Opinion
04519C/2007.
Decided February 5, 2009.
Defendant is charged with Operating a Motor Vehicle While Under the Influence of Alcohol pursuant to VTL Section 1192(2-a) and related charges. Defendant filed a pretrial motion to suppress evidence, and pursuant to the Decision and Order of the Honorable Lawrence H. Bernstein dated September 18, 2007, a Huntley/Dunaway/Ingle hearing was conducted before me on September 22, 2008. The parties thereafter submitted post-hearing memoranda. For the reasons set forth below, defendant's motion is denied.
The People called one witness, Police Officer Louis Amador ("Amador") of the Triborough Bridge and Tunnel Authority. See Hearing Minutes at pp. 3-5. The Court finds him credible and credits his testimony.
FINDINGS OF FACT
Amador has been a police officer for the Triborough Bridge and Tunnel Authority for over eight years and is currently assigned to patrol the Bronx Whitestone Bridge. Id. at p. 5. He has made approximately seventy arrests in his career, including approximately thirty-five for driving while under the influence of alcohol or drugs. Id. at pp. 5-6.
On January 18, 2007, at about 10:40 p.m., Amador was working on patrol on the Bronx Whitestone Bridge and driving northbound in a marked police car towards the toll plaza in the Bronx. Id. at 7-8. Amador noticed that a Jeep Wrangler was stopped in an adjacent E-Z Pass toll lane, and that another officer, P.O. Ricart ("Ricart"), was talking to its driver, the defendant. Id. at pp. 8-11, 25-28, 38-40. As Amador approached, he saw the defendant drive off, and heard Ricart yell, "Stop!" Id. Amador then received a radio transmission from Ricart asking him to stop defendant's vehicle. Id. Amador activated his police car's lights and sirens and pursued the defendant. Id.
The defendant did not stop and continued driving on the Hutchinson River Parkway for approximately one mile, reaching a top speed of eighty-five miles per hour, which is thirty miles more than the posted speed limit of fifty miles per hour. Id. Eventually the defendant stopped before Exit 2. Id. Amador asked the defendant if he had heard the sirens or saw his police lights. The defendant responded that he did not. Id. Amador noticed that the defendant's eyes were bloodshot, his speech was slurred, and a strong odor of alcoholic beverages came from the Jeep. Id. Amador asked the defendant for his driver's license and where he was going. The defendant stated that he was going to Long Island, which was in the opposite direction. Id. at p. 12. Amador concluded that the defendant was intoxicated, and placed him under arrest. Id. at p. 13.
Amador then read the defendant his Miranda warnings, and asked him where he was going to and from where he was coming. Id. at pp. 15-16. The defendant stated that he was going to his girlfriend's house on Long Island, and that he was at a party in Long Island. Id. The defendant was then taken to the 45th Precinct where a breathalyzer test was administered. Id. at pp. 17-19. Defendant's blood-alcohol content was measured to be .18%. Id.
CONCLUSIONS OF LAW
As to the Ingle/Dunaway portion of the hearing, the People had the burden of going forward with credible evidence tending to show that the police acted lawfully, and the defendant had the burden of proving by a preponderance of the evidence that the police acted illegally. See People v. Di Stefano, 38 NY2d 640, 652 (1976); People v. Perez, 149 AD2d 344, 345 (1st Dept. 1989). For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that defendant's statements were voluntary. People v. Huntley, 15 NY2d 72, 78 (1965).
In a post-hearing memorandum, defendant claims that the People have not met their burden of going forward with evidence showing that there was reasonable cause for the police to stop defendant's vehicle. In response, the People assert that they have satisfied their burden through the fellow officer rule. See Affirmation of ADA Erin B. Yavener dated December 12, 2008 at p. 2 ("Yavener Aff."). For the reasons set forth below, defendant's motion is denied.
At the outset, it should be noted that the People's reliance upon the fellow officer rule is misplaced. Under the fellow officer rule, "even if an arresting officer lacks personal knowledge sufficient to establish probable cause, the arrest is lawful if the officer acts upon the direction of or as a result of communication with a superior or [fellow] officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arrest." People v. Ramirez-Portoreal, 88 NY2d 99, 113 (1996) (internal quotations and citations omitted; brackets in original). If the legality of "the arrest is challenged by defendant in a motion to suppress, however, it becomes incumbent upon the People to establish that the officer or agency imparting the information, in fact possessed the probable cause to act." Id. (quotations and citations omitted). Notably, "an unsubstantiated hearsay communication — even when transmitted by a fellow officer — will not satisfy the People's burden." People v. Ketcham, 93 NY2d 416, 420 (1999).
The fellow officer rule has not been satisfied in this case. No evidence has been provided to the Court as to why Ricart directed Amador to stop the defendant. Thus, the Court is left to speculate as to what crime or infraction, if any, Ricart believed defendant had committed. It may be that Officer Ricart noticed that the defendant appeared to be intoxicated, or it may be that the defendant was not wearing his seat belt, was talking on a cellular phone, or had made an illegal lane change, but if any such infractions were observed, it was the People's burden to come forth with evidence to show that. There simply is no testimony from Amador (or Ricart, who never testified) as to what Ricart saw. This is insufficient to pass muster under the fellow officer rule. See People v. Lypka, 36 NY2d 210, 214 (1975) (holding that "bare reliance on an unsubstantiated hearsay communication from the instigating officer . . . will not suffice for probable cause. Ultimately, . . . the People must demonstrate that the sender . . . possessed the requisite probable cause to act."); People v. Havelka, 45 NY2d 636, 641 (1978) (holding that "on a motion to suppress, the challenged police conduct can be sustained only by proof that the sender actually possessed the requisite knowledge or that the personal observations of the receiving officer justified the search") (citation omitted).
The People erroneously contend that Amador "testified that his fellow officer [Ricart] informed him that the defendant was possibly intoxicated." See Yavener Aff. at p. 1. The People do not cite to the transcript of the hearing in support of this proposition, and the Court's own review of the minutes has yielded no support for the People's claim.
Nevertheless, the People have met their burden of going forward with evidence to show that Amador's own observations justified his actions and rendered the car stop to be lawful. The evidence shows that Officer Ricart was standing next to the defendant's car, which was stopped in the E-Z Pass lane. The Court concludes that this, standing alone, did not constitute a seizure of defendant's vehicle by the police. See People v. Ocasio, 85 NY2d 982, 984-85 (1995) (affirming finding that police officer who walked up to vehicle that was stopped at traffic light and asked driver for identification did not effectuate a seizure of the vehicle). Further, the Court concludes that defendant then legally terminated the encounter with Officer Ricart by driving away, which, on the state of this record, merely indicates that he was permissibly exercising his "right to be let alone." See People v. May, 81 NY2d 725, 728 (1992) (finding that defendant who drove his vehicle "slowly away" as the police approached did not create a reasonable suspicion of criminality justifying the police pulling over defendant's moving vehicle).
What defendant was not entitled to do, however, was to terminate his encounter with the police by speeding away from them so that he would attain a rate of speed exceeding the posted limit by more than thirty miles per hour. When a police officer observes a motorist engaged in such driving, the officer is duty-bound to stop the vehicle. See Saarinen v. Kerr, 84 NY2d 494, 502-03 (1994); People v. Modlinger, 12 Misc 3d 1188 (A) (Sup.Ct. Bronx Co. 2006). In addition, since defendant stated at the scene that he had not noticed Amador's police lights and sirens, it is clear that the lack of proof concerning Ricart's observations could not affect the legality of this stop. Instead, the People showed that defendant's excessive speeding constituted an independent and spontaneous act independent of Amador's pursuit and amply justified the stop of defendant's vehicle. See People v. Boodle, 47 NY2d 398, 403-04 (1979); People v. Dennis, 31 AD3d 810, 811-12 (3rd Dept. 2006) (citing cases). In short, the temporary stop of defendant's vehicle was justified by virtue of his high rate of speed, and his apparent intoxication provided probable cause for the arrest for operating a motor vehicle while under the influence of alcohol. See CPL § 140.10(1)(b).
Finally, the Court concludes that the People have met their burden of persuasion as to the Huntley portion of the hearing. Defendant's first statements to the police were the result of proper investigatory questioning [ see People v. Centano, 76 NY2d 837, 838 (1990); People v. Zapata, 41 AD3d 109 (1st Dept. 2007)], and his statements after he was read his Miranda warnings were voluntarily made. See People v. Occelin, 57 AD3d 292 (1st Dept. 2008).Accordingly, defendant's motion to suppress is denied in all respects.
The foregoing constitutes the Decision and Order of the Court.