People v. Louis, 2021-50979

CourtNew York Justice Court
Writing for the CourtThomas J. DiSalvo, J.
PartiesThe People of the State of New York v. Edward Louis, Defendant.
Decision Date19 October 2021
Docket Number20010335,2021-50979

The People of the State of New York
v.

Edward Louis, Defendant.

No. 2021-50979

No. 20010335

Justice Court of the Town of Webster, Monroe County

October 19, 2021


UNPUBLISHED OPINION

Sandra Doorley, District Attorney, Monroe County (Jacqueline Moyer, of Counsel), for plaintiff.

Timothy P. Donaher, Public Defender (Francis Strazzeri, of Counsel), for defendant.

Thomas J. DiSalvo, J.

The defendant was charged with aggravated driving while intoxicated, VTL § 1192 (2-a), common law driving while intoxicated, VTL § 1192 (3) and per se driving while intoxicated, VTL § 1192 (2) on January 17, 2020. He was arraigned on February 5, 2020 after the public defender was assigned to represent him. It was un-controverted that the accusatory instruments did in fact conform to the requirements of CPL § 110.40 as to facial sufficiency. [1] At arraignment the court was provided with a certified copy of a breath test indicating a finding of.22 of one percent by weight of alcohol in the blood of the defendant. [2] There was no request at that time for a hardship license. As a result, the court suspended the defendant's driver license pending prosecution, pursuant to VTL § 1193(2)(e)(7)(a). Motions submitted by the defense counsel requested Huntley and probable cause hearings. Those hearings were conducted on July 30, 2021.

Facts of the Case.

The People presented Webster Police Officer Skyler Miller as their only witness. Officer Miller testified to being on routine road patrol when he received a dispatch from 911 relative to a reckless driver in the Aldi's parking lot on Ridge Road in the Town of Webster. The officer did not know the name of the person who called in the tip or if the police ever obtained a supporting deposition from said individual. Nevertheless, upon his arrival at that location he discovered a red 2007 Ford F-150 parked in the parking lot. The store was closed and the parking lot lights were apparently unlit at the time. He further observed a person sitting in the driver's seat and staring at the dash board of the said pickup truck. Upon exiting his patrol car he approached the passenger side of said truck. The truck's motor was off, but he observed the engine area to be warm. He saw that the keys were in the ignition. The officer attempted to get the driver's attention by banging on the passenger side window a number of times. The driver eventually noticed the presence of the officer and rolled down the said window after many requests of the officer to do so and after fumbling with the controls. Upon the lowering of the window, Officer Miller detected a strong odor of alcoholic beverage emanating from the truck. The officer asked the individual for his driver license. Instead of producing the license the individual exited his vehicle. When the officer walked over to the driver's side of the truck he observed the individual struggling to get his license out of his wallet. Upon the production of the license Officer Miller was able to identify the driver as the defendant herein. The officer asked the defendant where he was coming from? To which he replied his "house in the City of Rochester". When he was asked where he was going? He replied to his "home in the City of Rochester". When asked how long he was in the parking lot? He replied "only a minute". The officer testified that to that point he had been on the scene about ten minutes. When asked if he had made any other stops, the defendant replied "no".The defendant further admitted to having consumed alcohol, advising the officer that he had consumed "three to four mixed gin drinks".

Officer Miller then requested that the defendant perform certain roadside tests. The defendant agreed to perform the said tests. The tests performed were the horizontal gaze nystagmus test, the walk and turn test, and the one leg stand test. None of those tests were successfully completed. In fact the latter two tests had to be discontinued before being completed because of the fear that the defendant would fall and injure himself during their execution. The defendant submitted to a roadside breath test which was positive for the presence of alcohol. There was no testimony of any empty containers of alcohol in the vehicle or discarded nearby, which could have suggested that the defendant had been drinking while parked in Aldi's parking lot. In any event, upon the conclusion of the roadside tests the defendant was arrested for driving while intoxicated.

Issues Presented.

Did the officer have the justification to approach the defendant's parked vehicle to request information based on an anonymous tip?

Did the officer have a founded suspicion that criminal activity was afoot which activated common law right of inquiry?

Was the officer justified in detaining the defendant?

Did the officer have probable cause to arrest the defendant for driving while intoxicated absent having observed the defendant driving the vehicle?

Legal Analysis.

This case is a classic example of the steps an officer must take in approaching a person parked in a vehicle, who is suspected of some violation of the law, when the officer had not witnessed any said violation. "The approach of a parked vehicle by a police officer is governed by the same rules that govern police-civilian street encounters." [3] The Court of Appeals stated that

"In De Bour, we set forth a graduated four-level test for evaluating street encounters initiated by the police: level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest requires probable cause to believe that the person to be arrested has committed a crime (De Bour, 40 N.Y.2d at 223, 386 N.Y.S.2d 375, 352 N.E.2d 562; see also People v. Hollman, 79 N.Y.2d 181, 184-185, 581 N.Y.S.2d 619 590 N.E.2d 204 [1992])." (People v. Moore, 6 N.Y.3d 496, 498-499, 814 N.Y.S.2d 567, 568 [2006])

The threshold issue is whether the arresting officer could approach the defendant's parked vehicle to request information. The officer did not observe the defendant violate any provision of the law prior to coming upon the defendant's vehicle. The only reason the officer sought out the defendant's vehicle was because of an anonymous tip about a reckless driver in the Aldi's parking lot. Certainly, courts have questioned the general reliability of anonymous tips. It has been held that

"An anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information-such as information suggestive of criminal behavior-so that the police can test the reliability of the tip (see Florida v. J.L., 529 U.S. 266, 120 S.Ct 1375, 146 L.Ed.2d 254 [2000]; William II, 98 N.Y.2d at 99, 745 N.Y.S.2d 792, 772 N.E.2d 1150). Indeed, in J.L., a unanimous United States Supreme Court held that an anonymous tip regarding a young Black male standing at a particular bus stop, wearing a plaid shirt and carrying a gun, was insufficient to provide the requisite reasonable suspicion to authorize a stop and frisk of the defendant." [4]

However, in this case the anonymous tip regarding a reckless driver was irrelevant to what the officer independently observed when he arrived on the scene. Despite not observing any reckless driving the officer was duty bound to at least investigate the situation further. Thus the officer went to the Aldi's parking lot at about 10:51 P.M., which was after the store was closed. The officer was faced with a vehicle parked alone in the parking lot of closed store. He observed that a person was behind the wheel of the car, which was not running. The presumed driver did not appear to be alert or even be aware of the officer's presence as he approached the passenger side of the vehicle. Although the motor was off, the front of the vehicle was warm to the touch. In looking through the window, the keys to...

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