PEOPLE v. GRAHAM (2019)

Procedural History

A probable cause hearing was held on November 14, 2018. Defendant was represented by Michael Pollok, Esq. The People were represented by Senior Assistant District Attorney Melissa Pasquale, Esq., at the hearing and by Senior Assistant District Attorney Scott Johnson, Esq., on the brief. Post hearing briefs were filed by defendant on February 10, 2019 and by the People on March 21, 2019. Defendant had the opportunity to file a reply, but declined to do so. Neither side requested oral argument and the motion was marked fully submitted on April 9, 2019.

Deputy's Testimony

Dutchess County Deputy Sherif Philip Lemere testified under oath that he was on road patrol on May 6, 2018, at approximately 2:13 a.m. and was en route to Tivoli, New York, to investigate a noise complaint ¹ when he observed the defendant's car stopped with its four-way hazard lights on and defendant outside of the car “posturing as if [he was] urinating.” ²

The deputy radioed to his dispatcher that he was stopping to investigate an “operator outside urinating.” ³

At no time during his direct testimony did the deputy indicate that he had stopped for a welfare check. The premise of the stop was defendant relieving himself. The deputy did testify later on cross- examination that he observed the four-way flashers on the defendant's vehicle and felt that he had “a strong obligation to inquire” as to why the car was stopped. However, the deputy then reiterated that the true reason for the stop was the public urination.⁴

The Deputy also testified that defendant was parked legally,⁵ nor did the deputy observe any traffic infraction.⁶ It should be noted that the Court has not found any statute in state or local law that prohibits urination in public in the Village of Red Hook, nor - despite the industry of counsel - have the People produced such a statute for the Court's education and enlightenment.

Lack of Probable Cause to Stop Defendant

Defendant claims that the deputy had no reason to stop and investigate him as the predicate subsequent arrest, in that public urination was not an unlawful action and, therefore, the deputy's seizure of defendant by questioning him and performing field sobriety tests was unjustified. Based upon this, defendant asks that all evidence seized, statements made by defendant and any observations made by the deputy be suppressed.

Section 140.50 of the Criminal Procedure Law states:

§ 140.50 Temporary questioning of persons in public places; search for weapons.

1. In addition to the authority provided by this article for making an arrest without a warrant, 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.

Our state's highest court, the Court of Appeals, has interpreted this section in People v. Cantor, 36 NY2d 106 (1975) as follows:

In New York the authority to intercept persons on the street is derived from two sources, the stop-and-frisk law (CPL 140.50) and the common-law power to inquire. Although the former is more narrowly circumscribed than the latter, because it entails a greater intrusion on the privacy of the individual, neither may be exercised in derogation of the State and Federal Constitutions.

Before a person may be stopped in a public place a police officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50). Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. (Compare Schwartz, Stop and Frisk: A Case Study in Judicial Control of the Police, 58 J. Crim. L. C. & P. S. 433, 445 with La Fave, “Street Encounters” and the Constitution: Terry, Sibron, Peters, and Beyond, 67 Mich. L. Rev. 40, 70.) To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice (Terry v. Ohio, 392 U.S. 1, supra; Wong Sun v. United States, 371 U.S. 471, 479). Nor will good faith on the part of the police be enough to validate an illegal interference with an individual (e.g., Terry v. Ohio, supra; Henry v. United States, 361 U.S. 98, supra; Hill v. California, 401 U.S. 797; Smith v. County of Nassau, 34 NY2d 18).

Here in the case at Bar (as in Cantor) the record is barren of any objective evidence evincing criminal activity. Therefore, the deputy's seizure of the defendant does not pass constitutional muster.

For the reasons noted above, all evidence seized, statements made by defendant and any observations made by the deputy are suppressed as fruit of the poisonous tree, Wong Sun v. United States, 371 U.S. 471, and the accusatory instruments are dismissed.

Having so decided, there is no necessity to reach or address defendant's other contentions

This decision also constitutes the Order of this Court.

SO ORDERED

FOOTNOTES

1.   Transcript page 7 (hereinafter “Tr. 7.”)

2.   Tr. 7.

3.   Tr. 36.

4.   Tr. P. 41.

5.   Tr. 40.

6.   Tr. 42.

Jonah Triebwasser, J.