People v Proper

[*1] People v Proper 2016 NY Slip Op 51111(U) Decided on July 25, 2016 Justice Court Of The Town Of Webster, Monroe County DiSalvo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2016
Justice Court of the Town of Webster, Monroe County

The People of the State of New York

against

Jillian M. Proper, Defendant.



15100063



Shanni C. Mitchel, Esq., Assistant District Attorney

Tiffany Spangler, Esq., Assistant Public Defender
Thomas J. DiSalvo, J.

The defendant was charged with per se, driving while intoxicated, VTL § 1192 (2) and common law driving while intoxicated, VTL § 1192 (3) on September 26, 2015 at approximately 4:06 A.M. on Donovan Street in the Village of Webster. The defendant was given simplified traffic informations that directed her to appear in court on October 7, 2015. The arraignment was adjourned to October 21, 2015 in order for the defendant to obtain counsel. The defendant obtained counsel who filed omnibus motions, wherein thedefendant requested and received a probable cause hearing, which was conducted on May 13, 2016.

Facts of the Case.

The People called one witness at the that hearing namely Webster Police Officer Samuel States. The police officer testified that he was on routine patrol when he received a 911 dispatch relative to a domestic dispute taking place at 52 Donovan Street. At approximately 3:59 A.M., while on the way to that location, he received an update from the 911 call center, which indicated that a female that was wearing a black sweat shirt and black pajama pants left that location in a grey Buick in a highly intoxicated condition. There was no indication who made either call to the 911 center. Upon arriving on Donovan Street Officer States observed a grey Buick driven by a female at about 4:00 A.M., heading in a westbound direction. After making that observation the officer turned around to follow the defendant and made a traffic stop of said vehicle. Upon approaching the vehicle in question the officer observed only one person in the vehicle, namely the defendant who was the driver of that vehicle. The officer asked the defendant for her driver license. In so doing he observed various indicia of intoxication, to wit: slurred speech, thick tongue and a strong odor of alcohol. The defendant admitted to having consumed alcohol prior [*2]to driving. The defendant stated that she had "a lot" to drink. That she had six to ten mixed drinks, namely "Skol Vodka with Wegmans brand W-Up soda and orange juice". She further admitted to having her last drink just before she drove to the scene of the police stop, which the officer testified to being about a quarter mile from her home.[FN1] The officer ordered her out her car and conducted various roadside field sobriety tests. Those tests being the horizontal gaze nystagmus test, the walk and turn test, the one leg stand test. All of which the defendant reportedly failed. Upon completion of said tests the defendant was arrested for driving while intoxicated. The defendant was not charged with any vehicle and traffic offenses other than the per se and common law driving while intoxicated charges.

Issue Presented.

Did the police officer have probable cause or reasonable suspicion to stop the defendant's vehicle based on an anonymous tip to the 911 call center?

Legal Analysis

The right to go about one's business unfettered by the government is a basic and sacred right of each citizen. That right is enshrined in both the New York State and United States Constitution, in Article 1 § 12 and in the 4th Amendment, respectively. Both provisions protect against unreasonable searches and seizures. The stopping of a moving vehicle by a police officer as the result of an anonymous tip comes under the purview of both said sections of the state and federal constitutions. A history of the relevant cases is instructive in considering whether the stop in question was justified. In so doing it is important to realize that the stop of a moving vehicle must be based either on reasonable suspicion or on probable cause.

"While a DeBour level 3 seizure requires reasonable suspicion that particularperson has committed, is committing or is about to commit a felony or misdemeanor,' People v.De Bour, 40, N.Y.wd 210,233, 386 N.Y.S.2d 375, 385, 352 N.E.2d 562 (1976); see also People v. Cantor, 36 NY2d 106, 112-13, 365 N.Y.S.2d 509, 516, 324 N.E.2d 872 (1975), in the context of vehicle stops the Court of Appeals has relaxed this standard to include probable cause to believe that a motorist has committed a traffic infraction. See People v. Robinson, 97 NY2d 341, 354, 741 N.Y.S.2d 147, 155, 767 N.E.2d 638 (2001)...." (Gerstenzang, Handling the DWI Case in New York (2015-2016 Ed.) § 1:5 at10)

The Fourth Department affirmed the trial court in a case very similar to the facts

presented in this matter. In People v. Rance, 227 AD2d 936, 644 N.Y.S.2d 447 [1996] the court set out the facts as follows: "At approximately 2:50 P.M. on February 3, 1994, a Town of Tonawanda police officer received a radio dispatch that an anonymous informant had reported that an intoxicated woman was leaving a business establishment at 2690 Sheridan Drive, and was entering the driver's seat of a red Oldsmobile with a particular license plate number. The officer arrived at that address within minutes and observed a red Oldsmobile with that plate number backing out of a space in the parking lot. The officer pulled up behind the vehicle to block its path and then approached defendant, the driver, to request her license and registration. Defendant, the only person in the vehicle, said that her license had been suspended. She mumbled as she spoke and her eyes were glassy and watery'. The officer asked defendant to perform field sobriety tests, but defendant refused. She was thereafter arrested for driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree."

In refusing to suppress the stop the court held that "The information in the radio dispatch provided reasonable suspicion to believe that defendant had committed or was about to commit a crime, thereby justifying a stop of the vehicle (see, People v May, 81 NY2d 725, 727). Police action may be based upon information from an anonymous source where, as here, it relates to matters gravely affecting personal or public safety'" (People v Taggart, 20 NY2d 335, 343, mot to amend remittitur granted 21 NY2d 729, rearg denied 21 NY2d 774, appeal dismissed 392 US 667; cf., People v Burpee, 175 AD2d 585, lv denied 79 NY2d 825)."[FN2]

In fact this court relied on the Rance case in deciding People v. Shehady, 21 Misc 3d 1101 (A), 873 N.Y.S.2d 236 [Webster Justice Ct 2008] wherein this court refused to suppress the stop of the defendant's vehicle. That case also involved an anonymous call to the 911 Center. The arresting officer testified at a probable cause hearing that "... on January 2, 2008 at about 5:50 P.M. he received a dispatch from the 911 Center. He was advised that an individual in the parking lot of the Holt Road Wegmans Food Market observed a white female and white male staggering in that parking lot. The dispatch received from the 911 Center indicated that said individuals, who appeared to be sick or intoxicated, entered a bronze or yellow oldsmobile, with a particular license plate number.[FN3]

The defendant's car was subsequently stopped by the shift sergeant who received the same 911

dispatch. However, the arresting officer who also stopped at the scene approached the driver and observed various indicia of intoxication, which eventually resulted in the arrest of the defendant.[FN4]

The People herein rely on People v. Jeffery, 2 AD3d 1271, 769 N.Y.S 2d 675 [4th Dept. 2003] in opposing the defendants motion to suppress the stop herein. The court set out the facts of the case as follows:

"The police stopped the vehicle based upon a report received by the 911 calling center indicating that a drunk driver' named Jeffery' was about to leave in a specifically described motor vehicle parked at a specific location. The police responded to that location within minutes, observed the described parked motor vehicle and pulled the vehicle over as it was being driven away from that location. The police acted on thebasis of the report alone and did not observe any actions indicative of criminal behavior prior to the stop."[FN5]

The Appellate Division stated "Even assuming, arguendo, that the 911 caller was anonymous (cf. People v. Dixon, 289 AD2d 937, 734 N.Y.S.2d 761, lv. denied 98 NY2d 637, 744 N.Y.S.2d 765, 771 N.E.2d 838), we nevertheless conclude that the report was sufficiently corroborated to provide reasonable suspicion for the stop."[FN6]

The Fourth Department in People v. Williams, 126 AD3d 1304, 6 N.Y.S.3d 204 [4th Dept. 2015] continued along the same line by refusing to suppress a handgun seized from the front passenger of vehicle after the stop of the vehicle based on an anonymous call to 911,which resulted in the arrest and conviction of that individual for criminal possession of a weapon in the second degree, P.L. § 265.03 (3). The court in its memorandum decision stated the facts as follows:

"Here, an unidentified man called 911 and reported that, near a specific location, there were [s]ome guys in a white car and they look[ed] like they [were] about to fight and one of the guys pulled out a gun.' Two police officers on routine patrol in the area had just left that location and had observed a white vehicle parked on the wrong side of the road. Two men were standing outside the vehicle, and a group of about 15 people were in the general vicinity. The police pulled over, and asked one of the two men standing closest to the vehicle to move it because it was illegally parked. The two individuals entered the white vehicle and drove away. After the officers received the 911 dispatch, they located the white vehicle a few blocks away. After following the vehicle for a short period of time, the police executed a traffic stop and removed the driver and defendant, the front [*3]seat passenger. A subsequent search of the vehicle yielded a handgun underneath the front passenger seat."[FN7]

Note that the officers did not stop the vehicle for any traffic infraction. However, the court upheld the stop holding "... that the police had reasonable suspicion to stop the vehicle based upon the contents of the 911 call and the confirmatory observations of the police...."[FN8]

A discussion of an anonymous tip that resulted in an arrest would not be complete without reference to Florida v. J.L., 529 U.S. 266, 120 S.Ct 1375, 146 L. Ed. 2d 254 [2000]. In that case Justice Ginsburg, wrote the decision for a unanimous United States Supreme Court, which affirmed the decision of the Florida Supreme Court that affirmed the suppression of the investigatory stop of the defendant. The court indicated that

"On October 13, 1995, an anonymous caller reported to the Miami—Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. So far as the record reveals, there is no audio recording of the tip, and nothing is known about the informant. Sometime after the police received the tip—the record does not say how long—two officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three black males just hanging out [there].' One of the three, respondent J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from J.L.'s pocket. The second officer frisked the other two individuals, against whom no allegations had been made, and found nothing." [Internal citations to cited brief omitted.][FN9]

It must be noted that the previous case did not involve a motor vehicle. Nor was the defendant in J.L. engaged in any objective activity other than standing next to a bus stop. The detention of the defendant because of an anonymous tip in J.L. was based on the concept of reasonable suspicion rather than probable cause. The standard for the latter type of stop being easier to define than the former. Nevertheless, an anonymous tip in order to be considered reliable must provide the police with "predictive information" that give the police a means "to test the informant's knowledge or credibility".[FN10] The court held that the reasonable suspicion standard "... requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate

person."[FN11] In other words, the U.S. Supreme Court held that once the officer encounters the person or persons in question, as a result of the tip, the officer must determine if he or she observes any activity that would justify the stop or detention in question.

In Navarette v. California, 572 U.S.&mdash, 134 S. Ct. 1683, 188 L.Ed 2d 680 [2014] the United States Supreme Court affirmed the decision of the California Supreme Court that refused to suppress the stop of a vehicle, holding that there was sufficient reasonable suspicion of driving while intoxicated to stop the vehicle in question, based on the totality of the circumstances test. However, in that case the tip to a 911 call center was deemed reliable because it came from someone that alleged that she was run off the road by the defendant's vehicle. Thus the tipster was able to describe a specific objective illegal act.[FN12]

The New York State Court of Appeals has also weighed in on the question of when ananonymous tip can provide reasonable suspicion to authorize a stop of a motor vehicle or the detention of a person. In so doing the Court stated that

"Reasonable suspicion is that 'quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand' (People v Martinez, 80 NY2d 444, 448 [1992] [quoting People v Cantor, 36 NY2d 106, 112-113 (1975)])". (People v. William, II, 98 NY2d 93, 98, 745 N.Y.S.2d 792,794 [2002]).

The Court in William, II set out some of the facts as follows: "... the City of Ithaca Police Department received a call from an anonymous tipster indicating that a man named Will' was involved in a recent drive-by shooting. The tipster provided a physical description of Will and indicated that he was in the vicinity of Seneca Street and accompanied by two Caucasian males. The caller cautioned that Will was armed with a weapon. The call was dispatched to three police officers. One officer spotted a person he knew as Will Cruz with two Caucasian companions, one of whom was defendant William II. Cruz matched the physical description given by the anonymous caller. "[FN13]

The defendant was originally confronted in a parking lot and was subsequently taken into custody after having ran away. Upon being taken into custody marijuana and drug paraphernalia werefound in his back pack.

In a case decided together with William, II, i.e. People v. Rodriquez, the anonymous

tipster alleged that "... a light-skinned male Hispanic, in his twenties, with black hair, wearing a black-and-white checkered shirt and jeans—was carrying a gun."[FN14] Subsequently, the police

"... observed defendant Luis Rodriguez, who appeared to match the description, standing in front of a grocery store. As the officers watched, a Lincoln Town Car pulled up. Rodriguez got into the back seat of the car and the officers followed as the vehicle drove away. After the car turned, the officers activated their flashing light and police siren, and the vehicle pulled over. As the officers approached, defendant was observed dropping a gun from the car window. The officers removed Rodriguez from the car, searched him and placed him under arrest.[FN15]

In neither William, II nor Rodriquez did the police observe any activity that was illegal prior to the detention and stop of the defendants. Thus the court found that the police did not have reasonable suspicion to detain William, II or stop the vehicle in which Rodriguez was seated. "Where a police encounter is not justified in its inception, it cannot be validated by a subsequently acquired suspicion (see People v McIntosh, 96 NY2d 521, 527 [2001]; People v De

Bour, 40 NY2d at 215-216)."[FN16]

In another weapons case involving an anonymous tip the Court of Appeals set out the

facts as follows: "On November 12, 1997, at approximately 9:35 a.m., Police Officers Racioppo and Molinaro were on a routine patrol in their marked police car when they received a radio call of a dispute involving a male Black with a gun, described as approximately 18 years of age, wearing a gray jacket and red hat—information that came from an anonymous phone tip. The officers drove to the scene without their lights flashing and arrived within approximately one minute of receiving the radio call. No dispute was taking place. They did, however, see a male Black on the corner—defendant—wearing a gray jacket and red hat, with no similar individuals in the vicinity.The officers exited their vehicle and walked toward defendant, who began to walk away. Without attempting any verbal inquiry, the officers immediately drew their guns and yelled police, don't move.' The defendant then turned and continued to walk a short distance toward a closed gate before stopping. When the officers told defendant to put up his hands, he made a movement toward his waistband as he raised his arms. Officer Racioppo patted down defendant, felt a hard object in his left jacket pocket and recovered a gun." (People v. Moore, 6 NY3d 496,497- 498, 814, N.Y.S.2d 567,568 [2006]).

First of all the Court said that the officers had a common law right to enquire of the defendant. However, immediately confronting him at gunpoint violated the "graduated four level test evaluating street encounters initiated by the police" in that such a stop bypassed levels one and two and went immediately to a level three stop as set out in and in violation of People v De Bour, 40 NY2d 210, 386 N.Y.S.2d 375 [1976].[FN17]

Again, the Court of Appeals decided that the detention in Moore was not justified by anyreasonable suspicion of the officers. The Court held that "An anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information—such as information suggestive of criminal behavior—so that the police can test the reliability of the tip (see Florida v J.L., 529 US 266 [2000]; William II, 98 NY2d at 99)."[FN18] The court concluded that the anonymous tip in that case "... did not provide any predictive information, nor did it accurately portray the alleged criminal activity. The tipster reported a dispute involving a man with a gun, but when the police arrived within a minute of receiving the radio call, they did not find a dispute in progress."[FN19]

Each of the previously cited Fourth Department cases set out herein decided over a period of approximately nineteen years involved an anonymous tip that was used to establish reasonable suspicion. However, neither of those cases involved an objective observation by the police of any activities that was necessicarily predictive of criminal activity. Nevertheless the anonymous tips in question were deemed to be reliable by the appellate court. In fact the most recent Fourth Department case, i.e. People v. Williams, 126 AD3d 1304, 6 N.Y.S.3d 204 [4th Dept. 2015], wherein the court refused to suppress the results of a vehicle stop, was decided long after definitive holdings by the U.S. Supreme Court in J.L. and the Court of Appeals in William, II, and Moore. As stated those courts did not find that the police had reasonable suspicion to justify the detention or stop based on an anonymous tip. However, in each of the Fourth Department cases the tipster seems to have been an uninterested third party with nothing to gain from making the 911 call and was able to describe specific behavior that would presumably result in an illegal act if true.

In the instant case the call to the 911 center was, based on the time of the call, i.e. 3:59 A.M., in all probability made by the other half of the domestic dispute. "Probable cause for a warrantless arrest may be based on hearsay information, but only upon a showing that both the basis of knowledge and veracity components of the Aguilar/Spinelli test have been met (see, Aguilar v Texas, 378 US 108; Spinelli v United States, 393 US 410; People Johnson, 66 NY2d 398, 402; People v Landy, 59 NY2d 369, 375)." (People v. DiFalco, 80 NY2d 693,696, 594 N.Y.S3d 679,680 [1993]). The Aguilar/Spenelli test also continues to apply in cases involving a

stop of a vehicle based on reasonable suspicion as in the case herein.[FN20] In fact New York State still relies on the Aguilar/Spenelli test rather than the lesser standard provided by the "totality ofthe circumstances" test adopted by the United States Supreme Court.[FN21] The totality of the circumstances test was adopted by the court "... in lieu of Aguilar/Spinelli ...." in the case ofIllinois v. Gates, 462, U.S. 213, 103 S. Ct. 2317, 762 L.Ed. D. 2230 [1983]. [FN22]

People v. Argyris, 24 NY3d 1138, 3 N.Y.S.3d 711 [2014] was the most recent case involving an anonymous tip relative to a vehicle stop matter that was decided by the Court of Appeals. "In Argryis, the Court addressed the validity of two separate vehicle stops involving anonymous 911 calls. However, the court sidestepped the issue of which test should be applied ...." (Gerstenzang, Handling the DWI Case in New York § 1:15 @ 30 -31 [2015-2016

Edition]).[FN23]

One of the three cases decided as part of the Argyris decision was People v. Johnson.

"In People v Johnson, whether evaluated in light of the totality of the circumstances or under the Aguilar-Spinelli framework, the reliability of the tip was not established. The caller's cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff's deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated (see generally People v De Bour [La Pene], 40 NY2d 210, 225 [1976]; cf. Navarette, 572 US at &mdash, 134 S Ct at 1690-1692)."[FN24]

With that said this court is left to decide this case based on the said Aguilar/Spinelli standard. The first 911 call herein referred only to a family trouble involving a male and female. A follow up dispatch made while the officer was on his way to the Donovan Street address was that a female was leaving in grey Buick in a highly intoxicated condition, who was wearing a black sweat shirt and black pajama bottoms. Both calls having been made in around 4:00 A.M., it is, as was stated, very probable that the call was made by the other person in the dispute. Such a person would have a motive to embarrass or harass the driver. In addition there is nothing in the call that indicates how the caller knew the person was in an intoxicated condition, by indicating that he had witnessed her drinking or that she exhibited any indicia of intoxication, such as observing her staggering, swaying or falling as she approached her vehicle. On that basis it would appear that neither the basis of knowledge or veracity prong of the Aguilar/Spinelli test

have not been met in this case. Finally there was no predictive information other than that of identification information of a female in a grey Buick dressed in a certain way that could be relied on by the officer in making the stop, in that the officer did not observe any erratic driving or violations of the vehicle and traffic law that would suggest an illegal activity.

Conclusion

This court holds that the officer did not have either probable cause or reasonable suspicion to stop the defendant's vehicle. Thus all the evidence obtained by the People as a result of the said traffic stop is hereby suppressed and the charges are dismissed. This constitutes the decision and order of this court.

Dated: July 25, 2016.

Webster, New York

________________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1:The court previously precluded any statements made by the defendant to any law enforcement officials pursuant to CPL § 710 (3). However, "Because suppression hearings are not part of a trial, a court may consider precluded statements in a suppression motion determination, for example, whether the People had probable cause to arrest ...." (People v. Aldrich-O'Shea, 6 Misc 3d 35,37, 789 N.Y.S.2d 804,806 [2004]).

Footnote 2:Id.

Footnote 3:Id. at *1.

Footnote 4:Id. at *2 - 3.

Footnote 5:Id..

Footnote 6:Id. at 1271, 676,

Footnote 7:Id. at 1304-1305, 204-205.

Footnote 8:Id. at 1305, 205.

Footnote 9:"J.L. 268, 1377.

Footnote 10:Id. at 271,1379.

Footnote 11:Id. at 272, 1379.

Footnote 12:Navarette at &mdash, 1690, —

Footnote 13:William, II at 97, 793.

Footnote 14:Id. at 98, 794.

Footnote 15:Id.

Footnote 16:Id.

Footnote 17:Moore at 498 - 499, 568.

Footnote 18:Id. at 499, 569.

Footnote 19:Id at 499-500, 569.

Footnote 20:Gerstenzang at 30.

Footnote 21:DiFalco at 696, 680 at footnote "1".

Footnote 22:Gerstenzang at 30.

Footnote 23:Actually the court considered three separate vehicle stops.

Footnote 24:Argyris at 1141, 712.