People v Burke

[*1] People v Burke 2009 NY Slip Op 51628(U) [24 Misc 3d 1226(A)] Decided on July 28, 2009 City Court Of Rye Lane, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2009
City Court of Rye

The People of the State of New York,

against

Ryan K. Burke, Defendant.



08-406



APPEARANCES:

Office of Janet DiFiore by: Kerrie DiMorizi, Esq.

Robert Mancuso, Esq., Mancuso, Rubin & Fufidio

Peter Lane, J.

Defendant, charged with DWAI pursuant to VTL Sec. 1192 1., seeks to suppress his admissions, the result of the three standardized field sobriety tests performed upon him and the results of the chemical breath test he subsequently submitted to at the police station.

The People consented to a Dunaway Hearing which was conducted by the court. The police officer who made the stop and one of his supervising sergeants were the sole witnesses.

Defendant's car was routinely stopped at a DWI sobriety checkpoint that was being conducted on the Boston Post Road near the intersection of Cedar Street in the City of Rye. The same had been set up and was being conducted between the hours of 8 P.M. on November 8, 2008 and 4 A.M. on November 29, 2008, utilizing Rye Police Department General Order 109.10 entitled "Sobriety Checkpoint Procedures" as "a guideline." The checkpoint was manned by six patrol officers and was supervised by two supervisors. All northbound and southbound motorists were stopped at the well illuminated and well marked strip of roadway used for the checkpoint (with the possible exception of one or two who may have gotten through while the police were

otherwise engaged in the performance of their duties). Defendant was stopped and then politely approached by the testifying police officer (albeit with his own version of the initial checkpoint introduction) who noticed that he had bloodshot eyes and, then, smelled the strong odor of alcohol on his breath. The Defendant, after being pulled over to the side of the road [FN1], was given three field sobriety tests, the second two of which were witnessed by a second police officer. The administering police officer testified that, in his opinion, the Defendant failed all three of those tests (although he acknowledged on cross-examination that he administered the first, the horizontal gaze nystagmus test, within an approximate six to eight inches of the Defendant's face as opposed to within an approximate twelve to fifteen inches as he was taught to do). The police [*2]officer credibly testified during Defendant's counsel's well plotted cross-examination that he violated portions of the General Order in dealing with the Defendant. Significantly he testified that, in his view, he lacked the "probable cause" required by the protocol to both ask the Defendant to move his car to the side of the road and then to have him step from his vehicle to administer the psycho motor (i.e., field sobriety) tests.

Defendant's counsel argues that since the deviation from protocol made the checkpoint invalid, any evidence that flows therefrom must be suppressed. He further argues that the police officer lacked the probable cause to detain the Defendant and make him pullover, conduct the field

sobriety tests and the subsequent chemical breath test.

The constitutionally proper method of establishing and effectuating a sobriety checkpoint while protecting the Fourth Amendment rights of the individual motorists inconvenienced by one has been provided by our Court of Appeals. Peo v Scott, 63 NY2d 518. (Also, The United States Supreme Court has found sobriety checkpoints to be consistent with the Fourth Amendment. Mich. Dep't of State Police v. Sitz, 496 U.S. 444.) At this stage, there can be no argument that the government has an important interest in removing drunk drivers from our roadways. Mich. Dep't of State Police v. Sitz, supra at 451; Peo v. Scott, surpra at 525. Hence, a sobriety checkpoint, if done in accordance with constitutional standards, does not impermissibly intrude upon a motorist's privacy and constitutes a reasonable means of combating the preventable epidemic of driving while intoxicated. Mich. Dep't of State Police v. Sitz, supra at 455; Peo v. Scott, supra at 526, 527. What is required to make the acknowledged "seizure" and detention of any given motorist constitutionally permissible is that the police officers involved must proceed pursuant to a uniform procedure that allows them little individual discretion. Peo v. Scott, supra at 526.[FN2] This court could not find, and defense counsel did not supply, any case law setting forth the principle that the use of a police protocol as "a guideline only" was per se violative of Defendant's rights under Scott or otherwise. Indeed, there is well reasoned case law outside of this Judicial District indicating that no protocol is required to comply with the mandates of Scott. Peo v. Manahan, 2009 NY Slip. Op. 50802 (U). Peo v. Dacey, 2003 NY Slip. Op. 50587 (U). What this court believes, and initially holds, is that the failure of the Rye Police Department to treat its General Order 109.10 (which appears to this court to be a very well crafted protocol) as a strict mandate is not, in and of itself, violative of Defendant's constitutional rights herein. Instead the court must evaluate the stop of the Defendant in light of Scott's mandate.

This court's task, then, is to determine whether or not any or all of the Rye Police Department's actions at the sobriety checkpoint conducted in the instant matter ran afoul of the Scott standard. This requires both an examination of the protocol in use and an assessment of the various deviations from that protocol. This court has no issue with any officer at a checkpoint utilizing a reasonably idiosyncratic version of the requisite preliminary introduction [*3]to a motorist or even directing a motorist to immediately clear the roadway by pulling his own car over to the side of the road in certain circumstances (e.g. the unavailability of another officer to do so). However, this court must take a police officer who states upon cross-examination that he had no "probable cause" (as that term is utilized and defined in the protocol)[FN3] to either detain the vehicle or to administer the psycho motor tests to its driver at his word and, accordingly, has no choice but to conclude that these actions exceed the limited quantum of individual discretion allowed by the Scott standard.

Accordingly, the Defendant's admissions, the results of the field sobriety tests and the subsequent chemical test performed herein must all be suppressed.

Hon. Peter Lane, JCC

Dated: Rye, New York

July 28, 2009

Footnotes

Footnote 1:He was allowed to pull the car over himself rather than have another officer do it for him as provided in the protocol.

Footnote 2:The Sitz court did not set any specific standards for the constitutionally proper operation of a sobriety checkpoint.

Footnote 3: Ironically, this court believes (and, quite possibly, the experienced and able police officer may have believed at the time) that his observations of the Defendant's eyes and breath supplied the requisite reasonable suspicion for his subsequent directives to the Defendant and the "probable cause" (were that term to be used in its traditional legal sense outside the context of the protocol) for the Defendant's arrest. Peo v. Milaski, 62 N.Y 2d 147; Peo. v. Kowalksi, 291 AD2d 669.