People v. Khan

• Citation: 168 Misc.2d 192,638 N.Y.S.2d 858
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Vernon KHAN, Defendant.
• Decision Date: 06 October 1995
• Court: New York City Court

Page 858

638 N.Y.S.2d 858

168 Misc.2d 192

The PEOPLE of the State of New York, Plaintiff, v. Vernon KHAN, Defendant.

Criminal Court of the City of New York Kings County.

Oct. 6, 1995.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Daniel Ferreira of counsel), for plaintiff.

Legal Aid Society, Brooklyn (Robert M. Baum and Greely Tyson of counsel), for defendant.

LORIN M. DUCKMAN, Justice.

The defendant, who was observed motionless behind the wheel of a car parked at the curb with its engine running, was arrested and charged with Operating a Motor Vehicle While Under the Influence of Alcohol in violation of Vehicle and Traffic Law §§ 1192[2], [3]. The people subsequently filed and served a superseding information which retained the original charges and added two new charges of Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree in violation of VTL § 511[1] and Aggravated Unlicensed Operation of a Motor Vehicle in the Second Degree in violation of VTL § 511[2][a][ii].

The defendant moves to suppress statements made to law enforcement officials, an empty beer bottle found in the car and the results of the breathalyzer test.

HEARING

On June 15 and June 16, 1995, a combined Dunaway/Johnson/Huntley/ Mapp hearing was held. Police Officer Marco Varela testified for the people. His testimony was somewhat straightforward and mostly credible. No witnesses testified on behalf of the defendant.

The intoxicated driver exam and the arresting officer's IDTU report were introduced into evidence.

FINDINGS OF FACT

On March 12, 1995, Police Officer Marco Varela and his partner Officer Emerito were on Domestic Violence Radio Motor Patrol. At approximately 9:55 p.m., they were travelling southbound on Hendrix Street, a one-way street. While stopped at a light at the corner of Hendrix Street and Atlantic Avenue, Officer Varela observed a legally parked station wagon with its engine running. A person, whom he later identified as the defendant, was sitting in the driver's seat. He appeared to be asleep or unconscious, slumped over the wheel, with his head leaning back. As he pulled the patrol car alongside the station wagon, the defendant did not acknowledge the presence of the police car.

Due to traffic congestion, Officer Varela could not stop the patrol car next to the defendant's vehicle. He drove around the corner, returning approximately three minutes later, and pulled the patrol car alongside the defendant's car. The defendant was still slumped back in the driver's seat; the engine was running and exhaust was coming out of the car. The car lights were not on.

Believing that the person in the passenger seat might have been the victim of a robbery or just in need of aid, Officer Varela approached the driver's side while Officer Emerito approached the passenger side. Officer Varela observed the key in the ignition. No outward signs of physical injury were observed.

Officer Varela tapped on the driver's window a couple of times. There was no response. He banged harder on the window a number of times until he got the defendant's attention. He told the defendant to roll down the window. When the defendant finally noticed the officer, he couldn't open the window.

After waiting for twenty seconds and without asking for defendant's permission, Officer Varela opened the unlocked car door and was struck by the strong odor of alcohol. He asked the defendant to exit the vehicle, reached inside the vehicle, and turned the ignition key, shutting the engine off.

The two were standing approximately one foot apart. Officer Varela observed that the defendant's face was flushed, he had watery eyes, his speech was slurred and he was unsteady on his feet. Officer Varela asked the defendant if he had anything to drink. The defendant told him that "he had a couple of shots. He was just waiting for a friend named Tony to come back to drive the car. He wasn't going to drive the car."

Meanwhile, Officer Emerito looked through the window and saw a bottle in the back of the car behind the driver's seat. Officer Emerito informed Officer Varela about the bottle's existence. While standing outside the vehicle on the driver's side, Officer Varela, using a flashlight, was able to see the bottle on the floor of the car behind the driver's seat. He recovered the empty beer bottle.

At approximately 10:15 p.m., Officer Varela handcuffed the defendant and placed him under arrest. The defendant was transported to the 78th Precinct. At 11:00 p.m., Officer Varela read the defendant the Miranda warnings. The defendant consented to take the breathalyzer test. The breathalyzer test was administered by the IDTU Unit at 11:45 p.m. The defendant registered a .11% blood-alcohol content.

CONCLUSIONS OF LAW

Approaching an occupied stationary vehicle is a minimal intrusion which is not the equivalent of a stop. See, People v. Harrison, 57 N.Y.2d 470, 457 N.Y.S.2d 199, 443 N.E.2d 447 [1982]. This situation is analogous to approaching a citizen on the street to request information and therefore the courts use the same four-tiered analysis set forth in People v. De Bour, 40 N.Y.2d 210, 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976] to justify the conduct of the police. See, People v. Ocasio, 85 N.Y.2d 982, 629 N.Y.S.2d 161, 652 N.E.2d 907 [1995]; People v. Harrison, supra.

Police Officer Varela's observations, on two separate occasions, minutes apart, of the defendant sleeping in the driver's seat of the car with his head tilted back against the seat and the engine running was sufficient to justify the initial approach and inquiry to see if the defendant was the victim of a crime or just in need of aid. See, People v. De Bour, supra at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562 [1976]; People v. Jaime, 171 A.D.2d 884, 567 N.Y.S.2d 809 [2d Dept.1991]; People v. Heston, 152 A.D.2d 999, 543 N.Y.S.2d 803 [4th Dept.1989], lv. denied 76 N.Y.2d 858, 560 N.Y.S.2d 998, 561 N.E.2d 898 [1990].

When Officer Varela approached the vehicle, tapped and then banged on the window to get the defendant to roll it down, he was engaged in a public safety function making sure that the defendant was safe. The officer's subsequent act of opening the unlocked door of the defendant's car was justified under the "emergency doctrine." See, People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 [1976], cert. denied sub nom. Mitchell v. New York, 426 U.S. 953, 96 S.Ct. 3178, 49 L.Ed.2d 1191 [1976].

The basic elements of the emergency doctrine are:

"(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.

(2) The search must not be primarily motivated by intent to arrest and seize evidence.

(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched." See, People v. Mitchell, supra at 177-178, 383 N.Y.S.2d 246, 347 N.E.2d 607.

Officer Varela had a valid reason to believe that an emergency existed. The officer observed the defendant on two separate occasions, minutes apart, seated behind the wheel of a car, slumped back against the seat with its engine running. The defendant was either asleep or unconscious and did not respond to his tapping or banging on the window. After being roused, the defendant was unable to complete the simple task of rolling down a window as directed by Officer Varela.

The protection of the defendant's life was the sole motivating factor for Officer Varela's decision to open the door of the car. Officer Varela's observations and his attempts to communicate with the defendant led him to believe that the defendant may be in need of aid. It became imperative that the door be opened to determine the defendant's physical condition.

A direct relationship existed between Officer Varela's act of opening the door and the emergency. Without opening the door, Officer Varela would have been unable to determine to what extent the defendant needed assistance. Moreover, Officer Varela limited his action to simply opening the door.

Officer Varela acted reasonably and responsibly when he directed the defendant to exit the car. The officer's action forestalled the operation of the vehicle by one who may have been drinking. The intrusion was, at most, de minimus, and not violative of defendant's Fourth Amendment rights. See, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 [1977]; People v. Key, 81 A.D.2d 805, 441 N.Y.S.2d 390 [1st Dept.1981],app. dismissed 54 N.Y.2d 813, 443 N.Y.S.2d 652, 427 N.E.2d 949 [1981].

Once outside the vehicle, Officer Varela observed that the defendant bore the common indicia of intoxication. He then asked the defendant if he had been drinking. The defendant admitted he had a few shots of alcohol.

Up to this point, Officer Varela's actions were akin to a temporary roadside detention for the purpose of investigating the defendant's safety and well-being and were not custodial in nature. See, e.g., People v. McGreal, 190 A.D.2d 869, 593 N.Y.S.2d 868 [2d Dept.1993]; People v. Mathis, 136 A.D.2d 746, 523 N.Y.S.2d 915 [2d Dept.1988], app. denied 71 N.Y.2d 899, 527 N.Y.S.2d 1009, 523 N.E.2d 316 [1988]. In the absence of custodial interrogation, the defendant was not entitled to Miranda warnings prior to being questioned. See, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [1966]; People v. Yukl, 25 N.Y.2d 585, 307 N.Y.S.2d 857, 256 N.E.2d 172 [1969]. His admission will not be suppressed.

Prior to placing the defendant under arrest, Officer Emerito told Officer Varela about seeing a beer bottle on the floor behind the driver's seat. Officer Varela shined a flashlight, saw the bottle and retrieved it. Both officers were entitled to be where they were to make a reasonable inquiry of the defendant. See, People v. Williams, 205 A.D.2d 717, 613 N.Y.S.2d 647 [2d Dept.1994]. The...