The People of
the State of New York, Plaintiff,
against
Kristen Kloosterman, Defendant.
|
14050186
APPEARANCE OF COUNSEL
Hon. Michael J. Violante, Niagara County District Attorney
(Ryan Parisi, of Counsel)
Attorney for the People
Viola, Cummings, Lindsay LLP
Robert Viola
Attorney for Defendant
Leonard G. Tilney Jr., J.
Procedural Posture:
This matter was transferred to the Town of Lockport Justice Court from the Town of
Lewiston Justice Court by order of the Niagara County Court, Judge Sara Sheldon
Farkas, dated May 12, 2014, due to recusal requests from both Lewiston Town
Justices.
This Court having previously granted Defendant's request for a hearing pursuant to
People v Ingle 36 NY2d 413 (1975) and People v Chilton
69 NY2d 928 (1987) held the same on August 7, 2014.
Parties Positions:
People assert Lewiston Police Officer (LPO), Matthew Grainge had probable cause
to stop the defendant on Driving While Intoxicated charges because the defendant
violated Section 1128 (a) of the Vehicle and Traffic Law. People state LPO Matthew
Grainge also observed other vehicle and traffic law violations but did not write the
defendant for the same.
Defendant asserts LPO Grainge had no reason to pull her over. VTL Section
1128 (a) was not applicable. Therefore there was no basis to stop her and any reasons
given by Grainge for the stop were pretextual in nature or a mistake of law.
Definition:
Probable cause ." exists where the facts and circumstances within their (the
officers') knowledge and of which they had reasonably trustworthy information (are)
sufficient in themselves to warrant a man of reasonable caution in the belief that an
offense has been or is being committed" Carroll v. United States, 267 U.S. 132,
162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 39 A.L.R. 790. See also People v. Oden 36
NY2d 382, 368 NYS 2d 508 (1975)
Standard of Review for Automobile Stop:
The standard of review is Probable Cause not Reasonable Suspicion.
People v. Ingle 36 NY2d 413, decided in 1975, has served for 39
years as the seminal case in New York State regarding stop of vehicle issues. An "Ingle"
hearing is shorthand for a hearing to determine the legality of a vehicle stop.
Ingle held that "Thus, an arbitrary stop of a single automobile for purportedly
routine traffic check is
impermissible unless the police officer reasonably suspects a violation of the
Vehicle and Traffic Law". Ingle p 419. The Court in Ingle went on to state:
"An actual violation of the vehicle and traffic law need not be detectable all
that is required is that the stop be not the product of mere whim, caprice, or idle curiosity.
It is enough if the stop is based upon specific and articulable facts which taken together
with rational inferences from those facts, reasonable warrant the intrusion." citing
Terry v. Ohio 392 US 1.
This was black letter law in New York State until 2001. Our Court of
Appeals then addressed the issue of pre-textual stops of vehicles in People v.
Robinson 97 NY2d 341(2001). Previously, the Supreme Court in Whren v.
United States 571 US 806 (1996), unanimously held that where a police officer has
probable cause to detain a person temporarily for a traffic violation, that seizure does not
violate the Fourth Amendment to the Constitution even though the underlying reason for
the stop might have been to investigate some other matter. The Court of Appeals adopted
Whren as a matter of state law. The Court of Appeals in Robinson
elevated the standard required to justify the stop of a vehicle from reasonable suspicion
to probable cause. Initially Robinson was only applied to pre-textual stops.
However, with the passage of time, it appears all four Judicial Departments apply the
probable cause standard to stops regarding traffic violations. People v. White 40 AD3d
535 (First Dept. 2007), People v. Watson 15 AD3d 598 (Second Dept. 2005). People v. Kearney 14 AD3d
938 (Third Dept. 2005), and People v. Rose 67 AD3d 1447 (Fourth Dept. 2009). The
difference between reasonable suspicion and probable cause is certainly discernible.
Reasonable suspicion has been defined as that "quantum of knowledge sufficient to
induce an ordinary prudent and cautious man under the circumstances to believe criminal
activity is at hand." People v. Cantor 36 NY2d 106 at pp. 112-113 (1975).
Probable cause has been defined as stated herein above. Probable cause is a higher
standard of evidence than reasonable suspicion, but is certainly less than that required for
criminal conviction. However, it is significant that the Courts have rejected the
Ingle standard and now embrace the more stringent probable cause standard in
regards to traffic violations.
Statute: Section 1128 (a) of the Vehicle and Traffic Law
"§ 1128. Driving on roadways laned for traffic
Whenever any roadway has been divided into two or more clearly marked lanes for
traffic the following rules in addition to all others consistent herewith shall apply:
(a) A vehicle shall be driven as nearly as practicable entirely within a single
lane and shall not be moved from such lane until the driver has first ascertained that such
movement can be made with safety."
Facts:
On April 16, 2014 at about 12:30 am, Lewiston Town Police Officer Matthew
Grainge (who was in an unmarked car towing a speed sign radar board to the town's
garage) was proceeding easterly on Swann Road in the Town of Lewiston.
He noticed car lights approaching him quickly from behind and pulled over to induce the
driver to pass him. As the car passed him he estimated its speed at 60 mph in a 50 mph
zone. He thought the car was being driven in a reckless manner and proceeded to follow
it. Later the car's entire front passenger tire went over the white shoulder line (fog line)
of Swann Road. Although, Grainge did not believe the car's movements to be dangerous
to others, he initiated a traffic stop and found the defendant (who he identified in court)
to be the operator.
Decision:
LPO Grainge's testimony was truthful, straight forward, candid and credible
and, but for cross examination, uncontroverted. Clearly, Officer Grainge observed what
he thought were violations of the Vehicle and Traffic Law, which would justify the stop
of the defendant's motor vehicle. Whether or not Officer Grainge charged the Defendant
under the correct section of the Vehicle and Traffic Law or even charged any underlying
violation is academic. The Fourth Department in People vs. Schroeder 229 AD2d
917 (1996) has indicated that a police officer is authorized to stop a motor vehicle on a
public highway when the officer observes a violation of the Vehicle and Traffic Law
[see, People v. Lamanda, 205 AD2d 934, 935, 613 N.Y.S.2d 755 (Third Dept.
1994), Iv denied 84 NY2d 828, 617 N.Y.S.2d 148, 641 N.E.2d 169; People v.
May, 191 AD2d 1011, 1012, 595 N.Y.S.2d 165 (Fourth Dept 1993), Iv denied 81
NY2d 1016, 600 N.Y.S.2d 204, 616 N.E.2d 861; see also, People v. Ellis, 62
NY2d 393, 396, 477 N.Y.S.2d 106, 465 N.E. 2d 826 (1984)]. It is clear LPO Grainge
stopped the defendant for going over the white shoulder line. Only after the stop did
Officer Grainge notice the initial indicia of intoxication of the defendant, leading to the
arrest for driving while intoxicated charges.
This was not a pretext stop. In any event Whren vs. United States,
(supra) as adopted by the Court of Appeals in People vs. Robinson
(supra) allows this type of stop. See specifically People vs. Reynolds fact
pattern decided with Robinson.
The real issue before the Court is whether or not the Police Officer's belief that a
violation of VTL § 1128 (a) had occurred was based on an erroneous interpretation
of law. Partial or infrequent transgressions over a fog line do not constitute a violation of
section 1128 of the Vehicle and Traffic Law [People v Luster 35 Misc 3d 735 (2012); People v
Greene unreported decision Genesee County Court (2010); People v Davis
58 AD3d 896 (2009); People v Shulman 14 Misc 3d 129(A), 2006 NY Slip Op
52508(U) (Appellate Term); and People v Bordeau 21 Misc 3d 1121(A), 2008 Slip Op
52117(U)(County Court)].
If this (Fog Line violation) was the only reason articulated for the
automobile stop the Vehicle and Traffic charges must be dismissed. But LPO Grainge
observed other Vehicle and Traffic infractions (e.g. speeding and reckless driving) which
is enough to initiate an automobile stop (Schroeder supra). Thus, the test for
probable cause to stop is not whether or not the arresting officer wrote a ticket
for a Vehicle and Traffic Law violation but whether or not he observed a
violation of the Vehicle and Traffic Law. Here he did. Accordingly, Defendant's motion
to dismiss the accusatory instruments is denied
Dated:August 19, 2014
Lockport, New York
____________________________
Hon. Leonard G. Tilney, Jr.,
Lockport Town Justice