People v Farquharson

[*1] People v Farquharson 2009 NY Slip Op 50119(U) [22 Misc 3d 1114(A)] Decided on January 26, 2009 Supreme Court, Bronx County Dawson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 26, 2009
Supreme Court, Bronx County

The People of the State of New York,

against

Orville Farquharson, Defendant.



20120C/2007

Joseph J. Dawson, J.

Defendant is charged with Operating a Motor Vehicle While Impaired by Drugs [VTL Section 1192(4)], Criminal Possession of Marihuana in the Fifth Degree [PL Section 221.10(1)], and Unlawful Possession of Marihuana [PL Section 221.05]. Defendant filed a pretrial motion to suppress evidence, and pursuant to the Decision and Order of the Honorable Lawrence H. Bernstein dated November 13, 2007, a Huntley/Mapp/Dunaway/Refusal hearing was conducted before me on January 14, 2009. For the reasons set forth below, defendant's motion is denied in part and granted in part.

The People called two witness, Police Officers Dennis Vickery ("Vickery") and Rick Wiley ("Wiley"), both of whom are assigned to the Highway 1 Unit. See Hearing Minutes at pp. 4-5, 66-67. The Court finds them credible and credits the bulk of their testimony. In addition, the People introduced two videotapes into evidence. People's Exhibit 1 ("Peo. Ex. 1") is a video taken by a dashboard camera mounted to the officers' car. People's Exhibit 2 ("Peo. Ex. 2") is a video of defendant performing a series of intoxicated driver tests and allegedly refusing to take a chemical test at the 45th Precinct.

FINDINGS OF FACT

Vickery has been a New York City police officer for approximately nine years. In that time, he has made approximately 300 arrests, about 200 of which have been for driving while intoxicated. Vickery has been in the Highway 1 Unit for four years. See Hearing Minutes at pp. 5-6. Wiley has been a New York City police officer for approximately sixteen years. In that time, he has made approximately 350 arrests, about 250 of which have been for driving while intoxicated. Wiley has been in the Highway 1 Unit for three years. Id. at pp. 66-67.

On March 28, 2007, at about 12:00 a.m., Vickery and Wiley were patrolling the Bruckner Expressway near the Bronx River Parkway in an police-owned yellow taxi cab; both were in uniform. Id. at pp. 6-8. Vickery and Wiley noticed that a Nissan Pathfinder was driving in the left lane, and then the middle lane, at speeds ranging from 15 to 30 miles per hour. Id. at pp. 8-[*2]14, 18-19, 28-29, 31-35, 60-61, 67-86; Peo. Ex. 1; Peo. Ex. 2. The posted speed limit on the Bruckner Expressway is 50 miles per hour, and other vehicles were rapidly passing the Pathfinder, which was impeding the flow of traffic. Id. Vickery and Wiley followed the Pathfinder for a few minutes, and then activated their car's lights and sirens and pulled the vehicle over. Id. There is no posted minimum speed limit, and defendant was not issued a ticket for driving too slowly. Id.

Vickery approached the driver's side door of the Pathfinder, and Wiley approached the passenger's side. Id. The defendant was in the driver's seat, alone in the car, with his window open. Id. Vickery and Wiley smelled marihuana. Id. Vickery asked the defendant for his driver's license, and registration and insurance cards. Id. at pp. 11-13. From the untinted passenger side window of the vehicle, Wiley could see two bags of marihuana on the back seat behind defendant. Id. at pp. 67-74. Vickery and Wiley noticed the defendant had watery and bloodshot eyes. Id at pp. 12, 67-74. Defendant provided Vickery with his Florida driver's license, but did not have the registration for the vehicle. Id. at pp. 12-14, 33. Vickery asked the defendant why he was driving so slowly, and the defendant replied that he had a cold, that he had taken Nyquil, and that the car belonged to his friend. Id.

Vickery asked the defendant to exit the Pathfinder and stand at the rear of the car. Id. Vickery then heard Wiley ask the defendant if he had smoked marihuana, and the defendant stated that he had smoked earlier in the day. Id.[FN1] Vickery and Wiley noticed that the defendant was somewhat unsteady on his feet as he walked towards the rear of the Pathfinder. Wiley then conducted a horizontal gaze nystagmus ("HGN") test on defendant, the results of which were consistent with the defendant having used marihuana. Id. at pp. 75-79, 84-86. Id. Based on their observations, training, and experience, the officers concluded that defendant had been driving while under the influence of marihuana, and placed him under arrest sometime before 12:30 a.m. Id. at pp. 20-23, 38-40, 72-76.

After defendant was handcuffed and placed in the rear of the taxi cab, Wiley testified that defendant was to be taken to the 45th Precinct for further testing, leaving the question of what to do with the Pathfinder. Id. at pp. 79-81, 86. According to Wiley, the standard police procedure in such a situation is to take custody of the vehicle by towing it and to perform an inventory search of the vehicle. Id. Wiley testified that an inventory search of the vehicle is done to make sure there are no valuables left unsecured in the vehicle for which Wiley would be responsible. Id. Wiley recovered the two bags of marihuana from the vehicle and then, during an alleged inventory search of the Pathfinder, he seized an additional six bags of marihuana from a radio box on the rear seat. Id. There was no other testimony regarding police procedures for inventory searches, or whether they were followed in this case. After the marihuana was recovered, Vickery testified that the police continued to search the car for more drugs or weapons. Id. at p. 40.

Defendant was then taken to the 45th Precinct for additional tests to determine whether he was intoxicated. Id. at pp. 20-23, 38-40; Peo. Ex. 2. At approximately 12:50 a.m., defendant [*3]was offered a breath alcohol test, which defendant took and passed with a 0.00% percent blood alcohol level. Id. at pp. 23-24, 45; Peo. Ex. 2 Defendant was then asked to submit to four physical coordination tests. Id. at pp. 23-28, 46-49. Vickery observed defendant to be somewhat unsteady during these tests and to have problems following the directions for the tests. Vickery testified that defendant did not pass these tests. Id.

Defendant was then asked to submit to a urinalysis to test for the presence of drugs. Id. at pp. 24-25, 49-51; Peo. Ex. 2. After asking about the test, defendant refused to take the test. Id. Defendant was then given the statutory warnings, to wit, that if he refused to take the test that his driver's license would be immediately suspended and subsequently revoked, and that his refusal could be used against him at any trial, proceeding, or hearing resulting from the arrest. Id. Defendant asked about the warnings, and they were repeated. Defendant was again asked to take the test, and defendant still refused. Id. Defendant and the officers then had an extended colloquy about the circumstances of his arrest, among other things. Id. The officers ultimately determined that defendant refused to submit to the urinalysis.

.

CONCLUSIONS OF LAW

As to the Mapp/Dunaway portion of the hearing, the People had the burden of going forward with credible evidence tending to show that the police acted lawfully, and the defendant had the burden of proving by a preponderance of the evidence that the police acted illegally. See People v. DiStefano, 38 NY2d 640, 652 (1976); People v. Perez, 149 AD2d 344, 345 (1st Dept. 1989). For the Huntley portion of the hearing, the People had the burden of proving beyond a reasonable doubt that defendant's statements were voluntary and not the product of custodial interrogation. People v. Huntley, 15 NY2d 72, 78 (1965). As to the refusal portion of the hearing, the People had to demonstrate that defendant persistently refused to submit to a chemical test after being clearly and unequivocally warned of the consequences of the failure to submit to a chemical test. See VTL § 1194(2)(f). The Court must be given facts, not mere conclusions, for the People to meet their burden. See People v. Bouton, 50 NY2d 130, 135 (1980).

First, the People have met their burden of going forward as to the Dunaway portion of the hearing concerning the initial car stop. There was probable cause for the police to believe that defendant was committing a violation of VTL Section 1181(a), which prohibits a person from operating a car "at such a slow speed as to impede the normal and reasonable movement of traffic . . ." See also People v. Caray, 205 AD2d 371 (1st Dept.) (finding police stop of vehicle for, in part, driving too slowly, was reasonable), appeal denied, 84 NY2d 933 (1994). People's Exhibit 1 shows defendant driving quite slowly, with numerous cars passing his vehicle, and Wiley testified that defendant's vehicle was impeding the flow of traffic. Further, the arrest of defendant for violating VTL Section 1192(4) was justified based upon defendant's operation of the vehicle, the smell of marihuana, the presence of two bags of marihuana in plain view in the car, defendant's statement that he had smoked earlier in the day, and defendant's unsteadiness and bloodshot and watery eyes. See CPL § 140.10(1)(b).

Second, the Court finds that the People have met their burden of persuasion as to the Huntley portion of the hearing. Defendant's two statements to the police at the scene were the result of investigatory questioning, and not custodial interrogation. See People v. Centano, 76 NY2d 837 (1990); People v. Zapata, 41 AD3d 109 (1st Dept. 2007).Although defendant was not [*4]free to leave the scene, he was not handcuffed, and it was reasonable under the circumstances for the police to ask defendant why he was driving so slowly and whether he had smoked marihuana. Therefore, the Court finds those two statements to be admissible at trial.

Third, the Court rules on the Mapp portion of the hearing as follows. The two bags of marihuana that were observed in the rear seat of the vehicle are admissible on the ground that the People met their burden of going forward with proof that Wiley was lawfully in a position to observe the two bags and that they were in his plain view. See People v. Spinelli, 35 NY2d 77, 80 (1974); People v. Harvey, 245 AD2d 108 (1st Dept. 1997), appeal denied, 92 NY2d 898 (1998). The Court, however, suppresses the use at trial of the six bags of marihuana that were recovered pursuant to the alleged inventory search of the vehicle. In People v. Johnson, 1 NY3d 252 (2003), the Court of Appeals held that the People had the "burden of establishing a valid inventory search" at a suppression hearing, and that the purposes of an inventory search were threefold: "to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel from any dangerous instruments." Id. at 256 (citation omitted). To meet that burden, the People should produce evidence demonstrating: (1) the existence of a departmental policy regarding inventory searches, (2) that the policy is "rationally designed to meet the objectives that justify inventory searches," and (3) that the particular search was conducted properly and in compliance with established procedures. See id. Further, the "hallmark" of a real inventory search is the creation of a meaningful inventory list of the vehicle's contents. Id. The Court concludes that the People did not meet their burden of establishing the existence of any of the foregoing. Indeed, Vickery rather candidly testified that after the marihuana was recovered, "we searched the vehicle more for any kind of drugs of weapons[]" and "that's why the car was searched more." See, Hearing Minutes at p. 40. This is exactly the type of "general rummaging . . . to discover incriminating evidence" that Johnson prohibits. See Johnson, 1 NY3d at 256 (internal quotation marks and citation omitted); see also People v. Gomez, 50 AD3d 407, 408 (1st Dept.) (suppressing physical evidence recovered pursuant to alleged inventory search because the People failed to establish compliance with Johnson), lv. to appeal granted, 2008 NY Slip Op. 74219(U) (June 10, 2008).

Finally, the Court concludes that defendant's refusal to submit to a chemical test of his urine is admissible at trial. For such a refusal to be admissible, the People must show that the defendant "was given sufficient warning, in clear and unequivocal language, of the effect of such refusal and that the [defendant] persisted in the refusal." VTL § 1194(2)(f). Here, People's Exhibit 2 demonstrates that defendant was asked to submit to the urine test, and refused. It goes on to show that defendant was given the required statutory warnings regarding the effects of refusal, and that defendant still refused to submit to the test. Although defendant had questions of the officers about the test, People's Exhibit 2 shows defendant refused to take the test, was read the required warnings, and still refused to take the test. This renders the refusal admissible. See People v. Thomas, 46 NY2d 100, 108-09 (1978). That defendant had further conversation with the officers following his persistent refusal to take the test is legally immaterial. See Viger v. Passidomo, 65 NY2d 705 (1985) (holding that a subsequent willingness to submit to chemical test does not invalidate prior refusal).

The foregoing constitutes the Decision and Order of the Court.

Dated:January 26, 2009 [*5]

Bronx, New York________________________

Joseph J. Dawson, A.S.C.J. Footnotes

Footnote 1:Defendant also made this statement, along with a variety of other statements, later at the 45th Precinct, but the District Attorney's Office never gave notice to defense counsel of these statements, and has agreed not to introduce them at trial. See Hearing Minutes at pp. 52-56.