Opinion
Docket No. CR-003802-22QN
03-28-2023
The PEOPLE of the State of New York v. CAISAGUANO, Defendant.
The People accuse Mr. Caisaguano of driving while his ability was impaired by alcohol. ( V.T.L. § 1192[1] ). On September 7, 2022, a prior court set this case down for a Huntley /Dunaway /Johnson hearing. On January 5, 2023, this court held that hearing. The following constitutes the court's findings of fact and conclusions of law.
FINDINGS OF FACT
At the hearing, the People called one witness, NYPD Officer Daniel Nieves, shield number 932. The defense admitted Officer Nieves’ body-worn camera video footage as Defense Exhibit A. Having reviewed all the evidence presented, and having witnessed the officer's demeanor and appearance while testifying, the court finds as fact all events depicted in the video and also makes the following specific findings.
Officer Daniel Nieves of the NYPD works at the 115th Precinct. He has been a police officer for two years. Before that, he was at the NYPD Police Academy, a six-month training program that involved education on the NYPD Patrol Guide, New York's Penal Law, police and gun tactics, car stops, and police paperwork. He has made 54 arrests in his two-year career. Four of those arrests have been for DWI offenses. He encounters intoxicated individuals frequently, and he has received DWI training. That training taught him how to determine whether a person is intoxicated, including by observing how the person looks, smells, and acts.
On February 13, 2022, Officer Nieves was working with his partner, Officer Ogurandurin, and they received a radio run at 7:41 a.m. That radio run advised the officers that there was a car accident near 70-02 31st Avenue in Queens. Specifically, it said a driver had passed by an accident and that a person was behind the wheel—breathing, but not awake—and the car was running. The officers responded to that location. They were both dressed in police uniforms and arrived in a marked police vehicle.
When the officers arrived five minutes later, they observed that an ambulance was already present, stopped parallel to a parked silver sedan. The sedan was parked in line with the parallel cars on one side of the street, but it was in a perpendicular crosswalk. The front of the sedan was touching the rear of the car parked in front. It was parked parallel to a bike lane—which ran parallel to the roadway—and it was not in that bike lane. The sedan was not obstructing any lane of vehicular traffic. Mr. Caisaguano was sitting in the driver's seat of this sedan.
Officer Nieves testified that the engine of the sedan was on. He claimed he knew the engine was on because he could hear it and because the headlights were on. However, Officer Nieves’ body-worn camera shows that the headlights were not on, though at this point, there is no sound. The criminal complaint—which Officer Nieves swore out—does not mention that the engine was on.
When the officers approached, the ambulance was positioned such that its front driver-side window and that of Mr. Caisaguano's sedan were aligned. Each vehicle's front driver-side window was down. The driver of the ambulance appeared to be speaking to Mr. Caisaguano—or at least, assessing the situation—as each of them sat in the driver's seats of their respective vehicles. The officers then saw the ambulance drive away to leave.
As the ambulance turned around to leave, Officer Ogurandurin approached Mr. Caisaguano's front, driver-side door. At this point, the body-worn camera video has sound, and there is no sound of an engine running. Mr. Caisaguano was clearly awake. Officer Ogurandurin touched the handle of the door and motioned for Mr. Caisaguano to exit the car. Mr. Caisaguano stepped out. Immediately after Mr. Caisaguano stepped out, Officer Ogurandurin commanded him to "give me the keys." Mr. Caisaguano complied. At this point, Mr. Caisaguano was not free to leave. "We took away his keys," Officer Nieves explained on the stand, "because we didn't want him to leave." On cross examination and re-direct, he also explained that they took the keys for "safety concerns." Expounding on those concerns, he said, "we asked for his keys because we didn't want him to flee." "[N]ormally," he said, "when you get into a car accident and you approach, somebody jumps and leave[s] to avoid interacting.... [W]e didn't want him to hit the other car or hit us."
At the scene, Officer Ogurandurin then inquired about the car, "What happened to it?" Mr. Caisaguano replied, "Nothing, I just pulled up." The officer then asked, "How long have you been drinking?" and Mr. Caisaguano said, "Since 10 o'clock last night" and "I haven't committed any crime." The officers continued to speak with Mr. Caisaguano about how long he had been drinking the night before and where he had been drinking. He said that he had fallen asleep "at 12:00 to right now" after dropping off a friend. His answers were clear and coherent. His speech was not slurred. Officer Ogurandurin asked him to stand up and walk towards him. Mr. Caisaguano did so, and he was steady on his feet and maintained his balance. In reviewing the body-worn camera video, Mr. Caisaguano appears and acts without any indicia of physical impairment.
The officers then questioned Mr. Caisaguano about how his car was parked. The officers observed that his car looked like it had "hit" the bumper of the car in front. Mr. Caisaguano responded that the cars were "barely" touching. Mr. Caisaguano's car and the car in front were touching, but there were no dents on either car. The bumpers were out of line, but there was no indication of any other damage. No damage to either car is clearly visible on the body-worn camera footage. The officers also noted that Mr. Caisaguano's car was "in the crosswalk." The officers told Mr. Caisaguano to sit back in his car. He complied.
The officers then spoke to each other. Despite having had a four-minute conversation with Mr. Caisaguano, neither of the officers had smelled alcohol. Officer Ogurandurin told Officer Nieves, "I mean, the most is suspicion." The officers then resumed their questioning of Mr. Caisaguano about what times, and how much, he had drunk the night before. The officers broke the questioning off and continued to speak with each other out of Mr. Caisaguano's presence. The officers appeared unsure of what actions to take next. "If anything," Officer Ogurandurin said to Officer Nieves, "I'll do a 53 on this."
The officers continued to pace back and forth, now waiting for their supervisor. They asked Mr. Caisaguano further questions about his license and insurance. They asked him to step out of the car again. He complied. They observed him, again, apparently to look at his eyes, indicating to each other that they looked bloodshot. The officers asked him to get back into the car, which he did.
Throughout this entire interaction, Mr. Caisaguano had steady balance and a normal face. He spoke coherently. His speech was not slurred. His clothes were orderly. However, he exhibited bloodshot, watery eyes.
The officers continued pacing and speaking to each other for several minutes. Officer Nieves reiterated that he "can't smell anything." Officer Ogurandurin responded, "So what are we going to do?" A few seconds afterwards—without any further observations of Mr. Caisaguano—Officer Nieves decided to arrest Mr. Caisaguano for DWI. He then made the arrest.
Despite openly admitting on the video, seconds before the arrest, that he "can't smell anything," Officer Nieves testified in court that he smelled alcohol well before the arrest. Given the officers’ statements on the video, and having viewed the testimony, the court does not credit that claim. The court finds that up to the arrest, neither Officer Nieves nor Officer Ogurandurin smelled any alcohol when interacting with Mr. Caisaguano.
CONCLUSIONS OF LAW
The court first considers the constitutional search and seizure issues raised by the Dunaway /Johnson portion of the hearing. At a Dunaway /Johnson hearing, the People have the initial burden of going forward to establish, prima facie, that each police action was lawful. (See, e.g. , People v. Harris , 192 AD3d 151, 157-58 [2d Dep't 2020] ). Implicit in the People's burden of production is that their testimony and evidence offered must be credible. (Id. ). "Credibility is a many faceted concept ... requiring a careful assessment of a number of subtle factors before testimony can be labeled as believable or unbelievable." ( People v. Wise , 46 NY2d 321, 325 [1978] ). If the People meet their burden of production, the burden then shifts to the defense to show, by a preponderance of the evidence, that the police act was unlawful. (See, e.g. , Harris , 192 AD3d at 157-58 ).
Several months ago, a prior court ordered a "Huntley /Dunaway /Johnson " hearing, and, before the hearing, this court made clear to both parties that it would execute that order. Nonetheless, minutes before commencing the hearing, and at argument, the People contested the propriety of a "Johnson hearing." They argued that "[t]he blow of the defendant into the Intoxilyzer is outside the scope of this hearing" because "the vehicle and the defendant in question were already stopped." In other words, they assumed that a "Johnson hearing" only concerns suppressing a chemical test result as a fruit of an unlawful stop of a moving vehicle. There is no basis for this assumption. Suppression hearings concerning searches or seizures do not segregate each Fourth Amendment issue and each fruit by a single, separate case name. Just as a Dunaway hearing does not simply concern suppressing a statement as a fruit of an unlawful arrest, a Johnson hearing does not simply concern suppressing a chemical test result as a fruit of an unlawful stop of a moving vehicle. (See In re Darryl C. , 98 AD3d 69 [1st Dep't 2012] [adjudicating pre-arrest police conduct within a "Wade /Dunaway hearing"]; People v. Hester , 49 Misc 3d 138[A] [App. Term, 2d Dep't 2015] [adjudicating police entry into a home within a "Dunaway hearing"]; People v. Harster , 63 Misc 3d 1209[A], at *5-*7 [Crim. Ct., Bronx County 2019] [adjudicating the police's initial approach of an already stopped car within a "Dunaway hearing"]; People v. Butler , 39 Misc 3d 1225[A] [Crim. Ct., Bronx County 2013] [Rodriguez, J.] [adjudicating "all fruits" in a Johnson /Huntley /Dunaway hearing] [internal quotation marks omitted]). Rather, a "Dunaway /Johnson " hearing moves to suppress " ‘all evidence obtained by searches and seizures in violation of the Constitution.’ " (People v. Johnson , 134 Misc 2d 474, 476 [Crim. Ct., Queens County 1987] [quoting Mapp v. Ohio , 367 U.S. 643, 655 [1961] ).
Where police come upon a car that is already parked—even where it is parked illegally or its engine is running—their actions are analyzed under the first level of People v. De Bour , 40 NY2d 210 [1976]. (See People v. Eugenio , 185 AD3d 1050 [2d Dep't 2020] [approaching legally parked car with engine running was level one]; People v. Noble , 154 AD3d 883 [2d Dep't 2017] [approaching car parked on side of road with engine running was level one]; People v. Carr , 103 AD3d 1194 [4th Dep't 2013] [approaching illegally parked car was level one]; People v. Thomas , 29 AD3d 32 [1st Dep't 2005] [approaching illegally parked car with engine running was level one]; People v. Larkin , 62 Misc 3d 62 [App. Term, 2d Dep't 2018] [approaching oddly parked car with engine running was level one]; People v. Suncar , 66 Misc 3d 672, 683 [Sup. Ct., Bronx County 2019] ["The parked car in the crosswalk allows the police to conduct a level one inquiry."]).
De Bour establishes four levels on which to measure the intrusiveness of police action. ( 40 NY2d at 222-23 ). First, police may approach a person and request basic, non-threatening information if they have an objective, credible, and articulable reason to do so. (Id. ). Such a reason need not be necessarily indicative of criminal activity. (Id. ). Second, police may ask more pointed questions, but may not seize a person, where they have founded suspicion that criminal activity is afoot. (Id. ). Third, police may temporarily detain a person where they have reasonable suspicion that a person has committed, is committing, or is about to commit a crime. (Id. ). And fourth, police may arrest a person when they have probable cause the person has committed a crime. (Id. ).
Therefore, when the police approached Mr. Caisaguano's car, they were operating on De Bour ’s first level. (See Carr , 103 AD3d 1194 ; Thomas , 29 AD3d 32; Suncar , 66 Misc 3d 672 ). The circumstances provided an objective, credible, and articulable reason for police to approach the car and request information. (See Carr , 103 AD3d 1194 ; Thomas , 29 AD3d 32; People v. Urbina , 2023 NY Slip Op. 50196[U], at *4 [Crim. Ct., Queens County 2023]). But they did not establish reasonable suspicion of a crime. That a person was previously asleep in a parallel parked car on the side of the road is not itself reasonable suspicion of a crime. (See Eugenio , 185 AD3d at 1052 ; Larkin , 62 Misc 3d at 66-67 ; Suncar , 66 Misc 3d at 683-85 ). To be sure, the car here was not in a lawful parallel parking spot. It was parked in line with the row of parallel parked cars, but it was in a crosswalk. Further, it was not parked well. But nothing about the scene indicated criminal activity.(See Carr , 103 AD3d at 1195 ["[T]he police had an objective, credible reason for approaching [the] car inasmuch as the car was illegally parked," but they did not have "founded suspicion that criminal activity [was] afoot"]; Suncar , 66 Misc 3d at 683-85 [holding similarly]). The radio run reported an accident, not anything about drugs or alcohol or any other criminal behavior. Upon arriving, the officers observed nothing criminal and, in fact, found the purported "accident" to be a very minor one. The car was not protruding into the road or even into the adjacent bike lane. It was touching the car in front, but each vehicle had minimal damage, at best. There were no dents, even, only bumpers that appeared out of alignment. And notably, before ordering Mr. Caisaguano out of the car, the officers had not observed anything about his person that would suggest intoxication or impairment by alcohol. (Cf. People v. Hira , 32 Misc 3d 129[A], at *2-*3 [App. Term, 2d Dep't 2011] ["However, once the officer smelled the odor of alcohol, he had reasonable suspicion to believe that defendant had committed the offense ... of driving while ability impaired."] [emphasis added]).
As a result, under De Bour , the police were not justified in directing Mr. Caisaguano out of his car and seizing his keys, acts that amounted to a forcible stop. Such acts are lawful if the police have reasonable suspicion of criminal activity. (See People v. Harrison , 57 NY2d 470 [1982] ; see also People v. Thomas , 275 AD2d 276 [1st Dep't 2000] ). Notably, this rule plays out differently when police approach a parked car than when they stop a moving vehicle. (See Harrison , 57 NY2d at 475-76 ; Thomas , 275 AD2d at 278 ; Larkin , 62 Misc 3d at 66 ). Where officers stop a moving vehicle, they can freely order the driver out of the car (or order them to remain in the car) because, at that point, police have " ‘already lawfully decided that the driver shall be briefly detained.’ " ( Harrison , 57 NY2d at 477 [quoting Mimms , 434 U.S. at 111 ]). " ‘[T]he incremental intrusion resulting from the request to get out of the car’ once the driver ha[s] been lawfully stopped ‘can only be described as de minimis. ’ " (Id. [quoting Mimms , 434 U.S. at 111 ]). The same reasoning does not apply when police approach a car that is already parked. In that situation, the police have not yet detained the person at all. "When neither the vehicle nor its occupants is under any restraint, and the police have no grounds for suspicion of these particular individuals, asking a car's occupants to step out of it creates a new, unauthorized restraint." ( Thomas , 275 AD2d at 278 ). Therefore, the police's order to exit the vehicle here, together with their seizure of Mr. Caisaguano's keys, escalated the encounter, for the first time, to a forcible stop. (See also People v. Noble , 154 AD3d 883, 884 [2d Dep't 2017] ["By reaching into the defendant's vehicle [parked on the side of the road,] and turning off the ignition, Officer Murtaugh forcibly stopped the defendant."]). This forcible stop was not justified by reasonable suspicion of a crime.
Nor was the seizure here justified for "safety concerns." When the police operate at De Bour ’s first level, they are not justified in seizing a person. "Period." ( People v. Creary , 75 Misc 3d 857, 873 [Sup. Ct., Queens County 2022].) "Any other rule would permit police seizures solely if circumstances existed presenting a potential for danger." ( People v. May , 81 NY2d 725, 728 [1992] ). In any event, there was nothing specific here that could reasonably have justified the officers to fear for their safety. When officers ordered Mr. Caisaguano out of the car, he was not acting dangerously, his car was parked, and his engine was not on. An ambulance that had already surveyed the scene was leaving. The police did not reasonably suspect that Mr. Caisaguano was engaged in criminal behavior. Any vehicle damage due to any accident appeared considerably minor. And Mr. Caisaguano was not making any sudden or threatening movements. In sum, everything about the scene was peaceful and calm. (See Larkin , 62 Misc 3d at 66-67 ["The fact that the sleeping defendant's position [in a parked car] appeared uncomfortable and that the defendant exhibited difficulty in being awakened and disorientation upon being awakened, did not provide the trooper with a reasonable belief that defendant ... posed some danger to the trooper."]).
The court also specifically rejects Officer Nieves’ stated justification that his partner could seize Mr. Caisaguano's keys because "normally when you get into a car accident and you approach, somebody jumps and leave[s] to avoid interacting." Officer Nieves did not provide any specific training, knowledge, or experience that he has with car accidents to reasonably make such a sweeping generalization. And on its face, such a generalization certainly does not appear reasonable. Common experience does not dictate that "normally" people "jump[ ] and leave to avoid interacting" after a minor car accident. The police are not permitted to seize a person any time they approach anyone who may have been in a fender-bender.
The police actions could not be justified for "community caretaking" purposes, either. (See generally Brigham City, Utah v. Stuart , 547 U.S. 398 [2006] ; People v. Mitchell , 39 NY2d 173 [1976] ). This was not the sort of serious car accident at which anyone could reasonably believe that someone required assistance. (Cf. Urbina , 78 Misc 3d 1209[A], at *4-*5 [circumstances reasonably suggested that the driver may require help]). Moreover, in this case, the police were not the first responders on the scene. (Cf. id. [officers were first on scene]). An ambulance was already stopped at the location, had observed Mr. Caisaguano and his vehicle, and had then decided to leave. The reasonable inference is that the ambulance personnel had assessed the situation and concluded that emergency assistance was not required. When the police approached the car to order him out, Mr. Caisaguano was clearly awake. There is nothing about his appearance at that point in the record that suggested he needed further assistance. As a result, the police could not reasonably have expected that anyone required their aid or that there was any emergency that they needed to address. Moreover, even setting all of this aside, it is difficult to see why seizing a person's keys would be reasonably related to helping that person. The circumstances here clearly illustrate a seizure, not community caretaking.
Therefore, there was no legal justification for the police to order Mr. Caisaguano out of his car and seize his keys. All the fruits that flowed from the unlawful order to exit the vehicle and the unlawful seizure of the keys must be suppressed. That includes, at least, any statements made by Mr. Caisaguano, any chemical tests administered to him, and any observations by police.
The remaining issues and motions are moot.
The foregoing constitutes the decision and order of the court.