People v. Thomas

19 A.D.3d 32, 792 N.Y.S.2d 472
Appellate Division of the Supreme Court of the State of New York·Decided April 14, 2005·Published·Cited by 31 cases

Opinions

OPINION OF THE COURT

Friedman, J.

Under the four-tiered analysis of police-civilian encounters first propounded by the Court of Appeals in People v De Bour (40 NY2d 210, 223 [1976]), a level I “request for information”— the least intrusive level of police inquiry—is justified by an “objective, credible reason not necessarily indicative of criminality” (People v Ocasio, 85 NY2d 982, 985 [1995], citing People v Hollman, 79 NY2d 181, 187, 194 [1992]). The question presented by this appeal is whether the parking of a car beside a fire hydrant provides a police officer with an “objective, credible reason” to ask to see the driver’s license of the person sitting at the wheel of the car. We conclude that the car’s blocking the hydrant does create an “objective, credible reason” justifying the officer in making limited inquiries to determine whether the person behind the wheel is a licensed driver. The justification lies in the fact that it is not legal to stop a car beside a hydrant unless a licensed driver remains at the wheel (see Vehicle and Traffic Law § 1202 [b]; 34 RCNY 4-08 [e] [2]). In concluding that the officer is justified in asking to see the license, we are influenced by the consideration that a person who stops a car alongside a fire hydrant plainly invites, and should reasonably expect, an interaction with law enforcement. We also conclude that a police approach to a person in a car that is already stopped does not constitute a level III “forcible stop and detention” (De Bour, 40 NY2d at 223), even if the police stop their vehicle in a position that incidentally blocks the civilian vehicle’s path. Accordingly, we reverse the order granting defendant’s suppression motion, and reinstate his indictment.

The relevant facts are as follows. While on patrol in a marked police van, Police Officer Anthony Bombolino and his partner observed defendant sitting in the driver’s seat of a car parked adjacent to a fire hydrant, with the car’s motor running. Officers of the precinct had been instructed to “keep all the fire [34] hydrants clear” while on patrol, since blocked fire hydrants were a “major problem” in the area. Accordingly, Bombolino parked his van “directly in front of’ defendant’s car, got out of the van, and walked over to defendant, intending to ask him to move the car. First, however, Bombolino asked defendant for his driver’s license. Defendant replied that he did not have his license with him. Bombolino then asked for another form of identification, and defendant stated that he had none. At that point, Bombolino asked defendant to state his name and date of birth, which defendant did. Bombolino’s partner entered defendant’s name and date of birth into a mobile computer, which yielded the information that defendant’s license had been suspended. Bombolino then asked defendant to step out of his car and placed him under arrest for driving with a suspended license. In conducting a search of defendant’s person incident to the arrest, Bombolino found in defendant’s pants pocket a bag of crack cocaine and a dollar bill with cocaine residue on it.

Defendant was subsequently indicted for criminal possession of a controlled substance in the fifth degree and aggravated unlicensed operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511 [1] [a]). Defendant moved to suppress the drug evidence that Bombolino had recovered from his person. The only witness called at the suppression hearing was Officer Bombolino, who testified as indicated above. Supreme Court granted the motion. Although defendant’s car had not been moving at any point during the encounter with the police, the court found that Officer Bombolino had stopped defendant by parking the police van “so as to block in the defendant.” Noting that a state statute permits parking beside a fire hydrant, provided that a licensed driver remains in the front seat, prepared to move the vehicle “immediately” should the need arise (Vehicle and Traffic Law § 1202 [b]), the court found that Officer Bombolino did not have probable cause to believe that a traffic violation was occurring when he observed defendant sitting at the steering wheel of a car parked beside a fire hydrant.1 Since Officer Bombolino did not have probable cause to suspect a traffic violation, the court reasoned, the “stop” of defendant’s car (by parking the police van in front of it) was [35] unlawful. The court therefore suppressed the drug evidence recovered from defendant’s person as the product of an unlawful “stop.” We now reverse.

Initially, contrary to the view of the suppression court and Justice Tom, the evidence concerning the position in which the police van was parked did not escalate the degree of intrusion to that of a level III forcible stop requiring “reasonable suspicion” (see Ocasio, 85 NY2d at 984; Hollman, 79 NY2d at 185). Although Officer Bombolino testified on cross-examination that he parked the police van “directly in front of defendant’s car,” thereby “blocking]” him, this does not constitute a seizure of a car already stopped (see Ocasio, 85 NY2d at 984-985 [affirming finding that no seizure occurred where police approached car stopped at red light]). It appears from the record that the blocking of the car was simply incidental to the legitimate police approach to the vehicle for the purpose of asking defendant to move it. The record provides no basis for a finding that the police deliberately stopped their vehicle in a position that would block the path of defendant’s vehicle.2

Given the congested traffic conditions that prevail in many areas, we cannot conclude that a seizure occurs whenever the police, in stopping their own vehicle for the purpose of making a legitimate approach, incidentally block the path of the car of the person to whom they wish to speak. To hold otherwise, as advocated by Justice Tom, would impose on the police a new protocol requiring a motorized officer, in stopping to approach a person in a parked car, to take care to stop the police vehicle in a way that makes it possible for the other driver to pull away. According to Justice Tom, any failure to do this, whether intentional or (as here) unintentional, transforms the police ap[36] proach into a level III forcible detention. We decline to adopt this approach.3

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People v. Thomas, 19 A.D.3d 32, 792 N.Y.S.2d 472 (N.Y. Ct. App. 2005).

19 A.D.3d 32 (People v. Thomas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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