The defendant is charged with two counts of driving while intoxicated (Vehicle and Traffic Law §1192[2], [3]), one count of failing to obey a traffic control device (Vehicle and Traffic Law §1110[a]) and one count of consumption or possession of alcoholic beverage in a motor vehicle (Vehicle and Traffic Law §1227[1]). The defendant has moved to suppress the breathalyzer test results and beer bottles as the products of an unlawful arrest or search. A Mapp/Dunaway hearing was held on February 5, 2009, during which Officer Steven Weber testified for the prosecution and the defense did not present any witnesses. This written decision explains the basis for my decision rendered from the bench on March 31, 2009 denying the defendant's motion to suppress the results of the breathalyzer test and granting his motion to suppress the six beer bottles. As indicated on March 31, 2009, I found Officer Weber credible and make the following findings of fact and conclusions of law.^[FN1]

Finding of Fact

Officer Weber, employed by the New York City Police Department for the last 23 years, was assigned to the 112th precinct on January 6, 2008. Shortly after 3:00 a.m. of that day he and [*2]his partner, Sergeant Kimberly Smith, were monitoring traffic from 150 feet southwest of the intersection of Woodhaven Boulevard and Wetherall Street in Queens County, an accident prone location.

At about 3:50 a.m., Officer Weber saw the defendant driving a 1994 Chevy Blazer, traveling southbound on Woodhaven Boulevard, make an illegal U-turn at the intersection of Wetherall Street and Woodhaven Boulevard in violation of two posted signs.^[FN2] Officer Weber stopped the defendant at the intersection of Woodhaven Boulevard and Queens Boulevard, near the Long Island Expressway.

Officer Weber approached the driver's side of the Blazer, explained to the defendant his reason for stopping him and then asked for his driver's license which he produced. During this interaction, Officer Weber smelled a strong odor of an alcoholic beverage on defendant's breath and saw that the defendant had bloodshot, watery eyes. The defendant, when asked by Officer Weber, denied he had been drinking, and said it was his passengers who had been drinking, one of whom was in the front passenger seat and two others were in the rear passenger seats.

Officer Weber, after confirming that the defendant had a valid license and registration, asked the defendant to exit the Blazer and administered a portable breathalyzer test to the defendant which indicated a .188 percent blood alcohol content. The defendant was then arrested and transported to the 112th precinct. Officer John Tan, who arrived at the scene after the defendant was arrested, drove the Blazer along with the defendant's passengers to the precinct and parked it nearby; the three passengers remained at the precinct to await the results of the breathalyzer test.

Officer Weber, after processing the defendant at the 112th precinct, returned to the Blazer at about 5:30 a.m. in order to secure it. Officer Weber testified that the vehicle was not in his custody or the department's custody and had also determined the defendant was not the owner. Officer Weber saw on the floor behind the driver's seat six 12 ounce bottles of Corona beer. At the time of the stop and defendant's arrest, Officer Weber had not seen these bottles. Two of the six bottles were unopened and the rest were opened, containing various amounts of beer.

In this case, Officer Weber lawfully stopped the defendant's vehicle; Officer Weber observed the defendant commit a traffic infraction, an illegal U-turn. (See People v Ingle, 36 NY2d 413 [1975]; People v Bryon, 4 Misc 3d 1024[A][Sup Ct, Bronx County 2004]. ) Officer Weber, during the discussion with the defendant to determine whether he was properly licensed and the Blazer was properly registered, smelled a strong odor of alcohol on the defendant's breath and saw that his eyes were bloodshot and watery. The effect of these combined observations was sufficient to create a reasonable suspicion for Officer Weber to believe that the defendant had been driving the Blazer while intoxicated and to direct the defendant to exit the vehicle. (See [*3]People v DeBour, 40 NY2d 210, 223 [1976].) It was also proper for Officer Weber to ask the defendant to take the alco-sensor test. (Vehicle and Traffic Law §1194[1][b].) The defendant agreed and took the test, which resulted in a reading of .188 percent blood alcohol content. At this point, Officer Weber had probable cause to arrest the defendant for driving while intoxicated. (See People v Ball, 141 AD2d 743 [2d Dept], lv denied 72 NY2d 954 [1988]; People v Blajeski, 125 AD2d 582 [2d Dept 1986], lv denied 69 NY2d 877 [1987].) At the precinct, a breathalyzer test was administered to the defendant. Since the stop and arrest of the defendant were lawful, the defendant's motion to suppress his test result is denied.

The People maintain that Officer Weber's recovery of the six beer bottles was lawful and consistent with the plain view doctrine ^[FN3]. The defendant contends that they were unlawfully recovered through an improper inventory search.

After the defendant was arrested at about 3:50 a.m. and taken to the 112th precinct where he was held in police custody, Officer Weber, at about 5:30 a.m., returned to the Blazer which earlier had been impounded by the police ^[FN4], with the intent, according to the prosecution, to secure the [*4]vehicle - "make sure it was locked"^[FN5] -, but not to inventory its contents.

While securing the Blazer, Officer Weber testified that: "I went back to the vehicle to secure it, make sure it was locked and I observed on the floor of the rear behind the driver's seat of the vehicle on the floor six 12 ounce bottles of Corona beer..."^[FN6], and seized the six beer bottles for use as evidence against the defendant.^[FN7] The People argue that Officer Weber without a search warrant lawfully seized these beer bottles as evidence of the defendant's intoxication, relying on the plain view doctrine.

When the police engage in actions which result in the seizure of evidence, those actions, as the United States Supreme Court recently held, are per se unreasonable under the Fourth Amendment when conducted outside of the judicial process unless the police act in accordance with recognized exceptions to the requirement they first obtain a search warrant approved by a judge or magistrate. (See Arizona v. Gant, 556 US____, 2009 WL 1045962.) Among the recognized exceptions to the warrant requirement are, of course, property recovered pursuant to the plain view doctrine (See People v Spinelli, 35 NY2d 77 [1974]), and property recovered as a result of an inventory search (See People v. Sullivan, 29 NY2d 69 [1971].)

The Court of Appeals stated in People v Diaz, 81 NY2d 106, 110 (1993), that "[u]nder the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent. (citations omitted)." The continued viability of the prosecution's reliance on the plain view doctrine requires the prosecution to also demonstrate Officer Weber's discovery of the beer bottles was inadvertent. (People v Coston, 271 AD2d 694 [ 2d Dept], lv denied 95 NY2d 833 [2000].)

In this case, there is no dispute that the incriminating nature of these objects was not immediately apparent to Officer Weber,^[FN8] or that he had not intended to search for the beer bottles. (See, People v Whitfield, 255 AD2d 924 [4th Dept 1998], lv denied 93 NY2d 981 [1999]). Thus, the issue becomes whether the Officer Weber was in a position to view the beer bottles and had lawful access to the bottles under the plain view doctrine ^[FN9]. [*5]

About one hour and 40 minutes after defendant was stopped and arrested, the Blazer was still parked at or near the precinct and the defendant was in police custody, safely confined within the 112th precinct. The prosecution failed to elicit or omitted from Officer Weber's testimony clarifying facts that would have established whether the Blazer was a 2 or 4 door vehicle and whether Officer Weber saw the beer bottles while he was outside of the Blazer or discovered the bottles after he entered the Blazer. The prosecutor, in her concluding remarks, said "I believe his (Weber's) testimony was he went to lock it, basically, and observed by going to the vehicle beer bottles in the back".^[FN10] The implication of the prosecutor's closing remarks is clear; Officer Weber was outside of the Blazer when he saw the beer bottles and makes the prosecutor's decision not to rely on an inventory search as a basis for the seizure of the bottles more understandable.^[FN11] The prosecutor, nevertheless, has the burden of going forward with evidence that establishes that Officer Weber acted properly when he seized the beer bottles by presenting sufficient and unambiguous facts through his testimony. In this regard I find the People have failed to meet their burden of going forward with evidence of establishing where Officer Weber was when he saw the beer bottles. (See People v Rosa, 30 AD3d 905 [3d Dept], lv denied 7 NY3d 851 [2006]); People v De Frain, 204 AD2d 1002 [4th Dept], lv denied 84 NY2d 825 [1994].) The willful ambiguity in Officer Weber's testimony permits either the conclusion that he saw the beer bottles while he was standing outside of the Blazer or that he recovered the bottles after he entered the Blazer while in the process of securing it.

Assuming Officer Weber saw the beer bottles while standing next to, but outside of the Blazer, and thus accepting the People's version of how he came to seize the beer bottles, the People have nevertheless failed to demonstrate that Officer Weber had lawful access to the Blazer when he entered the Blazer to seize the beer bottles. It is clear that Officer Weber had the means to secure the Blazer while he sought a search warrant and the prosecution has presented no urgent, public safety concern (cf. People v Singleteary, 35 NY2d 528 [1974][urgency in seizing evidence identifying robbers of several elderly people from a car without a warrant constituted an overriding public safety concern]) or exigent circumstances, (cf. People v Ciaccio, 45 NY2d 626 [1978][exigent circumstances existed to overcome need to first obtain a search warrant where police had probable cause to believe a hijacked truck containing stolen watches was about to be moved]) that could excuse Officer Weber's failure to obtain a search warrant in order to seize the beer bottles. Here, as in People v Spinelli, 35 NY2d 77, 81-82 [1974] it is evident there was no impediment to Officer Weber getting a search warrant: "The crux then is that there was ample [*6]time for the law enforcement officials to secure a warrant in order to make this significant intrusion onto the defendant's premises....In the case at bar there was absolutely no justification - either relating to exigent circumstances or the nature of the search or seizure effected - for not obtaining a search warrant." While the police in Spinelli entered private property to seize the stolen truck, the Blazer was already in police custody, either in a secure area or on a public street near the precinct. The defendant's privacy interests in the Blazer is as the United States Supreme Court recognized in Arizona v Gant, 556 US ___ ,2009 WL 1045962, "...nevertheless important and deserving of constitutional protection," particularly in the absence of any safety or evidentiary concerns that otherwise might have justified a warrantless search of the Blazer. Accordingly, I find the People have failed to justify the seizure by Officer Weber of the beer bottles from the Blazer based on the plain view doctrine and the defendant's motion to suppress the beer bottles recovered from the Blazer is granted.^[FN12]

The foregoing is the decision and order of the court.

Dated:May 8, 2009

Queens County, New York

________________________________

Gene R. Lopez

J.C.C.