People v Fay

[*1] People v Fay 2010 NY Slip Op 51141(U) [28 Misc 3d 1204(A)] Decided on June 28, 2010 Watertown City Ct Haberson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 28, 2010
Watertown City Ct

People of the State of New York, Plaintiff,

against

Alicia Fay, Defendant.



43183



CINDY INTSCHERT,

DISTRICT ATTORNEY OF JEFFERSON COUNTY

BY: FRANK SEMINERIO,

ASSISTANT DISTRICT ATTORNEY,

ON BEHALF OF THE PEOPLE

JEFFERSON COUNTY PUBLIC DEFENDER'S OFFICE

ATTORNEYS AT LAW

BY: JONATHAN D. RHODES AND SHELIA CROWLEY

ASSISTANT PUBLIC DEFENDERS

James C. Harberson, Jr., J.

This case arises from one traffic stop that inadvertently led to another. At approximately 2:00 a.m. on July 13, 2009, New York State Trooper Anthony Nigro and his partner, Trooper Kevin Rose, were engaged in a vehicle stop on State Street in Watertown. Trooper Nigro's attention was drawn suddenly to Alicia Fay, who drove past and within several feet of him in a tan, 4-door Suzuki. Trooper Nigro noticed that both Fay and her passenger "had a startled look on their face [sic] as they were passing a police patrol vehicle." The road was lit and Trooper Nigro's view of Ms. Fay was unobstructed. He added that the car was not speeding, weaving erratically or exhibiting "impaired driving". The car proceeded down State Street and then turned onto Hunt Street.

Because of the "startled look," which Trooper Nigro later re-characterized as a "suspicious look on their face [sic] that the last thing they wanted to see at that time of the night or early hours of the morning was a police officer[,]"[FN1] Troopers Nigro and Rose chose to follow the Suzuki after concluding their traffic stop. They found it pulling out of a driveway on Hunt Street. Trooper Nigro estimates that about 4.5 minutes elapsed between the time the troopers first saw the Suzuki and the point at which he saw it again on Hunt Street. They followed it for less than a minute and then observed that its driver failed properly to signal a turn within 100 feet (violating VTL § 1163(b)). They then stopped the car and discovered several critical facts:

1. The driver was not Ms. Fay but rather a young man, Dustin Baker, who turned out to be her boyfriend.

2. Ms. Fay was in the front passenger seat and the other passenger Trooper Nigro originally observed was in the back.

3. An alcoholic beverage odor emanated from the car cabin.

Trooper Rose checked Mr. Baker's paperwork and cited him for failure to signal. Once Trooper Rose gave Mr. Baker the ticket, Trooper Nigro began investigating the alcoholic odor in the car. Upon determining that Mr. Baker was neither impaired nor the source of the alcoholic odor, and that there was no open alcohol container in the car, Trooper Nigro turned the inquiry towards Ms. Fay. Importantly, Trooper Nigro testified that the alcohol odor alone was what prompted him to commence the investigation, and he did not determine Ms. Fay to be its source until after talking to her. Trooper Nigro asked Ms. Fay if she had been drinking, she admitted to [*2]drinking heavily (twelve "Jäger Bombs").[FN2] Ms. Fay had "glassy eyes" and "appeared to be in a highly intoxicated state ... Her mannerisms, someone sits there, they're nodding their head, and everything is a joke and they start to laugh and just carry on."

Trooper Nigro also interviewed both Mr. Baker and the other passenger about Ms. Fay's activities. Mr. Baker admitted that she had driven to his house and awoken him because she was too drunk to drive home. Ms. Fay eventually submitted to and failed field sobriety tests and the troopers cited her for two counts of DWI (VTL §§ 1192(2) and 1192(3)).

DISCUSSION

I.

A police officer may stop a vehicle on a public highway if he or she observes its driver commit a vehicle/traffic offense. People v. Ingle, 36 NY2d 413, 419-420 (1975). Such a stop must be "reasonably related in scope, including its length, to the circumstances which justified the detention in the first place." People v. Barreras, 253 AD2d 369, 373 (1st Dept. 1998). Moreover, "[a] traffic stop constitutes a limited seizure of the person of each occupant". Id. at 372. Once the initial basis for a traffic stop is exhausted, law enforcement may not further detain the car and its occupants without an additional, independent basis for investigation. Id. at 373; People v. May, 52 AD3d 147, 151 (1st Dept. 2008) ("[A] traffic stop constitutes a limited seizure of a vehicle's occupants ... and the length of any subsequent detention must be reasonably related to the circumstances which first justified the stop ...."); People v. Banks, 85 NY2d 558, 562 (1995) ("For a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance."). The parties do not dispute the stop's propriety but rather its scope.[FN3] Particularly, was Trooper Nigro authorized to question Ms. Fay about suspected DWI in after he had finished the portion of the stop related to Mr. Baker?

We use the De Bour-Hollman paradigm and cases deploying it to determine the whether Trooper Nigro's investigation of Ms. Fay was legal. People v. De Bour, 40 NY2d 210 (1976); People v. Hollman, 79 NY2d 181 (1992). Hollman economically outlines the basic test:

In People v. De Bour, 40 NY2d 210, 223, 386 NYS2d 375, 352 NE2d 562, we set out a four-tiered method for evaluating the propriety of encounters initiated by police officers in their [*3]criminal law enforcement capacity. If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is "activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion"(People v. De Bour, supra , at 223, 386 NYS2d 375, 352 NE2d 562). Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.

Hollman, 79 NY2d at 184.

In Hollman, the Court of Appeals refined the first two levels of inquiry, holding that general, non-accusatory questions or requests for information qualified as level one inquiries but that more pointed, accusatory questions pinpointing possible criminality rise to level two.

[A] request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area ... Once the police officer's questions become extended and accusatory and the officer's inquiry focuses on the possible criminality of the person approached, this is not a simple request for information. Where the person approached from the content of the officer's questions might reasonably believe that he or she is suspected of some wrongdoing, the officer is no longer merely asking for information. The encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot.

Id. at 191.

II.

Trooper Nigro's investigation of Ms. Fay following the conclusion of the traffic stop investigation into Mr. Baker was not warranted under De Bour-Hollman.[FN4] It appears that the first question Trooper Nigro asked Ms. Fay was whether or not she had been drinking. This was not a simple request for information. It was an inherently accusatory question, given the fact that Ms. Fay had been drinking and that she knew Trooper Nigro had seen her driving minutes before. See Hollman at 191 ("Where the person approached from the content of the officer's questions might reasonably believe that he or she is suspected of some wrongdoing, the officer is no longer [*4]merely asking for information."); Barreras at 373. Moreover, the fact that Trooper Nigro had already seized Ms. Fay via the car stop and protracted the seizure to question her freighted his conduct with consequence transcending the casual nature of a mere information request. Accordingly, it was not a permissible level one inquiry.

Nor was it permissible as a level two inquiry. De Bour allows pointed questions about suspected crimes if police have a founded suspicion that criminal activity is afoot. These circumstances fail that test on two counts. First, Trooper Nigro didn't have enough information to support founded suspicion. A "startled look" alone won't suffice. People v. Campbell, 160 AD2d 363, 364 (1st App. Div. 1990) ("The fact that defendant appeared startled at the sight of the officers and began to walk away" warranted no founded suspicion criminality was afoot.).[FN5] Nor would a "startled look" coupled with the alcohol odor, given that the crime Trooper Nigro suspected had already occurred; it was no longer "afoot" and therefore outside level two's scope. May at 151 ("In general, to detain an individual, the police must have a reasonable suspicion that criminal activity is either occurring or imminent....").

De Bour level three does not have a concurrent criminality requirement ("reasonable suspicion that a particular person was involved in a felony or misdemeanor" (emphasis added)), but this does not help the People, because Trooper Nigro lacked information sufficient to support reasonable suspicion of criminality. As noted before, Trooper Nigro's only stated basis for questioning Ms. Fay about possible DWI was the odor of alcohol in the Suzuki's cabin. He did not smell alcohol on her breath until he started talking to her. Moreover, he did not observe other indicia of intoxication-glassy eyes and frivolous demeanor-until after he began questioning her. Nor did he see Ms. Fay engage in any erratic or reckless driving. [*5]

Accordingly, and by his own admission, all Trooper Nigro had to base his inquiry upon was a "startled look" and an indeterminate alcohol odor in the Suzuki which could have just as easily come from the other passenger as it did from Ms. Fay (he said that both Ms. Fay and her passenger "had a startled look on their face [sic] as they were passing a police patrol vehicle"). Lacking more, he was obliged to release the vehicle. Trooper Nigro had justification briefly to extend the stop after the ticketing to determine whether or not 1) Mr. Baker had been drinking and 2) there was an open alcohol container in the car. However, once he ascertained Mr. Baker's sobriety and that there was no open container, that justification expired.

III.

Because Trooper Nigro illegally procured the evidence inculpating Ms. Fay illegally, that evidence is fruit of the poisonous tree and therefore is suppressed. Wong Sun v. United States, 371 U.S. 471, 486-488 (1963). The case is dismissed.

This Opinion shall serve as the Judgment and Order of the Court.

____________________________________

Date: June 28, 2010Hon. Judge James C. Harberson, Jr. Footnotes

Footnote 1:

Trooper Nigro further explained that "[i]n being trained at the academy for SFSTs, DWIs, things of that nature, when a person has a look on their face [sic] that they appear to be intoxicated or startled or have a suspicious look that they don't want to be pulled over, that generally leads to a high conviction of that individual not conviction, but high percentage that that person is, in fact, intoxicated." However, he also testified that he did not believe that "a startled look" per se warranted a stop: "It is not a legal reason to stop a vehicle, but it does bring one's interest or attention to that said driver."

Footnote 2:

Mr. Baker also said that Ms. Fay imbibed at his house while waiting for him to get ready to take her home.

Footnote 3:

The Court's initial concern about the constitutionality of VTL § 1163(b) was unfounded. See the exemplary opinion in People v. Tamburrino, 26 Misc 3d 930 (City Ct., Saratoga Springs 2009).

Footnote 4:

His decision to follow and observe Ms. Fay after completing the original traffic stop was lawful, however. People v. Sobotker, 43 NY2d 559, 564-565 (1978) ("To be sure the circumstances very well may have justified the police, as they pursued their law enforcement obligations, in continuing to keep the car under observation. Then, if patience rather than precipitancy had prevailed, the reward of good police work might well have been a seizure which the continued observation had rendered no longer devoid of a factual predicate for a founded belief that criminal conduct was under way.").

Footnote 5:

The Court is mindful of Trooper Nigro's other characterizations of Ms. Fay's (and her companion's) expressions as "suspicious" and, impliedly, "intoxicated," and the fact that at least one court has found suspicious appearance sufficient to merit level two De Bour inquiries. See People v. Smith, 139 AD2d 783, 784 (2d Dept. 1988) ("In responding to the communication that there was a suspicious individual on the fifth floor, Peace Officer Pratt clearly had a common-law right to inquire...."). The Court is equally mindful, however, of the possibility that police testimony may be tailored to thwart constitutional objections to police conduct. See, e.g., People v. Flores, 181 AD2d 570, 572 (1st Dept. 1992) ("The testimony of Officer Byrne that the defendant left the scale and tinfoil packets in plain view prior to her voluntarily admitting at least three and possibly more police officers into her apartment, has the indicia of a story tailored to overcome constitutional objections to what otherwise would be a clearly illegal search...."); People v. Miret-Gonzalez, 159 AD2d 647, 649 (2d Dept. 1990) ("We refuse to credit testimony which has all appearances of having been patently tailored to nullify constitutional objections.") (quoting People v. Garafolo, 44 AD2d 86, 88 (2d Dept. 1974)). While there is no unequivocal indication that Trooper Nigro's testimony is unconstitutionally adjusted, the Court is still inclined to rest upon his initial description of Ms. Fay and her passenger.