People v Modlinger

[*1] People v Modlinger 2006 NY Slip Op 51492(U) [12 Misc 3d 1188(A)] Decided on July 28, 2006 Supreme Court, Bronx County Dawson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2006
Supreme Court, Bronx County

The People of State of New York,

against

Jesse Modlinger, Defendant.



17414C-05

Joseph J. Dawson, J.

Defendant is charged with Operating a Motor Vehicle While Under the Influence of Alcohol, Reckless Endangerment in the Second Degree, Resisting Arrest, Reckless Driving and Unlawful Possession of Marijuana. See PL §§ 120.20, 205.30, 221.05; VTL §§ 1192(1), 1192(3), 1212. On July 18, 2006, this Court conducted a combined Mapp/Huntley/Dunaway hearing. For the reasons set forth below, defendant's motion to suppress is denied.

The sole witness was Police Officer Michael Heit. The Court finds the officer to be credible and credits his testimony in its entirety.

FINDINGS OF FACT

Police Officer Michael Heit has been with the New York City Police Department for about five years. On April 2, 2005, he was assigned, along with his partner, Police Officer Joseph Nazzaro, to a marked "radio motor patrol" car ("RMP") in the 50th precinct. At about 2:50 a.m., as the RMP was stopped at a red light at the intersection of the Major Deegan Expressway and Van Cortlandt Park South, Officer Heit saw defendant's vehicle, a 1976 Cadillac, exit the ramp from the highway and spin 180 degrees so that the car faced opposite the traffic flow. It was raining and the roads were slick. Heit saw defendant through the windshield and gestured for him to pull the Cadillac to the side of the road.

Instead of pulling over, defendant accelerated the Cadillac, made a left turn, and proceeded westbound on Van Cortlandt Park South. The officers followed defendant, and activated the siren in the RMP. Defendant did not stop his car, and Heit radioed for assistance. Heit continued to follow defendant through a primarily-residential neighborhood. Heit observed defendant disobey stop signs while driving through intersections, and saw another car slam on its brakes to avoid being hit by the Cadillac. Eventually, another marked police car joined the chase. The pursuit ended when that police vehicle collided with the Cadillac. Heit exited his vehicle and approached defendant's car. Heit noticed that the rear tires of the Cadillac were off the ground, but defendant was still accelerating the engine. Officer Heit pulled defendant out of his vehicle; defendant was shouting and pulling at his steering wheel. [*2]

Officer Heit immediately smelled a strong odor of alcohol coming from defendant. He also observed defendant to have watery eyes and slurred speech, and to be unsteady on his feet. Heit did not ask defendant any questions, and his gun was holstered. Just after Heit had placed him in handcuffs, defendant stated, "I'm sorry. I was not running away from you." Heit then asked questions relating to basic pedigree information, but did not ask to see defendant's license or registration. Heit also called for EMS because defendant was bleeding profusely from his nose. He was about to search defendant when Police Officer John Lewis approached and informed Heit that the Sergeant wished to speak with him. Heit let Lewis take over, and Lewis searched defendant. Lewis recovered one container of marihuana from defendant's left jacket pocket. Defendant was taken to the 45th precinct where he was advised, for the first time, of his Miranda rights.

CONCLUSIONS OF LAW

During the Huntley hearing, the People had the burden of proving beyond a reasonable doubt that defendant's statement at the scene was voluntary. See People v. Huntley, 15 NY2d 72, 78 (1965). As to the Mapp and Dunaway portions of the hearing, the People had the burden of going forward with credible evidence tending to show that the police officers acted lawfully, and defendant had the burden of proving by a preponderance of the evidence that the officers acted illegally. The People have met both their burden of proof on the Huntley issue and their burden of going forward on the Dunaway and Mapp questions in this case. Defendant, on the other hand, has not met his burden of proof on the Dunaway or Mapp issues.

As to the Huntley portion of the hearing, the People have shown beyond a reasonable doubt that the encounter was not unconstitutionally or factually coercive, and that defendant's statement was made voluntarily. Although defendant was handcuffed, he was not asked any questions before he made the statement, and there was no legal requirement that Miranda warnings be administered by that point. Since defendant's remark was spontaneous, the statement was voluntary and is not subject to suppression on Huntley grounds. See, e.g., People v. Rodney, 85 NY2d 289, 292-93 (1995); People v. Watts, 309 AD2d 628 (1st Dept.), appeal denied, 1 NY3d 582 (2003).

The People also presented ample evidence to meet their burden of going forward on the Dunaway issue. Under well-settled principles, conduct by a police officer that does not rise to the level of a seizure, but nonetheless intrudes, even minimally, upon an individual's liberty must be predicated on more than a hunch, whim, caprice or idle curiosity. See People v. De Bour, 40 NY2d 210, 217 (1976). Under this "Level I" standard of the four-tiered framework set forth in De Bour, a police officer should not even approach a stationary vehicle and ask its occupant for identification without first possessing at least an articulable basis for requesting such information. Indeed, the officer must have an objective, credible reason, not necessarily indicative of criminality, for engaging the individual in the encounter in the first place. See e.g., People v. Ocasio, 85 NY2d 982, 985 (1995); see also People v. Hollman, 79 NY2d 181, 187, 194 (1992); People v. De Bour, 40 NY2d at 220. Under the De Bour analysis, of course, as the interference with a driver grows, so does the level of justification required. Hence, under the "Level III" standard of De Bour, in order to stop a moving vehicle through the use of police lights and sirens, an officer must have reasonable suspicion to believe that the driver or an [*3]occupant has violated, or is about to violate, the law. See, e.g., People v. May, 81 NY2d 725, 727 (1992).

Here, instead of approaching the car, Officer Heit gestured for defendant to pull the Cadillac to the side of the road. Since defendant's car already had already come to a stop "prior to, and for a reason independent of, the action of the police," the officer's conduct did not interfere with the vehicle's movement. See People v. Thomas, 19 AD3d 32, 36-37 (1st Dept.), leave denied, 5 NY3d 795 (2005). On the other hand, since Heit was essentially ordering the driver to pull the car over, his direction was more intrusive than a traditional "Level I" approach to a parked car. At the same time, the manner in which the officer conveyed that direction did not resemble the kinds of police conduct that have typified a "Level III" stop in the past: Heit did not activate his police lights and siren, did not use a loudspeaker to announce the stop, and did not use the RMP to block defendant's movement. See, e.g., People v. Sobotker, 43 NY2d 559, 562-63 (1978); People v. Ingle, 36 NY2d 413, 415 (1975); People v. Cantor, 36 NY2d 106, 111 (1975). And, after all, since the Cadillac had come to a stop and was facing in the wrong direction on the roadway, defendant was going to have to move it in any event. Under the circumstances presented here, a reasonable person would not have concluded that Officer Heit's gesture amounted to "a significant limitation on his or her freedom." People v. Ocasio, 85 NY2d at 984. This being the case, the officer did not need reasonable suspicion to believe that defendant committed a crime or traffic infraction; he only needed an objective reason to initiate the encounter, which he plainly possessed.

Moreover, regardless of which De Bour level is implicated here, the critical question remains the same: whether the degree of police interference with the defendant's liberty, privacy and personal security was justified by a legitimate governmental interest. Accord, People v. Wheeler, 2 NY2d 370, 373 (2004). In this case, the officer had just seen defendant's car spin out of control at a major intersection on a rainy night, and come to a complete stop facing oncoming traffic. Any police officer in that situation would have been amply justified in approaching the stopped vehicle or, if necessary, directing the driver to "pull over" to the curb solely for the purpose of posing "basic, nonthreatening questions" [People v. Ocasio, 85 NY2d at 985], including inquiries designed to ascertain "whether something was wrong with" the operator of the car. See People v. Pegues, 208 AD2d 773, 773 (2nd Dept.), appeal denied, 84 NY2d 1014 (1994); see also, People v. Williams, 167 AD2d 236 (1st Dept. 1990), appeal denied, 77 NY2d 883 (1991). In short, defendant's momentary loss of control of the Cadillac justified the officer's request that the driver pull to the side of the road. See, e.g., Saarinen v. Kerr, 84 NY2d 494, 502-03 (1994).

However, instead of complying with the officer's legitimate request, defendant fled the scene, disobeyed stop signs, and engaged the officers in a chase which, in turn, led to the accident between the Cadillac and the RMP. By that point, the officers had reasonable justification to detain defendant based on his erratic behavior and the traffic violations that they had observed. See, e.g., People v. Dennis, 2006 WL 1835990, 2006 Slip Op. 05246 (3rd Dept. 2006). After removing defendant from the car, observing his slurred speech, seeing his watery eyes, noticing that he was unsteady on his feet, and hearing him blurt out an apology, Officer Heit then had ample probable cause to arrest defendant for driving while under the influence of alcohol. The subsequent seizure by Officer Lewis of the marihuana from defendant's person, therefore, was [*4]perfectly permissible because it was the product of a search incident to the lawful arrest.

In sum, there is no basis for suppression on Huntley, Mapp or Dunaway grounds, and the motion to suppress is denied in all respects.

The foregoing constitutes the Decision and Order of this Court.

Dated:July 28, 2006

Bronx, New York

_______________________________

Joseph J. Dawson, A.S.C.J.