People v Lochan
Decided on March 4, 2009
Criminal Court of City of New York, Queens County
The People of the State of New York
Harnarine Lochan, Defendant.
For the Defendant: Martin D. Kane
For the People: ADA Brooke Barnes
Gene R. Lopez, J.
Defendant is charged with Driving While Ability Impaired in violation of §1192(1) of the Vehicle and Traffic Law. The parties consented to a hearing (a Johnson, Huntley and Dunaway hearing) in which the defendant challenges the admissibility at trial of statements made by the defendant to a police sergeant and the results of a breathalyzer test administered to him by the police as a result of what the defendant alleges to be an illegal stop and seizure. Thereafter a pre-trial suppression hearing was held in Part HP-1 before a judicial hearing officer (hereinafter the JHO) on December 9, 2008. I adopt the proposed findings of fact, reject the proposed conclusions of law and grant the defendant's motion to suppress his statements to Sergeant Summa and the results of the breathalyzer test.
The JHO found that the People's only witness, Sergeant Summa stopped the defendant at about 11:40 p.m. on May 7, 2008 as he traveled northbound on 120th Street between 115th Avenue and Linden Boulevard. Sergeant Summa was directly behind the defendant in his patrol car when he saw the defendant's 2007 BMW swerve "...from side to side within the lane."[FN1] Sergeant Summa also testified as to the time of night the incident occurred and that the street was a one way street with cars parked on both sides. From this, the JHO concluded Sergeant Summa might have been able to give the driver a summons for reckless driving, and that he therefore had probable cause to stop the defendant. The JHO concluded his proposed finding of probable cause this way: "Then again, there may have been some other reason. Anyway, he had to find out why [*2]the car was swerving. He (Sergeant Summa) testified that he didn't know whether there were any holes in the road or....the condition of the road - he just didn't know that."[FN2]
Determining the scope and the basis of the adjudicative recommendation of a JHO often cannot easily be gleaned without reference to the hearing record. Thus, the analysis of the factual sufficiency of the probable cause that supports Sergeant Summa's stop of the defendant's car begins with a review of that record.[FN3]
Sergeant Summa testified that he stopped the defendant after seeing the defendant drive his 2007 BMW in the following manner: He was "going left and right, straight, weaving, swerving."[FN4]
During cross examination Sergeant Summa clarified further his observation of the defendant's operation of his car [FN5]:
Question: Now on 120[th Street], would it be fair to say that the condition of the street is broken, that there are defects in the street?
Answer: I have no idea.
Question: You didn't notice any?
Question: Do you know whether there are or not or you just don't know?
Answer: That night I have no idea.
Question: The defendant, you say his car moved in one direction, then the other?
Question: Was this a sharp motion?
Answer: It was gradual. It wasn't sudden.
Question: When you observed the defendant, how far did you follow him for?
Answer: That one block. [*3]
Question: During that time, he swerved how many times?
Answer: At least once. I don't remember.
Question: At least once he swerved?
Question: So when he swerved, he continued on, is that correct?
Question: You don't know whether he swerved to avoid a defect in the road, do you?
Answer: I have no idea.
Question: You don't know. You just saw the car swerve and then continue on; is that correct?
Question: Did you observe anything else about the operation of the vehicle other than that one swerve?
Answer: All I have noted is that he swerved.
Question: Then continued on his way?
Question: Officer, are you familiar with run flat tires, do you know what that is?
Answer: No clue.
Question: No clue?
Answer: No clue.
Question: All right, what else did you observe about the defendant prior to you saying you pulled him over other than the one swerve?
Answer: That the vehicle swerved. That's it.
Question: Would it be fair to say that anytime you saw a vehicle swerve, you would stop that vehicle, is that correct?
Answer: On a narrow one way street, yes, I would pull that vehicle over, especially at that hour of the night.
Question: The hour of the night and the fact that it swerved once led you to stop. Now is it fair to say, Officer, that the vehicle had already pulled over when you approached it?
Answer: Yes, because I put my lights on and hit the siren and he pulled over, correct.
Question: Were there any other vehicles in the area at that time?
Answer: There were vehicles parked on the side of the street. [*4]
Question: Were there any other vehicles that were driving at the time you observed?
Answer: Are you asking was there a vehicle between my vehicle and his vehicle?
Question: No. I am asking if you observed any other vehicles on that street?
Question: At that time, did any other vehicle pull over?
Answer: I have no idea. Like I said, there were tons of vehicles parked on the street, yes.
Question: You indicated that you directed this vehicle to stop, is that correct?
Question: Did the vehicle break any traffic rules that you observed?
Question: Any at all?
Question: You were going to give him a summons?
Answer: If he wasn't drunk, yes, I would have gave him a summons.
Question: Did he — are the lanes marked on the street where he was driving?
Answer: It's a one way.
Question: Did he pull out of any lane?
Answer: It's a single lane of traffic.
Question: What were you going to give him a traffic violation for?
Answer: Probably reckless driving at that point.
Question: Because the vehicle swerved?
Answer: Swerving, yes.
Question: Didn't hit anything, correct.
Answer: No, he didn't hit anything.
Question: Did you see any pedestrians in the area?
Answer: I don't remember.
Question: Any other vehicles that he came close to hitting?
Answer: Like I said, it's a one way street. There are vehicle parked on both sides of 120th Street. [*5]
Question: So you were going to arrest him for reckless driving?
Answer: I never said that. I said summons. There is a difference between arrest and summons.
Question: You were going to give him a summons for reckless driving.
Answer: Perhaps. I don't have to give someone a summons every time I stop. I don't know if you know that.
The stop of a car is a seizure implicating constitutional limitations even where the purpose of the stop is limited and the resulting detention is brief. (Delaware v Prouse, 440 US 648, 659 ) The decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic infraction has occurred, People v Ingle, 36 NY2d 413 (1975); People v Robinson, 97 NY2d 341 (2001)[FN6],or the requisite reasonable suspicion to believe that the driver has committed, is committing, or is about to commit a crime, People v Sobotker, 43 NY2d 559 (1978), or that the police had a public safety concern prompted by the manner the vehicle was being operated by the driver, People v Ingle ,36 NY2d 413,420, supra, ("All that is required is that the stop be not aproduct of mere whim, caprice, or idle curiosity"); Terry v Ohio, 392 US 1, 21-22 (1968) (holding that a stop is permissible if based on "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."). In this regard, reasonable suspicion has been defined as that"quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand." (People v Cantor,36 NY2d 106, 112-113 .)
While the JHO's denial of the defendant's motion to suppress the statement he made to Sergeant Summa following the car stop and the results of the breathalyzer test were based on a finding of probable cause, the JHO ignored or overlooked Sergeant Summa's testimony that he did not see the defendant break any traffic rules while operating his car. Likewise, the prosecutor, in his closing remarks, did not argue that the defendant committed a traffic infraction; instead he argued "When this defendant was swerving down that road, that gave him enough reason to see what was happening."[FN7] It is clear from the suppression record, the remarks made by the prosecutor and the JHO in clarifying his finding - "Then again, there may have been some other reason. Anyway, he had to find out why the car was swerving."[FN8] - that the JHO misapplied the probable cause standard to the facts of this case; none of what Sergeant Summa observed suggested the defendant engaged in any type of moving violation or that his car had an [*6]observable equipment defect, each of which would be a traffic infraction, that, if observed, would justify a car stop by the police. Moreover, Sergeant Summa testified that he did not see the defendant break any traffic rules. Thus, the probable cause standard is inapplicable to the facts of this case.[FN9]Accordingly, I find the JHO misapplied the probable cause standard to the facts of this case.
The facts presented at the suppression hearing require further consideration to determine whether those facts as articulated by Sergeant Summa constitute reasonable suspicion on which to justify the legality of his stop of the defendant as urged by the prosecutor. The only crime imaginable from the facts described by Sergeant Summa is reckless driving, a possibility Sergeant Summa asserted in his testimony. Moreover, the defendant argued that Sergeant Summa improperly stopped the defendant's car because he did not possess the requisite reasonable suspicion that a crime reckless driving was being committed or about to be committed.
Applying the principles in Cantor, the evidence of criminality must be specific, not based on speculation, which, along with any logical deductions from those facts, reasonably prompted the stop. Sergeant Summa testified he saw the defendant swerve at least once. In fact, by Sergeant Summa's own testimony he described the swerve as "gradual"; there was no testimony regarding the speed of the defendant's car, nor was Sergeant Summa able to articulate any other swerves and the manner by which they might have been committed by the defendant. The defendant, according to Sergeant Summa, continued driving in a single lane of traffic on which cars were parked on either side without further incident until he was pulled over at about 11:40 p.m. There is nothing in this record that suggests that Sergeant Summa stopped the defendant on more than a "mere hunch" or a "gut reaction" that his ability to drive was impaired. (People v Sobotker, 43 NY2d 559, 564 .) A gradual swerve on a one-way city street without any indication of the speed the car was traveling does not suggest objective evidence on which to reasonably suspect criminal activity. (See, e.g.,People v Culcross, 184 Misc 2d 67 [Monroe County Ct 2000] [ twice swerving within lane and within the speed is not a sufficient basis for reasonable suspicion and does not justify investigatory stop]; People v Simmons, 58 AD2d 524 [1st Dept 1977] [ flooring "the gas pedal" and "leaving rubber" are insufficient to establish reasonable suspicion.]; Compare, e.g., People v Alston, 195 AD2d 396 [1st Dept 1993] [ stop upheld where officer observed car swerving, accelerating, and changing lanes a number of times without signaling]; People v Ellis, 169 AD2d 838 [2d Dept lv denied, 77NY2d 960  [stop of car was justified because officer observed car weaving for roughly three-quarters of a mile on a highway]) I find Sergeant Summa's suspicions were inchoate, far short of being specific and articulate from which no rational inferences can be taken that reasonably warrant the suspicion that the defendant was driving recklessly or that his ability to drive was impaired. Accordingly, I find his decision to stop the defendant wholly lacking in reasonableness and improper.
Implicit in Sergeant Summa's testimony was a concern for public safety based on his observations of the way the defendant was driving. Sergeant Summa testified that he was prompted to stop the defendant's car when he saw it swerve "on a narrow one-way [*7]street....especially at that hour of the night....with vehicles parked on both sides of the street"[FN10]. While none of these observations constitute a traffic violation, the Court of Appeals has recognized that police officers are duty bound to stop motorists who, by the way they drive, present a threat to public safety even in the absence of an actual violation of the Vehicle and Traffic Law ( People v Ingle, 36 NY2d 413, 420  ["a[n] actual violation of the Vehicle and Traffic Law need not be detectable"]; Saarinen v Kerr, 84 NY2d 494, 503  [noting that when a driver poses a threat to the public safety, an officer has the right to use whatever means necessary, short of recklessness, to stop the offending driver]; Mullane v City of Amsterdam, 212 AD2d 848, 850 [3d Dept 1995] [having observed the driver's erratic and dangerous driving, the officer was duty bound to stop the defendant whose presence on the road posed a clear and present threat to public safety], if based on specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant the intrusion.( Terry v Ohio, 392 US 1, 21-22 ; People v Davis, 233 AD2d 148 [1st Dept 1996], lv denied 89 NY2d 941  [where the police observed defendant's car " stop and go' and lunge back and forth,'" suggesting that the defendant might not know how to drive, "defendant's erratic driving provided a reasonable basis for stopping him to determine whether he had a driver's license]; People v Dearstyne, 50 AD2d 1029 [3d Dept 1975] ( a car being driven slowly, "operating a little bit erratic," with "short, jerky movements," was sufficient to uphold a police stop on suspicion that the driver was intoxicated].) Sergeant Summa, although given an opportunity during his examination, was unable to articulate whether the defendant, when he swerved, came close to hitting any cars parked on 120th Street or operated his car in any other way that might pose a danger to public safety. Indeed, the record is devoid of any facts that can be construed to warrant the conclusion that the defendant was operating his 2007 BMW in a way that constituted a danger to other motorists or pedestrians. Accordingly, I find no facts presented in the hearing record warrant a stop of the defendant's car on a basis of public safety.
For the reasons stated herein, I find that Sergeant Summa did not have a sufficient reasonable basis to stop the defendant. As such, his stop of the defendant was improper. Therefore, the defendant's motion to suppress the statement made by him to Sergeant Summa and the results of the breathalyzer test are suppressed as the products of an unlawful stop and seizure.
The foregoing constitutes the decision and order of the Court.
Dated: March 4, 2009
Queens County, New York
GENE R. LOPEZ, J.C.C.
Footnote 1:Transcript at 15
Footnote 2:Transcript at 16 and 17
Footnote 3:A court tasked with the responsibility to review the adjudicative recommendations of a JHO who has conducted a pre-trial proceeding relies on its plenary power of independent review. Courts, in the exercise of that power, have the express authority to accept, reject or modify in whole or in part the JHO's recommendations. (CPL § 255.20; People v Scalza, 76 NY2d 604, 609 ; People v Jones, 152 Misc 2d 113 [App Term, 1st Dept], appeal dismissed 80 NY2d 833 .)
Footnote 4:Transcript at 4
Footnote 5:Transcript at 6 through 12
Footnote 6:As one commentator has observed "In most cases, once a police officer observes a traffic infraction, that will be sufficient to constitute probable cause." (Kamins, New York Search and Seizure, § 5.02[a], at 5.02-5.11[2008 ed]. "It remains to be seen whether the probable cause standard is limited to cases in which the facts are consistent with a pretext stop or whether it applies to all traffic stops."
Footnote 7:Transcript at 15
Footnote 8:Transcript at 17
Footnote 9:In People v Prado, 2 Misc 3d 1002(A), (Sup Ct NY County 2004), the court held that the standard for non-pretext cases is still reasonable suspicion and that if the Court of Appeals meant to create a broad new rule for all traffic stops, it would have been more pronounced.
Footnote 10:Transcript at 6-9, 10-11