People v Behling
Annotate this CaseDecided on January 13, 2009
District Court of Suffolk County, First District
The People of the State of New York, Plaintiff,
against
David A. Behling, Defendant.
2007SU16269
THOMAS J. SPOTA, ESQ.
Suffolk County District Attorney400 Carleton Avenue
Central Islip, NY 11722
By: Mary Skiber, Esq.,
Assistant District Attorney
JOHN T. POWERS, JR., ESQ.
1641 Deer Park Avenue
Deer Park, NY 11729
Salvatore A. Alamia, J.
The defendant is charged with Driving While Intoxicated in violation of VTL
1192(3), Aggravated Driving While Intoxicated Per Se in violation of VTL 1192(2-a), and
Driving While Intoxicated Per Se in violation of VTL 1192(2). On September 15, 2008, a
Dunaway, Mapp and Huntley hearing was held to determine the
admissibility at trial of evidence obtained against the defendant, including evidence of statements
allegedly made by him. The parties were given the opportunity to submit written closing
statements. The defendant's closing statement was received at the end of October 2008. The
People's closing statement was not submitted and has been deemed waived.
The sole witness at the hearing was Police Officer John Connors, a police officer with the
Suffolk County Police Department, who testified on behalf of the People. Based upon the
credible evidence adduced at the hearing, the Court makes the following findings of fact and
conclusions of law.
Findings of Fact
Officer Connors has been a police officer with the Suffolk County Police Department for the past 13 years, and with the New York City Police Department for the 5 years before that. He has made approximately 100 DWI arrests. On March 20, 2007, Officer Connors was on patrol with a partner in Central Islip, Town of Islip, County of Suffolk, in a marked patrol car, working a 9:00 [*2]p.m. to 7:00 a.m. tour of duty. At 11:01 p.m. on that date, the officers responded to the scene of a domestic incident at 10 East Maple Street, Central Islip, at which the victim reported that her boyfriend, David Behling, had violated an order of protection.
The officers were sitting in their patrol car in front of the residence filling out the paperwork on the incident when Officer Connors observed a vehicle turn onto the block behind them. The street was narrow, with cars parked on both sides. The vehicle approached at a very slow rate of speed, and Officer Connors' partner turned on the spotlight and shined it on the driver. Officer Connors recognized the driver as the defendant, David Behling, because the officers had arrested him ten days earlier for a similar offense. The officers followed the vehicle with the intent of arresting the defendant for violating the order of protection.
The officers followed the defendant's vehicle for a few blocks, during which time the defendant drove within the speed limit and committed no traffic infractions. After he made a right turn, the officers followed the defendant's vehicle for another block and then pulled him over on Lowell Avenue near the intersection with Cypress Avenue. The defendant stopped his vehicle as soon as the officers activated their emergency lights and siren, and exited his vehicle and ran to the area behind it as the officers approached. The defendant started yelling at the officers, demanding to know why they had pulled him over and why they were bothering him. Officer Connors smelled alcohol on the defendant's breath and asked the defendant if he'd been drinking. The defendant answered that he'd had a few Heinekens. Officer Connors observed that the defendant's speech was slurred, and he was unsteady on his feet and had to hold onto his vehicle to keep himself steady. Officer Connors did not ask the defendant to perform any field sobriety tests due to his increasingly irate and belligerent demeanor.
Within a few minutes of the initial stop, at approximately 11:37 p.m., Officer Connors' partner handcuffed the defendant and formally placed him under arrest for Criminal Contempt in the First Degree. After the defendant was handcuffed, Officer Connors asked him if he was drunk. The defendant responded, "I don't care what happens. I'll drive drunk if I want to." The defendant was then placed in the back seat of the patrol car, where Officer Connors administered an SD-2 field breath test to him. Officer Connors testified that at 11:59 p.m. he placed the defendant under arrest for the additional charge of Driving While Intoxicated. [*3]
The defendant was transported to the Third Precinct,
where Officer Connors read him the Miranda warnings portion of the Alcohol Influence
Report (AIR) form and the questions printed in that portion of the form, recording the defendant's
responses in the spaces provided (People's Exhibit 1). The defendant indicated that he understood
each of the rights explained by the officer, that he did not wish to contact a lawyer, and that he
wished to talk to the officer without a lawyer. Officer Connors then asked the defendant the
questions printed on the bottom portion of the AIR form, again recording the defendant's answers
on the form. The defendant admitted that he had been drinking alcoholic beverages and, when
asked what he had been drinking, responded "a few Heineken."
Conclusions of Law
The legality of encounters initiated by police officers with civilians is governed by the four-tiered analysis set forth by the Court of Appeals in People v. De Bour, 40 NY2d 210 (1976), and People v. Hollman, 79 NY2d 181, 184 (1992). The first level of police intrusion, approaching an individual and requesting general information, is permitted where there exists an "articulable basis" for the approach, meaning an "objective, credible reason, not necessarily indicative of criminality." People v. Hollman, supra , 79 NY2d at 184; People v. De Bour, supra , 40 NY2d at 223. The second level of intrusion involves the common-law right of inquiry, which is "activated by a founded suspicion that criminal activity is afoot." People v. Hollman, supra , at 184; People v. De Bour, supra , at 223. The third level, forcibly stopping and detaining a person, is authorized where the officer has reasonable suspicion that the person is or was involved in a felony or misdemeanor, and at the fourth level, an officer is authorized to arrest a person where the officer has probable cause to believe the person has committed a crime. See, People v. Hollman, supra , at 184; People v. De Bour, supra , at 223.
Officer Connors and his partner had probable cause to stop the defendant's vehicle in order to place the defendant under arrest for the criminal contempt charge, based on their investigation of his reported violation of an order of protection and the fact that the officers recognized him as he slowly drove past the scene of the incident. Once the defendant was stopped, the officer's observations of the defendant's irate and belligerent demeanor, the odor of alcohol on his breath, his slurred speech, unsteadiness on his feet, and his admission that he had consumed an alcoholic beverage, all provided probable cause for the additional charge of Driving While Intoxicated. [*4]See, People v. Kowalski, 291 AD2d 669 (3rd Dept. 2002); People v. Poje, 270 AD2d 649 (3rd Dept. 2000), lv. den. 95 NY2d 802 (2000); People v. Kalwiss, 6 Misc 3d 129A, 2005 NY Slip Op 50057U (App. Term, 9th & 10th Jud. Dists. 2005). The Court accordingly finds that any evidence obtained as a result of the defendant's arrest is not subject to suppression for lack of probable cause.
The People bear the initial burden of proving beyond a reasonable doubt that a defendant's statements were voluntary, which in this case required proof that the defendant was not subjected to custodial interrogation before Miranda warnings were administered. See, People v. Baggett, AD3d , 2008 NY Slip Op 9659 (3rd Dept. 2008). To determine if a person was in custody, the court must evaluate the circumstances and decide whether a reasonable person, innocent of any wrongdoing, would have believed that he or she was not free to leave at the time the statement was made. See, People v. Baggett, supra ; People v. Yukl, 25 NY2d 585, 589 (1969), cert. den. 400 U.S. 851 (1970).
It is likely that the defendant saw the police officers at the location of the domestic dispute in which he'd just been involved, particularly since they shined a spotlight on him as he slowly drove by. It was readily apparent that the officers followed the defendant and stopped his vehicle for no purpose other than to arrest him in connection with the domestic incident, since the manner in which he operated his vehicle was appropriate to the road conditions and he had committed no traffic violations. See, People v. Baggett, supra . Thus, under the circumstances of this stop, a reasonable person in the defendant's position would not have believed he was free to leave the scene when he exited his vehicle, but would instead have recognized the custodial nature of the stop. See, People v. Yukl, supra ; People v. Baggett, supra . Officer Connors' testimony confirmed that the defendant was not free to leave at this point, and the officer's initial question "Have you been drinking?," asked in the context of this custodial situation, was accusatory rather than merely investigatory in nature. See, People v. Baggett, supra . The officer did not administer Miranda warnings before questioning the defendant, and the defendant's roadside admission that he'd had a few Heinekens therefore is not admissible at trial.
The Miranda warnings still had not been administered to the defendant when he was placed in handcuffs and formally arrested for Criminal Contempt in the First Degree. Officer Connors' roadside question to the now-handcuffed defendant, asking him whether he was drunk, clearly constituted a custodial interrogation which was designed not to clarify the situation but [*5]to obtain an inculpatory admission. See, People v. Baggett, supra ; People v. Long, 27 AD3d 1053 (4th Dept. 2006), lv. den. 7 NY3d 758 (2006); People v. Lightner,AD3d , 2008 NY Slip Op 9218 (4th Dept. 2008). Accordingly, the defendant's statement "I don't care what happens. I'll drive drunk if I want to," was obtained in violation of his constitutional rights and similarly shall be suppressed at trial.
The defendant's responses at the Third Precinct to the questions printed on the AIR form, unlike the earlier responses at the roadside, were made after a definite break in the questioning and after the Miranda warnings had been read to the defendant. The defendant voluntarily waived his constitutional rights, and there is nothing in the record to suggest that his responses were in any way coerced. These responses, including his admission that he'd had a few Heinekens, shall be admitted into evidence at trial.
The defendant consented to take the chemical test of his blood, and no evidence was obtained from the defendant as the result of an illegal search and seizure. Thus, no evidence is subject to suppression on this ground. Evidence concerning the SD-2 field test, however, shall not be admitted at trial. See, People v. Thomas, 121 AD2d 73, 76, 78-79 (4th Dept. 1986), affd. 70 NY2d 823 (1987); People v. Wright, 1 Misc 3d 133A, 781 NYS2d 627 (App. Term, 9th & 10th Jud. Dists. 2003).
This constitutes the decision and order of the Court.
The parties are directed to appear on the New Court Date indicated below.
New Court Date:
Dated:J.D.C.
Decision to be published on line: X yesno
THOMAS J. SPOTA, ESQ.
Suffolk County District Attorney
400 Carleton Avenue
Central Islip, NY 11722
By: Mary Skiber, Esq.,
Assistant District Attorney
[*6]
JOHN T. POWERS, JR., ESQ.
1641 Deer Park Avenue
Deer Park, NY 11729
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