History of the Case

Thomas J. DiSalvo, J.

The defendant was charged with per se driving while intoxicated, VTL 1192 (2), common law driving while intoxicated, VTL 1192 (3) and refusal to take the  breath test, VTL 1194 (1)(B). The defendant's attorney filed omnibus motions requesting, among other things, that the matter be set down for a probable cause and Huntley Hearing. Those hearings were conducted on February 28, 2014.

Facts of the Case.

The People called one witness at said hearings. That witness was the arresting officer, Mark Reed of the Webster Police Department. The officer testified on direct examination

that he received a 911 dispatch at 3:05 A.M. on November 11, 2012 about a fight reportedly occurring at an apartment complex at 111 Deerhurst Lane in the Town of Webster. Just before

he arrived at the scene he received a second 911 dispatch regarding a motor vehicle accident that had taken place in the Town of Webster by the intersection of Five Mile Line Road and Ridge

Road. The dispatch advised that the accident involved a silver older model Jeep. The officer [*2] testified that he continued to the scene of the original call at 111 Deerhurst Lane. As he entered

the parking lot of that complex he observed a silver older model jeep that was traveling toward his vehicle.^[FN1] Officer Reed stated that he observed a fresh paint scuff on the front passenger side

of the vehicle. He then activated his emergency lights and directed his spotlight toward the driver and only occupant of the vehicle in order to stop the defendant's vehicle. As a result, the

defendant stopped his vehicle in the parking lot of the apartment complex and turned off the motor. The officer approached the defendant's vehicle from the passenger side of the vehicle for

purposes of his safety. He directed the defendant to pull down the window. In order to do so the defendant had to put the keys back in the ignition in order to turn on the motor so he could pull

down the electronically controlled window. Upon so doing the officer observed blood on the defendant's arms and nose.

Officer Reed went on to state that Officer Sean Welch subsequently arrived at the scene and approached the defendant from the drivers side and obtained the defendant's driver's license.

In the meantime Officer Reed continued to speak to the defendant. The defendant told the officer that he had been in a motor vehicle accident. That he followed the other vehicle from the

scene to 111 Deerhurst Lane, where he confronted the other driver.

During that conversation the officer testified that he observed a strong odor of alcoholic  beverage, and glassy blood shot eyes. In response to the officer's question the defendant stated

he came from a establishment known as the Doctor's Inn where he had two to three beers. As a  result of those observations and comments, the officer asked the defendant to exit his vehicle and

perform various roadside tests. The defendant complied with both requests. The officer testified [*3] that the defendant failed to pass any of said roadside tests. After observing the results of the

tests, the officer concluded the defendant was intoxicated. The defendant was then arrested and transported to the Webster Police Department.

On cross-examination the officer testified that it took him approximately three minutes from the time he received the 911 dispatch to the time he arrived at the Deerhurst Lane

apartments. Officer Reed indicated that he did not observe any fight taking place when he arrived at those apartments and that there were a number of apartment buildings at that location.

The officer stated that he was not provided with a license plate for the vehicle in question by the 911 operator.

Issue Presented.

Was the stop of the defendant's vehicle by the police justified?

Legal Analysis.

Probable Cause. Certainly the evaluation of a police stop of a motor vehicle must start with both the 4th Amendment to United States Constitution and Article 1, Section 12 of the New

York State Constitution, which protect the right of an individual "... to be secure in their persons, houses, papers and effects ...." The fact that cars did not exist at the time the United States

Constitution was ratified does not lessen the relevance of those search and seizure protections. "While the vast majority of New Yorkers own or drive vehicles, the frequency of their time on

the road cannot recast the functional parameters of the Fourth Amendment or Article 1 Section 12." (People v. Robinson, 97 NY2d 341,357, 741 N.Y.S.2d 147, 157 [2001]). The United

States Supreme Court "... in Whren v United States (517 US 806 [1996]), unanimously held that  where a police officer has probable cause to detain a person temporarily for a traffic violation, [*4]

that seizure does not violate the Fourth Amendment to the United States Constitution even though the underlying reason for the stop might have been to investigate some other matter."^[FN2]

The Court of Appeals in the Robinson case held that such has always been the law in New York. It stated that "This Court has always evaluated the validity of a traffic stop based on probable

cause that a driver has committed a traffic violation, without regard to the primary motivation of the police officer or an assessment that a reasonable traffic officer would have made the same

stop."^[FN3]

The Court in Robinson held "... that where a police officer has probable cause to believe that the driver of an automobile has committed a traffic infraction, a stop does not violate article

1, Section 12 of the New York State Constitution."^[FN4] In the instant case there is no allegation by  the officer that the stop was based on a violation of the Vehicle and Traffic Law. In fact, the

defendant was not given a simplified traffic information for any violation of the Vehicle and Traffic Law for anything the officer observed prior to the stop. He did not see it speeding,

changing lanes unsafely, operating recklessly, failure to signal a turn or any other violation for  which the driver could be cited.The citations issued to the defendant were based on

observations of the defendant by the officer that took place after the officer stopped the defendant's vehicle in the parking lot of the apartment complex. Thus by definition the stop

herein was not based on probable cause that the defendant had violated a provision of the Vehicle and Traffic Law. [*5]

Reasonable Suspicion. CPL Section 140.50 [1] states in pertinent part "... a police officer may stop a person in a public place located within the geographical area of such officer's

employment when he reasonably suspects that such person is committing, has committed or is about to commit either a (a) felony or (b) a misdemeanor defined in the penal law, and may

demand of him his name, address and an explanation of his conduct." Nevertheless, the reasonable suspicion standard does not lend itself to a clear cut basis for the stop of a motor

vehicle. The reasonable suspicion standard has been put to the test in a myriad of cases.

" Reasonable suspicion is the quantum of knowledge sufficient to induce

an ordinary prudent and cautious [person] under the circumstances to

believe criminal activity is at hand" (People v Cantor, 36 NY2d at 112-113).

To justify the intrusion, an automobile stop other than for a traffic violation,

must not be the product of mere whim, caprice, or idle curiosity (People

v. Ingle, at 420; People v Davenport, 92 AD3d 689, 690, 939 N.Y.S.2d 473

[2d Dept 2012]). A vague or unparticularized hunch' will not survive

the reasonable suspicion standard and justify detention (People v Taveras,

155 AD2d 131, 135, 533 N.Y.S.2d 305 [1st Dept. 1990]). In this respect,

general descriptions are insufficient to supply reasonable suspicion to stop

and detain a defendant (see eg, People v Stewart, 41 NYS2d 65, 359 N.E.2d

379, 390 N.Y.S.2d 870 [1976]). It is enough if the stop is based upon

specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant [the] intrusion'(Terry v Ohio, 392 U.S. 1,

21 88 S. Ct.1868, 20 L. Ed. 2d 889 [1968]). The determination of whether the

circumstances of a particular case rise to the level of reasonable suspicion

is a mixed question of law and fact (People v Roque, 99 NY2d 50, 780 N.E.2d

976, 751 N.Y.S.2d 165 [2002])." (People v. Baldwin, 41 Misc 3d 1217(A),

2013 NY Slip Op 51723(U), ***2 [Sup Ct, Queens County 2013]).

The question of whether or not there was reasonable suspicion to stop a vehicle must be  decided on a case by case basis. As previously stated there is no clear cut standard as to what

constitutes a "reasonable suspicion" stop, as compared to what constitutes probable cause to stop,  such as an observed violation of the Vehicle and Traffic Law. However, there are some

established general guidelines. [*6]

"The factors most often considered when making a determination of

reasonable suspicion in the context of a care stop are (1) the degree of the

specificity of the description of the vehicle and its occupants and (2) the

spatial and the temporal nexus between the location of the car and the

location of the crime.... The greater the specificity to each of these two

factors, the more easily the reasonable suspicion standard is met...."

(People v Baldwin 41 Misc 3d 1217(A); 2013 NY Slip Op 51723(U),

***3 [Sup Ct, Queens County 2013]).

    Certainly "A warrantless stop of an automobile and the detention of its occupants is a seizure within the meaning of the State and Federal Constitutions ...; People v Sobotker, 43 NY2d 559,

373 N.E.2d 1218, 402 N.Y.S.2d 993; People v Hicks, 68 NY2d 234, 500 N.E.2d 861, 508 N.Y.S.2d 163 [1986]).^[FN5] The standard for stopping a motor vehicle to inquire is a higher standard

than is required to stop and inquire of a pedestrian. " An automobile stop is distinguishable from the common-law right of inquiry of a pedestrian as the common-law power in inquire does not

include the right to unlawfully seize' (People v Cantor, 36 NY2d 106, 114, 324 N.E.2d 872,  365 N.Y.S.2d 509 [1975] see generally, CPL Section 140.50 [1] People v. Garcia 20 NY3d

317, 983 N.E.2e 259, 959 N.Y.S.2d 464 [2012] People v. De Bour, 40 NY2d 210 352 N.E.2d 562, 386 N.Y.S.2d 375 [1976])."^[FN6]

The 911 call received by Officer Reed did not include a license plate or a description of the occupants of the vehicle. Nor did it indicate how many people were in the vehicle. The

officer was dispatched to investigate a fight. No mention was made of any specific crime in progress. The officer was advised by the 911 operator that the parties were heard to be discussing

guns and knives. On his way to the scene the officer became aware that a motor vehicle accident [*7] involving an older model Jeep had occurred at corner of Ridge Road and Five Mile Line Road,

which is not in the vicinity of the Deerhurst Lane apartments. Again, neither of these reported incidents suggested that any crime, i.e. a misdemeanor or a felony, was in progress or had taken

place. Nevertheless, the officer testified to seeing a vehicle meeting the description he was given as the officer entered the apartment complex. At which time he stopped that vehicle,

which turned out to be the defendant's vehicle.

Despite the fact that the case law does not provide specific guidelines as to what constitutes reasonable suspicion, Section 140.50 [1] of the Criminal Procedure Law is instructive

as to when reasonable suspicion can be a basis for the stop of a motor vehicle. It requires that  before an officer may stop and question an individual he must "... reasonably suspect that such

person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law [emphasis added] ...." There was no testimony by the

officer as to what specific crime he was investigating. Nor did the testimony elicited even suggest what crime or crimes were being investigated. The concept that there was a fight to be

investigated does not meet the standard required by the statute. The fact that there was or may  have been a "fight" does not mean a misdemeanor or a felony has occurred, even if was reported

that the people "discussed guns and knives". Such a discussion does not in and of itself mean any laws were violated. Furthermore, the fact that there was a motor vehicle accident does not

automatically suggest a violation of the penal law.

Suspicionless Stops. The Court of Appeals has upheld "suspicionless stops ... where reasonable, determined by balancing the pubic interest and the individual's right to personal

security free from arbitrary interference by law officers' (Brown v. Texas, 443 U.S. 47, 50, 61 L. [*8] Ed.2d 357, 99 S. Ct. 2637 [1979] [internal citations and quotations marks omitted])." (People v. Abad, 98 NY2d 12,16, 744 N.YS. 353, 355 [2002]). That case involved the stopping of  taxicabs in New York City, whose company participated in a program allowing the random

stopping and searching of taxicabs in order to discourage the robbery of taxicab drivers. The taxicabs bore a sign announcing that they were part of the program so that potential customers

were aware that the taxicab was subject to such a random stop and search by the police. The court in that case upheld the conviction to criminal possession of a controlled substance in the

second degree of a passenger arrested after such a search. In evaluating the validity of a particular [suspicionless] stop, Brown offers a three-part balancing test: the gravity of the public

concerns served by seizure of the vehicle, the degree to which the seizure advances the public interest and the severity of interference with individual liberty ..." Under the Brown and Abad

the three prong standard for suspicionless searches it " ... is well settled that the Border Patrol may stop a vehicle at a fixed checkpoint for brief questioning of its occupants even though there

is no reason to believe the particular vehicle contains illegal aliens' (People v. Sinzheimer, 15 AD3d 732, 733, 790 N.Y.S.2d 554 [3d Dept 2005], quoting United States v. Martinez-Fuerte ,

428 U.S. 543, 545 96 S. Ct. 3074, 49 L. Ed. 2d 1116)." (People v. Warwick, 40 Misc 3d  1237(A), 977 N.Y.S.2d 669, **669 [2013]). In the cases cited there was a specific established

non-arbitrary^[FN7] pre-stop search goal which had a stated public interest that the officers were trying to promote, i.e. safety of the taxicab drivers from robberies and the problem of illegal

immigration. The stop herein did not pass the first two prongs of the said three prong test to [*9] justify a suspicionless stop in that neither a suspected fight nor a motor vehicle accident, which

were not observed by the officer, were of a grave public concern, or advanced the public interest. The evidence discovered as a result of the search cannot be used to justify the stop ab initio.

Conclusions of Law.

Absent probable cause, "In order to be lawful, a stop of an automobile must be founded upon a reasonable suspicion that the car's occupants had been, are then, or about to be engaged

in criminal conduct (People v May, 81 NY2d 725, 609 N.E.2d 113, 593 N.Y.S.2d 760 [1992]  People v. Sobotker, supra; People v Ingle, 36 NY2d 413, 330 N.E.2d 39, 369 N.Y.S.2d 67

[1975])." (People v. Baldwin, 41 Misc 3d 1217(A), 2013 NY Slip Op 51723(U) ***2 [2013]). Since there was no evidence of any criminal activity prohibited under the penal law, there was a

lack of reasonable suspicion to permit the stop of the defendant's vehicle by the police. Thus all the evidence obtained as a result of said automobile stop must be suppressed. Defense counsel

motion requesting same is hereby granted. Since suppression of the stop of the vehicle would result in no evidence to prove defendant's guilt of the charges herein the said charges are hereby

dismissed. (See People v Baksh, 977 N.Y.S.2d 407 2014 NY Slip Op 112 [2nd Dept. 2014]). The remaining issues raised by said motions need not be addressed. This constitutes the decision and

order of the court.

Dated: March 20, 2014

Webster, New York

____________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice