People v Hempfling

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[*1] People v Hempfling 2020 NY Slip Op 20278 Decided on October 26, 2020 Justice Court Of The Town Of Webster, Monroe County DiSalvo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 26, 2020
Justice Court of the Town of Webster, Monroe County

The People of the State of New York, Plaintiff, vs.

against

Michael Hempfling, Defendant.



19110374



Appearances:

Sandra Doorley, District Attorney, Monroe County (Janna Koch, of Counsel), for plaintiff.

Alex N. Serles, Esq., for defendant.
Thomas J. DiSalvo, J.

History of the Case.

The defendant was charged with common law driving while intoxicated (VTL § 1192 [3]), driving while ability impaired by drugs (VTL § 1192 [4]), driving while ability impaired by the combined influence of drugs of alcohol and any drug or drugs (VTL 1192 § [4-a]) and criminal possession of a controlled substance, 7th Degree, (PL § 220.03), which were alleged to have occurred on November 19, 2019 at 12:38 A.M. on Phillips Road in the Town of Webster. The defendant was arraigned on December 4, 2019 accompanied by his attorney. At that time the court was presented with a Report of Refusal to Submit to Chemical Test. As a result, this court suspended the defendant's license pending a hearing at the New York State Department of Motor Vehicles. The case was adjourned for argument of motions to February 19, 2020. At that time the court granted defense counsel's motion for a Huntley hearing and a probable cause hearing to be conducted on March 27, 2020. However, prior to said hearing date the court system was shut down due to the covid-19 virus. Upon the re-opening of the court, the said hearings were rescheduled and conducted on September 25, 2020. At the conclusion of said hearings the court denied defense counsel's motion to suppress any statements made by the defendant, but reserved decision relative to the probable cause issues. Prior to the commencement of the suppression hearings the charge of criminal possession of a controlled substance, 7th Degree, (PL § 220.03) was withdrawn by the People.

Facts of the Case.

The People called Webster Police Officer Skyler Miller as their only witness at the aid suppression hearings. Officer Miller testified that he has been trained in the area of the recognition of intoxicated drivers. In addition he has been a drug recognition expert since March of 2017. Just after midnight on November 19, 2019 he had been on routine patrol when he [*2]observed a green Ford pick up truck on the west shoulder of Phillips Road. He originally drove



past the vehicle. He observed that the vehicle was running and the exterior lights of said vehicle were illuminated. The officer parked his car and observed the vehicle in question for about five minutes. Since he observed no activity from inside the truck he pulled up behind it. At that time the officer called out to dispatch for a possible disabled vehicle. He then got out of his patrol car and approached the defendant's vehicle from the driver's side.The officer used his flashlight to illuminate the inside of the truck. He observed keys in the ignition, that the area of engine was hot and the driver was slumped over and sleeping in the driver's seat. As a result, Officer Miller tapped on the driver's side window for a few minutes making several attempts to wake up the driver. Eventually the driver did wake up, but it took about thirty seconds for the driver to orientate himself. At that point the defendant was asked to produce his license and identification, which he did. However, the officer testified that the driver did exhibit difficulty in producing same. The defendant indicated that he was driving home and that he was driving to East Webster from Webster. The officer observed various indicia of intoxication, to wit: bloodshot, watery eyes, dilated eyes, slurred speech and a strong odor of alcoholic beverages emanating from the vehicle. At that point the officer directed the defendant to exit the truck. The defendant refused to do so two times and demanded that the officer return his license. Upon the third request the defendant exited the truck, but hung on the driver's door while doing so. The officer patted down the defendant for weapons. In so doing the officer felt a metallic object in the defendant's right pants pocket. A metallic vaporizer with a glass cartridge attached with a yellowish wax like substance was found and removed from the defendant's pocket by the officer. Soon thereafter the defendant admitted that the substance was going to test positive for concentrated cannabis. He also admitted that he smoked it three hours prior to leaving his house. The defendant denied any consumption of alcohol or taking any drugs. The officer then permitted the defendant to sit on the front bumper of his patrol car due to the difficulty the defendant was having walking and standing. The officer then proceeded to have the defendant complete some roadside field sobriety tests. The first test was the horizontal gaze nystagmus, wherein the defendant was said to have displayed six of the six clues in both eyes, but was negative for vertical nystagmus. The defendant was unable to complete the walk and turn test. In fact the defendant fell backward onto the police care three times during the initial start of said test. He then reportedly refused to complete any further roadside tests. The defendant was then arrested for the charges herein. The defendant agreed to perform the breath test as set out in VTL § 1194 (1) (b). The officer testified that the said test was positive for the presence of alcohol. The defendant was then transported to the Webster Police Department, where he was asked to take the chemical breath test. As previously indicated, the defendant refused to submit to the chemical breath test. Based on the condition of the defendant the police made a mental health arrest. Whereupon the defendant was transported to and subsequently released to Rochester General Hospital after he was provided with an appearance ticket relative to the charges set out above.

Issues Presented. Was the officer authorized to approach the defendant's parked vehicle, whose engine was running with its exterior lights on?Did the officer have authority to direct the defendant to exit his vehicle?Was the officer authorized to pat down the defendant and to remove the contents of his pockets?Was there probable cause to arrest the defendant?

Legal Analysis.

Approach of the Vehicle. "An officer may approach a parked car for an objective, credible reason, not necessarily indicative of criminality (see People v. Harrison, 57 NY2d 470, 475—476, 457 N.Y.S.2d 199, 443 N.E.2d 447; People v. Karagoz, 143 AD3d 912, 913, 39 N.Y.S.3d 217)." (People v. Eugenio, 185 AD3d 1050, 128 N.Y.S.3d 233,235 [2nd Dept. 2020]). In this case the officer observed the parked vehicle on the side of the road with its motor running for about five minutes. The officer could not observe any movement from inside of the truck. As a result, he pulled up behind said truck. At that time he called dispatch to report a possible disabled vehicle. Upon doing so he exited his patrol car and approached the drivers side window, where he observed the driver to be slumped over and asleep. Under these circumstances Officer Miller had an objective and credible reason to approach the driver and inquire of him if there was a problem, such as medical or mechanical.

"The approach of occupants of a stopped or parked vehicle to request information is analyzed under the first tier of the De Bour hierarchy (see, People v. De Bour, 40 NY2d 210, 222—223, 386 N.Y.S.2d 375, 352 N.E.2d 562) and need only be justified by an 'articulable basis'... All that is required is that the intrusion be 'predicated on more than a hunch, whim, caprice or idle curiosity' (People v. Ocasio, supra, at 985, 629 N.Y.S.2d 161, 652 N.E.2d 907, citing People v. De Bour, supra, at 217, 386 N.Y.S.2d 375, 352 N.E.2d 562)." (People v. Grady, 272 AD2d 952, 708 N.Y.S.2d 765 [2000])

Directing the Defendant to Exit His Vehicle. In an effort to get the driver's attention he tapped on the window a number of times, whereupon the driver eventually woke up. The driver did not immediately respond, but took about thirty seconds before he rolled down the window to speak to Officer Miller. The officer did not immediately order the defendant from the vehicle. Instead, the officer inquired of the driver as to what he was doing. The individual seemed to be confused indicating that he was driving to home to "East Webster" from Webster.[FN1] In addition, the driver displayed various indicia of intoxication as previously indicated. It was not until then that the officer ordered the defendant out of the truck.

The facts in People v. Eugenio, 185 AD3d 1050, 128 N.Y.S.3d 233,235 [2nd Dept. 2020] are remarkably similar to the case herein. The court stated as follows:

"At a suppression hearing, a police officer testified that, while on patrol on November 12, 2017, he observed an individual who seemed to be passed out behind the wheel of a parked automobile. The officer approached the driver's side of the vehicle, observed the defendant hunched toward the steering wheel, and noticed that the car was running. The officer repeatedly knocked on the window of the vehicle to wake the defendant, who awoke in under one minute. The officer then asked the defendant to open the door and exit the vehicle. After the defendant exited the vehicle, the officer observed a plastic cup near the center console containing liquid and a bottle of scotch whiskey in the back seat. [*3]Moreover, the defendant exhibited several indicia of intoxication and told the officer that he had consumed two 24—ounce beers, leading the officer to place him under arrest."[FN2]

Nevertheless, the Appellate Division affirmed the trial court's ruling that suppressed both the physical evidence and statements made by the defendant.[FN3] In holding that the officer did not have the authority to order the defendant out of the vehicle the Court of Appeals stated as follows: "Under the circumstances present in this matter, the fact that the defendant was sleeping in a parked vehicle with the engine running and was awakened by the officer knocking on the window gave the officer the right to request information from the defendant (see People v. Ocasio 85 NY2d at 985, 629 N.Y.S.2d 161; People v. Hollman, 79 NY2d at 189—190, 581 N.Y.S.2d 619). However, it did not, without more, provide the officer with reasonable suspicion to restrain the defendant by directing him to exit the vehicle (see People v. Morrison, 161 AD2d 608, 609, 555 N.Y.S.2d 183; People v. Larkin, 62 Misc 3d at 66—67, 90 N.Y.S.3d 814; cf. People v. Ocasio, 85 NY2d at 985, 629 N.Y.S.2d 161)."[FN4]

The difference in this case is that Officer Miller did not immediately order the defendant to exit his truck. Instead, he engaged in an investigation of the facts and circumstances before him. That investigation presented him with reasonable "grounds to suspect the occupant of criminality"[FN5] , to wit: being an intoxicated driver. Thus the officer had reasonable cause to direct the defendant herein to vacate his truck.

Pat Down and Search of the Defendant. This issue is complicated by the decision of the Court of Appeals in People v. Reid 24 NY3d 615, 2 N.Y.S.3d 409 [2014]. In that case the defendant was stopped by the police for unsafe lane changes and failure to signal.[FN6]

Upon approaching the car after the stop the officer observed various indicia of intoxication.[FN7] It was uncontested that the officer had probable cause to arrest the defendant for driving while intoxicated.[FN8] "[The officer] asked defendant to step out of the car and patted him down. In the course of doing so, he found a switchblade knife in defendant's pocket.[FN9] Defendant [*4]was then arrested."[FN10] At the suppression hearing the arresting officer testified that he did not intend to arrest the defendant until he found the switch blade.[FN11] The trial court denied a motion to suppress the said weapon.[FN12] "The Appellate Division affirmed, holding that so long as probable cause to arrest defendant for driving while intoxicated existed, it was irrelevant whether [the officer] subjectively intended to make such an arrest (People v. Reid, 104 AD3d 58, 957 N.Y.S.2d 332 [1st Dept.2013] )."[FN13] The Court of Appeals disagreed reversing the order of the Appellate Division and suppressed the evidence obtained in the search of the defendant.[FN14] The court based its decision on the fact that the officer did not intend to arrest the defendant for driving while intoxicated, but only made the arrest as a result finding the knife on the defendant's person.[FN15] As the court stated "The problem is that, as [the officer] testified, but for the search there would have been no arrest at all."[FN16] The court believed since that was the case, there was not a lawful search incident to an arrest, but an arrest incident to a search.[FN17]

The United States Court of Appeals in United States v. Diaz. 954 F.3d 197 [2nd Cir 2016] criticized and failed to follow the Reid decision. In the Reid case the defendant asserted that "An officer may conduct a search incident to an arrest only if she has already made an arrest or an arrest is impending."[FN18] In rejecting that premise the court stated that

"We think his rationale is mistaken for two reasons. First, it ignores that an officer who stops a person to issue a citation faces an evolving situation. As events develop and new information becomes available—the presence of a gun, for example—a police officer is entitled to change her course of action. Cf. Graham v. Connor, 490 U.S. 386, 396—97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) ('The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments[ ]in circumstances that are tense, uncertain, and rapidly evolving....'). Second, it appears to require a court to consider the officer's intent at the time of arrest, an inquiry at odds with the Supreme Court's 'repeated[ ] reject[ion of] a subjective approach' in the Fourth Amendment context. Fernandez v. California, ——— U.S. ———&mdash, 134 S. Ct. 1126, [*5]1134, 188 L. Ed. 2d 25 (2014) (internal quotation marks omitted); see also Kentucky v. King, 563 U.S. 452, 464, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011) ('[W]e have never held, outside limited contexts such as an inventory search or administrative inspection ..., that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment.' (ellipsis in original) (internal quotation marks omitted))."[FN19]

The federal court rejected the case by case approach of the Reid decision that would require a subjective interpretation of the officer's intent at the time of the stop. Furthermore the court held that

"The Supreme Court has long recognized that in the Fourth Amendment context, there is '[a] need for [ ] bright-line constitutional standard[s],' Virginia v. Moore, 553 U.S. 164, 175, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008), which advance the 'essential interest in readily administrable rules,' Atwater v. City of Lago Vista, 532 U.S. 318, 347, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001). This interest undergirds the well-settled principle that searches incident to arrest are categorically justified and do not require 'case-by-case adjudication' of their safety and evidentiary bases. United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973)."[FN20]

The decision of the United States Court of Appeals is not binding on this court. (See People v. Johnson 65 Misc 3d 1024,1031, 110 N.Y.S.3d 283,289 [2019]). Nevertheless, the court's reasoning in Diaz is both persuasive and instructive. In the instant case there is no evidence that Officer Miller only arrested the defendant because of the results of the search of the defendant's pockets. It would appear that at the time in question the officer was well along in the investigation of a common law driving while intoxicated case, and that an arrest was probably going to happen based on that investigation. In addition that arrest was going to result in the transportation of the defendant to the Webster Police Department for the purpose, among other things, to see if the defendant would submit to a chemical breath test. Therefore the search, by all accounts, was incident to the arrest for driving while intoxicated, which would make the search of the defendant's person permissible.

Probable Cause to Arrest."The CPL uses the phrase 'reasonable cause' in lieu of the



phrase 'probable cause'. " However, it is well settled that '[r]easonable cause means probable

cause.'[FN21] Nevertheless, the standard required by CPL § 70.10 (2) is as follows: "Reasonable cause to believe that a person has committed an offense" exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."

Based on the physical indicia of intoxication observed by the officer while the defendant was in [*6]and then out of his vehicle, plus the defendant's performance on the various roadside tests, the statements made by the defendant, and the observation of the contraband seized, the officer had reasonable cause to arrest the defendant for the charges of intoxicated (VTL § 1192 [3]), driving while ability impaired by drugs (VTL § 1192 [4], driving while ability impaired by the combined influence of drugs of alcohol and any drug or drugs (VTL 1192 § [4-a]).

Conclusion.

The officer was authorized to approach the defendant's truck and to enquire of the defendant as to whether he was in any difficulty. Based on the officer's observation of the defendant and his interaction with him, the officer was authorized to order the defendant from his vehicle. The pat down and search of the defendant's person was authorized because it was a search incident to an valid arrest. Finally, based on the indicia of intoxication exhibited by the defendant and his performance on the field sobriety tests, the officer had probable cause to arrest the defendant for driving while intoxicated. The remaining issues raised by the defense are either without merit or are reserved on until the time of trial. Thus the motion to dismiss the charges herein for a lack of probable cause to arrest the defendant on the charges herein is hereby denied. This constitutes the decision and order of this court.



Dated: October 26, 2020

__________________________________



Hon. Thomas J. DiSalvoWebster Town Justice Footnotes

Footnote 1:The court takes judicial notice of the fact that there is no such town, village or locality know as "East Webster".

Footnote 2:Id. at 234,235.

Footnote 3:Id at 235.

Footnote 4:Id.

Footnote 5:Id. 1051, 235

Footnote 6:Id. 617,410.

Footnote 7:Id.

Footnote 8:Id at 618,410.

Footnote 9:Id.

Footnote 10:Id.

Footnote 11:Id.

Footnote 12:Id.

Footnote 13:Id.

Footnote 14:Id. at 620,412.

Footnote 15:Id at 619, 411

Footnote 16:Id. at 619, 411.

Footnote 17:Id. at 620, 412.

Footnote 18:Diaz at 207.

Footnote 19:Id. at 207-208.

Footnote 20:Id. at 208.

Footnote 21:(Gerstenzang, Handling the DWI Case in New York § 1:31 at 47 [2018-2019 ed.])