The defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle, 2nd Degree. He has moved to suppress all evidence seized as a result of a claimed illegal stop and arrest. Because this court finds that the officer only had reasonable suspicion to stop the motorist, this case puts into issue whether the Court of Appeals or the Appellate Division, Fourth Department has departed from the long standing rule regarding the threshold level of evidence necessary to permit a vehicle stop for a traffic infraction.

Officer Brandon Ince, a member of the Rochester Police Department, was well acquainted with the defendant, who is a resident of the patrol area to which Ince was assigned. [*2]Some two months before the date in question, Officer Ince served an arrest warrant on the defendant for a violation of probation. At that time he learned that the defendant had no driver's license. One day prior to the date in question, Officer Ince observed the defendant operating a motor vehicle on St. Paul Street and Avenue D. On that occasion the defendant admitted to Ince that he had no driver's license, but stated that he was driving because he needed to run some errands. Officer Ince told him not to drive. Later that day, Ince observed the defendant driving again, but did not stop him.

On March 31, 2007, at approximately 6:55 PM, Officer Ince and another officer were on routine patrol. While the officers were traveling northbound on Clinton Avenue North, Officer Ince observed the defendant operating a motor vehicle. Armed with his knowledge of the defendant's unlicensed driving history, Officer Ince stopped the vehicle. On approaching the defendant, he asked him to produce a license. The defendant offered an identification card, but no license. Officer Ince reminded the defendant that he had been told not to drive, and asked why was he driving. The defendant stated that he had to run some errands. Ince performed a computer record check and determined that the defendant's license had been revoked.

Defendant moves to suppress the observations of the officer, the statements made by the defendant and documents he provided.^[FN1] It has long been held that a stop of a motor vehicle may be based upon the police officer's reasonable suspicion that a violation of the Vehicle and Traffic Law has occurred (People v Ingle, 36 NY2d 413 [1975]). The vitality of this rule has been called into question by commentators ^[FN2] and some courts ^[FN3] because of the holding in People v Robinson (97 NY2d 341 [2001]), where the Court of Appeals adopted the Supreme Court's holding in Whren v United States (517 US 806 [1996]) regarding pretextual automobile stops, and provided, that in such situations, the officer must have probable cause to believe that a traffic infraction has been committed. Although some courts have construed the holding in Robinson to announce an elevation in the quantum of evidence threshold applicable to all traffic stops, it does not appear that the Court of Appeals intended that result.

People v Wright (98 NY2d 657 [2002]), which at least one commentator ^[FN4] cites as a basis for the proposition that this change in the rule is implied from the court's holding therein, is simply just another pretext stop case. The court in Wright noted in it's reversal that the Appellate Division's decision, that the stop of the defendant for a faulty muffler had been a pretext to investigate a reckless driving complaint, anti-dated the ruling in Robinson. In finding that the trooper had probable cause to initiate the stop, the court was simply applying the Robinson test. [*3]

The court later confirmed the limited scope of the Robinson holding in People v Johnson (1 NY3d 252 [2003]), where it reversed the First Department and stated, in relation to that court's reliance on Robinson that "the Appellate Division improperly applied the law governing pretext stops to inventory searches." (1 NY3d at 257 [emphasis supplied]). The Court of Appeals has made no other pronouncements regarding the rule in Robinson.

Since Robinson, the Fourth Department has uniformly ruled on the level of suspicion necessary to stop a vehicle for a traffic infraction. Although not citing Robinson, the court in People v Wilcox (295 AD2d 914 [2002]) held that the police officer had reasonable suspicion to justify the stop of the vehicle based upon the vehicle being illegally parked and then observing the driver making an unsafe u-turn. That same term, the court in People v Moore (295 AD2d 969 [2002]) held that the arresting officer had reasonable suspicion to justify the stop of a motorist based uponthe officer's observation of erratic driving and violation of the traffic laws.

Fifteen months later, in People v Washburn (309 AD2d 1270 [2003]), the court reversed the lower court's ruling that an officer was justified in stopping a motor vehicle to obtain information from a driver. In it's analysis, the court found three categories of proof which justify a vehicle stop: 1) pursuant to routine, non-pretextual traffic checks to enforce traffic regulations; 2) where reasonable suspicion exists to believe that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime; and 3) where the police have probable cause to believe that the driver has committed a traffic violation.^[FN5] It is this formulation which some view as a signal that the Wasburn court departed from the existing reasonable suspicion rule. A close reading, however, reveals that it has not.

Categories one and two were derived from language found in People v. Spencer (84 NY2d 749 [1995]), which, in turn, cited Ingle and People v Sobotker (43 NY2d 559 [1978]) in deciding the legality of a stop of a motorist for information purposes. Category one "routine non-pretextual traffic checks" were defined in People v Ingle (36 NY2d 413 [1975]) as either a stop based either upon reasonable suspicion that the vehicle and traffic law had been violated, or a stop based upon a non-arbitrary, non-discriminatory, uniform roadblock procedure.^[FN6] Category 2 [*4]stops were defined in People v Sobotker, where the court stated, "that, absent at least a reasonable suspicion that its occupants had been, are then, or are about to be, engaged in conduct in violation of law, the stopping of an automobile by the police constitutes an impermissible seizure." (43 NY2d at 563 [citations omitted]). Thus when viewed in this context, and by citing Robinson as authority, the third category outlined in Washburn relating to the probable cause requirement only applied to pretext stop situations.

The reasonable suspicion standard was applied in People v Dunnigan (1 AD3d 930 [2003], where the Fourth Department found that the officer's observation of a traffic violation justified the stop, directly citing Ingle and Sobotker, and citing Washburn as analogous authority. In contrast, is People v Bradley (17 AD3d 1050 [2005]), the court found probable cause to stop the defendant for a traffic infraction although the officer's motivation was to investigate the disappearance of an individual, and People v White (27 AD3d 1181 [2006]), where the court found that the police had probable cause to stop the vehicle based on the observation of the commission of a traffic infraction and reasonable suspicion to believe that the defendant was committing the crime of driving while intoxicated. Importantly, the defendant in White invited the hearing court to find that Robinson had elevated the suspicion level for all traffic infractions to that of probable cause, but the court declined to do so.^[FN7] That ruling, although raised on appeal,^[FN8] was not disturbed by the appellate court. It is therefore clear that the Fourth Department has not extended the Robinson rule on pretext stops to include all traffic infraction stops.

Officer Ince was justified in stopping the defendant. His knowledge of the defendant's past driving history and the defendant's admissions the previous day constituted reasonable suspicion to conclude that the defendant was violating the Vehicle and Traffic Law (People v Haynes, 35 AD3d 1212 [2006]). All evidence gathered as a result of the stop is therefore admissible at trial and the defendant's motion to suppress is denied.

DATED:Rochester, New York

August 24, 2007

HON. MELCHOR E. CASTRO