People v. Bigger

Fiandach & Fiandach (Sylvia W. Josh of counsel), for defendant. Howard R. Relin, District Attorney (Amy Bogardus of counsel), for plaintiff.

OPINION OF THE COURT

Upon exiting his patrol car, Sergeant Hall approached the defendant, who was driving the vehicle in question. Sergeant Hall asked the defendant for his driver's license and registration. The officer testified that although these documents were retrieved by Mr. Bigger, he did so very slowly. The officer asked the defendant where he was going. The defendant responded by saying he was "on his way to a friend's house in Ontario" (Wayne County). He further indicated that he turned around when he saw the lights. In speaking with the defendant, Sergeant Hall observed the defendant as having a strong odor of an alcoholic beverage, watery and bloodshot eyes. Mr. Bigger told Sergeant Hall that he had a "few beers at 4:00 P.M." The defendant was asked to recite the alphabet, without singing, from "L" to "T." However, the defendant recited from "H" to "Z." Sergeant Hall testified at the hearing that at that point he believed the defendant was driving "under the influence" and called for backup from one of the officers at the sobriety checkpoint. He remained at the scene until Officer Rose of the Webster Police Department arrived. Officer Rose gave the defendant the "standard greeting" as required by the Sobriety Checkpoint Directive of September 26, 2003 to September 27, 2003. He asked the defendant if he had anything to drink that night. The defendant responded by saying he had three to four beers between 3:00 P.M. and 6:00 P.M. He further indicated that he then took a nap, that he was currently on his way to see a friend, and that when he saw the lights from the sobriety checkpoint, he thought there was an accident ahead and turned around to go home. Officer Rose testified that the defendant exhibited some of the standard indicia of intoxication. As a result, he ordered the defendant to exit his vehicle. Subsequent to exiting his vehicle the defendant was asked to perform various roadside tests. The defendant failed some of the roadside tests, including the fingerto-nose test and the one-leg stand. The prescreen test was positive for alcohol. The defendant was then arrested and taken to the Webster Police Department for processing.

Issue Presented.

Legal Analysis.

The statute that applies to this particular situation is Criminal Procedure Law § 140.50 (1) which states:

"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."

However, that section of the law begs the question as to what constitutes a "reasonable suspicion" that an individual is or about to engage in criminal activity. The United States Supreme Court in Terry v Ohio (392 US 1, 21 [1968]) stated as follows:

"And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief that the action taken was appropriate? Cf. Carroll v. United States, 267 U.S. 132 (1925); Beck v. State of Ohio, 379 U.S. 89, 96-97 (1964). Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. See, e.g., Beck v. Ohio, supra; Rios v. United States, 364 U.S. 253 (1960); Henry v. United States, 361 U.S. 98 (1959). And simple `"good faith on the part of the arresting officer is not enough." . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers, and effects," only in the discretion of the police.' Beck v. Ohio, supra, at 97."

Thus a police officer must have an objective "articulable" fact on which to rely before that officer makes an investigatory stop of an individual. This was reaffirmed by the New York State Court of Appeals in People v Ingle (36 NY2d 413, 420 [1975]) wherein the Court stated that

"It should be emphasized that the factual basis required to support a stop for a `routine traffic check' is minimal. An actual violation of the Vehicle and Traffic Law need not be detectable. For example, an automobile in a general state of dilapidation might properly arouse suspicion of equipment violations. All that is required is that the stop be not the product of mere whim, caprice, or idle curiosity. It is enough if the stop is based upon `specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion' ( Terry v Ohio, 392 US 1, 21, supra)." (Emphasis added.)

In this Department the governing case is People v Chaffee (183 AD2d 208 [1992]). In that case, the Court permitted the stop of a vehicle by a Trooper who was involved in a sobriety checkpoint. The vehicle in that case "made a `very quick stop' in the road and turned right into a motel parking lot. The Trooper followed that car into the lot and observed that it circled the lot two times, passing numerous parking spaces. The occupants were looking toward the roadblock. It was only after the Trooper activated his roof lights that the car pulled into a parking space." ( Chaffee, supra at 209.) The result was that the driver of that vehicle was eventually arrested for felony driving while intoxicated. The articulable fact which permitted the investigatory stop was that the defendant "appeared to be avoiding the checkpoint." ( Chaffee, supra at 211.) However, in People v Rocket (156 Misc 2d 641 [1992]), the court held that the stop of a vehicle, which merely turned off one public highway onto another such highway, without any alleged violation of the Vehicle and Traffic Law, resulting in the avoidance of a sobriety checkpoint, was not a permitted stop. The court stated that "Even if a defendant is intentionally avoiding a checkpoint police officials would not be cognizant of that fact other than by mere conjecture." ( Rocket, supra at 643.) The court further indicated that "While there are a said sobriety checkpoint. Therefore, the charges against the defendant are dismissed because the stop of the defendant's vehicle was not justified. [*] General order 504 and the directive for September 26, 2003 to September 27, 2003 were both entered into evidence by the People, without objection by the defense. General order 504 was signed by the previous Webster Police Chief, Scott J. Parsons. Said general order became effective on November 14, 2000.