History of the Case

Hon. Thomas J. DiSalvo, J. The defendant was charged with having Inadequate Plate

Lamps, VTL 375(2)(A)(4), Driving While Intoxicated, VTL 1192(3) and Refusal to Take a

Breath Test 1194(4) on September 26, 2011 at about 1:13 A.M. He was arraigned by Judge

David T. Corretore at approximately 3:25 A.M. and released to Straight Pre-Trial Release. In

addition, the defendant's license was suspended for a reputed refusal to submit to a Chemical

Test. The matter was adjourned to October 20, 2010 for appearance of defense counsel and

further disposition. On the return date the defendant appeared with counsel. The matter was

adjourned to December 1, 2010 for argument of motions. Among other things the defense

requested that the court set the matter down for a Probable Cause and Huntley hearing. A

Probable Cause hearing was conducted on January 28, 2011. At the conclusion of that hearing

the parties stipulated that all post arrest statements were voluntary in nature, abrogating the need

for a Huntley hearing. [*2]

At the Probable Cause hearing, the prosecution presented Officer Mark C. Reed as its

only witness. Officer Reed testified that on September 26, 2010 at approximately 1:13 A.M. the

defendant was operating a motor vehicle eastbound on Ridge Road in the Town of Webster.

Also in defendant's vehicle were his wife, his daughter and his daughter's boyfriend. They had

just left a local establishment known as the Filling Station. Officer Mark C. Reed of the

Webster Police Department was on routine patrol on Ridge Road operating in a westbound

direction. As he passed the defendant's vehicle, Officer Reed looked into his side mirror. He

testified that he observed the defendant's rear license plate which was inadequately illuminated

in that one of the two plate lamps was out. The officer turned his vehicle around and pursued the

defendant's vehicle. The officer testified that he positioned his vehicle within fifty feet of the

that car, but could not read the license plate. In fact, the officer testified on cross-examination

that he could not read the rear license plate within two to three car lengths of about fourteen feet

each from the rear of defendant's vehicle. Again on cross-examination the officer testified that

there were two plate lamps and that the one on the passenger side was not lit causing the license

plate to be inadequately illuminated. However as both vehicles were stopped at a red light the

officer testified that he was able to read defendant's real license plate. Nevertheless, he

subsequently stopped defendant's car.Officer Reed approached the driver's side window and

asked and received the defendant's license and registration. In so doing Officer Reed testified

that he observed various indicia of intoxication, such as glassy, watery, blood shot eyes. The

defendant indicated twice that he did not have anything to drink in response to the officer's

questions. The officer then asked the other passengers if they had anything to drink, upon which [*3]

they indicated in the affirmative. The officer further testified that he observed a strong odor of an

alcoholic beverage from the defendant's breath. Because of his observations the officer inquired

as to whether the defendant would be willing to take the standard field sobriety tests. The defendant was asked to perform the horizontal gaze nystagmus, walk and turn, one leg stand and

alco-sensor tests. Officer Reed testified that the defendant failed the first three tests. He further

testified that during the latter test the defendant attempted to beat the test by not properly blowing

into the breath test device. In one such attempt the defendant caused spit to go all over the

officer's face. When given one more opportunity to take this test the device showed positive for

alcohol, but the officer indicated that it was not a proper sample. The defendant then refused to

take alco-sensor test an additional time. Thus the officer failed the defendant as to that test.

The defendant was next put under arrest. At this point the situation deteriorated when the

defendant resisted being handcuffed. In addition, the defendant resisted being led to the police

car and he resisted being put in the police car. During that time the defendant was demanding

that Officer Reed show him the light out on his car. The officer testified that he did take the

defendant to the rear of defendant's vehicle to show him that one of the two license plate lamps

was not working. Because of the scuffle the officer did call for assistance from his Sergeant.

Officer Rynders also appeared on the scene to assist in arrest. During the time of the arrest the

defendant's family exited their vehicle and began to yelling at the officers to leave the defendant

alone. Eventually, Officer Reed administered the alco-sensor test on the defendant's wife, Lynn

Ann Lang, to see if she was capable of driving defendant's vehicle. She was not determined to

be impaired by alcohol and was permitted to drive the defendant's vehicle from the scene.

The defense offered the defendant's wife, Lynn Ann Lang, as a witness in the Probable [*4]

Cause hearing. She testified that she and her husband had driven to Brockport, New York to

pick up their daughter and daughter's boyfriend. While driving home to Ontario, New York, the

parties stopped at the Filling Station at about midnight to get something to eat and drink.In

addition to something to eat they ordered a pitcher of beer with three glasses, one for Mrs. Lang, one for the daughter and one for daughter's boyfriend. She testified that her husband had a

couple of sips of beer from her glass after completing his meal, but that the defendant had

nothing else to drink either alcoholic or non-alcoholic.

Issue Presented.

Was the stop of defendant's vehicle justified?

Legal Analysis.

The defendant's vehicle was stopped based on the arresting officer's stated inability to

read the characters on defendant's rear license plate. The defendant was issued a ticket for

allegedly being in violation of V.T.L Section 375(2)(a)(4) commonly referred to as

"No/Inadequate Plate Lamps". That section reads as follows: "Every motor vehicle except a motorcycle, driven upon a public highway during the period from one-half hour after sunset to one-half hour before sunrise or at any other time when windshield wipers are in use, as a result of rain, sleet, snow, hail or other unfavorable atmospheric condition, and at such other times as visibility for a distance ofone thousand feet ahead of such motor vehicle is not clear, shall display: if required to display a number plate on the rear, a white light which shall illuminate the numerals on such plate in such manner as to render such numerals legible for at least fifty feet from the rear."

The stop of a motor vehicle is one of the more common ways in which the average citizen

encounters the police power of the government. Although it can be very dangerous for the

officer involved, it is always a situation filled with a great deal of apprehension on the part of the

citizen. The vehicle stop is always intrusive. Although, there were no automobiles at the time [*5]

the United States Constitution was adopted, the founding fathers were concerned with the ability

of the government to subject individuals to searches and seizures.Both the United States

Constitutions and the New York State Constitutions prohibit unreasonable of searches and seizures.^[FN1] Certainly, the stop of a motor vehicle is a seizure. People v. Ingle, 36 NY2d

413,418, 369 N.Y.S.2d 67,73 (1975) . See also, People v. Culcross, 184 Misc 2d 67,68, 706

N.Y.S.2d 605,606 (Monroe County Court, Egan J. 2000). The reasonableness of a traffic stop is

based on a balancing test between the interest of the state in maintaining the safety of the public

and the right of a motorist to move freely upon the roads of this state without the arbitrary

interference of the government. Ingle at 419, 73.

Over the years a myriad of cases have been decided relative to the proper standard for the

stop of a motor vehicle by a police officer.

"One of the most confusing areas of the law is the distinction between the facts or evidence necessary to justify the stop of a car, and the facts or evidence necessary to justify the arrest of its operator. The test for an arrest is reasonable cause or probable cause to believe that the defendant committed the crime. This is a higher standard than that required to stop a vehicle" Gerstenzang, Handling the DWI Case in New York, Section 1:3 (2010-2011 Edition at page 4).

"Reasonable suspicion of criminal activity is a broad category encompassing virtually any violation of law from felonies to equipment violations. Where the conduct observed does not constitute a reasonable suspicion of criminal activity, it may still provide an articulable' reason to pull a car over. The articulable' reason must be rational and not the product of whim, caprice or prejudice. People v. Ingle, 36 NY2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975), and Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed.2d 660 (1979), are the classic cases illustrating this point." Gerstenzang at 1:3.

"In particular, reasonable suspicion' has been aptly defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand' ... The requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere hunch' or gut reaction' will not do." People v. Sobotker, 43 NY2d 559, 564, 402 N.Y.S.2d 993, 996. (1978).

Again, a traffic infraction has fallen under the "criminal activity" umbrella for purposes

of reasonable suspicion, but could also be considered an articulable reason to stop a vehicle. In

this case the officer stopped the defendant for an alleged violation of the rear plate lamp

requirement of V.T.L. 375(2)(a)(4). The standard applied against a stop based on reasonable

suspicion or on an articulable reason must be an objective standard. See Terry v. Ohio, 392 U.S.

1,21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and People v. Bigger 2 Misc 3d 937,941, 771

N.Y.S.2d 826,829 (Webster Justice Court, DiSalvo, J. 2004). In other words, in order to satisfy [*7]

the "rational and not the product of whim, caprice or prejudice" standard established by the Court

of Appeals in the Ingle case, the basis of the stop should not subjective in nature.

An objective standard lends itself to verification by reference to a specific criterion, such

as speeding, running a red light, lack of any headlights, failure to wear a seat belt or using a cell

phone while operating a motor vehicle. In the instant case it is uncontroverted that the

defendant's vehicle was designed with two white lights to light up its rear license plate.

Furthermore, it has been established that one of the lights was not working, leaving one light to

illuminate the vehicles' rear license plate. The officer testified at the suppression hearing that the

plate lamp on the driver side was on. Officer Reed testified on cross-examination that the plate

lamp was "inadequate" to illuminate the rear license plate. Further questioning by defense

counsel revealed that the officer believed that he was "two to three car lengths" from the

defendant's vehicle, but could not read the plate. He further indicated his belief that a car length

was fourteen feet long. Finally, the officer testified he could not remember which of the two

plate lamps were out on the night of the arrest. Finally, one must return to the statute which is

alleged to have been violated, which requires "a white light which shall illuminate the numerals

on such plate in such manner as to render such numerals legible for at least fifty feet from the

rear", V.T.L. 375(2)(a)(4). Note that the statute does not require two white lights. Presumably

if the Officer's vehicle was within two to three car lengths, the police car's headlights would

have illuminated the defendant's rear license plate.

In reviewing the testimony and evidence presented one must wonder if another officer in

the same position as Officer Reed could have in fact read the license plate at the point from [*8]

which Officer Reed indicates that he could not. In addition, in order to support the charge, one

must rely on the Officer's ability to gage the distance between himself and the rear of defendant's vehicle while both cars were moving. There was no evidence presented of the officer's ability or

training in that area. It is also necessary to rely on Officer Reeds knowledge as to the length of a

car and whether he is describing a compact, mid-size, full size car or van. Then there was the

officer's testimony that he could in fact read the defendant's license plate when both vehicles

were stopped at a red light. All these facts suggest that the basis for the stop is subjective rather

than objective in nature. This is not to suggest any lack of good faith on the part of Officer

Reed. In fact, the United States Supreme Court addressed this issue when it stated "But good

faith on the part of the arresting officer is not enough'... If subjective good faith alone were the

test, the protections of the Fourth Amendment would evaporate, and the people would be secure

in their persons, house, papers and effects,' only in the discretion of the police." Beck vs. Ohio

(1964) 379 U.S. 89,97, 85 S.Ct. 223,229, 13 L. Ed.2d 142,148. See also Terry v. Ohio, (1968)

392 U.S. 1,22, 88 S.Ct. 1868,1880, 20 L.Ed. 889, 906 and People v. Cantor, 36 NY2d

106,113, 365 N.Y.S.2d 509,516, 324 N.E.2d 872,877 (1975).

This court has also considered People v. Robinson, 97 NY2d 341, 41 N.Y.S.2d 147

(2001), wherein it stated that "A police officer who can articulate credible facts establishing

reasonable cause to believe that someone has violated a law has established a reasonable basis to

effectuate a stop."^[FN3] In that case the court further stated "Because the Vehicle and Traffic Law

provides an objective grid upon which to measure probable cause, a stop based on that standard

is not arbitrary in the context of constitutional search and seizure jurisprudence."^[FN4] Nevertheless, [*9]

the court indicated that an objective standard was required for the stop a motor vehicle.^[FN5] The

fact that the Vehicle and Traffic Law provides an "objective grid" does not mean the a police

officer can use a subjective basis for the stop of a vehicle. The Vehicle and Traffic Law is not a blank check that can be brought out at any time to justify a vehicle stop. Such an intrusion must be based on a specific and definite violation.If for example a police offer charged someone with speeding, but it was determined that the officer was not in a position that would allow for a visual estimate of speed or an opportunity to engage a radar device, the charge of speeding would lack the required credibility or objective basis for the charge of speeding. Thus the accusation of a violation of a Vehicle and Traffic Law based on a subjective set of facts in and of itself would not be sufficient to justify the stop of a vehicle. Were that not the case, no probable cause hearing would be required in any driving while intoxicated case, and any stop on some perceived traffic violation would permit the officer to inquire of the driver's sobriety. The right to be free from unreasonable searches and seizures would demand a higher standard.

Conclusion.

The evidence presented at the suppression hearing indicates that Officer Reed failed to have either a reasonable suspicion or an articulable reason by an objective standard to stop the defendant's vehicle on the evening in question.^[FN6] As a result, all the evidence obtained by the

People as a result of the stop of the defendant's vehicle is hereby suppressed and the charges are [*10]dismissed.^[FN7] This constitutes the decision and order of this court.

Dated: February 15, 2011

Webster, New York

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Hon. Thomas J. DiSalvoWebster Town Justice