Defendant moves for an Order of this Court: 1.) Dismissing the charges against him based upon a lack of probable cause; 2.) Suppression of statements, made by the Defendant, to law enforcement, as involuntarily made, and; 3.) For a Huntley Hearing. Based upon the relevant, credible, testimony offered at the Dunaway hearing, this Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT On June 7, 2019, at approximately 1:00 am, police were dispatched to location in the City of Gloversville, after receiving a complaint that an idling vehicle had been parked on Lincoln Street for over an hour. When police arrived at the scene, they observed a vehicle, parked on Lincoln Street, with its lights on, and its engine running. Approaching the vehicle on foot, police observed the Defendant, inside the car, slumped over the steering wheel. Unable to wake the Defendant by knocking on the body of the vehicle, police reached inside an open window to rouse him. Once awake, and sitting upright, police observed two open beer cans, one located on Defendant’s lap, and another located in the center console. As Defendant spoke to police, he appeared confused and disoriented. and could smell the odor of alcoholic beverage emanating from his breath. After asking the Defendant to step out of the vehicle, police posed questions to him regarding his identity and reason for being in the area. Smelling the odor of alcohol emanating from Defendant’s breath, police made inquiry into his travels. Initially denying that he drove anywhere, Defendant quickly admitted that he had driven home from a friend’s house on East Pine Street. Defendant was thereafter directed to the sidewalk, where he was asked to submit to a series of Standardized Field Sobriety Tests. Before testing began, Defendant repeatedly asked police if he could go inside his home to use the bathroom, or, in the alternative, relieve himself on his lawn. These requests were denied. After failing each of the three (3) SFST’s, and after a roadside screen detected the presence of alcohol on his breath, the Defendant was placed under arrest for Driving While Intoxicated, in violation of VTL §1192-3. CONCLUSIONS OF LAW In People v. DeBour, the New York State Court of Appeals set out a four-tiered method for evaluating the propriety of police initiated encounters with private citizens. First, if a police officer seeks to request basic information from an individual, that request must be supported by an “objective, credible reason, not necessarily indicative of criminal activity.” See, DeBour, 40 NY2d 210 at 223 [1976]. Second, the common-law right of inquiry, considered an entirely different level of contact, is “activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion.” See, People v. Cantor, 36 NY2d 106, at 111 [1975]. Third, when police possess a “reasonable suspicion” that a person has committed a crime, they are authorized to forcibly stop and detain that person. See, People v. Hollman, 79 NY2d 181, at 185 [1992]. Finally, where police have probable cause to believe that a person has committed a felony or a misdemeanor, an arrest is authorized. See, Hollman, supra at 185. Based upon the testimony offered at the suppression hearing, when police approached the Defendant’s vehicle, they possessed an objective, credible reason for that minimal interference. Police had responded to Lincoln Street after receiving a complaint about an idling vehicle, and upon approach, observed the Defendant, inside that vehicle, slumped over the steering wheel. Considering the totality of circumstances, this Court finds that the officers’ initial approach of Defendant, inside his vehicle, was justified at its inception. This Level One approach, under DeBour, escalated to a Level Two, after police observed Defendant’s state of disorientation, and the two (2) open beer cans inside his vehicle. Under this second level of inquiry, activated by a founded suspicion of criminal activity, police are permitted to ask questions of an individual which may be pointed, invasive and accusatory in nature. Police were also authorized to interfere with a the liberties of the Defendant, “to the extent necessary to gain explanatory information, but short of forcible seizure.” See, DeBour, supra, citing People v. Cantor, 36 NY2d at 114; See See, People v. Hollman, 79 NY2d 181. See also, People v. Johnson, 164 Misc 2d 527. While sleeping in your vehicle is not a crime, the possession of an open container of alcohol, inside a motor vehicle, is a traffic violation, and operating a motor vehicle under the influence of alcohol, is a crime. Under these set of facts, this Court finds that police were authorized to direct the Defendant to step out of his car1, and make inquiry of his conduct and activities. See, People v. Jones (NY City Ct. 2017) 54 Misc 3d 1214(A) [54 N.Y.S.3d 611]. Upon smelling the odor of alcoholic beverage on Defendant’s breath, and observing Defendant’s impaired motor skills, the encounter quickly escalated into a Level Three, investigatory detention. A Level Three encounter, under DeBour, constitutes a limited seizure upon an individual, and represents a significant interruption of an individual’s liberty of movement. Such a limited seizure is authorized under CPL and permits police to exercise restraint over a person, to the extent necessary to complete their investigation. See, People v. Johnson, 164 Misc..2d 527. In the case at bar, Defendant was found slumped over the steering wheel of his car, with a can of beer in his lap, and another in the center console. He presented to police as being under the influence of alcohol, with impaired motor functions. The vehicle’s engine was running, the lights were on, and Defendant admitted to police that he had driven his vehicle from East Pine Street, to Lincoln Street. Under these set of facts, police possessed a reasonable suspicion that the Defendant had operated a motor vehicle while intoxicated, and were authorized to forcibly detain the Defendant to the extent necessary to administer field sobriety tests. Probable Cause and Suppression of Evidence Having established that police conduct was authorized under DeBour, this Court must determine whether: 1.) Police possessed probable cause for an arrest; 2.) Whether evidence of the defendant’s performance on Standardized Field Sobriety Tests, the results of the road-side breath screen, and the results of the chemical test may be admitted into evidence at the time of trial; and 3.) Whether statements made by the Defendant, to law enforcement, must be suppressed as involuntarily made. Probable Cause The Criminal Procedure Law provides that “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.” See, CPL §70.10(2). Probable cause to arrest does not require proof beyond a reasonable doubt of every element of the crime, or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person, who possesses the same expertise as the officer, to conclude, under the circumstances, that a crime is being, or was committed. See, Wong Sun v. U.S., 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) ; People v. Robinson, 134 AD3d 1538, 22 N.Y.S.3d 771 (4th Dep’t 2015) ; People v. Williams, 25 AD3d 927, 807 N.Y.S.2d 470 (3d Dep’t 2006) ; People v. Dolly, 12 AD3d 1157, 785 N.Y.S.2d 233 (4th Dep’t 2004) ; People v. Rose, 2 AD3d 1324, 770 N.Y.S.2d 813 (4th Dep’t 2003) ; Kinge v. State, 20 Misc 3d 161, 859 N.Y.S.2d 323 (Ct. Cl. 2007), aff’d, 79 AD3d 1473, 915 N.Y.S.2d 186 (3d Dep’t 2010). This Court finds no merit in the defendant’s argument that police lacked evidence of Defendant’s operation, or that police disregarded his explanation of falling asleep in the car, while making a phone call. First, police are not required to accept a suspect’s innocent explanation for what they perceive to be criminal conduct, and the mere denial of wrong-doing does not invalidate probable cause. Second, the New York State Court of Appeals holds that the definition of “operation” under the DWI statute is broader than the term “driving” and that a person “operates a motor vehicle within the meaning of the statute when, in the vehicle, he intentionally does any act, or makes use of any mechanical or electrical agency, which alone, or in sequence, will set in motion the motive power of the vehicle.’” See, People v. Prescott, 95 NY2d 655, 662, 722 N.Y.S.2d 778, 782 (2001); See also People v. Alamo, 34 NY2d 453, 458, 358 N.Y.S.2d 375, 379 (1974); People v. Marriott, 37 AD2d 868, 325 N.Y.S.2d 177, 178 (3d Dep’t 1971); People v. Beyer, 21 AD3d 592, 799 N.Y.S.2d 620, 622-23 (3d Dep’t 2005); People v. Cunningham, 274 AD2d 484, 711 N.Y.S.2d 909 (2d Dep’t 2000); People v. Page, 266 AD2d 733, 698 N.Y.S.2d 774 (3d Dep’t 1999); People v. Totman, 208 AD2d 970, 617 N.Y.S.2d 234 (3d Dep’t 1994); People v. Thornton, 130 AD2d 78, 517 N.Y.S.2d 807 (3d Dep’t 1987); People v. David “W,” 83 AD2d 690, 442 N.Y.S.2d 278 (3d Dep’t 1981); People v. Collins, 70 AD2d 986, 417 N.Y.S.2d 819 (3d Dep’t 1979); Matter of Tomasello v. Tofany, 32 AD2d 962, 303 N.Y.S.2d 22 (2d Dep’t 1969); Matter of Prudhomme v. Hults, 27 AD2d 234, 278 N.Y.S.2d 67 (3d Dep’t 1967); People v. Moore, 196 Misc 2d 120, 761 N.Y.S.2d 431 (App. Term, 2d Dep’t 2002); People v. Khan, 182 Misc 2d 83, 697 N.Y.S.2d 457 (App. Term, 2d Dep’t 1997); People v. Rose, 8 Misc 3d 184,, 794 N.Y.S.2d 630, 632 (Nassau Co. Dist. Ct. 2005); People v. Navarrette, 7 Misc 3d 623, 790 N.Y.S.2d 835 (City Crim. Ct. 2005). Defendant’s motion for a dismissal of the charges based upon a lack of probable cause is hereby Denied. Standardized Field Sobriety Tests While the Defendant is correct in his assertion that whenever an individual is subjected to a custodial interrogation, Miranda warnings are required, results of a road-side breath screen, as well as evidence of an individual’s performance on certain field sobriety tests, and the results of a chemical analysis of a defendant’s blood, are not testimonial in nature, and need not be proceeded by Miranda warnings. This is true regardless of whether the Defendant has been detained for questioning, or is formally under arrest. See, Schmerber v. California, 86 S.Ct. 1826, [1996] [holding that physical evidence obtained from the Defendant after his arrest, but before the administration of Miranda warnings, did not violate the Fifth Amendment, because the evidence obtained was not testimonial in nature]; See also, People v. Jacquin, 71 NY2d 825] [holding that a Defendant arrested for driving while intoxicated and later required to submit to sobriety testing, without the benefit of Miranda warnings, did not implicate the Fifth Amendment]; See also, United States v. Dionsio, [holding that requiring a defendant to reveal the physical manner in which he articulates words, does not, without more, compel him to provide a testimonial response]; See People v. Havrish, 8 NY3d 389 [NY Ct. of Appeals 2007] [holding that a person can be forced to produce real or physical evidence without offending the privilege against self-incrimination]; See also People v. Hager, 69 NY2d 141; See, People v. Berg, 92 NY2d 701 [holding that physical performance tests do not reveal a person's subjective knowledge or thought process, rather, they exhibit a person's degree of physical coordination for observation by police]; See, People v. Kates, 53 NY2d 591, [holding admissible the results of a chemical test taken from Defendant, after his arrest, and without the administration of Miranda warnings]; See also, People v. Craft, 28 NY2d 274 [1971]. Defendant’s motion to suppress evidence is hereby Denied. Suppression of Statements Under Miranda v. Arizona, 86 S.Ct. 1602, a person who is taken into custody, or otherwise deprived of their liberty, must be adequately and effectively advised of the Fifth Amendment protections against self-incrimination, in addition to their right to refuse questioning. See, People v. Dunbar, 24 NY3d 304 [2014]. In New York State, the test for determining whether the defendant is “in custody” is whether a reasonable person, who is innocent of any crime, would believe himself or herself in custody. See, People v. Yukl, 25 NY2d 585. While this Court does not agree that the Defendant was in custody “as soon as [police] approached his vehicle,” the Defendant was effectively seized from the moment he was denied the freedom to retreat into his dwelling. See, People v. Cantor, 36 Ny2d 106. [1975]. While the facts of this case represent a limited seizure, it is a seizure, nonetheless, and it is clear from the evidence that the Defendant unwillingly submitted to the “authority of the badge2.” Under these circumstances, any and all custodial interrogation should have ceased until Miranda warnings had been administered to the Defendant. Whether Defendant made inculpatory statements as a result of a custodial interrogation, and whether there has been sufficient attenuation to permit the introduction of Defendant’s post-Miranda statements, if any, is a matter more properly explored at a Huntley Hearing. Defendant’s motion for Huntley hearing is hereby granted. The foregoing constitutes the Decision and Order of this Court. Dated: November 14, 2019 Gloversville, NY
