INTRODUCTION

On March 8, 2012 the Court conducted a non-jury trial which was coupled with a probable cause hearing. The Court reserved decision and both parties submitted written memoranda by April 5, 2012. The Court will bifurcate its Probable Cause Decision and Trial Verdict, but use those facts presented at trial as a basis for both.

B.Voluntariness of Statement

Criminal Procedure Law Section 60.45

ISSUES PRESENTED

1.Anonymous tip and legality of stop.

2.Detention after stop.

3.Operation of motor vehicle.

4.Statements of Defendant prior to and after Miranda warnings.

5.Guilt or non-guilt of the Defendant.

PROBABLE CAUSE DECISION

A.Automobile Investigation

Approaching an occupied stationary vehicle is a minimal intrusion which is not the equivalent of a stop. See, People v. Harrison, 57 NY2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447 [1982]. This situation is analogous to approaching a citizen on the street to request information and therefore the courts use the same four-tiered analysis set forth in People v. DeBour, 40 NY2d 210 at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] to justify the conduct of the police. See, People v. Ocasio, 85 NY2d 982, 629 N.Y.S.2d 161, 652 N.E.2d 907 [1995]; People v. Harrison, supra.

However, our Court of Appeals in Moore cited supra said:

"Although we agree with the Appellate Division that the anonymous tip authorized only an inquiry, the police here failed to simply exercise their common-law right to inquire. Instead — in ordering him at gunpoint to remain where he was — the police forcibly stopped defendant as soon as they arrived on the scene. Because the officers did not possess reasonable suspicion until after defendant reached for his waistband, however — by which time defendant has already been unlawfully stopped [*4]— the gun should have been suppressed. Defendant's later conduct cannot validate an encounter that was not justified at its inception (see People v. DeBour, 40 NY2d 210, 215 [1976]; People v. William II, 98 NY2d 93, 98 [2002].

In DeBour, we set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right on inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime (DeBour, 40 NY2d at 233; see also People v. Hollman, 79 NY2d 181, 184-185 [1992]). The Court's purpose in DeBour was to provide clear guidance for police officers seeking to act lawfully in what may be fast-moving street encounters and a cohesive framework for courts reviewing the propriety of police conduct in these situations. Having been the basis for decisions in likely thousands of cases over the past 30 years, De Bour has become an integral part of our jurisprudence.

Here, the gunpoint stop unquestionably constituted a seizure of defendant's person — De Bour's level three — and required reasonable suspicion (see People v. Chestnut, 51 NY2d 14 [1980] [where police draw their firearms and order a suspect to "freeze," this is a seizure, the propriety of which is measured by the reasonable suspicion standard]; People v. Townes, 41 NY2d 97 [1976] [ordering a suspect to "freeze" with guns drawn amounts to a seizure of the suspect by police]).

An anonymous tip cannot provide reasonable suspicion to justify a seizure, except that tip contains predictive information — such as information suggestive of criminal behavior — so that the police can test the reliability of the tip (see Florida v. J.L., 529 US 266 [2000]; People v. William II, 98 NY2d at 99). Indeed, in J.L, a unanimous United States Supreme Court held that an anonymous tip regarding a young Black male standing as a particular bus stop, wearing a plaid shirt and carrying a gun, was insufficient to provide the requisite reasonable suspicion to authorize a stop and frisk of the defendant."

Likewise, the Fourth Department, in People vs. Layou, 71 AD3d 1382 (2010) added:

"In any event, we further conclude that the court erred in refusing to suppress the tangible property seized, i.e., the cocaine, and defendant's statements to the police. As defendant contends in his pro se supplemental brief, suppression was warranted because the police lacked reasonable suspicion to justify the initial seizure of his vehicle. Here, a police officer effectively seized defendant's vehicle when he pulled into the parking lot behind defendant's vehicle in such a manner as to prevent defendant from driving away (see People v. Solano, 46 AD3d 1223, 1225, 848 N.Y.S.2d 431, lv. denied 10 NY3d 817, 857 N.Y.S.2d 50, 886 N.E.2d 815; People v. Nicodemus, 247 AD2d 833, 835, 669 N.Y.S.2d 98, Iv. denied 92 NY2d 858 677 N.Y.S.2d 88, 699 N.E.2d; cf. People v. Ocasio, 85 NY2d 982, 984-985, 629 N.Y.S.2d 161, 652 N.E.2d 907; People v. Black, 59 AD3d 1050, 1051, 872 N.Y.S.2d 791, Iv. denied 12 NY3d 851, 881 [*5]N.Y.S.2d 663, 909 N.E.2d 586). Defendant's presence in a vehicle at 3:40 a.m. in a parking lot located in the general vicinity of a burglary that the police were investigating did not provide the police with reasonable suspicion that defendant had committed, was committing, or was about to commit a crime (see People v. May, 81 NY2d 725, 727-728, 593 N.Y.S.2d 760, 609 N.E.2d 113). It is well settled that "innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand" (People v. De Bour, 40 NY2d 210, 216, 386 N.Y.S.2d 375, 352 N.E.2d 562). In this case, the arresting officer did not observe any conduct indicative of criminal activity at the time he seized the vehicle, the complainant who has reported the burglary did not mention that the burglars fled in a vehicle, and the officer had no other information tending to connect defendant or the occupant of his vehicle with the reported burglary (see Nicodemus, 247 AD2d at 835, 669 N.Y.S.2d 98; see generally People v. Taylor, 31 AD3d 1141, 1142, 817 N.Y.S.2d 816). Thus, even if there had been sufficient chain of custody, we nevertheless conclude that the judgment must be reversed in its entirety, including those parts convicting defendant of resisting arrest and obstructing governmental administration (see Matter of Marlon H., 54 AD3d 341, 862 N.Y.S.2d 570; People v. Lupinacci, 191 AD2d 589, 595 N.Y.S.2d 76), inasmuch as the police acted without the requisite reasonable suspicion to justify the initial seizure of defendant's vehicle."

Although the issue was disputed at Trial, the Court credits the testimony of Trooper Wentland and his supervisor Sgt. Dischner, that Wentland did not block Defendant's car. Here, the anonymous tip was coupled with Trooper Wentland's own observations of an open alcoholic beverage container and a smell of a strong alcoholic odor. But for this corroboration, this Court would conclude that he acted without the requisite reasonable suspicion to justify the initial seizure of defendant's vehicle.

Trooper Wentland acted reasonably and responsibly when he directed the defendant to exit the car. The officer's action forestalled the operation of the vehicle by one who may have been drinking. The intrusion was, at most, de minimus, and not violative of defendant's Fourth Amendment rights. See, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 [1977]; People v. Key, 81 AD2d 805, 441 N.Y.S.2d 390 [1st Dept. 1981], app. dismissed 54 NY2d 813, 443, N.Y.S.2d 652, 427 N.E.2d 949 [1981].

The crux of the matter before this Court is whether the defendant, who was legally parked, sitting behind the wheel of a car, with the engine not running, but keys in the ignition and eating food, was engaged in the operation of a motor vehicle, while under the influence of alcohol, within the meaning of the Vehicle and Traffic Law §1192 justifying his arrest.

The crime of operating a motor vehicle while under the influence of alcohol in violation of Vehicle and Traffic Law §§ 1192(2) and 1192(3) requires that the vehicle be operated by a driver who is intoxicated. Operation may be established by direct evidence or circumstantial evidence. Whereas, here, Trooper Wentland did not actually see the car in motion, the proof of "operation" must be based on circumstantial evidence. See, e.g., People v. Booden, 69 NY2d 185, 513 N.Y.S.2d 87, 505 N.E.2d 598 [1987]. Our Appellate Courts have indicated the [*6]question of operation of the automobile is one that should be left for trial and not decided on a probable cause hearing [See People vs. Khan (2d Dept. 1997) 182 Misc 2d 83, 697 NYS2d 457].^[FN1]

Probable cause existed to arrest the defendant. Trooper Wentland met the four step procedure of Debour. Wentland was permitted to request information (license, registration, identification, etc.) from the defendant based on the credible reason of smell of alcohol and alcoholic drink in the car. Once Trooper Wentland had a founded suspicion that defendant was intoxicated (blood shot eyes, slurred speech etc.), Wentland had a right to stop and detain the defendant for sobriety tests. Failing those tests, Trooper Wentland had probable cause to believe the defendant had committed the crime of driving while intoxicated and could arrest him for it.

B.Voluntariness of Statement

Admissibility of Defendant's statements regarding consumption of beer and operation of his automobile is dependent upon if they were voluntarily given to Trooper Wentland. Huntley (People v. Huntley, 15 NY2d 72 255 NYS 2nd 838) requires the People to establish, beyond a reasonable doubt, that a statement was voluntarily made. Miranda (Miranda vs. Arizona 384 US 436, 86-S.Ct. 1602) requires custodial interrogation for involuntariness of the statement. Both cases require defendant to be under arrest and questions being asked to illicit an incriminating response. Trooper Wentland observed that the defendant bore common indicia of intoxication. He then had Defendant do field sobriety tests, after which the Defendant was arrested. Only after the arrest did Wentland ask the Defendant if he had been drinking and driving his motor vehicle. Defendant admitted as much. This was a custodial interrogation and the defendant was entitled to Miranda warnings prior to being questioned. See, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.1602, 16 L.Ed2d 694 [1966]; People v. Yukl, 25 NY2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969]. Wentland admits not Mirandizing Defendant until his arrival at the State Police barracks. His Bill of Particulars filed with Court bears this out.

Trooper Wentland made no threats of physical force, nor applied any undue pressure, nor made any promises to the defendant to make his statement involuntary. [CPL § 60.45(2)].

Defendant's motion to dismiss the accusatory instrument is denied. Defendant's motion to suppress his statements is granted.

_____________________________

Hon: Leonard G. Tilney, Jr.

Lockport Town Justice