People v Kolb

[*1] People v Kolb 2009 NY Slip Op 51742(U) [24 Misc 3d 1233(A)] Decided on July 1, 2009 Watertown City Ct Harberson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2009
Watertown City Ct

People of the State of New York, Plaintiff,

against

Jarrod R. Kolb, Defendant.



41324



Cindy Intschert, District Attorney of Jefferson Co.

By: Attorney Frank Seminerio

175 Arsenal Street

Watertown, NY 13601

James P. McClusky, Esq.

Mcclusky Law Firm

8 Main Street

Adams, NY 13605

James C. Harberson, J.

Facts

Officer Cummings of the Watertown Police Department, while on routine patrol observed a vehicle with only one headlight working about 10:20 p.m. on 9/27/08 as it waited at the intersection of Massey and Coffeen Street. He said based upon this observation of a violation of VTL 375(2)(a)(1) he stopped the vehicle, approached the driver and explained he had stopped the car because of a headlight being out—the driver identified as the defendant acknowledged at that time he was aware the light was out.

Officer Cummings requested the driver's license and registration as well as asking him where he was coming from and where he was going. He said this was a standard procedure at all traffic stops. The defendant advised him he was going to get gas at a service station just up the street and then was headed to a party. Officer Cummings said he noted there were two other [*2]occupants in the car who appeared to be between less than 21 years of age.

He said that he returned to his patrol vehicle to examine the license and registration, have a check run on them and to prepare a summons for a violation of VTL 375(2)(a)(1). He said that he learned that the defendant was 18 years of age from his driver's license. He said that once he finished preparing the citation, he was not sure if he set it on the dash of the patrol care before he went back to the defendant's car or had it with him (p. 22), but he agreed "the citation was completely ready to serve on the defendant" (p. 29). He said that from the time he stopped the vehicle until he completed the citation and returned to the defendant's car, five minutes had expired. He said this was the average time for a traffic stop involving a minor traffic infraction from start to finish when the ticket was given to the motorist (p. 22).

Officer Cummings testified that at the time he initially talked to the defendant before he went back to his patrol car to issue the traffic citation "he did have glassy appearing eyes" (p. 9), perhaps an indication of alcohol and/or drug use that was not further explored before then going back to his patrol car.

He said that having completed the citation he returned to the defendant's car to "talk to him" again about where he was headed because "I'd like to get a specific spot..."(p. 11). He said in this case "I realized he was underage, he was going to a party" but where he "wouldn't specify." (p. 11). He said he wanted to learn the location of the party in order to give "a heads-up to...the sheriff's department...there could be an underage party at this location...that's why I was trying to get a specific address" (p. 11).

He said that when the defendant did not answer the question, he then said to him: "You're underage, you are going to a party, you got a couple other guys in the car, are you taking any beer or alcohol in the car to the party;" and, when the defendant did not respond "again I pressed him...are you aware if there is any alcohol in your car...this is your vehicle you should be aware if there is anything in it that you are not supposed to have. You are underage, is there any alcohol in the car?" (p. 12).

Officer Cummings stated that at that point the defendant said "there may be beer in the trunk" (p. 12) to which he said "okay, sir, why don't we hop out and take a look at that" (p. 13). He said that once the defendant opened the trunk he discovered a 30-pack of beer in it (p. 14).

Officer Cummings said he removed the beer from the car and placed it on his patrol car's hood. He said that he then elected to question the defendant further. He said this next inquiry was based upon the "driver's demeanor throughout this entire [period]...just not average...he had glassy eyes, his demeanor wasn't... oh, crap, what are my parents going to think...' very laid back...there was a smile to everything I would say to him...he wasn't normal"(p. 23).

Officer Cummings then said that once the defendant was out of the car "I

observed him leaning against his car, he leaned against my car as I was standing there talking to him" (p. 24). He said that based upon what he had observed about the "responses I was getting" his leaning on the car and the beer in the trunk "I believed he could have been under the influence of alcohol", so I informed him "he was going to conduct field sobriety tests and based upon the results the defendant was arrested for a violation of VTL 1192-3" (p. 25).

Officer Cummings stated under cross examination that after he completed his work on the [*3]citation for a violation of VTL 375(2)(a)(1) instead of serving the citation and allowing the defendant to proceed "I went back...and spoke to him more regarding" the party location. He said that because the defendant was vague in his answers about the party location, he agreed he "changed his tact and started asking about alcohol in the vehicle...three or four times" (pps. 30-31). He agreed the basis of making the inquiry about whether there was alcohol in the vehicle was due to his feeling "...the individuals in the vehicle with him did not appear to be much older than he was...not like he was riding with grandparents...they were kids that appeared to be about his age" (p. 31).

He said that part of the reason he felt he defendant was not "acting normal" was because "he was smiling to the answers to [his] questions" even though he had never met the defendant before the traffic stop (p. 34.)

Law

In determining the issues in this case surrounding the stop and the conduct of the officer after the stop, the Court will use as a template Judge Barry Kamins New York Search & Seizure, 2009 Edition, Lexis Nexis.

Reason for Stop

"[I]n People v. Robinson [91 NY2d 341], the Court of Appeals held that an automobile stop is lawful when the officer has probable cause to believe an individual has violated the Vehicle and Traffic Law" (id. p. 5-3). He goes on to state that "[T]here are two groups of Vehicle and Traffic Law violations that will justify the stop of a vehicle. The first group consists of defects in a vehicle, which constitute infractions of the Vehicle and Traffic Law. These stops have been valid where the officer observes...a broken headlight [citing People v. Lopez, 154 AD2d 715, People v. Williams, 137 AD2d 569] [or], an inoperative headlight [citing People v. Richardson, 2 AD3d 175, and People v. Tittenson, 274 AD2d 784 "one working headlight" in violation of VTL 375(2)(a)(1)] (id. p. 5-6).

Officer Cummings testified that at 10:20 p.m. he observed a vehicle with only one headlight working on a public highway in the City of Watertown. He made a vehicle stop based upon this observation. He spoke to the driver and after asking if the driver knew why he had been stopped, the driver acknowledged he knew the headlight was out. The Court finds that the officer had probable cause to stop the defendant's vehicle based upon his observation of a violation of Section 375(2)(a)(1) of the Vehicle and Traffic Law (Richardson, Robinson).

Officer Cummings' Conduct after Stop

Judge Kamins states:

"[I]n People v. Banks [82 NY2d 558], the Court of Appeals discussed the permissible scope of conduct by the police pursuant to a stop for a violation of the Vehicle and Traffic Law. During the stop, the officer can request information from the driver that relates to the traffic infraction, including the ownership of the vehicle. The officer must be afforded a reasonable time to examine the documents relating to the automobile. The Court of Appeals has held that basic, non-threatening questions can be asked including the driver's address and destination. Once the officer issues a summons and determines that the driver's license, registration, and [*4]insurance are in order, the initial justification for seizure and detaining the suspect is exhausted. If the officer continues to detain the driver in order to ask additional questions or to request permission to search the car without any further identifiable grounds for detention, the detention will be an improper seizure, and any evidence recovered as a result of the illegal detention must be suppressed. In addition, when a driver is only stopped for a traffic infraction, a police officer is not permitted to search the defendant's person or automobile. However, if during a lawful traffic stop, the officer makes observations that justify a reasonable suspicion of criminal activity, he will be permitted to detain the motorist for further questioning." Id. pps. 5-11, 5-12. Thus, if a police officer acquires a founded suspicion before the initial justification for detaining a motorist has been exhausted, the officer's request to search will be lawful [P v. Coutant, 16 AD3d 772]. In People v. Turriago, [219 AD2d 383, Aff'd... 90 NY2d 77] the court applied People v. Hollman [79 NY2d 181] (see Chapter 2 above) to a traffic stop and held that a request to search a vehicle must be predicated upon a founded suspicion of criminal activity. On appeal, the Court of Appeals refused to consider the issue because it had not been preserved before the suppression court. Thus, the holding of the Appellate Division, First Department, remains the law in this state." Id. p. 5-13.

Officer Cummings testified while investigating the violation of VTL 375(2)(a)(1) he requested the defendant's license and registration be produced and asked the defendant where he was coming from and where he was going as is his standard procedure when working a traffic stop. The Court finds that these "basic, non-threatening questions can be asked including the driver's address and destination" (id. p. 5-12)—see, P v. Ocasio, 85 NY2d 1982, P v. McCarley , 55 AD3d 1396, P v. DeWitt, 295 AD2d 937, (id. P. 5 - 12).

In McCarley, the Court ruled:

"[M]emorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a controlled substance in the third degree (Penal Law Section 220.16[12]), defendant contends that County Court erred in refusing to suppress evidence seized as the result of a traffic stop. Defendant concedes that the police lawfully stopped his vehicle for alleged traffic violations. He contends, however, that he produced his driver's license, registration and insurance card at the officer's request and answered the officer's initial questions, and that the officer thus lacked a founded suspicion of criminal activity to justify further questioning of defendant in an accusatory manner concerning issues that were unrelated to the alleged traffic violations. We reject that contention. The officer's initial request for documentation and the officer's initial questions were permissible and reasonable, in furtherance of the valid traffic stop (see People v. Alexander, 189 AD2d 189, 194 [1993]). The officer's further questions concerning defendant's destination and point of origin were also "basic, nonthreatening questions" consistent with a request for information supported by an articulable basis, i.e., the valid traffic stop (People v. Ocasio, 85 NY2d 982, 985 [1993]; see People v. Hollman, 79 NY2d 181, 185 [1992]). Upon receiving what the officer determined to be suspicious answers from defendant, the officer developed "a founded suspicion' of criminal activity" and properly proceeded to the next level of confrontation, involving " invasive questioning' focusing on the possible criminality' of the subject" (People v. Tejeda, 217 AD2d 932, 933 [1995], lv denied 87 NY2d 908 [1995], quoting Hollman, 79 NY2d at 191). [*5]

Contrary to the further contention of defendant, his "illogical and suspicious responses" to the officer's inquiries further justified the officer's request to search defendant and the vehicle (Tejeda, 217 AD2d at 933).

Based on the totality of the circumstances, we reject the contention of defendant that his consent to the search was involuntary (see generally Schneckloth v Bustamonte, 412 US 218, 224-226 [1973]; People v Gonzalez, 39 NY2d 122, 128 [1976])." Id. pps. 1396-1397.

In P v. DeWitt the Court pointed out that,

"[T]he police officer was justified in stopping the vehicle based upon his observation that it had no rear license plate (see People v Johnson, 178 AD2d 549, 550, lv denied 79 NY2d 920). Following the stop, the officer had an objective, credible reason to request information from the defendant and the driver concerning their identifies and the origin, destination and purpose of their trip (see People v Valerio, 274 AD2d 950, 951, affd 95 NY2d 924, cert denied 532 US 981). In response to the request, the driver produced false identification. In addition, the officer noted that the model years on the temporary vehicle registration card and the bill of sale for the vehicle did not match, and defendant's account of the origin of the trip was inconsistent with the New York State Thruway toll ticket that was visible inside the vehicle. At that point the officer "possessed a founded suspicion of criminality justifying a common-law inquiry in the form of a request for defendant to consent to a search of the vehicle" (People v Battaglia, 86 NY2d 755, 756; see Valerio, 274 AD2d at 951). Present—Green, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ." Id. p. 937.

Officer Cummings stated "I asked him where he was going, where he was coming from. He stated he was going to the...Mobil Station and then to a party in South Jeff...I assumed he meant the Mobil Station on the [next] corner" (p. 8).

Officer Cummings affirmed he did not "...ask him anything else [or] inquire further about [these answers]" before "returning to my patrol vehicle [to]...get a better look at the license [being] dark at the time of the stop. I ran the vehicle registration as well as his license" (p. 9).

The Court finds these questions following a traffic stop for an equipment violation (VTL 375[2][a][1]) which gave the officer "an objective, credible reason to request information from...the driver concerning [his] identity and the origin, destination and purpose of [the] trip" (DeWitt, supra , p. 937), the "articulable basis...[being]...the valid traffic stop" (McCarley, supra , p. 1396), were permissible.

Once Officer Cummings returned to his patrol car he is "afforded a reasonable time to examine the documents relating to the automobile [to] determine that the driver's license, registration and insurance are in order" as well as "issues the summons," then, "the initial justification for seizing and detaining the suspect is exhausted" (Kamins, supra , p. 5-12).

Officer Cummings testified that once he completed checking the driver's documents in the patrol car he finished the citation while he was in the vehicle. He said that from the time he stopped the vehicle until he completed his investigation, wrote the citation and returned to the defendant's car about five minutes had expired which was about average in his experience for this [*6]type of traffic stop (p. 22). Officer Cummings testified that when he returned to the defendant's vehicle, having completed and signed the citation (p. 11) that he could have issued to the defendant "at that time" (p. 11), but instead "I reinitiated conversation with him again as per the first time [concerning] where he was going...to [the] party in South Jeff" (p. 10).

Judge Kamins states "[O]nce the officer issues a summons and determines that the driver's license, registration and insurance are in order, the initial justification for seizing and detaining the suspect is exhausted" so "[I]f the officer continues to detain the driver in order to ask additional questions or to request permission to search the car without any further identifiable grounds for detention, the detention will be an improper seizure, and any evidence recovered as a result of the illegal detention must be suppressed" (Kamins, supra , p. 5-12).

Officer Cummings' conduct after completing traffic summons and returning to defendant's vehicle...

Officer Cummings testified that before he went to his patrol car after completing his questioning of the defendant and securing his license and registration to be sure both were valid, he observed two other individuals in the car, that the defendant had "glassy appearing eyes...consistent with...consuming alcohol and/or drugs" (p. 9) and the defendant had told him he was going to get gas at a nearby gas station before going to a party in the southern part of the County.

Officer Cummings stated that he did not question the other two individuals in the vehicle nor request any identification from them at any time before or after he stopped the vehicle, went to his patrol car to check the defendant's papers and then returned to his car to continue to question him—he assumed they were under 21 by their appearance (p. 32).

He said that once he determined the defendant's age by reading his driver's license by the light at the patrol car confirming he was under 21, he elected to "reinitiate conversation with him again" (p. 10) concerning where specifically the party he was going to "in South Jeff" was located (p. 10).

He testified that he recommenced the inquiry about where the defendant had come from and the location of the "specific spot" where the party he was going to attend that the defendant had not given him during his initial questioning (before he issued the traffic summons) because "I realized he was underage, he said he was going to party in South Jeff" and by obtaining the "specific" location of the party he "could have something I could have given a heads-up to, say, the sheriff's department...there could be an underage party at this location...that's why I was trying to get a specific address" (p. 11). He said he continued to press the defendant for this destination information and "I could not get him to tell me where he was going" (p. 12).

So "I said: You're underage, you're going to a party, you got a couple other guys in the car, are you taking any beer or alcohol in the car to the party" (p. 10). Officer Cummings admitted after he asked the defendant several times the exact location of the party without success he "...changed [his] tact and started asking if he had alcohol in the vehicle" (p. 30).

Officer Cummings testified that in response to the question about having alcohol in the car "he looked away from me...at the other occupants in the car and didn't really answer... I pressed him...are you aware if there is any alcohol in your car...he didn't answer me...looking at his friend" (p. 12).

Officer Cummings continued telling the defendant "...this is your vehicle, you should be [*7]aware if there's anything in it...you're not supposed to have [being] underage...is there any alcohol in the car?" (Id). In response Officer Cummings testified the defendant replied "I don't know, guys, do we" to which Officer Cummings testified "...is there alcohol in your car" to which the defendant responded "there may be beer in the trunk" (id).

Officer Cummings at that point told the defendant "Okay, sir, why don't we hop out and take a look at that" (p. 13) at which time the defendant exited the vehicle and opened the hatch to reveal "a 30-pack of [beer]" (p. 14).

Officer Cummings' requestioning defendant after completing traffic summons.

Judge Kamins observed that "...if during a lawful traffic stop, the officer makes observations that justify a reasonable suspicion of criminal activity, he will be permitted to detain the motorist for further questioning" (id. p. 5-12) citing People v Lee (4th Dept.), 6 AD3d 1235 and People v. May, 52 AD3d 147.

In May the Court wrote:

"[I]n general, to detain an individual, the police must have a reasonable suspicion that criminal activity is either occurring or imminent (People v May, 81 NY2d 725, 727 [1992]; People v Sobotker, 43 NY2d 559, 563-564 [1978]). The Court of Appeals has held that for such a reasonable suspicion, "[t]he requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere "hunch' or gut reaction' will not do" (Sobotker at 564; see People v Ingle, 36 NY2d 413, 418-419 [1975]; People v Elam, 179 AD2d 229 [1992], appeal dismissed 80 NY2d 958 [1992])." Id. p. 151.

In contrast to May, in Lee the Court having found the initial traffic stop "based on a traffic infraction" the "continued detention of the defendant was justified by an officer's observation of what appeared to be a body in plain view in the back seat of defendant's vehicle" (id. p. 1236).

Judge Kamins said "[I]n DeBour the Court of Appeals enunciated a standard by which the common law right to inquire is activated: a founded suspicion that criminal activity is afoot'...that quantum of proof to require a present indication of criminality based upon observable conduct [citation omitted]...[a] standard [not] met when officers acted on a "hunch" that a citizen probably committed a crime, without any articulable reason to support that belief" (id. p. 2-30).

Judge Kamins comments that "[T]he parameters of the common-law right to inquire are spelled out in various decisions...since articulated in DeBour." He points out that while police can ask for explanations and answers to a number of questions...should the citizen give basically innocuous answers to the officer's questions, in the absence of any indication that a citizen is engaged in illegal conduct, the officer is not justified in asking any more questions or engaging in any further intrusive activity" (id. p. 2-34).

In People v. Abernathy, 224 AD2d 826, the Court concluded:

"[A]s justification for this accusatory questioning, Wilson cites only the disparity in the traveling companions' recitals of the purpose of their trip. Notably, however, their accounts did not diverge significantly, nor were they obviously false with respect to the origin, destination or length of the trip, differences that might reasonably be interpreted as resulting from an attempt to mislead Wilson as to the fundamental nature of the trip (compare, People v Carter, 199 AD2d [*8]817, 818, affd 86 NY2d 721; but cf., People v Banks, 85 NY2d 558, 562, cert denied—US—, 116, S Ct 187), nor was Wilson aware of any particular criminal activity that had occurred, or was occurring, in the area (compare, People v Sora, 176 AD2d 1172, 1173, lv denied 79 NY2d 864). In our view, the innocuous discrepancy relied upon here, which is plainly "susceptible of innocent as well as culpable interpretation" (People v De Bour, supra , at 216), could not, under the circumstances, have created a founded suspicion of criminality (see, People v Bailey, 204 AD2d 751, 753)." Id. p. 826.

Officer Cummings before he went to his patrol car to check the defendant's license and registration as well as prepare the traffic citation had been told in response to his question concerning the defendant's destination he was going to a gas station on the next corner and then to a party in the southern part of Jefferson County. He also noted the driver and other occupants of the car were all apparently not yet 21 years of age as well as the defendant's eyes were "glassy appearing." He said that during his initial conversation with the defendant the "driver's demeanor [was] just not average...very laid back...there was a smile to everything I would say to him" leading to a conclusion by Officer Cummings "he wasn't normal"—even though he had never met the defendant before. He said he would have expected the defendant under the circumstances to reflect an attitude more in keeping with "oh, crap, what are my parents going to think."

The Court finds the defendant's answers to the officer's questions before he went back to his patrol car were not "...obviously false with respect to origin, destination [or misleading] as to the fundamental nature of the trip" nor was Officer Cummings "aware of any particular criminal activity" involving the defendant's conduct (Abernathy, supra , p. 828).

The Court finds that Officer Cummings' decision to withhold the citation he had prepared and not serve it on the defendant and allow him to leave when he returned to the vehicle was not based on factual observations justifying a reasonable suspicion of criminal activity making further detention of the defendant an improper seizure and all evidence of whatsoever kind and nature must be suppressed based on People v. Banks, 85 NY2d 558.

Officer Cummings' conduct after justification for detaining defendant for traffic stop expired.

The Court additionally finds that Officer Cummings continued questioning of the defendant concerning the "specific location" of the party in southern Jefferson County followed by his admitted change in tactics of shifting the questioning to whether the defendant had any alcohol in the car importuning the defendant into answering by referring to his being "under age" and he should be "aware if there is anything in [the car] that you are not supposed to have" was a gross deviation of the standard of conduct allowed under New York Law in such a situation.

Officer Cummings explained that his reasoning for asking these questions was to acquire information to give to the sheriff about the party's location so a check could be made for underage drinking was based on an assumption he stated to the defendant at the time, "you're underage, you are going to a party, you got a couple other guys in the car, are you taking any beer or alcohol in the car to the party?"

Officer Cummings surmised that having stopped the car with three people under 21 in it going to a party there would be underage drinking and beer or alcohol was being taken to it was [*9]present in the car. This assumption was devoid of any factual basis.

Judge Kamins' commentary states,

"[A] second, more intrusive level of contact with a citizen is the common-law right to inquire, activated by "a founded suspicion that criminal activity is afoot." The purpose of this inquiry is "to maintain the status quo momentarily while obtaining more information." The distinction between this inquiry and the approach to request information, discussed above, is significant: the common-law right to inquire focuses on the citizen as a suspect, while the less intrusive inquiry is designed to gather information without targeting the citizen as a suspect. Thus, the common-law right to inquire has been described as "closing on on [a] defendant as a suspected law breaker." Another court has viewed the right to inquire as a method by which an officer "enhances suspicion" of a suspect. The officer's questions can be accusatory in nature and are the type that would lead a person to believe that he or she is the focus of the investigation. The questions focus on the possible criminality of the person approached. The tone of the question, therefore, transforms the encounter from a "merely unsettling one to an intimidating one." The questioning of a defendant is intended to elicit an incriminating response; however, consent based on an improper inquiry is considered involuntary." Id. pps. 2-25, 2-26.

He goes on to explain that,

"[S]ince Hollman, courts have become quite sensitive to the different types of questions permitted during a request for information, as opposed to a more intensive inquiry. In People v Boyd [188 AD2d 389], the court held that the police cannot "boot-strap" themselves from one level to another by a series of unwarranted and aggressive questions. In Boyd, the defendant's conduct did not give rise to a founded suspicion of criminal activity, yet the officers asked a series of progressively accusatory questions that culminated in the defendant's "consent" to allow the police to open his locked suitcase. The suitcase contained narcotics. Because the consent was a product of the improper police inquiry, the consent was held to be involuntary. In People v. Fields, the court held that a level-one encounter cannot be elevated to a level-two encounter merely because the individual being questioned appears to become nervous. In addition, the court held that the officer's training in certain types of surveillance cannot serve to elevate a defendant's conduct so as to provide a "founded suspicion that criminal activity is afoot." Id. p. 2-27.

In Boyd, the Court after explaining in detail the testimony of the investigating officers in its decision as "an attempt to duplicate the intimidating and accusatory nature of the encounter," and noting law enforcement officer right to "request information," qualified that right of inquiry saying "...they cannot bootstrap' themselves into the next degree of intrusion, i.e., the common-law right to inquire, which is activated by a founded suspicion that criminal activity is afoot, by the type of unwarranted aggressive questioning which took place here." (id. p. 242).

The Boyd Court explained that while "a request for information must be made in a general, nonthreatening manner and the individual asked briefly about his identity, destination and reason for being in the area...once...the questions become extended and accusatory and the officer's inquiry focuses on the possible criminality of the person approached, this is not a simple [*10]request for information...the encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot' [citation omitted]" (id. pps. 242-243).

The Court concluded as "...there was no predicate for the second stage of police intrusion...the request to search the defendant's bag was...improper...because it was not based on a founded suspicion' that criminal activity was afoot [B]ecause the defendant's consent was a product of an improper police inquiry, the trial court erred when it found that defendant had consented to the search of her bag [citations omitted]" (id. p. 243).

In People v. Cirrincione, 206 AD2d 833, the Court stated:

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v MARC CIRRINCIONE, Appellant. [206 AD2d 833] —Judgment unanimously reversed on the law, plea vacated, motion to suppress granted and indictment dismissed. Memorandum: County Court erred in denying defendant's motion to suppress. The evidence produced at the suppression hearing establishes that the officer approached defendant's parked vehicle and asked if there were any problems or if defendant needed any assistance. Thereafter, the officer asked additional questions regarding the contents of the bags on the passenger side of the vehicle and whether defendant minded if the officer checked them out. The latter questions would lead any person reasonably to believe that he is suspected of some wrongdoing. Once the officer asks such questions, the officer is seeking information and the encounter has become a common-law inquiry that must be supported by a "founded suspicion that criminality is afoot" (People v Hollman, 79 NY2d 181, 185). Those questions cannot be justified by the purported Vehicle and Traffic Law violation for obstructing the driver's view, since the gravament of the violation is the obstruction and the contents of the bags are immaterial. Indeed, the people concede that the officer's request to check the bags may have been improper. Defendant's suspicious response to such questioning cannot serve as the lawful predicate for the officer's subsequent detention of defendant and the order to him to get into his vehicle and produce his driver's license (see, People v May, 81 NY2d 725, 727-728). Thus, the officer's seizure of the marihuana located in defendant's vehicle was the " fruit of the poisonous tree'" (Wong Sun v United States, 371 US 471, 488; see, People v Ingle, 36 NY2d 413, 418-419) and should have been suppressed. (Appeal from Judgment of Erie County Court, LaMendola, J.—Criminal Possession Marihuana, 2d Degree.) Present—Denman, P.J., Pine, Fallon, Callahan and Davis, JJ. Id. p. 833.

In People v Dunbar, 5 NY3d 834, the Court ruled at p. 835:

The order of the Appellate Division should be affirmed.

The suppression court, affirmed by the Appellate Division, held that the police did not have a founded suspicion that criminal activity was afoot, as needed in order to engage in the more extended, accusatory questioning attendant to a common-law inquiry. As we held in People v Hollman (79 NY2d 181, 191-192 [1992]), a consent to search will not be upheld unless the request to search is supported by a founded suspicion of criminality (see also People v Tejeda, 217 AD2d 932 [4th Dept 1995]; People v Carter, 199 AD2d 817 [3d Dept 1993]; People v Alston, 193 AD2d 888 [3d Dept 1993]; People v Boyd, 188 AD2d 239 [1st Dept 1993]). Here, as the courts determined, defendant granted the police permission to search his person and his car [*11]only after questioning that might reasonably have led him to believe that he was suspected (without a founded suspicion) of criminality.

Officer Cummings testified to no facts upon which base a common-law right of inquiry "activated by a founded suspicion that criminal activity was afoot" (Boyd, Cirrincione). When Officer Cummings persisted in pressing the exact location of the party after he returned to the defendant's car because he was concerned there might be underage drinking at the party, so a sheriff's patrol could check on later in the evening, such questioning was based only on a "hunch" such might occur because nothing in his encounter with the driver or the other occupants of the vehicle suggested underage drinking would occur at this party. He should have discontinued his questioning, as heretofore ruled, once he returned to the defendant's car because his detention based upon the traffic stop and the further questioning concerning the specific location of the party was barred as it occurred after that point.

However, Officer Cummings then changed his "tact" and confronted the defendant with an accusation of being underage, he was going to this party where consumption of alcohol was expected and if there was any being taken to it in the car ("anything you are not supposed to have") such as alcohol or beer. The defendant responded to this questioning saying there was beer in the trunk. This led to Officer Cummings requesting the defendant to exit the car and open the trunk where the case of beer was located.

This is a similar situation in which the Boyd court found "intimidating and accusatory nature of the encounter" when the officer attempted to " bootstrap' themselves into the next level of intrusion...by the type of unwarranted, aggressive questioning which took place [in this case]" (id. p. 242).

That being the case because the defendant's admission to having the beer in the trunk and opening it for the officer so the beer was discovered "was a product of an improper inquiry," the admission and consent to open the trunk was involuntary so the admissions and beer are suppressed—"...a consent to search will not be upheld unless the request to search is supported by a founded suspicion of criminality" (Dunbar, supra , p. 835).

Furthermore, as the observations of the defendant's inability to stand without leaning on his car and later the patrol car while the beer was being removed from the trunk of his car by Officer Cummings that led to Officer Cummings' investigation of whether the defendant was intoxicated must also be suppressed as such was discovered after the time had expired to detain the defendant on the original traffic stop.

The Court acknowledges that notwithstanding the fact Officer Cummings said he noted the defendant's eyes appeared to be "glassy" during the initial questioning suggesting the possibility he might be impaired, Officer Cummings did not pursue that possibility at the time or when he returned to the car to discuss the defendant's destination a second time. If the officer had a founded suspicion the defendant was impaired due to alcohol or drugs before he eventually exited the car to open the trunk, it was not apparent before then, so the subsequent observations after the valid traffic stop time had expired by Officer Cummings having been suppressed, the "glassy" eyes observation was insufficient to support the VTL 1192(4) charge.

The defense motion to dismiss the charge of VTL 1192(4), PL 221.05, and ABC Law 65-c is granted. The VTL 375(2)(a)(1) is not dismissed. [*12]

This shall serve as the judgment and order of the Court.

Enter: ____7/1/09____________________James C. Harberson, Jr.________

Date: ____7/1/09__________________Hon. James C. Harberson, Jr.