People v Hopkins

[*1] People v Hopkins 2004 NY Slip Op 50973(U) Decided on September 1, 2004 County Court, Yates County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 1, 2004
County Court, Yates County

THE PEOPLE OF THE STATE OF NEW YORK,

against

TIMOTHY HOPKINS Defendant.



2467



Hon. Susan H. Lindenmuth

Yates County District Attorney,

Counsel for the People

Donald M. Thompson, Esq.

Attorney for Defendant.

W. Patrick Falvey, J.

The defendant has appealed his conviction for Driving While Intoxicated (Vehicle and Traffic Law section 1192) from the Village of Penn Yan Court, upon his plea of guilty.

Defendant bases his appeal solely on the issue of whether the lower court ruled correctly on his motion to suppress evidence on the grounds that the stop of his vehicle was unlawful.

At the time of his arrest, Yates County Sheriff's deputies and Penn Yan Village police officers had set up a DWI checkpoint on Route 54, just outside the Penn Yan village limits. The defendant was driving toward the checkpoint when he turned into a driveway about four hundred feet before the checkpoint, stopped his car briefly, then pulled out of the driveway and drove back toward the village, away from the checkpoint.

The sheriff deputy in charge of the checkpoint watched this activity, followed the defendant's vehicle and eventually stopped the car when the defendant turned off Route 54 onto Burn's Terrace. The deputy did not see any violations of the Vehicle and Traffic Law, but stopped the defendant's car solely because the defendant had avoided the checkpoint.

When questioned by the deputy, defendant admitted consuming alcohol and said he was on his way home from the Tavern. When asked why he turned around, dependant responded "it's a friend's driveway" (Transcript, p 46). When asked to perform several field sobriety tests, he recited the alphabet correctly, touched his fingers to his nose slightly offset, failed to stand on one leg for 15 seconds as directed, and failed to complete the "walk and turn" test to the deputy's satisfaction. He was given an alcosensor test, which revealed the presence of alcohol, and was [*2]arrested and charged with two counts of DWI.

The defendant's suppression motion focused on the People's failure to demonstrate that the checkpoint was established and executed pursuant to a uniform, non-arbitrary procedure and that there was no independent basis to stop his vehicle.

The lower court denied the motion to suppress, the defendant pled guilty, and then commenced this appeal.

In his brief, the defendant argues that because the checkpoint was not established and executed pursuant to a uniform, non-arbitrary procedure, the lower court erred in denying the motion to suppress. He asserts there was no written plan establishing a non-discriminatory, non-arbitrary, uniform procedure for the establishment and execution of the roadblock, as required by the Fourth Amendment. See People v Scott, 63 NY 2d 518; Matter of Muhammad F., 94 NY 2d 136. Thus, defendant concludes, since there was no independent legal justification offered for the stop, the suppression motion should have been granted. People v Bigger, 2 M 3rd 937.

In their responding brief, the People argue that the defendant's avoidance of the road block provided the officer with a reasonable suspicion to stop the vehicle. The People ask the Court to apply the reasoning in People v Chaffee, 183 AD 2nd 208, (4th Dept. 1992), where the stop of a vehicle which had avoided a road block was upheld. The Court notes that in Chaffee, the road block was constitutionally appropriate.

Here, there was no written procedure for the road block. Further, the Court finds that the deputies and police officers that maned it were not following a particular methodical, non-discretionary procedure. Thus, the Court concludes that the road block did not pass constitutional muster.

Without a constitutional road block, which would have authorized the stop of defendant's vehicle, there must have been independent probable cause for the officer to stop the defendant's vehicle. The Court on a careful reading of Chaffee, 183 AD 2d 208, concludes that evasion of a checkpoint that is not constitutionally formatted does not, by itself, provide probable cause for a stop.

The proof adduced at the hearing shows that there was no such independent probable cause for the stop. The arresting officer did not testify to any erratic driving on the part of the defendant, nor any violation of the vehicle and traffic laws. The officer testified that "If we're operating a check point and a vehicle does a turn immediately before, as soon as it's able to see our check point, that that's a suspicious behavior, and that combined with the fact that it turned then on the next roadway that it could to get off of the road that the patrol officers obviously were coming from, if we were coming from the check point, that in my mind heightened my suspicions that this vehicle needed to be identified and checked further, and I had a suspicion. That's why I made the stop." Transcript, p 47.

There being no independent probable cause for the stop, the motion to suppress evidence should have been granted. The appeal is granted, the defendant's conviction is vacated, and the information dismissed, with prejudice.

The foregoing constitutes the Opinion, Decision and Judgment of this Court.

SO ORDERED. [*3]

Dated: September , 2004.

_______________________________

W. Patrick Falvey

Yates County Judge