On April 2, 2013 at about 7:45 p.m., on State Route 23 in the Village of Catskill, Trooper Amauris Soler stopped the Defendant's vehicle for an alleged VTL violation. Trooper Soler approached the Defendant's vehicle, requested her license and registration, and asked her where she was coming from and going to. The defendant responded that she had left the parking lot of Peloke's Motel and was going home. The Defendant produced one license from her pocket book and a second license and registration from inside the vehicle's glove box.^[FN1] While the Defendant leaned across her passenger seat in order to look inside her glove box, Trooper Soler observed the Defendant "fidgeting, like kicking her left leg underneath the steering wheel by the gas pedal." (Mapp/Huntley hearing testimony, pg. 12). Trooper Soler "flashed (his) flashlight and observed like a plastic bag with pills in it." (Id.) . When Defendant continued her kicking movements, Trooper Soler twice asked her what was on the floor of her car and what she was trying to do to which the defendant twice responded that she did not know what Trooper Soler was talking about. (Id. at 12-13).

Trooper Soler had noticed that the Defendant's responses to his questions and her physical movements seemed unusually slow. He believed her slowed movements and cognitive function indicated possible impairment and decided to administer field sobriety tests. The Defendant failed three of four administered tests. Trooper Soler then asked the Defendant if she was under the influence of some drug and she responded that she had used heroin earlier while at Peloke's Motel. Trooper Soler placed the Defendant under arrest for Driving While Impaired by Drugs in violation of VTL § 1192(4). In addition, Trooper Soler issued the Defendant a traffic ticket for VTL § 1225-C (2)(a) for unlawfully using a cell phone while operating a motor vehicle, which had been the initial reason for the vehicle stop.

On July 15, 2014, the Court held a combined Huntley/Mapp hearing at which Trooper Soler testified. At the close of the hearing, defense counsel raised two issues. First, that the [*2]Defendant's statement she had used heroin earlier in the day should be suppressed because she was in custody and had not yet been advised of her Miranda rights. Second, counsel attacked the trooper's probable cause to initiate the traffic stop by arguing that the Defendant's vehicle had come to a complete stop when Trooper Soler first observed the Defendant using her cell phone and the plain text of the statute requires that the vehicle be in motion in order for a violation to have occurred.

The People asserted that a review of the transcript would show that the trooper's testimony was that he saw the cell phone in the Defendant's hands as the Defendant pulled up to the stoplight thereby satisfying the "in motion" portion of the statute.

The threshold issue for the Court to decide is whether the initial stop of the Defendant's vehicle was legal. For the reasons set forth below, this Court concludes that the People have failed to sustain their burden of proof in establishing that reasonable suspicion existed for the initial vehicle and traffic stop. As a result, any evidence or information obtained as a result of the improper stop must be suppressed.

It is clear from a plain reading of the statute (see Pultz v. Economakis, 10 NY3d 542, 547 [NY 2008] ("[W]here the language of a statute is dear and unambiguous, courts must give effect to its plain meaning.")) that when a motorist is not operating a commercial vehicle, use of a cell phone while temporarily stopped at a stop light is not prohibited because the vehicle is not "in motion." To hold otherwise would do severe damage to the language of the statute by making [*3]everything after the first clause mere surplusage. Certainly, the legislature did not intend such a result.

The Fourth Amendment protects "against unreasonable searches and seizures." (U.S. Const. Amend. IV). In Whren v. United States, the Supreme Court held that even brief detentions of individuals during a vehicle stop constituted a seizure of persons under the Fourth Amendment. ( Whren v. United States, 517 US 806, 809 [1996) . To be constitutional, a vehicle stop must be reasonable. (Id. at 810). It is the People's burden to establish the legality of the police conduct in the first instance. (Dunaway v. New York, 442 US 200, 207 (1979]; People v. Wise, 46 NY2d 321 [1978); People v. Berrios, 28 NY2d 361 [1971] ; People v. Malinsky, 15 NY2d 86 [1964]). To sustain this burden, the testimony offered by the People must be credible (In re Jay R., 259 AD2d 436 [1st Dept 1999]), and not tailored to nullify constitutional objections. (People v. Carmona, 233 AD2d 142 [1st Dept.1996]. Once the People satisfy their initial burden of going forward, then the ultimate burden of persuasion shifts to the defendant, who must demonstrate the illegality of the police conduct by a preponderance of the credible evidence. (Berrios, 28 NY2d at 367) .

Initially, this Court acknowledges that in New York there is some appellate department inconsistency in whether "probable cause" or "reasonable suspicion" is the appropriate minimum standard necessary when a police officer makes a vehicle stop based solely on a perceived violation of the Vehicle and Traffic Law. Beginning with People v. Ingle, 36 NY2d 413 [1975], the Court of Appeals held that "reasonable suspicion" is required to stop an automobile for a "routine traffic check."

"Reasonable suspicion'' is defined as, "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand." The requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere "hunch" or "gut reaction" will not do. (People v. Sobotker, 43 NY2d 559, 564 [NY 1978), quoting People v. Cantor, 36 NY2d 106, 112-13 [NY 1975], internal citations omitted). Reasonable suspicion remained the standard until 2001 when the Court of Appeals held in People v. Robinson that a vehicle stop is lawful when a police officer has probable cause to believe a motorist violated the VTL regardless of the motivation for the stop. (People v. Robinson, 97 NY2d 341 [NY 2001]. However, Robinson dealt with pretext stops and the Court of Appeals has not yet specifically held that probable cause is the standard that applies to all vehicle stops. Although some courts have applied the probable cause standard in non-pretext vehicle stop cases, there are many appellate level decisions where the reasonable suspicion standard is still applied. (see, e.g. People v. Davis, 58 AD3d 896 [3d Dept 2009] "Notably, the law is clear 'that the police may lawfully stop a vehicle based on a reasonable [*4]suspicion that there has been a Vehicle and Traffic Law violation.'" Id., at 897, quoting People v. Rorris, 52 AD3d 869, 870 [2008], Iv. denied 11 NY3d 741 [2008); see also Kamins, B., New York Search and Seizure§ 5.02(1)(a) Lexis 2011, and cases cited therein). Because the Court of Appeals and the Third Department have yet to expressly abandon the reasonable suspicion standard relative to nonpretext vehicle stops, this Court will not do so in this case.

Trooper Soler's stop of the Defendant's vehicle required reasonable suspicion of a vehicle and traffic violation. (Rorris, 52 AD3d at 870). To determine whether reasonable suspicion existed, this Court must look at the totality of the circumstances as they existed at the time of the stop. (United States v. Arvizu, 534 U.S. 266, 273 [2002]. "Where (an] officer's belief [that a violation of the VTL had occurred was] based on an erroneous interpretation of law, the stop (was) illegal at the outset and any further actions by the police as a direct result of the stop [were] illegal." (People v. Rose, 67 AD3d 1447, 1449 [4th Dept 2009), quoting Matter of Byer v Jackson, 241 AD2d 943, 944-945 [1997]). In Rose, the officer stopped a motorist for "flashing" high beams once at an approaching vehicle. Because the flashing did not interfere with the operation of the approaching vehicle - a necessary element of the offense - the stop was illegal and all evidence obtained as a result of that stop was suppressed.

Trooper Soler never directly stated that he observed the Defendant "using" her cell phone while her vehicle was in motion. Such an inference was only present in the form of the prosecutor's question when he asked, "Was there anything in particular ... that caught your attention as this vehicle was approaching the red light?" (Huntley/ Mapp hearing testimony of Tpr. Soler at 7, emphasis added). Trooper Soler then responded, "Yes" and that, "I saw that she was on her cell phone." (Id.).

However, in the very next question when the prosecutor asked Trooper Soler to "describe ... with particularity what (he) saw," he responded, "She pulled up next to me, and I happened to look and she had her cell phone in her hands . ... " (Id., emphasis added). Although Trooper Soler's initial response was arguably ambiguous ' as to whether he observed use of the cell phone while the Defendant's vehicle was in motion, any ambiguity was removed during cross examination when the following exchange took place:

The above exchange establishes that three successive times during cross examination Trooper Soler stated through his answers to defense counsel's questions that the Defendant's vehicle had stopped prior to his observation that the Defendant was using her cell phone. Additionally, Trooper Soler testified that the Defendant put down the cell phone before moving her vehicle when the light turned green. (Id. at 34.).

Here, in order for the stop of the Defendant's vehicle to have been legal, Trooper Soler needed to have observed the Defendant using her cell phone while the vehicle was in motion. While it may be possible to úassert that the reason the Defendant did not immediately notice Trooper Soler's police car stopped next to her at a red light was because she was using her cell phone as she approached the light, such an assertion would simply be conjecture or a "mere hunch" that is insufficient to raise a reasonable suspicion of criminality. (People v. Sobotker, 43 NY2d at 564). The " in motion" element of the offense was not established and the People have not sustained their burden of "going forward to show the legality of the police conduct in the first instance." (Malinsky, 15 NY2d at 91, n. 2). Even Trooper Soler's good faith but erroneous belief that it was illegal for a non-commercial vehicle operator to use a cell phone while stopped in traffic cannot make an otherwise illegal stop legal. (see Matter of Byer v. Jackson, 241 AD2d 943, 944 (4th Dept 1997).

Accordingly, as a matter of law, any evidence obtained as a result of the illegal stop must be suppressed. (Nardone v. United States, 308 US 338, 341 [1939]; People v. Arnau, 58 NY2d 27, 32 [NY 1982]; People v. Rogers, 52 NY2d 527 (1981)). Furthermore, because the evidence obtained as a result of the illegal stop is "fruit of the poisonous tree", it too is suppressed thereby preventing the further prosecution of the indictment.

In light of the foregoing, it is not necessary to decide that branch of the Defendant's motion that seeks to suppress her admission that she used heroin earlier in the day because it was obtained while she was in custody without benefit of Miranda.

Therefore, it is hereby ORDERED that the Defendant's motion to suppress is GRANTED and the Indictment, together with its underlying simplified traffic ticket, are hereby DISMISSED.

The Clerk of the Court shall prepare the necessary Sealing Orders and notify T-sled of the ticket's disposition.

This constitutes the Decision and Order of the Court which has been entered with the County Clerk together with the motion papers.