People v Macleod

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[*1] People v Macleod 2017 NY Slip Op 51975(U) Decided on December 14, 2017 City Court Of Ithaca, Tompkins County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2017
City Court of Ithaca, Tompkins County

People of the State of New York, Plaintiff,

against

Kyle M. Macleod, Defendant.



CR-1061-17



ADA Gary Surdell

Tompkins County District Attorney

320 North Tioga Street

Ithaca, NY 14850

Albert Fang

The Commons

102 East State Street

Ithaca, NY 14850
Scott A. Miller, J.

The Defendant, Kyle M. Macleod, is charged with common law driving while intoxicated (VTL §1192[3]) and refusal to take breath test (VTL §1194[1][b]).

The Defense moves to suppress all evidence obtained, alleging an unreasonable stop of his vehicle and unreasonable detention of his person pursuant at a sobriety checkpoint on March 18, 2017. The Court held a suppression hearing on this matter on August 4, 2017. Ithaca Police Department Sargent Barry Banfield was the people's sole witness. Defendant did not present any evidence. The body camera video/audios of Sgt. Barry Banfield and the other officers on the scene were received into evidence and reviewed in chambers. Based on the evidence presented, the Court finds and concludes as follows.

Factual Findings

On March 18, 2017 at approximately 12:26 a.m., Sgt. Banfield was working a DWI vehicle checkpoint at the 200 block of East Green Street, east of Cayuga Street, in the City of Ithaca. The checkpoint was a joint operation with the Tompkins County Sheriff's Office. Sgt. Banfield testified that he has worked for the Ithaca Police Department (IPD) for 11 years, is the Administrator of the Traffic Division at IPD and is a member of the Tompkins County Stop DWI board. He testified that IPD works on a regular basis with the Tompkins County Sheriff's Office (TCSO), as the lead agency, at roadside safety checkpoints. Sgt. Banfield testified that the policies and procedures used at the roadside safety checkpoints were developed by the TCSO.

Sgt. Banfield testified that he has set up similar safety checkpoints in the same location on East Green Street in the City of Ithaca in the past. The Court admitted the Tompkins County Sheriff's General Order, effective 7/10/12, titled "Comprehensive Roadside Safety Checkpoints (CRSC), Operational Standards" (People's Exhibit 1). One of the listed objectives of the Order is to deter DWI. The General Order, Section IV Procedures, provides the following with respect to those attempting to avoid the checkpoint:

16. A designated member may stop persons who commit a violation

while attempting to avoid the safety check. If the member believes that

a violation has been committed such as illegal U-turn, or has reasonable

suspicion of criminal activity, such as driving under the influence, the

member may stop the vehicle.

Defense counsel's post-hearing brief concentrated on the legality of the stop and administration of the field sobriety tests. Defendant argues that the checkpoint policy did not allow a stop for turning into a parking lot or for parking violations. Defendant further argues that DeBour always applies, but was not properly followed, notwithstanding the holding in People v. Chaffee (183 Ad2d 208 [4th Dept, 1992]), allowing the stop of motorists "who reasonably appear to be avoiding the checkpoint" (id. at 211). Defense counsel acknowledges that a typical traffic stop is not a custodial detention for the purposes of Miranda, but argues that the foot pursuit and bringing Defendant to ground amounted to custody, rather than a permissible DWI investigatory detention to determine if a motorist is under the influence (People v. Hasenflue, 252 AD2d 829 [3d Dept, 1998]; People v. Berg, 92 NY2d 701 [1999]). Defendant argues that the counting in the walk and turn and one-legged stand field sobriety tests and the alphabet field sobriety test are testimonial, and, therefore, constitute custodial interrogation under Pennsylvania v. Muniz (496 US 582 [1990]). Finally, Defense counsel argues that Defendant's request for an attorney while in custody was denied, and "[the] field sobriety tests should have never been administered in the first place" (Defendant's Memorandum of Law, at 7).

Sgt. Banfield testified that he helped set up the checkpoint on the night of March 17-18, 2017, an obviously cold and snow-covered night as depicted in the body cam footage. All of the officers were dressed in full winter gear. Notice to motorists was provided by LED markers on the road, lights from patrol vehicles, and signs indicating the checkpoint was ahead. One lane of traffic on the 200 block of Green Street was closed. Sgt. Banfield testified that there were plenty [*2]of street lights in the area, and that the officers wore reflective traffic vests. The visibility of the checkpoint was confirmed by Sgt. Banfield's body cam footage. Sgt. Banfield testified that on that night, officers stood in a line, serving to funnel traffic through to the first officer at the checkpoint. He explained that each officer would then take a vehicle, and wave them through, unless someone needed to be stopped for further investigation. If traffic backed up too much, the officers let vehicles pass until traffic became lighter, as set forth in the checkpoint policy.

Sgt. Banfield testified that vehicles could be seen approaching eastbound from the intersection of Cayuga and Green Streets. He explained that there were limited places to avoid the checkpoint once past that intersection. On the north, there is an entrance to the City Hall parking lot and the public parking garage. On the south, there is an entrance to the Tompkins County Mental Health (TCMH) building parking lot and a cut out for access to the TCMH dumpster. The TCMH parking lot is clearly marked as a private property tow away zone, according to Sgt. Banfield's testimony, and confirmed by the body cam video. In his experience the TCMH lot was not used after hours by mental health employees. Sgt. Banfield testified that he was concentrating on the south side of Green Street, because the north side entrances were public parking areas people normally used. There was no pubic parking on the south side.

Sgt. Banfield testified that just before 2:00 a.m. on March 18, 2017, his attention was drawn to a dark Toyota sedan pulling into the TCMH parking lot closest to the checkpoint. TCMH was closed for the night. Sgt. Banfield observed the driver immediately exit, after which Sgt. Banfield and a sheriff's deputy (Ninivaggi) walked toward the vehicle. The haste and furtive posture with which the Defendant ran through the snow drifts from the lot is clear from the body cam footage. The Defendant did not take a coat or gloves, and it was quite obvious he was not out for a stroll. The officers asked the Defendant to stop, and tried to catch up with him. The Defendant kept running. At one point, the Defendant tripped in the snow, and Sgt. Banfield was able to stop him. When asked why he was running, he answered that he was scared. On cross examination, Sgt. Banfield testified that the Defendant smelled of an alcoholic beverage and had a bottle opener hung around his neck. It is clear to this Court there was no legitimate, or even imaginable, reason for the driver to use the lot, clearly marked as a tow-away zone, other than to avoid the checkpoint. Sgt. Banfield directed the Defendant to walk to the plowed part of the parking lot to administer sobriety tests to make sure he was okay to drive. Sgt. Banfield then clearly explained and administered the tests in a well-lit area of the parking lot. The Defendant performed the tests, but refused to take a breath test. Defendant was then taken into custody.



Conclusions of Law

A law enforcement officer who is participating in a lawfully authorized sobriety checkpoint is authorized "to stop all motorists at the checkpoint or who reasonably appear to be avoiding the checkpoint" (People v. Chaffee, 183 AD2d 208, 211 [4th Dept. 1992]). Defendant's brief detention was therefore authorized, reasonable, and constitutionally permissible. Defendant reasonably appeared to be avoiding the sobriety checkpoint, and this Court can find no other logical explanation for his frantic behavior. The facts here are nearly identical to those presented to the Chaffee court. The Defendant's argument that his temporary abandonment of the car somehow defeats the Chaffee rule allowing stops of drivers avoiding the checkpoint is specious, [*3]and would distort Chaffee's clear holding.

The Rocket case, cited by the Defendant, involved a motorist who legally turned onto another road before the checkpoint (People v. Rocket, 156 Misc 2d 641 [Town of Pleasant Valley Just Ct, 1992]). Here, the Defendant did not turn onto Cayuga Street or enter either of the legal public parking areas on the north side of Green Street. Instead, he took the last possible turn-off before the checkpoint, not a road, not a legal parking area, but a posted private parking lot. He then temporarily abandoned his vehicle and ran into the winter night without his coat. Until the Third Department or the Court of Appeals holds otherwise, Chaffee authorizes stops of drivers who "reasonably appear to be avoiding the checkpoint" (Chaffee, at 211; Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663 [2d Dept, 1984]).

The Chaffee holding is consistent with the third level of DeBour, a forcible stop and temporary detention to investigate, based upon a reasonable suspicion of criminal activity (People v. DeBour, 40 NY2d 210 [1976]). Once stopped, the police were justified here in continuing their DWI investigation, having observed alcohol on Defendant's breath and irrational behavior. The temporary detention to administer the field sobriety tests in not deemed custody (People v. Hasenflue, 252 AD2d 829 [3d Dept, 1998]). The tests were administered by proper procedure, and the Defendant was not in custody during the tests. Pennsylvania v. Muniz (496 US 582 [1990]) applies to questions designed to elicit testimony during administration of field sobriety tests after arrest, not administration of standard field sobriety tests. The Defendant here was not under arrest during administration of the field sobriety tests, and no instructions or questions were designed to elicit testimony here.

In sum, Sgt. Banfield's temporary and brief investigatory detention of Defendant was reasonable under the circumstances (Whren v. U.S., 517 U.S. 806 [1996]); see also, People v. Hasenflue, supra, Third Department firmly holding that roadside detentions of motorists to determine whether they are under the influence is not custody for purposes of Miranda). Here, Defendant was neither under arrest nor being subjected to a custodial interrogation when Sgt. Banfield administered standardized field sobriety tests. It is immaterial that Defendant demanded that he first be able to call his attorney before submitting to the field tests. Performance of field sobriety tests is not testimonial, and, in the instant case, were not part of a custodial interrogation. Defendant was simply briefly detained as part of a routine sobriety checkpoint and traffic stop investigation. "It is well settled that Miranda warnings are not required to allow the results of field sobriety tests into evidence" (People v. Berg, 92 NY2d 701, 703 [1999]). Furthermore, even the refusal to submit to such field sobriety tests is admissible as such "refusal was not the product of custodial interrogation" (id. at 705).

Based upon the "totality of the circumstances," including the Defendant's obvious avoidance of the checkpoint, illegal parking, running from his vehicle without a coat, odor of alcohol, slurred speech, and performance of the field sobriety tests, the police possessed probable cause to arrest Defendant for driving while intoxicated (VTL §1192[3]) (People v. Fenger, 68 AD3d 1441, 1443 [3rd Dept. 2009]).

Based upon the foregoing, the Court hereby DENIES the motion to suppress in its entirety and schedules the matter for a pre-trial conference. Defendant and counsel to appear Wednesday, December 20, 2017 at 2:00 p.m.

This constitutes the Decision of the Court entered upon notice to both parties. A notice of [*4]appeal, if applicable, must be filed within thirty (30) days of the date of this decision.



Dated:December 14, 2017SCOTT A. MILLER

Ithaca City Court Judge

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