People v. Scott

• Court: New York County Court
• Writing for the Court: GLENN R. MORTON
• Citation: 122 Misc.2d 731,471 N.Y.S.2d 964
• Parties: The PEOPLE of the State of New York v. Joseph J. SCOTT, Defendant-Appellant.
• Decision Date: 28 December 1983

Page 964

471 N.Y.S.2d 964 122 Misc.2d 731 The PEOPLE of the State of New York
v.
Joseph J. SCOTT, Defendant-Appellant. Genesee County Court. Dec. 28, 1983.

Page 965

Ronald L. Fancher, Dist. Atty., Robert C. Noonan, Asst. Dist. Atty., for the People-appellee.

Clark J. Zimmermann, Batavia, for defendant-appellant.

MEMORANDUM DECISION

GLENN R. MORTON, Judge.

The defendant-appellant was convicted of the offense of operating a motor vehicle while impaired in violation of § 1192 subd. 1 of the Vehicle and Traffic Law on February 28, 1983 in the Town Justice Court for the Town of LeRoy. The defendant-appellant now appeals the judgment of conviction, as a matter of law, contending that the court improperly denied his motion to suppress evidence based upon an illegal search of his car and person.

Principally, the defendant-appellant contends that the routine stopping of his vehicle by police at a roadblock without any specific reason therefore violates his Fourth Amendment constitutional right prohibiting unreasonable searches and seizures. Except as noted, the facts below are not materially disputed, and it appears that:

As part of a program designed to prevent drunken driving, the Genesee County Sheriff administratively adopted a policy of law enforcement requiring the establishment of roadblocks throughout the county at periodic intervals; and promulgated certain written guidelines for the implementation thereof (People's Exhibit 2). In conjunction therewith, the criminal division of the Sheriff's Department, in March 1982, commenced[122 Misc.2d 732] conducting roadblocks once each month between the hours of 12:00 midnight and 3:00 A.M. at various predetermined points in the county. On each occasion the roadblock would be set up with certain devices to alert motorists and, after being conducted for 20 to 30 minutes, would move on to one of the other sites previously selected.

During the early morning hours of September 25, 1982, the Sheriff's Department, after conducting similar procedures in the Towns of Byron and Bergen, set up the third roadblock of the evening on Route 5 near its intersection with the Asbury Road in the Town of LeRoy (see People's Exhibit 1 and 5-8) at approximately 1:45 A.M. Warning signs (People's Exhibit 3-4) were set up on the shoulder of the road 300 feet in advance on either side of the checkpoint, with two auxiliary police vehicles exhibiting flashing lights and shining their headlights on them to alert motorists of the impending stop. Additionally, flares were placed in the center of the road in the vicinity of the signs; and in the center of the checkpoint area, there were two other unmarked and one marked sheriff's vehicles. The checkpoint itself was operated by six regular members of the Sheriff's Department and four volunteer special deputies (auxiliary police), who stopped all vehicles approaching from either direction.

It also appears under the facts here as it tangentially relates to the overall effect,

Page 966

that two additional patrol cars were stationed on the peripheral areas to follow any vehicles who elected to turn around or not proceed through the checkpoint and observe them for possible violations.

Around 2:00 A.M. the defendant's vehicle approached from the east and was directed to the side of the road in the checkpoint area by the special deputies. The defendant's vehicle was then approached by Chief Deputy Gary Maha, with a flashlight, and he was requested to produce his license, registration and insurance. At the time, the officer observed the defendant fumble with his wallet a "little bit", that there was a strong odor of alcohol and his eyes were watery and bloodshot. The defendant was also asked if he had been drinking, and responded that he had just left a bar and grill. The defendant was asked to step out of the car, was observed to be unstable and, after being requested, could not successfully perform two coordination [122 Misc.2d 733] tests. The defendant was administered an alco-sensor test, given certain...