The Defendant, Andrew Marshall, is charged with common law Driving While Intoxicated, Vehicle and Traffic Law §1192(3), Refusal to Take a Field Breath Screen Test (VTL §1194[1][b]), Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (VTL §511[1A]) and Moving From Lane Unsafely (VTL §1128A). The Defense moves to suppress evidence alleging lack of reasonable suspicion for the stop, lack of probable cause for the arrest, and suppression of statements as being both fruit of the poisonous tree and involuntary. The Court held a Suppression hearing on this matter on October 6, 2014. Based on the evidence presented, the Court finds and concludes as follows.

This Court previously ruled from the bench at the close of evidence on October 6, 2014 that Officer Barry Banfield possessed probable cause to arrest the Defendant for Driving while Ability Impaired, Vehicle and Traffic Law §1192(1), based upon the totality of the circumstances including the Defendant's failure of four out of five Field Sobriety Tests. Defendant failed the Horizontal Gaze Nystagmus (HGN), walk and turn, one leg stand, and [*2]Romberg balance tests. Defendant did pass the Finger to Nose test. See Mapp v. Ohio, 367 U.S. 643 (1961) and Dunaway v. New York, 442 U.S. 200 (1979). The Court also previously ruled that all of Defendant's statements made during the traffic stop and during performance of the field sobriety tests were non-custodial and in response to the officer's brief and reasonable investigation and therefore are admissible at trial. See People v. Huntley, 15 NY2d 72 (1965). See also, People v. Smith, 89 AD3d 1126 (3rd Dept 2011).

The single issue left open for this written opinion is whether Officer Banfield validly stopped Defendant Marshall's vehicle on June 1, 2014 at approximately 12:06 a.m. By this decision, this Court hopes to put to rest the question of whether the proper legal standard for traffic stops for VTL violations in the Third Department is reasonable suspicion or probable cause. In 1975, The Court of Appeals held that the police may lawfully stop a vehicle based on a reasonable suspicion that there has been a Vehicle and Traffic Law violation. People v. Ingle, 36 NY2d 413 (1975). Reasonable suspicion has been defined as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand." People v. Cantor, 36 NY2d 106, 112-113 (1975). This Court has engaged in a thorough review of the case law of the Four Appellate Divisions, and although the Court of Appeals, has not expressly overruled, Ingle, the Appellate Courts are now unanimous in employing the elevated Robinson, infra, standard of "probable cause" required for an officer to validly stop a vehicle for a Vehicle and Traffic violation. See, People v. Robinson, 97 NY2d 341, 353-354 (2001) (probable cause requires articulable and credible facts establishing reasonable cause to believe that someone has violated a law).

In August 2014, in People v. Kloosterman, 44 Misc 3d 1224[A] (2014), 2014 Slip.Op.51286[U] (Lockport Town Ct 2014), Lockport Town Justice Tilney, Jr. explained:

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

(1st Dept. 2007), People v. Watson, 15 AD3d 598 (2nd Dept. 2005), People

v. Kearney, 14 AD3d 938 (3rd Dept. 2005), and People v. Rose, 67 AD3d

1447 (4th Dept. 2009).

In 2009, in People v. Davis, 58 AD3d 896, 897 (3rd Dept 2009), citing only to Rorris, and [*3]not to Ingle, the Third Department once again employed the "reasonable suspicion" standard. And finally, in December 2011, in People v. Allen, 90 AD3d 1082, 1084 (3rd Dept 2011) citing once again only to Rorris, and with no mention of Ingle, the Third Department utilized the "reasonable suspicion" standard. Allen is the last time the Third Department refers to the "reasonable suspicion" standard in the context of VTL traffic stops.

In People v. Rose, 67 AD3d 1447, 1448 (4th Dept 2009) the Fourth Department, in reversing a trial court's denial of suppression, explained:

[T]he People mistakenly rely on People v. Ingle, 36 NY2d 413, 369 N.Y.S.

2d 67, 330 N.E.2d 39, in which the Court of Appeals held that the stop of a

vehicle is lawful provided that it is "not the product of mere whim, caprice,

or idle curiosity... [and is] based upon specific and articulable facts' " (id. at

420, 369 N.Y.S.2d 67, 330 N.E.2d 39, quoting Terry v. Ohio, 392 U.S. 1, 21,

88 S.Ct. 1868, 20 L.Ed.2d 889). As defendant correctly contends, however, in

the time sinceIngle "the Court of Appeals has made it abundantly clear'...

that police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or where there exists

at least a reasonable suspicion that the driver or occupants of the vehicle have

committed, are committing, or are about to commit a crime'... or where the

police have probable cause to believe that the driver... has committed a

traffic violation'" (quoting, People v.Washburn, 309 AD2d 1270, 1271, and

People v. Robinson, 97 NY2d 341, 348—349)

Police may legally stop a vehicle if they have "reasonable suspicion that

[a] defendant has committed, is committing or is about to commit a crime"

(People v. Coffey, 107 AD3d 1047, 1049, 966 N.Y.S.2d 277 [2013], lv.

denied 21 NY3d 1041, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013]; see

562 [1976]; People v. Houghtalen, 89 AD3d 1163, 1164, 931 N.Y.S.2d

922 [2011] ). Further, probable cause exists for a traffic stop if an officer

observes a defendant committing a traffic violation.

This Court is satisfied, that the Third Department has implicitly overruled its 2011 Allen, supra, ruling, and in McLean, Issac, Portelli, and Weishaupt, has explicitly adopted the elevated probable cause standard employed by all other departments. Thus, unless the Third Department or the Court of Appeals speaks further on the issue, this Court holds that in order for an officer to stop a vehicle, the officer (regardless of primary motivation) must either possess probable cause to believe that the driver has committed a traffic violation, or the officer must possess a reasonable suspicion that an occupant of the vehicle has committed, is committing, or is about to commit a crime.

Officer Banfield's testimony was credible and uncontradicted. Officer Banfield observed Defendant Marshall driving a red Pontiac directly in front of him westbound on West Seneca Street in the City of Ithaca. Defendant stopped at the red light at the intersection of W. Seneca and North Meadow Streets. Officer Banfield described the westbound lane of W. Seneca right before it intersects with N. Meadow as having three lanes. The right lane is marked as right turn only, the center lane is marked as both right turn and straight, and the left lane is marked as straight only. The Court takes judicial notice that this particular intersection and the overhead signage is confusing especially in light of the manner in which the three lanes bend to the right and immediately become two lanes once N. Meadow Street is crossed and becomes W. Seneca Street again. Officer Banfield was pulled up directly behind Defendant's vehicle in the center lane. When the light turned green, Defendant crossed over N. Meadow Street and without signaling, according to Officer Banfield, Defendant "straddled both the left and center lanes" before moving over into the left lane from the center lane that Defendant had started in at the intersection. Defendant Marshall did not signal that he was going to move from the center lane to the left most lane. Officer Banfield turned on his overhead lights and directed Defendant Marshall to stop. Defendant was polite and cooperative throughout the interaction. Officer Banfield testified that he stopped Defendant due to a violation of Vehicle and Traffic Law §1128, Failure to Move from Lane Safely. This Court will not disturb its previous Dunaway and Huntley rulings, but after having reviewed the suppression hearing evidence several times, the Court wishes to emphasize that Officer Banfield certainly had probable cause to arrest Defendant for DWAI (VTL §1192[1]). However, based upon the Defendant passing one out of five FSTs, Officer Banfield's description of the Defendant's apparent level of impairment, AND especially the alleged traffic violations (see, infra) it is not clear from the record before this Court that Officer Banfield possessed probable cause to arrest Defendant for Driving While Intoxicated (VTL §1192[3]). The Court however does not, and need not decide this issue. Officer Banfield possessed probable cause to arrest Defendant Marshall for Driving While Ability Impaired (VTL §1192[1]).

Here then, the Court finds that Officer Banfield did not possess probable cause to believe that Defendant Marshall committed VTL §1128A, Moving From Lane Unsafely. VTL §1128A provides:

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 singlelane and shall not be moved from such lane until the driver has first ascertained

that such movement can be made with safety.

However, Officer Banfield, although he did not issue a ticket for such, did in fact observe the Defendant commit a violation of VTL §1163, Failure to Signal Lane Change. See, People v. James, 17 Misc 3d 623 (Queens Co City Court 2007) (holding a signal is required for any lane change per VTL §1163). Every lane change requires a signal. Defendant Marshall failed to signal his lane change. It is immaterial that Defendant Marshall was never issued a ticket for VTL §1163. An "otherwise lawful traffic stop [is] not rendered illegal merely because the officer [does] not ultimately issue Defendant any traffic tickets." Wesihaupt, supra, at 495. Once Officer Banfield validly stopped Defendant's vehicle for failing to signal a lane change, he acted lawfully and the scope of his detention of Defendant was reasonable, as the officer's observations of Defendant's appearance, odor and demeanor justified further investigatory follow-up questioning of Defendant concerning possible criminal activity. "Traffic violations may seem inconsequential when the driver is later found to have been involved in more serious criminal activity." Id. The temporary detention of Defendant after the initial stop was reasonable under the circumstances. See, Whren v. U.S. 517 U.S. 806 (1996). See also, U.S. Constitution Fourth Amendment.

Based on the foregoing, the Court hereby denies the motion to suppress in its entirety and schedules the matter for a pre-trial conference on February 19, 2015 at 1:30pm.

This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.