People v. Cullen

The morning of December 23, 2021, a Dobbs Ferry Police Officer arrested Defendant for Driving While Intoxicated under NY Vehicle and Traffic Law §1192 [3] and Aggravated Driving While Intoxicated-Blood Alcohol Content .18 of 1 percent or Higher pursuant to VTL §1992 [2a] [a], both unclassified misdemeanors. Defendant moves to suppress evidence obtained after what he contends was an unauthorized stop in the Village of Ardsley by a Village of Dobbs Ferry Police Officer. The People oppose the motion on the basis that the Dobbs Ferry Police Officer acted lawfully at the date and time in question. A suppression hearing was conducted on June 30, 2022, at which time Dobbs Ferry Police Officer Justin Muscarella was the sole witness to testify. Documents Reviewed: Notice of Motion and Affirmation of Rocco F. D’Agostino and Exhibit A thereto (Apr. 7, 2022); Transcript of Hearing, 75 pages (June 30, 2022); Hearing Exhibits People’s 1, 2, 3 and Defendant’s A (June 30, 2022); Defendant’s Memorandum of Law (Aug. 31, 2022); Affirmation in Support of the People’s Memorandum of Law and People’s Memorandum of Law (Sept. 28, 2022); Attorney Rocco F. D’Agostino’s Reply Affirmation and Memorandum of Law (Oct. 6, 2022). Letter from Rocco F. D’Agostino (Oct. 27, 2022).¹ FACTS Officer Muscarella was in a patrol vehicle in the parking lot of Pride Cleaners on Ashford Avenue in Dobbs Ferry, when he received a radio report that he should be on the lookout for a maroon Chevrolet Equinox with license plate starting with “DTM” operated by a driver named Edward Cullen, who could be intoxicated. According to Muscarella, at roll call that morning he was made aware of an incident the night before when Defendant had been brought to the hospital after a domestic incident and that the family was looking for him. At the hearing, the People introduced into evidence two digital computer files on a memory drive marked as Exhibit 3 in evidence.² The two files included an audio file of the radio run and a video file taken from the dashboard camera of Officer Muscarella’s patrol car. The following is a transcript of the audio file of the radio run: Audio File: 08:05:47 (57 seconds duration) Dispatcher Voice: All cars on patrol. Be on the lookout for a vehicle. I got a call from a female 49 Mohican Park. She (unintelligible) her husband Edward Cullen. We ran him last night on the 3-11, it was a domestic. He’s possibly intox. He just came up the street. He is driving a Chevy Equinox maroon in color. Partial plate David Tom Mary. She believes he may be intox. When she went out to approach him in the car he took off again went down Mohican towards Ashford unknown direction from there. Once again, it’s a Chevy Equinox maroon in color partial David Tom Mary. (43 seconds; 08:06:30) Officer Muscarella: Grab that; vehicle eastbound Ashford on the bridge over Saw Mill. (48-54 seconds; 08:06:35-08:06:39) Dispatcher: Alright; 10-4. (54 seconds: 08:06:41) When Muscarella observed the maroon vehicle traveling eastbound on Ashford Avenue in Dobbs Ferry, he immediately followed the vehicle until defendant stopped at “The Shop,” a delicatessen located on Route 9A, Saw Miller River Road, in the Village of Ardsley. The entire time he followed the subject vehicle, Muscarella did not observe Defendant commit any traffic infraction. Muscarella observed Defendant pull into a parking area next to The Shop. He parked his vehicle next to Defendant’s in the parking area around the corner from the side of building where the entrance to The Shop is located. The entrance to The Shop faces west along Route 9A Saw Mill River Road, whereas the parking area marked with diagonal parking lines is on the side of the building facing south. Before Defendant parked his car, Muscarella did not activate the police vehicle’s lights or siren. Muscarella testified the time lapse between the radio notice and his first encounter with the defendant was a “[c]ouple of minutes.” Tr. 39. Muscarella saw Defendant park then exit his car, “at which point I parked the [police patrol] car and approached just to inquire with him how he was.” Tr. 9. As defendant walked in the direction of the delicatessen he stopped when he saw the police officer. Tr. 50. Muscarella called out “Hey Edward what’s going on.” Tr. 49-50; 68. “Originally when I spoke to him, he…stated that he consumed alcohol earlier that morning…. Approximately, three beers.” Tr. 17. Defendant had exited the vehicle of his own accord and when making his way to the deli entrance was not doing so in response to any directions or instructions from the officer. No guns were drawn. Muscarella testified that he did not know if any other police officers were present when Muscarella first approached and spoke to Defendant. When Muscarella spoke to Defendant he immediately noted “clear visual signs of impairment.” Tr. 9. He was slurring his speech when he spoke to me. I observed bloodshot, glass eyes. He was a little delayed in his responses to me when I was talking to him. He was staggering, and I did detect an odor of alcoholic beverage emanating from is mouth. Tr. 9. After observing these signs of impairment, Muscarella “escorted Defendant to the front of my vehicle.” Tr. 11. The officer then conducted standard field sobriety tests. Id. At the time the field test was conducted, at least one other officer of the Dobbs Ferry Police Department, Officer Digilio, had arrived to assist. Exhibit 3′s digital files reveal that the patrol car dashboard camera began to record at 08:08:52-2 minutes and 12 seconds after Muscarella responded to the dispatcher and began to follow Defendant’s vehicle. The view from the patrol car’s dashboard camera, represented by the screen shot below of the video at 08:08:57, shows that the patrol vehicle was parked perpendicular to the diagonal parking spaces marked by white lines, and not in one of the diagonal spaces. Video File: starts at: 08:08:52 (Autoplay; 12/23/2021; Application; 252 KB) 08:08:52 (image of view from car dashboard cached at https://www.nycourts.gov/reporter/webdocs/08-08-52CarDashboard.pdf) The first time a voice can be heard on the video clip is 42 seconds after the camera was activated, at 08:09:34, when Officer Muscarella spoke to defendant and asked defendant “what’s going on anyway.” At the time, no person is visible on the dash camera. The officer first appears 34 seconds later and Defendant appears on the video three seconds after that. The following is a transcript of the relevant portion of the audio from the video file. (08:09:34) (No person visible) Officer Muscarella: So, what’s going on anyway? Defendant: What’s that? Officer Muscarella: What’s going on between you and your wife? Defendant: We are having a little falling out. Officer Muscarella: Yeah. Ok. Defendant: I am trying to stay clear. Officer Digilio arrives. The image below is the view from the dashboard camera of his patrol vehicle at 08:09:46 is cached at https://www.nycourts.gov/reporter/webdocs/08-09-46CarDashboard.pdf: Officer Muscarella: You have anything to drink today? (08:09:47) Defendant: Know what, yes I did. Officer Muscarella: How much? Defendant: Couple of beers. Officer Muscarella: Couple of beers? Breakfast? Ok; What’s a couple — two, three, four? Defendant: Three. Officer Muscarella: Three; Ok, alright; just come over here step in front of my car. (08:10:08) [Officer Muscarella appears on video stepping in front of car.] Officer Muscarella: Take your glasses off for a second. (08:10:11) [Defendant appears on video.] Officer Muscarella: Just want to make sure you are alright to drive, that’s all. Right here is good; right here is good; stand right here; you can lean up against my car if you want. Here you go. Remove your glasses for me, ok. Defendant: I can’t see without my glasses. Officer Muscarella: That’s fine. Alright. You have any medications (unintelligible). (08:10:28) (voice off camera) Officer Digilio: We are busy right now. * * * * (08:10:51) [Officer Digilio appears on video.] Based on the foregoing, it appears that the officer’s patrol car was parked somewhere behind Defendant’s vehicle and not in a marked diagonal parking space parallel to Defendant’s car. At the time the officer first addressed Defendant, there was only one police officer present, but the dashboard camera and the police vehicle’s turret lights were activated before the officer first spoke to Defendant. DISCUSSION Legal Standards Defendant’s suppression motion involves the application and interplay of Criminal Procedure Law §§140.10 and 140.50. CPL §140.10, entitled “Arrest without a warrant; by police officer; when and where authorized,” provides in relevant part as follows: 1. Subject to the provisions of subdivision two, a police officer may arrest a person for: (a) Any offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence; and (b) A crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise. 2. A police officer may arrest a person for a petty offense,³ pursuant to subdivision one, only when: (a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer’s employment or within one hundred yards of such geographical area; and (b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him or her in any county in which he or she apprehends him or her. 3. A police officer may arrest a person for a crime, pursuant to subdivision one, whether or not such crime was committed within the geographical area of such police officer’s employment, and he or she may make such arrest within the state, regardless of the situs of the commission of the crime….. CPL §140.50, entitled “Temporary questioning of person in public places; search for weapons,” provides in relevant part as follows: 1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer’s employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct. Defendant’s Contention Defendant contends, and the People do not dispute, that at the time the police officer first approached Defendant, the officer did not have “reasonable cause to believe” that Defendant had committed an offense in the officer’s presence, see CPL §140.10 [1] [a], nor did the officer have “reasonable cause to believe” that Defendant had committed a crime. See CPL §140.10 [1] [b]. Further, and the People do not dispute, that Defendant did not commit a petty offense within the Village of Dobbs Ferry or within one hundred yards of Dobbs Ferry’s limits. Defendant argues that because the officer did not have reasonable cause to believe that Defendant committed any offenses or crimes, or committed a petty offense, such as a traffic infraction, in Dobbs Ferry before Defendant’s vehicle entered the Village of Ardsley, the Dobbs Ferry Police Officer had no legal authority to “stop” Defendant in Ardsley and make any inquiries of him. Because the Village of Dobbs Ferry Police Officer had no authority to stop Defendant in the Village of Ardsley, the evidence collected by the Dobbs Ferry Police after the initial encounter outside The Stop should be suppressed. Defendant cites three cases where courts applied CPL §140.50 [1] to rule that police officers acting outside the geographic bounds of their employment improperly “stopped” suspects. See Brewster v. City of New York, 111 AD2d 892, 893 [2d Dept 1985] (Nassau County police officers who stopped defendant in Queens did not have the authority “to stop and question a person”); People v. Wolf, 166 Misc 2d 372 [App. Term. 2d Dept 1995] (Metro North police officer did not have authority to arrest the defendant in the Town of Bedford for a traffic infraction); People v. Edmonds, 157 Misc 2d 966 [Dutchess County Ct 1993] (Town of Poughkeepsie police officer had no basis to stop defendant bicyclist in the City of Poughkeepsie; “the minimally intrusive stop and inquiry” outside the area of the officer’s geographical employment was improper). As a result, Defendant argues that all evidence acquired after Defendant was stopped should be suppressed, citing People v. Graham, 192 Misc 2d 528 [Erie County Ct 2002], aff’d, 1 AD3d 1066 [4th Dept 2003], and People v. Edmonds, 157 Misc 2d 966 [Dutchess County Ct 1993]. The People’s Response The People, on the other hand, contend that Muscarella did not “stop” Defendant and could legitimately make a welfare inquiry of Defendant outside the geographic bounds of the Village of Dobbs Ferry. The People contend that the officer’s initial encounter with the Defendant was not a “stop” or a seizure and not a violation of CPL §140.50 [1]. For example, in People v. De Bour, 40 NY2d 210 [1976], the Court of Appeals held that a stop or seizure did not occur when the defendant “was merely approached and questioned by two uniformed officers whose conduct bespoke no violent or forcible apprehension.” 40 NY2d at 217. “The encounter…was devoid of harassment or intimidation.” 40 NY2d at 220. Whether a “stop” occurred is based on “whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom.” People v. Ocasio, 85 NY2d 982, 982 [1995]. According to the Court of Appeals, whether there was a “stop” involves consideration of all the facts: for example, was there a chase; were lights, sirens or a loudspeaker used; was the officer’s gun drawn, was the individual prevented from moving; how many verbal commands were given; what was the content and tone of the commands; how many officers were involved; where did the encounter take place. Id. (citation omitted) (no stop where defendant’s “progress was halted by a stoplight, not the police. The officers approached on foot, displayed badges and asked for identification. No sirens or lights were used to interfere with defendant’s transit; no gun was displayed; and defendant was at no time prevented from departing.”). The People argue that because Defendant was not “stopped,” the information gathered by Officer Muscarella from his observation that Defendant exhibited signs of impairment, provided the “reasonable cause to believe” that justifies arresting a person for any offense committed in the officer’s presence pursuant to CPL §140.10. The People cite People v. Twoguns, 108 AD3d 1091 [4th Dept 2013], as an example of a case where an officer did not exceed his jurisdictional authority to arrest a defendant outside the officer’s geographical area of employment for driving while intoxicated and resisting arrest. In Twoguns, however, the court held that the police officer’s personal observation that defendant had committed traffic infractions provided “the requisite reasonable suspicion to stop the defendant’s vehicle.” Id. at 1093. The court dismissed the traffic infractions, however, because they did not occur in the village where the officer was employed. The felony driving while intoxicated and misdemeanor resisting arrest charges were upheld because under CPL §140.10 [1], an officer may arrest a person for a crime when the officer has reasonable cause to believe the person committed a crime, “whether or not such crime was committed within the geographical area of such police officer’s employment.” Id. at 1092. The officer’s personal observations of the defendant’s traffic infractions provided a basis for the stop, which led to the arrest for the crimes, even though the officer did not have authority to arrest the defendant for the petty offenses that occurred outside the officer’s geographical area of employment. See People v. Nenni, 269 AD2d 785, 785 [4th Dept 2000] (stop outside jurisdiction authorized because officer had reasonable cause to believe occupant of vehicle had committed a crime); People v. Robinson, 265 AD2d 812, 812 [4th Dept 1999] (arrest for crime outside jurisdiction authorized; “defendant’s act of discarding the blunt not in response to any illegal police conduct; police were entitled to seize the blunt” which provided probable cause to arrest for crime); People v. Court, 20 Misc 3d 917, 918 [Monroe County Ct 2008] (arrest outside jurisdiction for crime not result of investigatory stop for traffic offense; officer approached stopped vehicle blocking traffic, observed defendant seated in vehicle with glassy, bloodshot eyes with smell of alcohol emanating from vehicle); cf. People v. Nesbitt, 1 AD3d 889 [4th Dept 2003] (officer’s observation of defendant’s erratic driving outside jurisdiction justified stop within officer’s jurisdiction). In the instant case, however, it is undisputed that before the officer approached Defendant, the officer did not have “reasonable cause to believe” Defendant had committed a crime, nor did the officer personally observe Defendant commit a traffic infraction that, combined with the information provided by the police dispatcher might have provided the officer with enough “reasonable suspicion” to justify a stop. See Twoguns, 108 AD3d at 1093. Thus, the issue to be decided is whether the officer’s approach to Defendant after he parked and exited his car constituted an unauthorized “stop” outside the Village of Dobbs Ferry under CPL §140.50 [1]. Defendant Was “Stopped” The People contend that under De Bour the officer’s initial encounter with Defendant before the officer observed signs of intoxication was not a stop that infringed on Defendant’s rights under the Fourth Amendment to the United States Constitution. Under the United States Constitution, however, the Fourth Amendment is not implicated until there is “forcible” stop of a person. People v. Hollman, 79 NY2d 181, 194-195 [1992]. But New York’s common law of stop and frisk is implicated when there is a stop, forcible or not. People v. De Bour, 40 NY2d at 223. Under De Bour, a “level one” stop, “involves basic, nonthreatening questions regarding, for instance, identity, address or destination.” Hollman, 79 NY2d at 185. The predicate to justify a “level one” De Bour inquiry is an “objective credible reason not necessarily indicative of criminality.” Id. In this case, the officer had been provided with information that suggested Defendant may have been drinking and driving but acknowledged that at the time he first encountered Defendant in person, he did not have probable cause to arrest defendant, nor have any basis to believe that Defendant had committed a crime since it is not per se illegal to operate a motor vehicle after drinking an alcoholic beverage. Tr. 53. The officer testified that he was conducting a “welfare check” on Defendant. Tr. 47. Whether or not Defendant was stopped must be determined by the standard of “whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom.” People v. Ocasio, 85 NY2d at 982. “The test is not what the defendant thought, but rather what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s position.” People v. Yukl, 25 NY2d 585, 589 [1969]. The People contend that in each case cited by Defendant, there was no dispute that the police officers interfered with the ability of the defendant to move about freely. In Brewster, the two police officers assaulted the plaintiff after he declined to stop and answer their questions. In Wolf, the police officer stopped the defendant’s vehicle before the defendant was arrested for a traffic infraction. In Edmonds, the police officer caused the defendant to stop riding his bicycle to respond to the officer’s questions. The case of People v. McGrew, 103 AD3d 1170 [4th Dept 2013], is instructive because it involves facts similar to the instant case. In McGrew, a City of Syracuse police detective was on a security detail for an athletic event on a college campus parking lot in the Town of DeWitt. The detective observed the codefendant approach the gymnasium entrance, then turn around and walk back in the direction from which he came. The detective, while in his police vehicle, followed the codefendant to a parked vehicle where he saw the codefendant open the door, lean in, lean out, close the door then proceed back to the gymnasium. Id. at 1170. The detective got out of his vehicle and asked to speak to the codefendant. The defendant emerged from the vehicle “several seconds later and stopped walking when the detective asked to speak with him.” Id. at 1171. The detective observed defendant had bloodshot eyes and smelled of burnt marijuana, which defendant admitted to smoking. After obtaining consent from both the codefendant and defendant, a search revealed a loaded gun on the floor of the vehicle. The detective called the DeWitt police to arrest the defendant and codefendant. Id. The Appellate Division held that the City of Syracuse detective lacked statutory authorization to stop and question defendant in the Town of DeWitt. Id. The “detective’s violation of CPL §140.50 [1] require[d] suppression of the evidence derived therefrom, i.e., the gun and the marihuana seized from the car.” Id. (citation omitted). The implication for the instant case is that an impermissible “stop” had occurred even when the detective simply asked to speak to the defendant, who on his own volition exited a vehicle and walked in the direction of the detective. Also instructive is the case of People v. Fenti, 57 Misc 3d 471 [Penfield Just Ct 2017]. In that case, the court held that a police officer conducting a welfare check on a driver was justified in stopping the defendant in order to conduct the welfare check pursuant to the officer’s exercise of the “caretaking exception” to the Fourth Amendment. The court held that the police officer effected a stop of the defendant’s vehicle when he “turned on his lights and parked behind the [defendant's] vehicle as if he were initiating a traffic stop.” 57 Misc 3d at 472. At the time, the defendant was attempting to back up her vehicle. What is pertinent, however, is that by parking the police vehicle behind the defendant’s car, the defendant was prevented from leaving the scene. See People v. Harrison, 57 NY2d 470, 480 [1982, Jasen, J., dissenting] (“this case does not involve a…blocking of a motor vehicle by the police.”) (emphasis in original). Defendant further contends that in the supporting deposition, Ex. A, and in testimony, Officer Muscarella conceded that he in fact stopped Defendant to make inquiry of him. The officer testified, however, that the supporting deposition and bill of particulars was generated from an on-line computer form he had to complete and there was no way to complete the form without providing information for the box labeled “Reason for Stop.” Tr. 54-55. With regard to his testimony, Defendant refers to the officer’s response to a question posed by defense counsel on cross-examination. The answer cited was in response to a series of questions about the supporting deposition box “stop,” to confirm that a welfare check was the reason for his encounter with the defendant. Defendant’s Reply Memorandum of Law at 3 (Oct. 6, 2022), citing Hearing Tr. 60. These facts provide some marginal support for Defendant’s contention that he was stopped by the officer. The issue, however, is “whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom.” Ocasio, 85 NY2d at 982. In this case, Defendant parked his car on his own, exited the car to enter a food establishment and responded to a simple inquiry as he walked toward the police officer on his route to the deli. The police officer did not command the defendant to stop walking or obstruct his path to the deli entrance. But the police officer had parked his car with the turret lights activated so as to prevent Defendant from leaving the scene. As the foregoing cases instruct, such actions constitute a stop for purposes of CPL §140.50 [1]. See McGrew, supra; Edmonds, supra; Fenti, supra. As discussed above, the People contend that as a result of the initial encounter between the officer and Defendant, the officer’s observation that Defendant had alcohol on his breath, had glassy eyes and was walking unsteadily gave rise to facts that provided probable cause that Defendant had driven while intoxicated in Dobbs Ferry, thereby justifying the actions taken after the initial encounter. But as the Court of Appeals noted in De Bour, “[t]he police may not justify a stop by a subsequently acquired suspicion resulting from the stop.” People v. De Bour, 40 NY2d at 215-216. See also People v. Graham, supra (officer’s observation while outside jurisdiction that defendant not wearing a seatbelt and operating car with cracked windshield did not justify stop outside officer’s jurisdiction). In the instant case, the police officer parked his vehicle behind the Defendant’s vehicle with the turret lights activated. The officer approached the defendant on foot, which caused the Defendant to stop. The officer asked what was going on then immediately asked whether he had been drinking. While a close call, the Court is constrained to hold that a reasonable person would have believed he was not free to leave. The officer’s encounter with Defendant therefore was a “stop” not authorized by CPL §140.50 [1]. The People contend that even if there was an unauthorized stop, the evidence against the Defendant gathered after the stop should not be excluded. However, the case law is clear — evidence obtained after a stop not authorized by CPL §140.50 [1] must be suppressed. People v. McGrew, 103 AD3d at 1171; People v. Edmonds, 157 Misc 2d at 970; cf. Brewster v. City of New York, 111 AD2d at 893.⁴ CONCLUSION Based on the foregoing, Defendant’s motion to suppress evidence obtained after the initial encounter between the police officer and Defendant is granted. The parties are directed to appear for further proceedings in this matter on December 1, 2022, at 10:00 AM. Dated: November 21, 2022