arrest of the Defendant must also be suppressed.

This constitutes the decision and order of the court.

Dated: March 26, 2007

ENTER:

____________________________________

Norman St. George, District Court Judge

cc:Nassau County District Attorney's Office

Law Office of Salvatore J. Marinello