Justice Court of the Town of Pleasant Valley, Dutchess County, August 12, 2024

James Caffrey for defendant.

Anthony Parisi, District Attorney (Joseph Petito of counsel), for the People.

On February 3, 2023, the defendant was arrested for driving while ability impaired by drugs (Vehicle and Traffic Law § 1192{**84 Misc 3d at 874} [4]) and additionally charged with criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) following a traffic stop for a violation of Vehicle and Traffic Law § 1128 (a) (moving from a lane).

On May 23, 2024, the court held a probable cause hearing concerning the propriety of the traffic stop and the defendant's subsequent arrest. The only evidence offered at the hearing was the testimony of Trooper Ewald, who made the traffic stop and the arrest, and his bodycam footage of the same. Trooper Ewald testified in a credible fashion. The defendant did not testify. No other documents or records were offered by the defense or prosecution or otherwise entered into evidence by the court.

Trooper Ewald testified that, while driving toward the defendant in the opposite lane of traffic, he observed the defendant cross the fog line once and then aggressively readjust his steering, then crossing over the center double yellow line.^[FN*] As a result, Trooper Ewald turned around and pursued the defendant. Upon stopping the defendant, Trooper Ewald informed the defendant that he had stopped him because the defendant was "all over the road." (See bodycam video at 00:01:20.) Trooper Ewald saw an open alcohol container in the defendant's vehicle [*2]while speaking to the defendant and informed him of the same. The defendant stated that he drank "one beer" about three hours ago. (See bodycam video at 00:05:54-00:06:03.) At that point, Trooper Ewald had the defendant exit his vehicle, after which Trooper Ewald administered a series of roadside sobriety tests, which, according to Trooper Ewald, the defendant failed. Following the roadside sobriety tests, Trooper Ewald noticed a substance hanging out of the defendant's nose. The defendant then stated that he had snorted some crushed Adderall pills approximately an hour and a half before driving. (See bodycam video at 00:17:02-00:17:34.) The defendant also stated that he was prescribed Xanax, but further stated that he did not use it. The defendant later produced a prescription bottle of Xanax from the passenger compartment of his vehicle. As it turned out, it appeared that the prescription bottle was not written in the defendant's name. Ultimately, Trooper Ewald placed the defendant under arrest for driving while ability impaired,{**84 Misc 3d at 875} expressly referring to the defendant's admitted snorting of Adderall and driving thereafter, in violation of Vehicle and Traffic Law § 1192 (4). (See bodycam video at 00:34:50.)

A traffic stop or vehicle stop is a seizure implicating constitutional limitations under the Fourth Amendment of the United States Constitution. (People v Hinshaw, 35 NY3d 427, 430 [2020].) In order to effectuate a valid traffic stop that does not violate the driver's constitutional rights, a police officer must have probable cause to believe that the driver of the vehicle has committed a traffic violation. (People v Robinson, 97 NY2d 341, 349 [2001].)

A finding of probable cause does not require a demonstration of proof sufficient to sustain a conviction or even to establish a prima facie case; instead, the circumstances need only demonstrate that it is "more probable than not" that a crime has taken place and that the one arrested is the perpetrator. (People v Hill, 146 AD2d 823, 824 [3d Dept 1989]; see also People v Attebery, 223 AD2d 714, 715 [2d Dept 1996].)

Where a defendant challenges the legality of a stop/seizure in a Mapp/Dunaway/Huntley hearing for the purposes of suppressing the statements or other evidence obtained as a result of the stop, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct, i.e., the probable cause to stop the defendant's vehicle. (People v Abrucci-Kohan, 52 Misc 3d 919, 921 [Monroe Just Ct 2016].) Once the People have met that burden, the burden then shifts to the defendant to establish the illegality of the police conduct by a fair preponderance of the evidence. (Abrucci-Kohan, 52 Misc 3d at 921.)

"Considerable confusion has developed among courts as to whether a brief contact with the solid white 'fog' line on a roadway violates [Vehicle and Traffic Law] section 1128 and therefore justifies a stop." (Larry Cunningham, 2019 Prac Commentaries, McKinney's Cons Laws of NY, Vehicle and Traffic Law § 1128.) This confusion has likely developed because the statute contains several unequivocal "shall" and "shall not" commandments pertaining to driving within a lane or obeying lane markings. (See generally Vehicle and Traffic Law § 1128.) At the same time, however, several cases state that "[t]he crossing of a solid white line [i.e., the fog line] is discouraged, but not prohibited." (See e.g. People v Shulman, 14 Misc 3d 129[A],{**84 Misc 3d at 876} 2006 NY Slip Op 52508[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2006].)

Consequently, probable cause cases involving the touching or crossing of the fog line have varied in their holdings, both within and between judicial departments. (See e.g. People v Kern, 38 Misc 3d 1217[A], 2013 NY Slip Op 50119[U] [Sheridan Town Ct 2013] [collecting cases]; People v Chesley, 27 Misc 3d 1227[A], 2010 NY Slip Op 50929[U] [Hyde Park Just Ct 2010] [collecting cases]; see also People v Wohlers, 138 AD2d 957 [4th Dept 1988]; People v Eron, 119 AD3d 1358 [4th Dept 2014]; People v Davis, 58 AD3d 896 [3d Dept 2009].) In such cases, courts have often focused their attention on (1) the frequency of [*3]which the fog line was touched or crossed, (2) the degree to which the fog line was crossed (e.g., how much of the vehicle crossed the line), (3) the duration or distance that the defendant was observed touching or crossing the fog line and/or (4) whether or not the center, yellow line was additionally touched or crossed. Courts then add up the above-described "line violations" and decide whether or not the grand total or combination of "line violations" is sufficient to create probable cause; however, focusing on the lines, alone, can obscure the much larger and more relevant picture of probable cause.

When the probable cause to initiate a traffic stop is based upon a perceived violation of Vehicle and Traffic Law § 1128 (a) relating to crossing the "fog line" or other lines, the court's focus should be on the safety of the movement from the lane, not merely the movement from the lane itself. Significantly, Vehicle and Traffic Law § 1128 (a) states that "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." (See Vehicle and Traffic Law § 1128 [a] [emphasis added].)

Notwithstanding the case law's tendency to focus on counting "line violations," there are some cases that more closely examine the safety of lane movements when a violation of Vehicle and Traffic Law § 1128 (a) is alleged. For example, in People v Kern, the Justice Court found insufficient probable cause to justify a traffic stop in the absence of facts suggesting that the defendant moved unsafely from her lane of travel when crossing the fog line. (See People v Kern, 38 Misc 3d 1217[A], 2013 NY Slip Op 50119[U] [Sheridan Town Ct 2013] [examining whether the defendant's driving was hazardous to herself or others on the road and, for example, questioning whether there{**84 Misc 3d at 877} were objects, pedestrians or other vehicles that the defendant was in danger of hitting when crossing the fog line].) By comparison, in Matter of Schoonmaker v New York State Dept. of Motor Vehs., the Second Department found that a police officer had probable cause to believe that a traffic violation had occurred when he observed the defendant's vehicle "making an 'erratic movement' by crossing over the white fog line off the right shoulder, and then moving left back into the lane in which he had been driving while the right signal light was engaged." (Matter of Schoonmaker v New York State Dept. of Motor Vehs., 165 AD3d 677, 678 [2d Dept 2018], affd 33 NY3d 926 [2019].) The dissent in Schoonmaker was noteworthy, in that the dissenters more closely questioned whether the facts sufficiently demonstrated "unsafe" actions by the driver, beyond merely crossing the fog line, to support a finding of probable cause for violation of Vehicle and Traffic Law § 1128 (a). (See Matter of Schoonmaker v New York State Dept. of Motor Vehs., 165 AD3d 677, 680 [2d Dept 2018], affd 33 NY3d 926 [2019].) In both Kern and Schoonmaker, the courts focused on the safety of the lane movement. Ultimately, it is the safety of the lane movement, not the lane movement, itself, upon which the probable cause analysis for a Vehicle and Traffic Law § 1128 (a) violation turns.

Here, Trooper Ewald testified that the defendant crossed the fog line and then aggressively readjusted his steering, crossing over the center, double yellow line. The defense disputed whether the yellow line was additionally crossed. Even assuming that the yellow line was not crossed, Trooper Ewald's uncontroverted observation that, while driving towards each other, the defendant crossed the fog line and then aggressively readjusted his steering toward the middle of the road, buttressed by his roadside explanation of the traffic stop to the defendant ("You were all over the road" [see bodycam video at 00:01:20]), sufficiently called into question the safety or lack of safety of the defendant's erratic lane movement and, thus, constituted probable cause to initiate the subject traffic stop for violation of Vehicle and Traffic Law § 1128 (a). (See Schoonmaker.)

Further, Trooper Ewald's observation of Adderall residue on the defendant's nose, which the defendant admitted to snorting prior to driving, constituted probable cause to arrest the [*4]defendant for violation of Vehicle and Traffic Law § 1192 (4). (See e.g. People v Boler, 106 AD3d 1119 [3d Dept 2013] [finding that{**84 Misc 3d at 878} white powder under the defendant's nostrils in combination with drug paraphernalia constituted probable cause]; see also People v Parris, 26 AD3d 393 [2d Dept 2006] [finding probable cause where a state trooper saw what appeared to be marijuana on the floor of the vehicle and the defendant admitted that he had smoked marijuana earlier].)

For the foregoing reasons, it is hereby ordered that defendant's motion to suppress defendant's statements and/or evidence obtained from the subject traffic stop on February 3, 2023, is denied.