People v Ohlsen

[*1] People v Ohlsen 2021 NY Slip Op 50655(U) Decided on July 12, 2021 County Court, Essex County Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2021
County Court, Essex County

The People of the State of New York, Plaintiff,

against

Christopher S. Ohlsen, Defendant.



Case No. CR20-089



Kristy L. Sprague, Esq., Essex County District Attorney, (Kenneth P. Borden, Jr., Esq., of counsel), Elizabethtown, New York.

Ruchelman & Cruikshank, P.C. (Allan B. Cruikshank, Jr., Esq., of counsel), Plattsburgh, New York, for the defendant.
Richard B. Meyer, J.

Motion by the defendant to suppress evidence on the grounds that the forcible stop of his motor vehicle, which led to the discovery of 11.72 pounds of marijuana, was illegal. The issue is raised and comes to this Court under the most unusual of circumstances.

The defendant is charged by a two-count indictment with criminal possession of marijuana in the first degree (Penal Law §221.30), a class C felony, and moving from a lane unsafely (VTL §1128[a]), a traffic infraction. The charges arise out of the defendant's alleged possession of 11.72 pounds of marijuana which was discovered in his vehicle after he was stopped by now-retired New York State Trooper Douglas T. Hoffman (Hoffman) for purportedly twice operating his vehicle to the right of the fog line on New York state route 73 in the town of North Elba, Essex County, New York on October 22, 2019.

The indictment was filed with the Clerk of this Court on August 5, 2020, and the papers from the local criminal court were received by the Clerk on August 23, 2020. The defendant was arraigned on the indictment at a virtual appearance on September 1, 2020. The People filed a certificate of compliance with their automatic discovery obligations on September 14, 2020, representing, among other things, that the transcript of the grand jury proceedings had been [*2]furnished to defense counsel [FN1] . No pretrial motions were filed by the defendant within the forty-five-day period provided in CPL 255.20(1). By an order dated June 14, 2021, the trial of this criminal action was scheduled to commence on July 6, 2021, as a backup to another criminal trial. On June 16, 2021, counsel were notified that this action would proceed to trial on the scheduled date.

The defendant's counsel applied for an order to show cause on June 29, 2021, seeking an Ingle hearing (People v. Ingle, 36 NY2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 [1975]) to determine whether the defendant's vehicle was lawfully stopped. Specifically, the defendant asserted that there was no Vehicle and Traffic Law violation justifying the stop of his vehicle and that Hoffman's grand jury testimony was insufficient to establish probable cause to believe that a violation of Vehicle and Traffic Law §1128(a) had in fact occurred to justify the stop. This Court then reviewed the grand jury transcript and issued the order to show cause. The People opposed the motion. The motion was granted, for a number of reasons. First, review of the grand jury minutes in light of People v. Davis, 58 AD3d 896, 870 N.Y.S.2d 802 left this Court concerned about the legal sufficiency of the evidence and the instructions before that body as well as the legality of the forced stop of the defendant's automobile, and that defense counsel's failure to file a pretrial motion raising those issues may constitute ineffective assistance of counsel to such an extent that reversal of any conviction on appeal was possible. Second, the convenience of over one hundred twenty-five county residents summoned as jurors in this case would be adversely affected if required to appear for trial on July 6, 2021 and either the case was to be sent back for trial after appeal or a trial order of dismissal was issued at the close of the People's case on the grounds of legally insufficient evidence to establish that the defendant violated VTL §1128(a). Moreover, had the case proceeded to trial the defendant could have sought an immediate hearing outside of the presence of the jury on these issues (see CPL §710.60[5]) which would have unnecessarily inconvenienced the sworn jury. A suppression hearing was thus scheduled for July 1, 2021 at 3:00 p.m. in order to resolve the issue prior to requiring those citizens to appear for jury selection the following week. The People filed a motion to reconsider that day, returnable at the time of the hearing.

On July 1, 2021, counsel and the defendant personally appeared for the Ingle hearing. Although the assistant district attorney advised the court that Hoffman was in the courthouse hallway, he did not want Hoffman to testify and afford defense counsel an opportunity to cross-examine. Instead, the assistant district attorney requested that the Court determine the legality of the stop based solely upon Hoffman's grand jury testimony. The Court inquired whether the People wished instead to have the trial adjourned and allow the defendant the opportunity to file a pretrial motion challenging the grand jury proceedings, which was declined. The Court also afforded the People the opportunity to have Hoffman testify that day in support of their burden of proof for an Ingle hearing, and that was refused with the People maintaining their position that the issue of the legality of the automobile stop could and should be decided based upon the grand jury testimony alone. The defendant also agreed to that procedure. Decision on the issue was reserved, the trial was adjourned, and counsel were allowed additional time to file any legal citations in support of their respective positions.

The Court has considered the following papers on the motions: order to show cause dated June 29, 2021 affirmation of Allan B. Cruikshank, Jr., Esq. dated June 29, 2021, and affidavit of Christopher Ohlsen sworn to June 29, 2021 with exhibit A thereto, all in support of the motion; affirmation of Kenneth P. Borden, Jr. Esq. dated June 30, 2021 with copies of a compliance report showing defense counsel's receipt of the grand jury transcript on September 14, 2020 and the transcript of the virtual pretrial conference held on March 29, 2021, and notice of motion to reconsider dated July 1, 2021 with affirmation of Kenneth P. Borden, Jr., Esq. dated July 1, 2021 with a complete copy of Hoffman's grand jury testimony. The Court has also considered the case citations relied upon by counsel in both their respective motion papers and in the defendant's memorandum of law filed on July 7, 2021.

A.

Hoffman testified before the grand jury that at 9:36 p.m. on October 22, 2019, he was in a marked State Police Tahoe vehicle "sitting in the parking lot of . . . the Olympic ski jumps" in the town of North Elba, Essex County, New York, observing traffic [FN2] . He had been previously notified by a State Police narcotics investigator that a gray Ford Fusion vehicle "was possibly transporting narcotics south"[FN3] . Hoffman observed a vehicle matching that description proceeding south on New York State Route 73, a two-lane highway [FN4] and he drove out of the parking lot to follow it [FN5] . Within a distance of "[p]robably less than three miles"[FN6] , Hoffman "observed the vehicle twice cross over the - - the white line or the fog line"[FN7] on the right side of the road [FN8] . The first instance of the defendant's vehicle crossing the fog line occurred on a "straight away"[FN9] where the roadway "was level"[FN10] and he observed "[b]oth of the passenger side [*3]wheels"[FN11] completely cross the white line for "[j]ust a few seconds"[FN12] as "a vehicle traveling northbound [ ] passed our location"[FN13] . Hoffman testified that the maneuver of the defendant's vehicle did not cause any danger to the oncoming car [FN14] . The second instance occurred "proceeding down a hill and as you make the right-hand curve you begin up a hill heading back up"[FN15] . "There's a guide wire that travels around that corner [FN16] separating "a very narrow shoulder"[FN17] from "a fairly steep embankment"[FN18] , and the defendant's vehicle came "within a few feet"[FN19] of the guide wire [FN20] . Hoffman contacted another trooper, "Trooper Brown, who was also working at that time and I advised her that I would be stopping a vehicle in my location"[FN21] .

After the defendant's vehicle was stopped and then moved to a safe location off of the highway, Hoffman asked the defendant "if he was having a hard time seeing as the result of it being dark and - - the rain"[FN22] , to which the defendant replied "that the road was wet and that he had probably hydroplaned as a result of the - - of the wet roads [FN23] . During the course of Hoffman's conversation with the defendant, who was still in the driver's seat of the car, about where the defendant was going and where he had been, Hoffman testified that the defendant appeared nervous because the defendant "wouldn't look at me when he was answering the questions - - he kept one hand on the steering wheel and he seemed to be tense the way that he was answering my questions"[FN24] . Hoffman told the grand jury that "[w]hile I was interviewing [*4]Mr. Ohlsen I detected an odor of burnt marijuana emanating from inside the vehicle"[FN25] . Hoffman returned to his patrol vehicle "to run a check on the driver's license and registration"[FN26] , at which time Trooper Brown (Brown) arrived [FN27] . Brown exited her vehicle, spoke with Hoffman, who told her that he "detected an odor of marijuana from inside the vehicle and she - - at that point in time, she approached Mr. Ohlsen to have a conversation with him"[FN28] . Hoffman saw Brown "have Mr. Ohlsen step out of the vehicle and she escorted him to the front of the - - of his vehicle"[FN29] . Hoffman returned to the defendant's car, Brown "indicated to [Hoffman] that she also detected the odor of marijuana"[FN30] , and Hoffman "had a conversation with him again in reference to the fact that we would be searching the vehicle and at that point in time I gave him the opportunity to tell us if there was anything in the vehicle"[FN31] The defendant admitted that there "was a smoking device between the driver's seat and the center console that contained marijuana"[FN32] . Hoffman told the grand jury that "as part of normal police procedure [he was] able to search a motor vehicle after having detected the odor of marijuana"[FN33] . Hoffman searched the inside of the defendant's car, found "the smoking device . . .between the driver's seat and center console"[FN34] , and then proceeded to search not only the rest of the vehicle interior including the rear seat where he "observed a strong odor of what I would describe as raw marijuana"[FN35] . Although the defendant questioned Hoffman about his conducting a search of the vehicle, Hoffman told the defendant that he could do so because "the odor of marijuana [gave him] probable cause to search the vehicle"[FN36] . Hoffman then opened the trunk where he saw a gray laundry bag and a blue duffle bag, and proceeded to open both bags finding heat-wrapped [*5]marijuana [FN37] . Brown placed the defendant under arrest [FN38] .

B.

On a motion to suppress evidence (CPL §710.60), the prosecution has the initial burden of going forward to establish the legality of the actions of law enforcement (People v. Wise, 46 NY2d 321, 329, 413 N.Y.S.2d 334, 339, 385 N.E.2d 1262, 1267; People v. Baldwin, 25 NY2d 66, 70-71, 302 N.Y.S.2d 571, 573-575, 250 N.E.2d 62, 63-64; People v. Malinsky, 15 NY2d 86, 91, 262 N.Y.S.2d 65, 70, 209 N.E.2d 694, 697). Once the prosecution has made the requisite showing, the burden of persuasion shifts to the defendant to establish that the statement or evidence was unlawfully obtained (People v. Di Stefano, 38 NY2d 640, 382 N.Y.S.2d 5, 345 N.E.2d 548; People v. Love, 85 AD2d 799, 445 N.Y.S.2d 607, affirmed 57 NY2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486).

Where the evidence to be suppressed consists of statements attributed to the defendant, "it is, of course, the People's burden to establish, beyond a reasonable doubt, that such statements were voluntarily made (People v. Anderson, 42 NY2d 35, 396 N.Y.S.2d 625, 364 N.E.2d 1318)" (People v Witherspoon, 66 NY2d 973, 498 N.Y.S.2d 789, 489 N.E.2d 758 [1985]). In all other cases the standard of proof is clear and convincing evidence (see, e.g., People v. Rahming, 26 NY2d 411, 414, 311 N.Y.S.2d 292, 294, 259 N.E.2d 727, 729 [suggestive identification]; People v. Pobliner, 32 NY2d 356, 367, 345 N.Y.S.2d 482, 491, 298 N.E.2d 637, 644 [electronic surveillance]; People v. Zimmerman, 101 AD2d 294, 475 N.Y.S.2d 127 [consent to search]). "[C]lear and convincing evidence means evidence that is neither equivocal nor open to opposing presumptions (Backer Mgt. Corp. v. Acme Quilting, 46 NY2d 211, 220, 413 N.Y.S.2d 135, 385 N.E.2d 1062 (1978); and, Fisch, New York Evidence (2d ed. 1977), §1090)." (Solomon v. State, 146 AD2d 439, 440, 541 N.Y.S.2d 384, 384-385 [1st Dept., 1989]). "The clear and convincing evidence standard . . . 'is a higher, more demanding standard than the preponderance standard . . .' (Rossi v. Hartford Fire Ins. Co., 103 AD2d 771, 477 N.Y.S.2d 402 (1984)) * * * [which] serves to 'impress the factfinder with the importance of the decision' (Addington v. Texas, 441 U.S. 418, 427 [99 S. Ct. 1804, 1810, 60 L. Ed. 2d 323 (1979) ]. (Matter of Storar, 52 NY2d 363, 379, 438 N.Y.S.2d 266, 420 N.E.2d 64 (1981))." (id.).

"Under the settled law of New York, an automobile stop 'is a seizure implicating constitutional limitations' (People v. Spencer, 84 NY2d 749, 752, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995]).

"Automobile stops are lawful only when 'based on probable cause that a driver has committed a traffic violation' (People v. Robinson, 97 NY2d 341, 349—350, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001]); when based on a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime (Spencer, 84 NY2d at 752-753, 622 N.Y.S.2d 483, 646 N.E.2d 785); or, 'when conducted [*6]pursuant to 'nonarbitrary, nondiscriminatory, uniform' highway traffic procedures' (People v. Sobotker, 43 NY2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218 [1978])." (People v Hinshaw, 35 NY3d 427, 430, 132 N.Y.S.3d 90, 92, 156 N.E.3d 812, 814 [2020]); see, also Whren v United States, 517 U.S. 806, 810, 116 S.Ct 1769, 1772, 135 L. Ed. 2d 89 [1996]).

Conduct which is equivocal and suspicious is insufficient to establish probable cause (People v. Davis, 36 NY2d 280, 367 N.Y.S.2d 256, 326 N.E.2d 818 [1975]). "We have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause (People v. Davis, 36 NY2d 280, 367 N.Y.S.2d 256, 326 N.E.2d 818; People v. Oden, 36 NY2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188; People v. Russell, 34 NY2d 261, 357 N.Y.S.2d 415, 313 N.E.2d 732; People v. Corrado, 22 NY2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526). It is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand. (Compare People v. Martinez, 37 NY2d 662, 376 N.Y.S.2d 469, 339 N.E.2d 162, and People v. Allende, 39 NY2d 474, 384 N.Y.S.2d 416, 348 N.E.2d 891, with People v. Singleteary, 35 NY2d 528, 364 N.Y.S.2d 435, 324 N.E.2d 103, and People v. Green, 35 NY2d 193, 360 N.Y.S.2d 243, 318 N.E.2d 464.)" People v De Bour, 40 NY2d 210, 216, 386 N.Y.S.2d 375, 380, 352 N.E.2d 562, 567 [1976]).

"[P]robable cause is not decided by the 'officer's subjective evaluation' but by an 'objective judicial determination of the facts in existence and known to the officer' at the time arrest (People v. Robinson, 271 AD2d 17, 24, 711 N.Y.S.2d 384 [1st Dept. 2000] [internal quotation marks omitted], affd 97 NY2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001])" (People v Eury, 172 AD3d 401, 401-402, 98 N.Y.S.3d 189, 190, [1st Dept 2019], lv to appeal denied, 33 NY3d 1104, 106 N.Y.S.3d 683, 130 N.E.3d 1293 [2019]). Thus, [a]n officer who has probable cause to believe that a driver has committed a traffic violation may lawfully stop the vehicle even if the infraction is not the officer's primary motivation for the stop (see People v. Robinson, 97 NY2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001]; People v. Viele, 90 AD3d 1238, 1239, 935 N.Y.S.2d 171 [2011], lv. denied 19 NY3d 868, 947 N.Y.S.2d 417, 970 N.E.2d 440 [2012])." (People v McLean, 99 AD3d 1111, 1111-12, 952 N.Y.S.2d 672, 674 [3d Dept., 2012]).

Here, the only predicate for the stop of the defendant's vehicle is Hoffman's testimony that the defendant committed a violation of Vehicle and Traffic Law §1128(a) by twice operating his vehicle over the fog line. At no time has it been claimed by the People that Hoffman had a reasonable suspicion that the defendant "[was] committing, has committed, or [was] about to commit either (a) a felony or (b) a misdemeanor" (CPL §140.50[1]). Hoffman's testimony, when accepted as true and viewed objectively, simply does not constitute clear and convincing evidence of a traffic violation or probable cause to believe that such a violation had occurred. The two instances, as described by Hoffman to the grand jury, are susceptible of innocuous as well as culpable interpretations and do not constitute clear and convincing evidence that the stop of the defendant's vehicle was lawful. There was no evidence before the grand jury that the defendant's operation of his vehicle immediately before, during, or immediately after either instance of crossing the fog line was in any way unsafe or presented a hazard to his own vehicle or others. Indeed, the statute which the People claim the defendant violated specifically allows a vehicle to be lawfully moved from entirely within a single lane when "the driver has first ascertained that such movement can be made with safety" (VTL §1128[a]). Thus, there [*7]must be some articulable facts indicating that the operation of a vehicle over the fog line was unsafe or presented some risk to the safety of those in that vehicle or to other users of the highways, such as, "for example, defendant was weaving, driving erratically or even that he drove onto the shoulder of the road (see People v. Parris, 26 AD3d 393, 394, 809 N.Y.S.2d 176 [2006], lv. denied 6 NY3d 851, 816 N.Y.S.2d 757, 849 N.E.2d 980 [2006])." (People v Davis, 58 AD3d 896, 898, 870 N.Y.S.2d 602, 603 [3d Dept., 2009]).

The People's reliance upon the defendant's post-stop statement that he "may have hydroplaned" cannot be considered in determining whether Hoffman's decision to stop the vehicle was founded upon probable cause as Hoffman did not testify that he observed the vehicle hydroplane prior to making the stop. Only the facts known to Hoffman at the time he initiated the stop are relevant or material to a determination of probable cause. Similarly unavailing are the People's citations to People v Carota, 93 AD3d 1072, 941 N.Y.S.2d 302 (3d Dept., 2012), People v Irizarry, 282 AD2d 483, 730 N.Y.S.2d 111 (2d Dept., 2001), and Matter of Miranda v Adduci, 172 AD2d 526, 567 N.Y.S.2d 869 (2d Dept., 1991). In Carota, a police officer observed the "defendant fail to stop at a stop sign, make a right-hand turn without first signaling and then proceed to drive with his vehicle straddling two lanes at once., while in Irazzary "a New York State Trooper observed the defendant's vehicle straddling two driving lanes", and in Miranda there was "testimony of the police officer that he observed the petitioner making an unsafe lane change on his motorcycle". None of those circumstances exist in this case.

An objective view of the facts in this case simply does not rise to the level of probable cause to believe that the defendant violated Vehicle and Traffic Law §1128(a), and therefore the forcible stop of the defendant's vehicle was unlawful and all evidence obtained as a result thereof is inadmissible at trial. Since the remaining evidence is legally insufficient to prove each and every element of the offenses charged in the indictment, the indictment and both counts therein are dismissed.

ENTER

__________________________________

Hon. Richard B. Meyer, J.C.C. Footnotes

Footnote 1:The grand jury minutes were not filed with the Clerk of this Court until June 25, 2021.

Footnote 2:GJ Transcript page 17, line 18 to page 18, line 16.

Footnote 3:GJ Transcript page 18 line 21 to page 19, line 11.

Footnote 4:GJ Transcript page 22, lines 8-12.

Footnote 5:GJ Transcript page 20, lines 4-13.

Footnote 6:GJ Transcript page 21, line 3.

Footnote 7:GJ Transcript page 21, lines 6-7.

Footnote 8:GJ Transcript page 21, lines 8-10.

Footnote 9:GJ Transcript page 21, lines 11-16 and line 22.

Footnote 10:GJ Transcript page 21, line 4.

Footnote 11:GJ Transcript page 22, lines 13-17.

Footnote 12:GJ Transcript page 22, lines 18-21

Footnote 13:GJ Transcript page 23, lines 15-20.

Footnote 14:GJ Transcript page 24, lines 5-8.

Footnote 15:GJ Transcript page 22, lines 4-7.

Footnote 16:GJ Transcript page 23, lines 5-6.

Footnote 17:GJ Transcript page 23, lines 13-14.

Footnote 18:GJ Transcript page 23, lines 9-10.

Footnote 19:GJ Transcript page 23, line 13.

Footnote 20:GJ Transcript page 23, lines 11-13.

Footnote 21:GJ Transcript page 30, lines 16-18.

Footnote 22:GJ Transcript page 28, lines 11-15.

Footnote 23:GJ Transcript page 28, lines 16-18.

Footnote 24:GJ Transcript page 29, lines 5-13.

Footnote 25:GJ Transcript page 29, lines 20-22.

Footnote 26:GJ Transcript page 30, lines 4-6.

Footnote 27:GJ Transcript page 30, line 22 to page 31, line 1.

Footnote 28:GJ Transcript page 31, lines 13-16.

Footnote 29:GJ Transcript page 32, lines 3-5.

Footnote 30:GJ Transcript page 33, lines 3-5.

Footnote 31:GJ Transcript page 33, lines 8-12.

Footnote 32:GJ Transcript page 33, lines 14-15.

Footnote 33:GJ Transcript page 33, lines 16-19.

Footnote 34:GJ Transcript page 34, lines 3-6.

Footnote 35:GJ Transcript page 35, lines 6-13.

Footnote 36:GJ Transcript page 36, lines 5-10.

Footnote 37:GJ Transcript page 36, line 15 to page 37, line 2; page 37, line 12 to page 39, line 14.

Footnote 38:GJ Transcript page 39, lines 16-19.