The defendant was charged with Per Se Driving While

Intoxicated, V.T.L. 1192(2) and Common Law Driving While Intoxicated, V.T.L. 1192(3). The

incident in question allegedly took place on January 2, 2008 at approximately 6:06 P.M. on Holt

Road in the Town of Webster. The defendant was arraigned in the presence of her attorney on

February 20, 2008. The case was adjourned for argument of motions on April 2, 2008, whereon

it was set down for an Ingle/Probable Cause/Huntley Hearing on July 11, 2008.^[FN1] The People

called one witness at said hearing, i.e. Officer David A. Herrle, the arresting officer. [*2]

Facts of the Case.

Officer Herrle testified that on January 2, 2008 at about 5:50 P.M. he received a dispatch from the 911 Center. He was advised that an individual in the parking lot of the Holt Road

Wegmans Food Market observed a white female and white male staggering in that parking lot.

The dispatch received from the 911 Center indicated that said individuals, who appeared to be

sick or intoxicated, entered a bronze or yellow oldsmobile, with a particular license plate number.

The officer indicated that he received the 911 call while in the vicinity of the Webster Police

Department. He then drove to the Holt Road location, which took about one minute. As he

turned northbound on to Holt Road, he observed another Webster Police vehicle, which was

operated by Sergeant Chiapperini, who indicated that he was behind a vehicle which matched the

description he received from the 911 Center. Said vehicles were also heading in a northbound

direction. Sergeant Chiapperini activated his emergency lights, causing the female driver of the

vehicle to pull over to the right side of the road.Officer Herrle notified dispatch of the stop.

He then approached the driver's side of the vehicle to begin his investigation.

Upon approaching the defendant, Officer Herrle asked to see her driver's license. The

defendant passed by her license once, but then provided same to the officer. The defendant told

Officer Herrle that she was coming from Wegmans Food Markets and that she previously had

three beers at Hooligans, which the officer indicated was about 2 miles away.The officer

observed the defendant to have many of the physical indicia of intoxication. The defendant also

advised the officer that she had taken a certain pyschotropic medication.Subsequent to said

observations and conversation, the officer requested that the defendant exit the vehicle and

engage in various roadside tests. The roadside tests performed by the defendant were the [*3]

alphabet test, horizontal gaze nystagmus test, walk and turn test, one leg stand test, and finger to

nose test. The officer testified that the defendant failed each of these tests. The pre-screen test

was positive for the presence of alcohol. Based on his observations of the defendant and the defendant's performance of said roadside tests, Officer Herrle arrested the defendant for driving

while intoxicated. Subsequently the defendant was advised of her Miranda rights, whereupon she

agreed to speak to the officer.

On cross-examination, the officer indicated that if it was not for the 911 call, there would

have been no reason to stop the vehicle. Officer Herrle had no knowledge as to who called the

911 Center relative to the defendant. The officer was advised only that the individuals

in the subject vehicle were observed staggering in the parking lot, that they were either sick or

intoxicated. Officer Herrle testified that Sergeant Chiapperini had observed the vehicle matching

the previously described vehicle exit the Wegman's parking lot and then turn right on to Holt

Road heading northbound. However, the officers involved had no independent basis for stopping

the vehicle. Instead the stop was based solely on the description of the parties, their vehicle and

their alleged behavior as provided to the 911 Center. The officer further testified that he did not

observe the defendant commit any traffic infractions.

Issue Presented

Did the police have reasonable cause to stop the defendant's vehicle to investigate the

claim that the driver was intoxicated?

Did the Officer have reasonable cause to arrest the defendant for driving while

intoxicated?

Should any statements of the defendant be suppressed?

Legal Analysis. [*4]

A. Vehicle Stop. The stop of a vehicle by the police pursuant to an anonymous tip,

without any independent basis for such a stop, is problematic because of the opportunity for

abuse.

"An anonymous telephone tip must be viewed with undiluted suspicion, as it is a notoriously weak and unreliable source of information, which, without more, rarely justifies the considerable intrusion inherent in a search or seizure (see,People v. De Bour, 40 NY2d 210, 224-225, 386 NYS2d 375, 352 NE2d 562; People v. Perez, 125 AD2d 419, 420, 509 NYS2d 138; People v. Barbera, 71 AD2d 231, 234, 422 NYS2d 110)." People v. Hoffman (3rd Dept. 1996) 224 AD2d 853,854, 638 NYS2d 203, 205.

Nevertheless, the Appellate Division, Fourth Department has ruled on a very similar case

in People v. Rance, (4th Dept.) 227 AD2d 936, 644 NYS2d 447. The facts of that case were as

follows:

"At approximately 2:50 P.M. on February 3, 1994, a Town of Tonawanda police officer received a radio dispatch that an anonymous informant had reported that an intoxicated woman was leaving a business establishment at 2690 Sheridan Drive, and was entering the driver's seat of a red Oldsmobile with a particular license plate number. The officer arrived at that address within minutes and observed a red Oldsmobile with that plate number backing out of a space in the parking lot. The officer pulled up behind the vehicle to block its path and then approached defendant, the driver, to request her license and registration. Defendant, the only person in the vehicle, said that her license had been suspended. She mumbled as she spoke and her eyes were glassy and watery'. The officer asked defendant to perform field sobriety tests, but defendant refused. She was thereafter arrested for driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree." Ibid at 936, 447.

In the instant case it is uncontroverted that the only reason the defendant's car was stopped

was the 911 Center dispatch. The information received by the police was specific in that it

described the two people observed by the anonymous informant as being a white male and white female and who were reportedly staggering in the Wegmans parking lot on Holt Road in the Town of Webster, and who then entered a motor vehicle. The individuals were suspected as being either sick or intoxicated. The car was described as being a bronze Oldsmobile with a specific license plate number that was given by the informant to the 911 Center.

The information received by the police officers provided them with reasonable suspicion that the driver had or was about to commit a crime, to wit: driving while intoxicated. The

anonymously provided information involved a grave public safety issue. Therefore, the stop of

the defendant's vehicle was justified under the facts presented. Defendant's motion to suppress

evidence obtained as a result of the stop of the defendant's vehicle is hereby denied.

B. Reasonable Cause to Arrest. The facts set out herein satisfy the standard set forth in

Criminal Procedure Law Section 70.10(2) pertaining to "reasonable cause" to arrest the defendant for driving while intoxicated.^[FN2] Certainly the physical indicia of intoxication exhibited by the defendant were sufficient to require the defendant to exit her vehicle and take the various roadside tests. The fact that the defendant exhibited many of the standard physical indicia of intoxication and that defendant's performance on the roadside tests were "collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." C.P.L. 70.10(2). Wherefore the defendant's motion to suppress the evidence of the arrest herein for lack of probable cause to arrest the defendant is hereby denied.

C. Suppression of Statements. None of the statements of the defendant should be suppressed. The initial statements made by the defendant upon her stop by the police were during the investigatory stage of the case. During that portion of the stop the defendant responded to such questions involving her destination, where she was coming from, whether she had anything to drink and if she had taken any medications. At that time the defendant answered these questions she was in her own vehicle. Upon being arrested the defendant was subsequently advised of her Miranda rights at the Webster Police Department. Despite being advised of said rights the defendant agreed to speak to the arresting officer. None of these statements could be considered to have been made involuntarily as defined by C.P.L. 60.45(2). [*6]

Conclusion.

The motions of the defendant requesting suppression of the evidence obtained as a result of the stop of defendant's vehicle and suppression of statements made by the defendant to the arresting officer are denied. The motion to suppress evidence of the arrest of the defendant for driving while intoxicated for lack of probable cause for said arrest is also denied. This constitutes the decision and order of this court.

Dated: Webster, New York

September 19, 2008

________________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice.