[*1]
| People v Manahan |
| 2007 NY Slip Op 50708(U) [15 Misc 3d 1116(A)] |
| Decided on March 28, 2007 |
| Criminal Court Of The City Of New York, Kings County |
| Smith, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Criminal Court of the City of New York, Kings County
The People of the State of New York,
against
Jorge Manahan, Defendant.
|
2006KN002801
Ruth E. Smith, J.
Defendant is charged with Operating a Motor Vehicle While Impaired by Alcohol (VTL §1192[1]). This Court conducted a Dunaway/Scott/Huntley hearing, and following the written submission by the parties, issues this written decision denying defendant's motion to suppress in its entirety.[FN1]
FINDINGS OF FACT
The People's witnesses at the hearing were Police Officers Charles Hager and Gregory Schreiber, both of the Brooklyn North Task Force. Arresting Officer Hager is a thirteen and one half year veteran of the New York City Police Department, two and a half of which were spent as part of the Task Force Driving While Intoxicated Unit. Officer Schreiber is a twenty-three year veteran of the force. The Court finds them to be credible.
On January 12, 2006 at about 11:00 p.m., the officers attended a meeting where their supervisor, Sergeant Martino, gave them oral instructions about the manner in which they would conduct the checkpoint that they would be setting up that night at the intersection of Meeker Avenue and North Henry Street. The plan was that with the exception of emergency vehicles or ambulances, the officers would stop every car going through that intersection (H: 4-5; H1: 29). According to Officer Schreiber, the area was chosen by their supervisor "because of the high volume of traffic and North Henry is an accident prone location in the 94th precinct" (H1: 41). Officer Hager, who had conducted many checkpoints in that area and had reviewed "paperwork at the precinct," recalled that it was "the scene of many car accidents, a lot of speeding and a lot of drunk drivers come through that location" (H:5-6). Nonetheless, he did not know why that particular location was chosen that night (H: 18). There were six officers at the checkpoint, including Sergeant Martino, who was there throughout the duration of the checkpoint (H1: 28).
Upon arriving at the location, the checkpoint was set up using turret lights, then placing cones to "make it go from four lanes to two lanes *** The middle lane is closed and we have police cars there with lights. *** One lane on the left and one on the right" (H: 5). Officer Hager was the "scanner" at the scene, i.e., he would inform the drivers in every vehicle coming through his assigned lane that this was a DWI checkpoint and ask whether they had ingested any alcohol (H: 7-8). If there were no indicia of intoxication, the motorist was permitted to leave. If there [*2]were such indicia, Officer Hager would then request the individual's driver's license and direct them "to pull to the side of the road to a safe lane on the other side to check" (H1: 30). He did this with every vehicle that came through his lane and never deviated from the plan to stop every vehicle. There were no exceptions made for taxi or livery cabs that night.
Officer Hager did have the discretion, however, after stopping a vehicle, to request license, registration and insurance information or to "run a check on the vehicle identification number" (H: 19-20). He would do this where the person may have had an expired registration sticker or an invalid license. Under such circumstances, he would have another officer conduct the necessary check (H1: 28-29).
At about 12:25 a.m., he was in the process of questioning another driver, when "a motorcycle drove around the right hand side of the car [he] was stopping so [he] wanted to stop the man. [He] didn't want him to get away and [he] advised the driver of the car at the checkpoint to stop and stay there and then [he] walked in front of the car and [he] walked over to the motorcycle and [he] stopped the motorcycle" by putting his "body ... in front of the motorcycle" and with his hands up, told defendant to stop (H: 6-7).
He informed defendant that this was a DWI checkpoint and asked him if he had had any alcohol that day. Although his notes reflected that defendant "said he had alcohol," Officer Hager could not recall defendant's response (H: 7; 9). Nonetheless, when defendant removed his helmet, "[h]e had red bloodshot watery eyes. He had an alcohol odor coming out of his breath. He was swaying on his feet and he had slurred speech" (H:9; 15). Officer Hager then conducted a field test after obtaining a breath sample from defendant, which resulted in a reading of a .12 blood alcohol content level. After waiting another twenty minutes, Officer Hager repeated the test and obtained the same reading. He then placed defendant under arrest.[FN2]
There is a written form called the "Checkpoint Form" which was initially filled out by Sergeant Martino prior to the start of the checkpoint and at its conclusion. This form has boxes regarding the use of turret lights and cones; the number of officers at the checkpoint; the number of cars utilized; the date, time and location of the checkpoint; the number of arrests made that night; and the total number of vehicles that drove through the checkpoint (H1: 35).
CONCLUSIONS OF LAW
Defendant maintains that suppression of any observations by the officer, statements by him and the results of any chemical tests is warranted due to the illegality of the stop and seizure in this case, in violation of his Fourth and Fourteen Amendment rights, as well as his state constitutional rights. Specifically, he challenges the propriety of the checkpoint on several levels, each of which will be addressed seriatim.
It is well settled that "a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment...but it is also true that there is only a diminished expectation of privacy in an automobile...and that individualized suspicion is not a prerequisite to a constitutional seizure of an automobile which is carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers'" (People v Scott, 63 NY2d 518, 525 [1984]; quoting Brown v. Texas, 443 US 47, 51).
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"The reasonableness of such a seizure depends on "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers"' (Brown v. Texas, 443 US 47, 50) ... Determining whether these stops are constitutional requires a weighing of [1] the gravity of the public concerns served by the seizure, [2] the degree to which the seizure advances the public interest, and [3] the severity of the interference with the individual's liberty' (id. at 50-51). A critical requirement for all such seizures relates to the central concern *** that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field' ...Namely, the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of the individual officers' (id.)" (Matter of Muhammad F., 94 NY2d 136, 142 [1999]).
Preliminarily, defendant asserts that the "Checkpoint Form" does not constitute written guidelines. Thus, he avers, in the absence of specific written guidelines, the checkpoint cannot be deemed to be valid. Yet even if this Court were to agree that there were no written guidelines, defendant's contention must still fail since there is no requirement that the guidelines must be in writing (see, People v. Sinzheimer, 15 AD3d 732 [3d Dept.], lv denied 5 NY3d 794 [2005]; People v. Serrano, 233 AD2d 170 [1st Dept. 1996]).
Notably, this is not a situation where the line officers unilaterally decided to set up a roadblock. Both witnesses made clear that Sergeant Martino gave them the requisite oral instructions, was present for the duration of the checkpoint that night and filled out the Checkpoint Form prior to the commencement of the checkpoint and at its conclusion. Under the circumstances, the critical concern "that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field" (Brown v. Texas, 443 US at 50-51), does not obtain in this instance because of the absence of written guidelines. For these same reasons, defendant's argument regarding the impropriety of the checkpoint because the purported guidelines, if any, had not been promulgated by the Police Commissioner himself, must likewise fail (Mayrich Const. Corp. v. Martinez, 13 AD3d 68 [1st Dept. 2004]).
As to the execution of the checkpoint, defendant complains that there really was no "plan" beyond "a check-a-box form and a sergeant telling his personnel that they were going to do DWI checkpoint and stop every car at North Henry [Street] and Meeker Avenue'" (Defendant's Memorandum at 13). The evidence is to the contrary, however.
After receiving oral instructions at the precinct with respect to the place and manner in which the checkpoint would be conducted, the officers, while accompanied by their Sergeant, went to the scene and set up the checkpoint under his direction. With a total of six officers, including the Sergeant, the officers utilized turret lights and placed cones in such a manner as to close the middle lane, while maintaining one lane on each side to conduct the vehicular stops; police cars with their lights on were placed in that middle lane; and Officer Hager, in his designated role as the scanner, proceeded to stop each car in his lane that night, tell the driver that it was a DWI checkpoint and ask whether s/he had been drinking earlier. Upon the termination of the checkpoint, Sergeant Martino completed the Checkpoint Form that he had commenced prior to the set up of the checkpoint. Thus, there was a clear "plan embodying explicit, neutral limitations on the conduct of the individual officers" (Muhammad, supra at 142).
Moreover, and contrary to defendant's suggestion, the fact that Officer Hager exercised some discretion with respect to seeking licenses, registrations or vehicle identification numbers, [*4]is of little moment. As was made clear, Officer Hager did not deviate from the plan of stopping every vehicle and had no discretion to do so. Indeed, all vehicles, including livery cabs and taxis were stopped that night. And in his capacity as the scanner, he followed the same procedure of informing the motorist that this was a DWI checkpoint and inquiring whether s/he had ingested alcohol earlier, for every car. There was no evidence that any of the officers were authorized to change the setup or location of the checkpoint; nor could they deviate from its manner of execution. Notably, Officer Hager testified that it was only if he found that there was some discrepancy such as an expired registration sticker or an invalid license, that he would then have another officer conduct the necessary check.
Defendant also challenges the setup of the checkpoint with respect to the adequacy of precautions as to safety, lighting and fair warning. As the Court of Appeals has recognized, in order to be sustained, a checkpoint must not be unjustifiably intrusive so as to "generat[e] concern or even fright on the part of lawful travelers" (Muhammad; People v. Scott, supra). As noted above, however, the checkpoint at bar was set up utilizing turret lights, cones which funneled four lanes into two lanes, police vehicles with their lights on in the middle lane, and uniformed officers stopping each vehicle. Indeed, motorists were able to see a visible police presence, as undoubtedly defendant did when he purportedly sought to drive around a vehicle which had been stopped in front of him. Under the circumstances, there was little chance that motorists would be "taken by surprise" when stopped that night (compare, Muhammad, 94 NY2d at 147) and thus, the People demonstrated that "adequate precautions as to the safety, lighting and fair warning of the existence of the checkpoint were in operation" with this checkpoint (Scott, 63 NY2d at 525).
Finally, in light of the foregoing, defendant's claim that the checkpoint was rendered invalid because of the failure to demonstrate that there were specific guidelines regarding motorists who sought to evade the checkpoint is unavailing. The cases upon which defendant relies are clearly distinguishable. For instance, in People v. Hopkins, 4 Misc 3d 1020 (Co. Ct. Yates Cty. 2004), unlike here, there was no "constitutionally formatted" roadblock. Further, the court granted suppression on the grounds that there was "no independent probable cause for the stop" (id.). And in People v. Bigger, 2 Misc 3d 937 (NY Just. Ct. 2004), the officer who stopped the defendant was not part of the checkpoint and had no basis for stopping the vehicle which had turned into a driveway located several hundred yards away from the checkpoint. Finally, in People v. Rockett, 156 Misc 2d 641 (NY Just. Ct. 1992), it was unclear whether or not the defendant had actually seen the DWI sign prior to turning off the route which was the subject of the checkpoint.
CONCLUSION
Based upon the foregoing, the checkpoint in question comported with both federal and state constitutional requirements. Accordingly, defendant's motion to suppress is denied in all respects.
This constitutes the Decision and Order of the Court.
Dated:Brooklyn, New York
March 28, 2007_________________________
Hon. Ruth E. Smith
Judge of the Criminal Court
Footnotes
Footnote 1:References preceded by "H" are to the minutes of the November 15, 2006 proceedings, while references to "H1" are to the November 16, 2006 proceedings.
Footnote 2: This evidence was admissible on the issue of probable cause (see, People v. Thomas, 121 AD 73 [4th Dept. 1986], affd 70 NY2d 823 [1987]).