People v Fenton

[*1] People v Fenton 2017 NY Slip Op 51977(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 This opinion is uncorrected and will not be published in the printed Official Reports.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

Joseph Fenton, Defendant.



CR-766-17



ADA Brad Rudin

Tompkins County District Attorney

320 North Tioga Street

Ithaca, NY 14850

Jeffrey Walker, Esq.

200 E. Buffalo Street

PO Box 353

Ithaca, NY 14850
Scott A. Miller, J.

Defendant Joseph Fenton is charged with one count of obstructing governmental administration in the second degree (Penal Law §195.05) and one count of criminal possession of a controlled substance in the seventh degree (Penal Law §220.03). Defendant moves for suppression of all evidence alleging an unconstitutional and unreasonable seizure of his person, mandating dismissal of all charges being the product of the "fruit of the poisonous tree" (Wong Sun v U.S., 371 U.S. 471 [1963]).

A combined Ingle/Dunaway/Mapp/Huntley hearing was held on August 18, 2017. Ithaca Police Officers Van Auken and Cosgrove testified for the People. The parties stipulated to the admissibility of all of the IPD body cam video/audio footage, which included the data from body cameras of Officers Buffone, Van Auken, and Cosgrove. The Court carefully reviewed all of the body camera video/ audio in chambers after the conclusion of the testimony.

FACTUAL FINDINGS

On January 30, 2017 at approximately 11:00 pm at the Tops Market Grocery Store in Ithaca, Officer Cosgrove received a radio dispatch that Defendant had just driven to the Tops [*2]Market in Ithaca while in an intoxicated condition. Dispatch relayed that a female passenger of Defendant was inside Tops Market and attempting to get the keys from Defendant to prevent him from driving away in an intoxicated condition. Officer Buffone arrived inside Tops Market first, and Officer Van Auken arrived inside shortly thereafter. Officer Cosgrove arrived third, and dealt with Defendant outside in the parking lot.

Officer Van Aucken credibly testified and her testimony was corroborated by body camera footage. Defendant appeared to be highly intoxicated or impaired by a substance. Even a cursory review of the Defendant's demeanor on the video/audio footage confirms Defendant's impaired state. By any objective standard of reasonableness, Defendant was in no condition to operate a motor vehicle.

Inside Tops Market, Officer Buffone informed Officer Van Auken that Defendant would not give his female companion his car keys. Defendant's companion's comments were also captured on the IPD video footage. Officer Buffone commented on Defendant's bizarre behavior, and told Officer Van Auken that the Defendant did not even know Officer Buffone was standing right next to him. The officers were again provided information at the scene that Defendant had driven to Tops Market in the impaired state and his companion could not get his keys from him, as she was afraid of him. Immediately upon Officer Van Auken's entry into Tops Market, as she walked by Defendant, he can be heard shouting, "Uh oh, cops are here for me."

After the Defendant left Tops Market, Officer Van Auken followed on foot at first, in pursuit. Meanwhile, Officer Cosgove had arrived at the Tops Market parking lot. Officer Cosgrove credibly testified that, dispatch had reported a "female at the location was afraid [Defendant] was going to drive intoxicated." Officer Cosgrove observed Defendant exit Tops Market, and while he was in the parking lot, Defendant was "swaying" and appeared obviously impaired, and definitely in no condition to operate a vehicle. Defendant then walked past his vehicle, of which IPD had been provided with the vehicle description, and then the Defendant turned around and entered the vehicle.

Officer Cosgrove knew the Defendant from at least one previous incident approximately two months earlier, which he described the Defendant as having engaged in disorderly conduct at the Ithaca Walmart. While searching the Defendant during that incident, Officer Cosgrove discovered Defendant in possession of a handgun, for which Defendant did have a license. Officer Cosgrove testified that the Defendant's speech appeared to be much more slurred during this incident than during the Walmart incident.

Officer Cosgrove pulled his vehicle in front of Defendant's vehicle to prevent Defendant from leaving, after which Officer Cosgrove then exited his vehicle, walked over to the passenger door of Defendant's vehicle and opened it. The Defendant yelled, "Hey man, why are you opening my door?" Officer Cosgrove replied, "You're a little bit intoxicated. I don't want you driving. You are swaying all over the place." The Defendant then abruptly jumped out of his vehicle and began walking around in the parking lot. At this point, Officer Van Auken had pulled up in her vehicle and blocked Defendant's vehicle from behind as well.

Officer Cosgrove then yelled at the Defendant, "Don't go in your car! Stay out of your vehicle!" This command was given contemporaneously as Defendant was reaching back into the driver's compartment of his vehicle, in what appeared to be an effort to grab something. Defendant did, in fact, straighten up and did not enter his vehicle, but merely momentarily [*3]reached inside the driver's compartment with both hands. However, Officer Cosgrove, upon approaching the Defendant as he was standing next to his open driver's side door, was required to instruct the Defendant at least six times to "Put your hands behind your back." Defendant clearly refused to comply with all six of these commands, and physically resisted both Officers Cosgrove's and Van Auken's effort's to secure his arms behind his back. Officer Cosgrove clearly stated, "We are not placing you under arrest; we are detaining you." Defendant refused to comply with any of Officer Cosgrove's requests to place his hands behind his back, and the officers were required to take Defendant to the ground in order to gain control of the situation. A frisk for weapons revealed a lawful firearm located in Defendant's rear pants pocket. As a result of the search incident to arrest, Defendant was found to be unlawfully in possession of various prescription pills resulting in the additional count of criminal possession controlled substance seventh degree (PL 220.03).

CONCLUSIONS OF LAW

It is well settled that police officers, in order to legally forcibly stop and seize an individual, must possess a "reasonable suspicion" that the individual "has committed, is committing, or is about to commit a felony or misdemeanor" (People v. DeBour, 40 NY2d 210,223 [1976]). In determining whether an individual's actions rise to the level of reasonable suspicion, police officers are permitted to interpret the behavior in light of their training and experience (see, People v. Nichols, 277 AD2d 715, 716-717 [2000]).

This Court finds, based upon the evidence presented at the hearing and based upon the review of the IPD body camera evidence, both Officers Van Auken and Cosgrove possessed reasonable suspicion that the Defendant had just committed misdemeanor driving while intoxicated and also possessed reasonable suspicion that the Defendant was about to commit the crime of driving while intoxicated. The companion's statements that Defendant had driven to Tops Market drunk and that she was scared of him, and she was afraid he was about to leave and drive drunk again, combined with the officers' direct observations of the Defendant's unstable and impaired behavior in Tops Market and in the parking lot, provided the officers with reasonable suspicion to detain him in order to investigate. When the officers blocked in the Defendant's vehicle from the front and the rear with their vehicles, this constituted a level three temporary seizure, which was justified based upon the reasonable suspicion that Defendant had committed and was about to commit a crime.

Based on Officer Cosgrove's observations of the Defendant swaying through the parking lot, which corroborated the dispatch report that Defendant had driven to Tops Market intoxicated, and that his female friend was worried he would continue to drive, and where Officer Cosgrove had an encounter with the Defendant two months prior, during which Defendant was disorderly and armed with a handgun, albeit lawfully, Officer Cosgrove's opening of the passenger door, once Defendant had entered his truck was reasonable under the circumstances. The "opening of the car door lessens to a substantial degree the risk of injury to the officer and it cannot be said, therefore, that the 'search,' i.e., the mere opening of the door, was unreasonable" (People v. David L., 56 NY2d 698, 699 [1982]).

Additionally, once Defendant bolted out of his vehicle, Officer Cosgrove's command to Defendant not to reenter the vehicle was lawful. Defendant can be seen reaching into the truck's compartment as Cosgrove was yelling at him not to reenter the vehicle. While the Defendant did [*4]straighten up and did not fully reenter the vehicle, the Defendant did nonetheless refuse to obey the reasonable and lawful commands of Officers Cosgrove and Van Aucken to place his hands behind his back. The officers were legally permitted to require the Defendant to be handcuffed at this time out of concern for their physical safety, and the Defendant clearly refused to comply with such directives repeated at east six times to place his hands behind his back. The Third Department, in People v Wiggins (126 A.D 3d 1369, 1370 [3rd Dept. 2015]), explained:

"It is well established that not every forcible detention constitutes an arrest" (People v. Drake, 93 AD3d 1158, 1159, 940 N.Y.S.2d 403, lv. denied 19 NY3d 1102, 955 N.Y.S.2d 557, 979 N.E.2d 818; see People v. Hicks, 68 NY2d 234, 239, 508 N.Y.S.2d 163, 500 N.E.2d 861), and that officers may handcuff a detainee out of concern for officer safety (see People v. Allen, 73 NY2d 378, 379-380, 540 N.Y.S.2d 971, 538 N.E.2d 323). Furthermore, a "corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he [or she] is in danger of physical injury by virtue of the detainee being armed" (People v. DeBour, 40 NY2d 210, 223,386 N.Y.S.2d 375,352 N.E.2d 562; see People v Curry, 81 AD3d 1315, 1315-1316, 961 N.Y.S.2d 391, lv. denied 16 NY3d 858, 923 N.Y.S.2d 420,947 N.E.2d 1199). (emphasis added)

Defendant physically resisted and interfered with the officers lawful right to temporarily detain him in order to investigate a reasonably suspected DWI. The officers had the right to to temporarily detain him out of a reasonable concern for officer safety.

The officers' conduct under the totality of the circumstances was authorized, reasonable and professional. Defendant's conduct throughout the interaction was outrageous and posed a very real threat of danger to the community.

Defendant's motion to suppress is DENIED. This matter is now trial ready. Defendant and counsel to appear Wednesday, December 20, 2017 at 2:00 p.m. for pretrial conference.

Dated December 14, 2017

S/

Hon. Scott A. Miller

Ithaca City Court Judge