On May 17, 2022, Huntley and Mapp/Dunaway hearings were held on the above captioned matter and thereafter, both parties submitted memoranda of law and reply papers. In deciding the suppression issues, the Court has considered the arguments of counsel, the exhibits admitted during the hearings as well as the testimony of the witnesses.
The People argue that the initial stop of defendants vehicle was justified by defendants failure to maintain his lane or, in the alternative, defendants excessive rate of speed (estimated to be 55 miles per hour [mph] in a 35 mph zone). Defendant contests the legality of the traffic stop, asserting that neither defendants alleged movement from his lane nor the alleged speeding provided a sufficient basis upon which to stop defendants vehicle.
Facts
With respect to the initial stop of the automobile, the Court makes the following findings of fact. On September 12, 2020 at 2:05 a.m., Officer Thomas Lohmann was conducting stationary patrol in front of 500 North Country Road (hereafter 25-A) in Head of the Harbor. At that location, 25-A was a two lane highway (one lane in each direction) with a double yellow line and a rumble strip separating the lanes. The officer was on the shoulder
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of the roadway facing east in a car that was idling and with the windows rolled down. The posted speed limit at that location was 35 mph.
At that moment, defendants car approached the officers location from the rear, traveling eastbound. Officer Lohmanns attention was drawn to defendants car because of its headlights, engine noise, and tires on the rumble strip. Lohmann observed the vehicles approach in his side view mirror and noted that the noise of the tires on the rumble strip was “louder than is typical.”
As defendants car passed Officer Lohmanns location, the witness pulled out behind defendant thereby activating his daytime running lights. Mr. Tyler thereafter “appropriately hit the brakes,” “abruptly moved into the turning lane” and then made a right turn onto Moriches Road (approximately 75 yards past where the officer had been parked). See, Peoples 1 in Evidence, H-47. Defendants turn onto Moriches Road did not cause his tires to “screech” or cause defendants car to depart from its lane of travel. The officer then effected a traffic stop.
Based on the foregoing observations, the officer, who at that time had not been trained or certified in estimating vehicle speeds, ultimately wrote a ticket for a violation of Vehicle and Traffic Law (VTL) § 1180 [a] (operating a “vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.”). The officer continued his testimony, averring that approximately one year after this incident he was trained in estimating vehicle speeds and based on that training, now estimated defendants speed to have been 55 mph in a 35 mph zone.
Discussion
In the context of suppressing evidence, it is the People who bear the initial burden of demonstrating that the police conduct was legal and if successful, the defendant will thereafter bear the burden of persuasion to show that their conduct was illegal. People v. Di Stefano, 38 NY2d 640, 651-652 (1976). “In evaluating police conduct, the court must determine whether the action taken was justified in its inception and at every subsequent stage of the encounter.” People v. Nicodemus, 247 AD2d 833, 835 (4th Dept. 1998).
The People posit two discrete theories to justify the initial stop of defendants automobile: first, that the officer was justified in stopping defendants vehicle for speeding, and second, was justified in stopping defendants vehicle for defendants failure to maintain his lane of travel.
VTL § 1128 (a)
VTL 1128 (a) provides that “[w]henever any roadway has been divided into two or more clearly marked lanes for traffic ․ [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.”
Evidence that defendant failed to maintain his lane is limited to Officer Lohmanns testimony that he heard Mr. Tylers car tires on the rumble strip. Missing from that testimony was any indication that it was “practicable” for defendant to have driven “entirely within a single lane.” Such evidence was critical in light of the location of the officers vehicle on the shoulder of 25-A. Indeed, that narrow shoulder (one-car-width wide) would have barely accommodated the police vehicle thus indicating that the officers car encroached upon defendants lane of travel. The lack of vehicular traffic on that road at 2:05 in the morning establishes, then, that defendants action of giving the officers car a sufficiently wide berth did not violate VTL 1128 (a), but rather presented as a prudent and lawful decision. See, VTL § 1144-a.
VTL § 1180 (a)
As relevant here, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. US, 517 US 806, 810 (1996). The Court of Appeals has noted that in cases where the “testimony of a patrolman as to the speed of defendants car was found to be insufficient ․ there was no evidence in the record as to the expertise of the patrolman in judging speed.” People v. Heyser, 2 NY2d 390, 394 (1957). Furthermore, in People v. Olsen, 22 NY2d 230, 232 (1968), the Court of Appeals noted that a courts decision to credit an officers opinion concerning the speed of an automobile “should be based upon all the facts and circumstances of the case, including the nature and extent of the opportunity which the officer had to view the moving vehicle.”
Here, there was no evidence in the record as to the expertise of the officer in judging speed. Indeed, although Officer Lohmann testified he eventually received training in estimating speed, there was neither an indication of what that training entailed nor evidence offered as to any acquired proficiency. Moreover, that training was not completed until approximately one year after this incident and for that reason, the officer “didnt have an actual speed” estimate as of the time of the encounter. As a result, Lohmann charged defendant only with violating VTL § 1180 [a] (i.e., traveling in excess of a speed reasonable and prudent for the existing conditions). H 50-51. The corollary of that testimony is that the officer was similarly unable to provide a speed estimate for defendants car based upon his knowledge or skill acquired as either an experienced driver or police officer. Cf, People v. Drollette, 304 NY 446 (1952). Thus, Officer Lohmanns opinion as to the speed of defendants vehicle was not based upon any proven qualifications, and so is disregarded by the Court. People v. Matthews, 4 Misc 2d 278, 281 (Tioga Cty. 1956), People v. Rothstein, 1 Misc 2d 516, 518 (Westchester Cty. 1955).
Moreover, the nature and extent of the opportunity which the officer had to view the moving vehicle was incompatible with a reliable speed estimate. Indeed, the officers attempt to estimate speed by his reliance on his observations in his side view mirror, at night, bolstered not by radar or pacing defendants car, but solely by his interpretation of auditory cues, proves his speed estimate to be dubious (especially when that opinion was arrived at only after a retrospective application of his speed estimate training). Olsen, supra at 232.
Finally, there is no record support that defendant was operating his “vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing”(VTL § 1180 [a]). The testimony here establishes that at the time of the stop there was no traffic in the area, the conditions were dry, and defendant neither “screeched” his tires nor departed from his lane of travel, except to give a sufficiently wide berth to the officers car parked on the narrow shoulder.
Consequently, the Court finds that the People have failed in their initial burden of demonstrating that the police conduct was justified at its inception. Accordingly, defendants motion to suppress the evidence obtained as a result of the traffic stop, including the marijuana or other contraband, gun holster, gun and any statements made by defendant, as well as any observations made by law enforcement, is granted.
FOOTNOTES
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. The shoulder was only as wide as Officer Lohmanns vehicle.
Richard Ambro, J.