People v Castiner

[*1] People v Castiner 2009 NY Slip Op 52263(U) [25 Misc 3d 1223(A)] Decided on November 10, 2009 Criminal Court, New York County Mandelbaum, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2009
Criminal Court, New York County

The People of the State of New York

against

Joseph Castiner, Defendant.



2008NY074229



For the Defendant:

Michael L. Galeno, Esq.

For the People:

Robert M. Morgenthau, District Attorney, New York County (Thomas Hook Jr. of counsel)

Robert M. Mandelbaum, J.

Charged with driving while intoxicated and impaired by alcohol, defendant moves to suppress, as fruits of an assertedly unconstitutional checkpoint stop, statements and evidence of his blood alcohol content obtained from the administration of an intoxilyzer test. Because this court concludes that defendant's constitutional rights were not violated by the stop of his automobile, his motion must be denied.[FN1]

On Saturday, October 4, 2008, police officers from the Manhattan North Task Force, under the supervision of Sergeant Benjamin Gurley, set up a sobriety checkpoint on East 61st Street between First and Second Avenues, near the approach to the Queensboro Bridge. The checkpoint, meant to detect and deter intoxicated drivers, was mounted as part of Operation Cold Sober, an initiative of the Chief of Patrol of the New York City Police Department.[FN2] In order to create the checkpoint, police parked patrol cars and arranged orange traffic cones along the roadway, ultimately causing all traffic to narrow into a single lane. Approaching vehicles were alerted to the existence of the roadblock by flares and flashing turret lights.

Earlier in the morning, Sergeant Gurley had met with his officers to establish the [*2]protocol for that day's checkpoint. During the operation of the checkpoint, every car was to be stopped, with the exception of livery vehicles and taxicabs. A uniformed officer was assigned to flag down each approaching passenger car. After a brief conversation in which the motorist was informed of the reason for the checkpoint, those drivers suspected of being intoxicated or impaired were to be directed into a "chute" a makeshift traffic lane set up at the side of the road in order for the police to safely conduct further investigation.

At approximately 4:00 a.m., Police Officer Rasau Romeo stopped defendant's car at the checkpoint. Upon approaching the vehicle to inspect defendant's driver license, the officer smelled alcohol on defendant's breath, and therefore directed him into the chute. When Sergeant Gurley approached, he, too, smelled alcohol, emanating both from defendant's mouth and from the vehicle. After administration of a portable breath test revealed a blood alcohol content of .13%, defendant, whose eyes were watery and bloodshot and who admitted that he had been drinking, was placed under arrest.

Although "a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment" (People v Scott, 63 NY2d 518, 524 [1984] [citations omitted]; see also US Const Amend IV), individualized suspicion is not a prerequisite to a constitutional seizure of an automobile which is "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers" (Brown v Texas, 443 US 47, 51 [1979] [citations omitted]). Because drunk driving is a significant public safety concern, the use of sobriety checkpoints to prevent and detect it reflects a reasonable means of promoting the government's important interest in reducing the carnage caused by intoxicated drivers (see Scott, 63 NY2d at 525-527).

Defendant does not dispute that once he was stopped, the smell of alcohol authorized the police to direct him into the chute (see Mich. Dept. of State Police v Sitz, 496 US 444, 451 [1990] ["Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard" (citation omitted)]), or that the observations of the police there, coupled with the portable breath test results and his admission that he had been drinking, gave the police probable cause to arrest him. Rather, defendant contends that the checkpoint itself was unconstitutional, and that his initial stop was therefore unlawful.

In this case, however, the fixed checkpoint at which every car, other than livery vehicles and taxicabs, was stopped was established "in accordance with a uniform procedure which afforded little discretion to operating personnel" (Scott, 63 NY2d at 526).[FN3] Nevertheless, defendant contends that his seizure was invalid because Sergeant Gurley testified that when traffic became heavy enough to back up onto First Avenue, his officers were authorized to let cars through without stopping them, in order to avoid a jam. However, "that the plan contemplated situations in which not every car would be stopped did not affect its validity in view of . . . the reasonableness of allowing some cars to pass when traffic became congested" (Scott, 63 NY2d at 526 [citations omitted]).

According to defendant, in allowing for traffic-based deviations from the protocol [*3]to stop every passenger car, the otherwise-uniform plan here was transformed into an arbitrary and unconstitutional one. There are, however, several flaws in defendant's reasoning. First, and most significantly, Sergeant Gurley did not testify, and this court does not find, that when traffic became heavy, his officers were authorized to conduct arbitrary stops of whatever cars they might capriciously choose to target. Rather, when necessary to avoid gridlock, the police were empowered either to allow all cars through until traffic cleared, or to stop, say, every second, or third, or fourth, car, rather than every one. Neither option violated the constitutional requirement that the procedure "afford[] little discretion to operating personnel" (id.).

Second, even if the record could fairly be read to establish that during the limited times when traffic might so require, the officers in the field were, as a theoretical matter, given authority to decide whom to stop based purely on whim or invidious discrimination, there is no evidence that on the morning defendant was stopped, traffic conditions ever actually required the police to deviate from their lawful plan to stop every car.

Third, even if this court could, consistent with the hearing testimony, find that at some point or points during the morning of October 4, the police "allow[ed] some cars to pass when traffic became congested" (id.), there is no record evidence that defendant was stopped during such a period. Indeed, the specific testimony of Police Officer Daniel Burke, which this court credits, was that when defendant's car was stopped, every passenger car was being stopped.

According to defendant, however, that the otherwise-constitutional plan for the checkpoint allowed for a deviation that might conceivably have resulted in an unconstitutional stop of someone else mandates suppression in his case. Under defendant's theory, if a plan were put in place according to which every third car was to be stopped yet evidence emerged in another defendant's case that the police deviated from the plan insofar as that defendant was stopped even though hers was the second, not the third, car to pass the checkpoint not only would she be entitled to suppression, but so would every other defendant whose car was stopped during the entirety of that checkpoint. That, however, is not the law. "Fourth Amendment rights are personal" (People v Wesley, 73 NY2d 351, 359 [1989]) and, "like some other constitutional rights, may not be vicariously asserted" (Alderman v United States, 394 US 165, 174 [1969] [citations omitted]; accord People v Rodriguez, 69 NY2d 159, 163 [1987]). Since defendant was stopped pursuant to a checkpoint in which all other passenger cars were, at least at that time, being stopped as well, he was in no way the victim of arbitrary or unconstitutional police action. Simply put, defendant suffered no violation of his constitutional rights.

Accordingly, inasmuch as "it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the [exclusionary] rule's protections" (Rakas v Illinois, 439 US 128, 134 [1978] [citation omitted]; accord Wesley, 73 NY2d at 355), defendant's motion to suppress must be denied. Footnotes

Footnote 1: An evidentiary hearing was previously held on defendant's motion to suppress (see People v Huntley, 15 NY2d 72 [1965]; Dunaway v New York, 442 US 200 [1979]; People v Johnson, 134 Misc 2d 474 [Crim Ct, Queens County 1987]). After orally making findings of fact and conclusions of law, this court rendered a decision denying the motion. This opinion serves to explain the basis for the court's prior ruling.

Footnote 2: On the date defendant was stopped, Cold Sober had been going on for months, with similar checkpoints erected each Friday, Saturday and Sunday morning.

Footnote 3: Further, through the use of flares, lights, traffic cones and patrol cars, the police provided approaching motorists with fair warning of the existence of the roadblock, thereby avoiding the risk of unnecessary surprise or alarm (see id.; Delaware v Prouse, 440 US 648, 657 [1979]).