People v. Anderson

DECISION AND ORDER Defendant is charged with operating or driving a motor vehicle while intoxicated, per se [Vehicle and Traffic Law §1192(2)]; operating or driving a motor vehicle while intoxicated [VTL §1192(3)]; operating or driving a motor vehicle while impaired [VTL §1192(1)].On September 24, 2018, defendant filed an omnibus motion to suppress evidence, or in the alternative, moved for a suppression hearing. The People opposed. On November 14, 2018, the Court ordered a combined Ingle/Dunaway/Huntley/Atkins hearing. The Court denied defendant’s request for a Mapp hearing, as no physical property was recovered from defendant.On May 3rd and May 6th, 2019, a combined Ingle/Dunaway/Huntley/Atkins hearing was held. The People presented testimony from one witness, Police Officer John Manzo (40th Precinct, Shield No. 16260) The defense did not call any witnesses.Police Officer Manzo’s testimony and evidence presented at the hearing established defendant’s vehicle was stopped for disobeying a traffic device [VTL §1110(a)] and driving the wrong way on a roadway designated for one way traffic [VTL §1127(a)].Police Officer Manzo’s observations of defendant operating or driving a motor vehicle are not suppressed. Additionally, Police Officer Manzo’s observations of Mr. Anderson displaying indicia of intoxication are not suppressed.Furthermore, the evidence adduced at the hearing demonstrates defendant was in police custody at the scene of the stop. Defendant’s statements, “I HAD ONE DRINK ABOUT TWO HOURS AGO” and “WHAT IF I HAD TWO DRINKS THEN WHAT” are suppressed, as defendant’s statements were the result of a custodial interrogation.Defendant’s statements at the 45th Precinct were given voluntarily after receiving warnings pursuant to Miranda v. Arizona. Defendant’s statements at the 45th Precinct are not suppressed.On June 27, 2018, the People conceded that the results of defendant’s chemical breath test administered at the 45th Precinct should be suppressed. Accordingly, defendant’s blood alcohol content reading of .10 percent and the video recording of the same are suppressed, pursuant to People v. Odum, 31 NY3d 344 (2018).Findings of FactPolice Officer John Manzo has been employed by the New York City Police Department for approximately three and a half years. T1, Pg. 9:7-10. The officer testified that his duties as a police officer include routine patrol, answering radio runs, filing reports, and making arrests. T1, Pg. 9:16-17. The officer testified further that he has conducted forty-seven arrests and assisted in approximately two hundred arrests. T1, Pg. 9:20-23.Police Officer Manzo is trained to recognize displayed signs of intoxication. T1, Pg. 10:3-11. The signs include slurred speech, unable to maintain a vehicle, driving unsafely, disheveled clothing, watery bloodshot eyes, and having the appearance or smell of alcohol. T1, Pg. 10:13-20. The officer also testified, he has observed individuals consume alcohol and not become intoxicated. T1, Pg. 10:21-23.On September 9, 2018, Police Officer Manzo was on routine patrol within the confines of the 40th Precinct. T1, Pg. 11:6-14. He testified that his tour of duty was from 11:15 pm to 7:50 am. T1, Pg. 11:4-5. The officer testified he was in uniform and working with a partner, Police Officer Fresia Maciaburgos. T1, Pg. 11:15-23. The officers were sitting in a marked RMP. T1, Pg. 11:15-23. The marked RMP was positioned at the northeast corner of Brook Ave and East 153rd facing westbound. T1, Pg. 12:5-8. The marked RMP was parked on the sidewalk with its front end facing westbound toward East 153rd Street. T1, Pg. 13:8-11. The People introduced a “Google” maps image of the area. T1, Pg. 13:12; Pg. 14:17.Police Officer Manzo testified, he was stationed at the aforementioned location to conduct a directive. T1, Pg. 13:3. The officer described a directive as an assignment wherein a marked RMP remains in a stationary position with the lights on. T1, Pg. 13:3-5. The goal of a directive is to establish the presence of law enforcement to deter crime. T1, Pg. 13:6.At approximately 5:02 am in the vicinity of Brook Avenue and East 156th street, Police Officer Manzo conducted a car stop. T1, Pg. 12:1-4.Police Officer Manzo testified, he observed a vehicle make a left turn on East 153rd Street, and it continued to travel northbound on Brook Avenue, a one way street designated for southbound traffic. T1, Pg. 17:1-5, 14. The officer testified that there are signs posted on Brook Avenue indicating it is a one way traffic street. T1, Pg. 17:4-5; Pg. 19:11-16. The People introduced a “Google” maps image of the intersection at East 153rd Street and Brook Avenue. T1, Pg. 18:20.The officer testified, he observed Mr. Anderson seated in the driver’s seat of the vehicle. T1, Pg. 19:21. The officer testified he was approximately three car lengths away from Mr. Anderson’s vehicle and the officer’s vision was unobstructed. T1, Pg. 21:17; T1, Pg. 22:2-5. The officer could not recall the exact weather conditions, but he testified that it was dark outside, yet the road was lit by street lights, and the road was wet. T1, Pg. 21:19-21.Police Officer Manzo testified, Mr. Anderson’s vehicle was stopped at East 156th Street. T1, Pg. 23:17. Police Officer Manzo exited the marked RMP and approached the driver’s side door of Mr. Anderson’s vehicle. T1, Pg. 23:20. Police Officer Maciaburgos was also present, and approached the passenger side door of the vehicle. T1, Pg. 24:1. In addition to Mr. Anderson, two females and one male were present inside the car. T1, Pg. 24:8-10. The officer testified the car engine was running and the keys were in ignition. T1, Pg. 24:11-16.Police Officer Manzo ordered Mr. Anderson to turn off the vehicle. T1, Pg. 24:21-23. Police Officer Manzo also ordered defendant to give the officer the keys. T1, Pg. 24:21-23. Mr. Anderson complied.The officer also requested Mr. Anderson produce a driver’s license and vehicle registration. T1, Pg. 24:25; Pg. 25:1-4. At the time, Mr. Anderson produced a United States passport. T1, Pg. 25:2-3. The officer testified, Mr. Anderson was unable to locate and produce the vehicle registration. T1, Pg. 25:3-4.Police Officer Manzo asked Mr. Anderson, “where are you coming from?”. T1, Pg. 25:5-6. Mr. Anderson stated that he was coming from “downtown”, specifically “Ruth’s Chris” Steak House. T1, Pg. 25.¹. Mr. Anderson stated he was celebrating the birthday of a female passenger seated in the front passenger seat. T1, Pg. 25:8-9. The officer testified, he explained to Mr. Anderson that Brook Avenue is a one way street. T1, Pg. 25:10-11. The officer testified, in sum and substance, Mr. Anderson stated he was unaware Brook Avenue was a one way street, as he is from Westchester County, and unfamiliar with the area. T1, Pg. 25:12. T1, Pg. 25:13.The officer testified, he began to observe Mr. Anderson’s appearance. T1, Pg. 25:14. The officer observed Mr. Anderson’s disheveled clothing, slurred speech, and smelled a strong odor of alcohol emanating from the vehicle. T1, Pg. 25:16-17. Police Officer Manzo testified, he asked Mr. Anderson, “have you had anything to drink tonight?”. T1, Pg. 25:20.Initially, Mr. Anderson stated “no”, but eventually stated to the officer that he consumed one drink two hours prior to being stopped. T1, Pg. 25:20-22. The officer testified further, Mr. Anderson’s speech was “very rambling, very quick pace”, and that Mr. Anderson could not properly answer questions. T1, Pg. 26:8-9. The officer also testified, the speed of Mr. Anderson’s voice fluctuated, and Mr. Anderson was unable to maintain a steady tone of conversation with the officer. T1, Pg. 26:10-11.Police Officer Manzo testified, he did not inform Mr. Anderson that he was under arrest at that time, nor did he place Mr. Anderson in handcuffs. T1, Pg. 26:15-17. The officer testified that he did not coerce nor threaten Mr. Anderson at any time. T1, Pg. 27:3-9.The People presented the body camera footage of the incident provided by Police Officer Manzo. T1, Pg. 29:7-11. The officer testified further that he explained to Mr. Anderson his desire for Mr. Anderson to exit the vehicle, so that another police officer could administer a portable breathalyzer test. T1, Pg. 28:1; Pg. 28:24-25.Throughout his interaction with Mr. Anderson, Police Officer Manzo repeatedly informed Mr. Anderson that his options were to either (1) take a portable breathalyzer test, to determine if Mr. Anderson was below or above the legal limit. If Mr. Anderson was below the legal limit, Police Officer Manzo informed Mr. Anderson that he would receive a summons, the instant matter would be prosecuted in traffic court, the vehicle would be parked, and Mr. Anderson could find another mode of transportation to get home; (2) if Mr. Anderson’s blood alcohol content was above the legal limit, then Mr. Anderson would be placed under arrest; or (3), if Mr. Anderson refused to take the portable breathalyzer test, he would be placed under arrest, and his license to drive would automatically be suspended for one year.²Police Office Manzo requested that his partner, Police Officer Maciaburgos, call Police Officer Marcus to the scene, so the officer could administer a portable breathalyzer test.³According to Police Officer Manzo, Mr. Anderson initially hesitated to step out of the car. T1, Pg. 28:3-4,12. At approximately 5:05-5:08 am, as Mr. Anderson began to exit the vehicle, the following exchange occurred between Mr. Anderson and Police Officer Manzo⁴:PO Manzo: “Are you willing to take it? No, you refuse? Then step out of the vehicle. Step to the back of the vehicle for me.”Mr. Anderson: “Yeah, and I don’t consent to no searches neither.”PO Manzo: “You don’t have to. The vehicle is being seized.”Mr. Anderson: “Seized by what?”PO Manzo: “Seized by me.”Mr. Anderson: “How?”PO Manzo: “Because you are under arrest. It is your vehicle correct, you’re driving it.”Eventually, Mr. Anderson exited the vehicle and walked to its rear. T1, Pg. 28:13-14. The officer testified that, when Mr. Anderson exited the car, the officer observed Mr. Anderson’s clothes to be disheveled, Mr. Anderson was unable to hold a proper conversation with the officer, and a strong smell of alcohol was present. T1, Pg. 29:7-11. Mr. Anderson was told to stand at the rear of the vehicle with his legs crossed.⁵After Police Officer Manzo notified Mr. Anderson he was under arrest, at approximately 5:10 am, Police Officer Maciaburgos asked defendant, “About how long ago did you have that one drink?”. Mr. Anderson responded, “About two hours ago.” At approximately, 5:13 am, Mr. Anderson asked the officers, “Say if I had two drinks, then what?”.Subsequently, additional officers arrived at the scene, including Police Officer Marcus who was present to administer a portable breathalyzer test.⁶ Police Officer Manzo stated to Mr. Anderson that he had “10 seconds” to decide whether or not he would take a portable breathalyzer test.⁷ Mr. Anderson remained silent, and Police Officer Manzo interpreted Mr. Anderson’s silence to be a refusal of the portable breathalyzer test. T1, Pg. 33:20-25; Pg. 34:2.Police Officer Manzo testified that Mr. Anderson was then placed under arrest and transported to the 45th precinct for an IDTU procedure. T1, Pg. 34:11-13, 22-24. Police Officer Manzo testified, defendant was placed under arrest at 5:26 am. T1, Pg. 44:15.Upon arrival at the 45th Precinct, Police Officer Manzo testified that he observed Police Officer Morales of Highway 1 prepare the Intoxilyzer machine and explain to Mr. Anderson the examination process. T1, Pg. 35:14-17. The People introduced a video recording of the IDTU procedure. T1, Pg. 39:8-10.The breathalyzer test was administered at 8:09 am. T1, Pg. 45:8. Police Officer Morales stated to Mr. Anderson, “You have been arrested for driving while intoxicated. You have elected to take a breath test, will you take the test, yes or no?”. Mr. Anderson responded, “Right now?”. Police Officer Morales replied, “Yes, right now.” Mr. Anderson responded “yes” and proceeded to an Intoxilyzer machine. Police Officer Morales informed Mr. Anderson that he was not properly blowing into the Intoxilyzer device, and refusal warnings were read.⁸ After refusal warnings were read, Mr. Anderson blew sufficiently into the Intoxilyzer machine. Police Officer Manzo testified, he observed Mr. Anderson during the procedure, and that Mr. Anderson produced a blood alcohol content of .10 percent after receiving refusal warnings. T1, Pg. 37:15.At the conclusion of the IDTU procedure, Police Officer Manzo read Mr. Anderson his rights pursuant to Miranda v. Arizona. T1, Pg. 40:11. The officer testified that he asked Mr. Anderson several questions and recorded Mr. Anderson’s responses. T1, Pg. 40:11-13,18-19. Police Officer Manzo concluded by testifying that based on his training, experience and personal observations he believed that, on September 9, 2018, Mr. Anderson operated or drove a motor vehicle while intoxicated. T1, Pg. 47:12-13.Conclusions of LawAt a suppression hearing, the People bear the initial burden of establishing probable or reasonable cause for the legality of police conduct. People v. Baldwin, 25 NY2d 66 (1969). The defendant then bears the burden of demonstrating the illegality of police conduct. People v. Berrios, 28 NY2d 361 (1971).People v. DeBour establishes the framework police officers must follow in order to impede an individual’s freedom of movement. See People v. Debour, 40 NY2d 210 (1976). The Debour framework applies to street encounters and traffic stops. See People v. Garcia, 20 NY3d 317 (2012); People v. Robinson, 74 NY2d 773 (1989). At the initial level, police officers may approach an individual to request pedigree information. At the second level, if the police officer has a founded suspicion that a crime is about to occur, the officer may ask more pointed questions, referred to as the common law right of inquiry. At the third level, the officer may detain an individual, or pull a car out of traffic [See People v. Ingle, 36 NY2d 413 (1975)], if there is a reasonable suspicion to believe a crime has been or will be committed. At the fourth level, the police officer may conduct an arrest and search incident to the same. See Dunaway v. New York, 442 US 400 (1979).A police officer may stop a vehicle on a public roadway when he or she has reasonable suspicion [See People v. Ingle, 36 NY2d 413 (1975)], or probable cause to believe the operator committed a traffic offense. See People v. Guthrie, 25 NY3d 130 (2015). A police officer may, as a precautionary measure, direct the occupants of a lawfully stopped vehicle to step out of the car. See People v. Gates, 31 NY3d 1028 (2018); also see People v. Garcia, 20 NY3d 317 (2012); People v. Robinson, 74 NY2d 773 (1989). An arrest and search are reasonable, and lawful, when based on probable cause. See Dunaway v. New York, 442 US 400 (1979).The Court accepts Police Officer Manzo’s testimony as credible. Police Officer Manzo testified that he personally observed defendant disobey clearly posted one way traffic signs and drive the wrong way on a one way street. Therefore, the evidence adduced at the hearing established Police Officer Manzo was justified in stopping Mr. Anderson’s vehicle, as Mr. Anderson’s conduct created a reasonable suspicion to believe he violated VTL §1110(a) and VTL §1127(a). Additionally, Mr. Anderson’s statement, “WELL I HAD ONE DRINK”, created a reasonable suspicion and probable cause to believe Mr. Anderson was operating or driving a motor vehicle while impaired [VTL §1192(1)] or intoxicated [VTL §1192(3)]. Accordingly, the stop of defendant’s vehicle, and subsequent arrest, were lawfully made.Police Officer Manzo’s observations of Mr. Anderson’s physical state and displayed indicia of intoxication are considered suppressible physical evidence. See People v. Pamulo, 22 NYS3d 138 (Crim Ct., New York County 2015); People v. Johnson, 511 NYS2d 773, 774-775 (Crim. Ct., Queens County 1987); also see People v. Odum, 78 NYS3d 252 at 254 (2018).This Court finds the stop of Mr. Anderson’s vehicle was based on probable cause to believe he committed at least two traffic offenses. Police Officer Manzo observed Mr. Anderson’s clothes to be disheveled, he slurred his speech, had difficulty conversing with the officer, and the officer smelled a strong odor of alcohol emanating from the vehicle. The officer also testified that a strong odor of alcohol was present as Mr. Anderson exited the vehicle. Accordingly, the officer’s observations are admissible as evidence at trial.An individual’s blood alcohol content (BAC) obtained through a breathalyzer test and a recording of an IDTU examination are also considered suppressible physical evidence. People v. Johnson, 511 NYS2d 773, 774-775 (Crim. Ct., Queens County 1987) (breathalyzer test results are physical evidence contemplated by Mapp v. Ohio and Criminal Procedure Law §710.60); also see People v. Odum, 78 NYS3d 252 at 254 (2018).The People concede that the results of Mr. Anderson’s chemical breath test administered at the 45th Precinct should be suppressed. Accordingly, the reading of Mr. Anderson’s blood alcohol content is suppressed, as his BAC result of .10 percent was induced by refusal warnings administered more than two hours after his arrest. People v. Odum, 78 NYS3d 252 (2018); also see, People v. Atkins, 85 NY2d 1007 (1995).The People filed notice of their intention to use Mr. Anderson’s statements as evidence at trial, pursuant to Criminal Procedure Law §710.30(1)(a). Criminal Procedure Law §60.45 states, evidence of a written or oral confession, admission, or other statement made by a defendant with respect to his or her participation or lack thereof in the offense(s) charged, may not be received in evidence in a criminal proceeding if such statement was involuntarily made. Also see, People v. Huntley, 15 NY2d 72 (1965). The People bear the burden of demonstrating defendant’s statements were knowingly and voluntarily made beyond a reasonable doubt.On May 24, 2019, the defense filed a letter brief in support of Mr. Anderson’s motion to suppress evidence. The defense argues, Mr. Anderson’s statements, in pertinent part, “I HAD ONE DRINK AROUND TWO HOURS AGO” and “SAY IF I HAD TWO DRINKS THEN WHAT”, should be suppressed as the statements were allegedly obtained during a custodial interrogation in absence of sufficient Miranda warnings.Any custodial interrogation conducted by police officers must be preceded by the procedural safeguards outlined in Miranda v. Arizona. Miranda v. Arizona, 384 US 436 (1966). Both elements of custody and interrogation must exist before law enforcement officials must read a defendant his or her Miranda rights. See People v. Huffman, 41 NY2d 29 (1976). The test of whether a defendant is in police custody is whether a reasonable person, innocent of any crime, would have thought he or she was in police custody if placed in defendant’s position. See People v. Yukl, 25 NY2d 585 (1969). The test of whether an interrogation occurred is whether an “objective observer, with the same knowledge concerning the suspect as the police, would conclude that the remark or conduct of the police was reasonably likely to elicit a response.” See People v. Ferro, 63 NY2d 316 (1984); also see Rhode Island v. Innis, 446 US 291 (1980).Mr. Anderson’s statements, “I DON’T HAVE MY DRIVER’S LICENSE. WE’RE COMING FROM DOWNTOWN. NO, I DIDN’T KNOW THAT WAS A ONE-WAY STREET. I’M NOT FROM THE AREA. I’M FROM WESTCHESTER. I’M NOT FROM THIS AREA. I HAVE NOT HAD ANYTHING TO DRINK. WELL I HAD ONE DRINK. I DON’T KNOW THESE STREETS THAT’S WHY. WHY IS THE VEHICLE BEING SEIZED,” are not suppressed, and admissible as evidence at trial, as defendant’s statements were not the product of custodial interrogation and given voluntarily.Mr. Anderson’s statements, “I HAD ONE DRINK AROUND TWO HOURS AGO” and “SAY IF I HAD TWO DRINKS THEN WHAT”, are suppressed, as Mr. Anderson was in police custody, and Police Officer Manzo’s conduct along with Police Officer Maciaburgos’ question was reasonably likely to elicit a response from Mr. Anderson. See People v. Huffman, 41 NY2d 29, 34 (1976); People v. Ferro, 63 NY2d 316 (1984); also see People v. Jackson, 72 AD2d 149 (1st Dept. 1980). Therefore, Miranda warnings should have been given, as Mr. Anderson’s response was the product of a custodial interrogation.A reasonable person, innocent of wrongdoing and placed in Mr. Anderson’s position, would conclude Mr. Anderson was in police custody after Police Officer Manzo ordered him to step out of the vehicle. After an exchange of words, the officer informed Mr. Anderson he was under arrest. At that point, Mr. Anderson was in police custody, as he was not free to leave the scene of the stop. See People v. Huffman, 41 NY2d 29, 34 (1976).Moreover, an objective observer, with the same knowledge concerning Mr. Anderson would conclude that Police Officer Manzo’s conduct and Police Officer Maciaburgos’ question was reasonably likely to elicit a response from Mr. Anderson. The body worn camera video revealed that Police Officer Manzo exhibited antagonistic behavior at the scene of the stop throughout his interaction with Mr. Anderson. Moreover, Police Officer Manzo was adamant that Mr. Anderson explicitly respond to whether he consents or refuses a portable breathalyzer test. The totality of the circumstances, including Police Officer Maciaburgos’ question, induced or provoked [See People v. Maerling, 46 NY2d 289 (1978)] Mr. Anderson to give statements in the absence of Miranda warnings.Mr. Anderson’s recorded statements at the 45th Precinct were given after Police Officer Manzo read the procedural safeguards of Miranda v. Arizona. Therefore, Mr. Anderson’s statements after the IDTU examination are admissible as evidence at trial, as the statements were given voluntarily.The foregoing constitutes the decision and order of the Court.SO ORDERED:Dated: July 11, 2019Bronx, New York