PEOPLE v. RAIF (2008)

This matter comes on by appeal of the People from a Decision & Judgment dated June 19, 2007 from the Town of Thompson Justice Court.

Return on appeal having been submitted by the Town of Thompson Justice Court.

Appellant has filed a Notice of Argument, Brief, transcript of defendant's suppression hearing and copy of the Justice Court's Decision & Judgment dated June 19, 2007 which is the basis of the within appeal.

Attorney for Appellee represented him as a Defendant only and has not be retained regarding the within appeal.

Appellee has made no submissions pursuant to the within appeal.

Appellee was arrested on January 10, 2006 for driving while intoxicated in violation of Vehicle & Traffic sections 1192(2) and 1192(3).  He was also charged with speeding, 81 miles per hour in a 55 zone.

Following a Probable Cause/Huntley Hearing and submission of memorandums of law from both parties the Justice Court rendered a Decision & Judgment dated June 19, 2007 suppressing the arrest of the defendant and dismissing the DWI 1192(2) and 1192(3) charges.

The speeding charge remained and was thereafter settled by plea agreement and sentence.

All parties consented to toll time pending the within appeal.

STATEMENT OF FACTS

Appellee was stopped on January 10, 2006 by a New York State Trooper on New York State Route 17 in the Town of Thompson, County of Sullivan for traveling 81 miles per hour in a 55 zone.

Upon approaching appellee's vehicle and speaking with him, the Trooper detected an odor of alcohol.  Appellee admitted he had consumed several beers in Greenwood Lake, New York ¹ prior to driving.

Upon Appellee exited the vehicle, the Trooper observed that he was unsteady on his feet and his eyes were glassy.

While administering the horizontal gaze nystagmus test the Trooper was approached by several people advising him that a car was on fire about one-half mile away but it was then unknown whether there were any people in the car.

Though the Trooper wanted to continue his investigation of the Appellee, the car fire emergency existed only a short distance away and may be a matter of life or death.

The Trooper asked the Appellee if he would come with him to the car fire scene by sitting in the police car.  Appellee consented specifically stating that he understood that the Trooper had a job to do.

The Trooper testified that he told the Appellee that he was not under arrest, did not handcuff him and drove to car fire scene about one-half mile away with the Appellee in the back seat.  At the fire scene several people, fire fighting vehicles and members of the Monticello Fire department were already present.

The Trooper then asked the Appellee to exit the police vehicle and continued with two more field sobriety tests.  At the conclusion of the tests and in consideration of the appellee's physical condition, odor of alcohol on his breath, unsteady movement, glassy eyes, admission to consuming alcoholic beverages and the field sobriety tests, appellee was placed under arrest for speeding, violation of V & T § 1192(2) and 1192(3).

The placing of the Appellee in the police car to go to the scene of the car fire and the resuming of the Trooper's investigation of the Appellee totaled less than five minutes time.  In addition, Appellee was told that he was not under arrest, was not handcuffed, gave his consent to accompany the Trooper and no information was elicited until after the Trooper's investigation continued at the scene of the car fire.  Words alone do not create or negate an arrest.

 “Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment.”  People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509, 324 N.E.2d 872 (1975).

“Indeed, when the intrusion involved is of sufficient magnitude, an “arrest” will be said to occur ․ However, it is equally clear that not every seizure constitutes an arrest (See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.) Thus, even though it is concluded that a person is seized, this does not mean that the law enforcement officer's actions must be measured, in all instances, against the probable cause standard.”  People v. Chestnut, 51 N.Y.2d 14, 431 N.Y.S.2d 485, 409 N.E.2d 958 (1980).

 “The touchstone of any analysis of a governmental intrusion of a citizen's person under the Fourth Amendment and the constitutional analogue of New York State is reasonableness.”  People v. Batista, 88 N.Y.2d 650, 649 N.Y.S.2d 356, 672 N.E.2d 581 (1996).  Any determination of reasonableness hinges upon the facts of each particular case.  People v. Batista, supra;  People v. Chestnut, supra.

“Bearing in mind that reasonableness is the touchstone of our inquiry into the propriety of police conduct, we must weigh the degree and scope of the particular intrusion “against the participating and attending conditions” confronted.”  People v. McLaurin, 70 N.Y.2d 779, 521 N.Y.S.2d 218, 515 N.E.2d 904 (1987).

In People v. Hicks, 68 N.Y.2d 234, 508 N.Y.S.2d 163, 500 N.E.2d 861 (1986) defendant was transported by the police to the scene of a robbery for identification purposes.  He was not handcuffed, there was no show of force, the total time and distance involved was very brief, he was told the specific, limited purpose of the detention and he was not questioned during the detention.  The seizure was held to be reasonable and lawful.  The instant matter is even less intrusive than Hicks.

 The transporting of a defendant to a crime scene for possible identification where the elapsed time and distance was brief, defendant was not handcuffed and police officers did not use force or illicit information from him is reasonable.  People v. Liner, 133 A.D.2d 555, 519 N.Y.S.2d 548 (1st Dept., 1987).  See also, People v. Arthur, 209 A.D.2d 175, 617 N.Y.S.2d 759 (1st Dept., 1994).

“Consent is a valid substitute for probable cause and, since there is support for the factual findings in the record, it is binding on our court.”  People v. Hodge, 44 N.Y.2d 553, 406 N.Y.S.2d 736, 378 N.E.2d 99 (1978).  See also, People v. Dart, 186 A.D.2d 905, 589 N.Y.S.2d 208 (3rd Dept., 1992);  People v. Vogler, 201 A.D.2d 890, 607 N.Y.S.2d 788 (4th Dept., 1994).

Consent to be seated, even handcuffed, is a valid substitute for probable cause.  People v. Ryan, 45 A.D.3d 1363, 845 N.Y.S.2d 885 (4th Dept., 2007).

The Trooper testified at the suppression hearing in Justice Court that, at the time of receiving the information regarding the car fire a short distance from the scene of the stop, he had not formed probable cause to arrest because he had not concluded his intoxication inquiry.  However, given the emergency nature of the care fire, the defendant consented to go with the Trooper even stating that he understood that the Trooper had a job to do.

No interpretation of the transcript of the suppression testimony could lead one to possibly conclude that Appellee's consent was anything but voluntary and freely given without force or duress.

 Thus, the transportation of the Appellee to the car fire scene was reasonable under the circumstances and not a subterfuge for a proscribed interrogation, and the Appellee's clear and unequivocal consent to the move in location by the Trooper is a substitute for probable cause.  Hence, the Town Justice erred in granting the Appellee's motion to suppress for lack of probable cause.

Based upon the above, it is

ORDERED, that the appeal is granted, and it is

ORDERED, that the Decision & Judgment dated June 19, 2007 of the Town of Thompson Justice Court is herein reversed and vacated, and it is further

ORDERED, that the arrest of the defendant was lawful, and it is further

ORDERED, that the charges against the Appellee, namely violation of V & T § 1192(2) and 1192(3) are herein reinstated, and it is further

ORDERED, that the within matter is returned to the Town of Thompson Justice Court for further proceedings consistent with this Decision and Order.

This shall constitute the Decision and Order of this Court.

FOOTNOTES

1.   In Orange County, approximately 40 miles from the stop at issue.

FRANK J. LaBUDA, J.