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Testimony by police is not credible


On January 26, 2011, a man was charged with five criminal counts including, driving while intoxicated (count one), resisting arrest (count two), harassment in the second degree (count three), parking upon pavement (count four), and possession of open containers in a motor vehicle (count five). He moved for suppression of all statements made to a law enforcement officer and suppression of the arrest and all evidence seized pursuant to that arrest. The Court thereafter, conducted a joint Huntley and Probable Cause suppression hearing.

The credible and believable testimony at said hearing established that on December 4, 2011, around 1:00 in the morning, City Department of Environmental Protection (DEP) Police Officers were concluding a security check. While finishing their security check, the two officers observed a slow-moving vehicle traveling on Hasbrouck Road toward the intersection of Hasbrouck Road and State Route 55. The area is rural and unlighted. The vehicle traveled and stopped between four to six times before reaching the stop sign.

Thereafter, the vehicle made a legal right-hand turn. It continued in the same stop and start manner before pulling over to the side of the road. Both officers testified that the defendant did not violate any vehicle and traffic laws and they had no police investigative reason to stop or approach the vehicle or make an arrest.

Both Officers, in their marked DEP police vehicle, testified that when they pulled up behind the defendant’s vehicle, they intended to conduct a welfare check. One of the officers stated that a welfare check concerned the welfare or the well-being of a person. Both police officers approached the vehicle, with one of them approaching the driver’s side and the other approaching the passenger’s side.

The law in New York State is clear that the police may approach a person and request basic information, such as identification and destination, as long as they do so in a non-threatening manner provided that they have an objective credible reason to approach, not necessarily indicative of criminality.

The police interaction may involve approaching an already stopped vehicle or approaching a person in a street encounter. They could have suspected drugs or possession of a weapon.

The Court is mindful and in agreement with the duty of the police to protect and serve. The police have a duty to protect a community not just from criminality but to aid and protect people and property which may need the assistance of the police for safety or injury purposes.

However, as stated above, the police must have an objective credible reason to approach and not mere whim or pretext.

The officer who made the initial contact with the defendant, made no inquiries about the defendant’s welfare. He testified that after the defendant said good evening to him, he may or may not have responded to the defendant. In either case, he immediately asked the defendant for his license and registration without making any inquiry as to the welfare of the defendant or his vehicle.

On direct examination, the officer testified that upon the defendant’s greeting to him he detected a strong odor of alcohol on his breath. However, on cross examination he undermined his own testimony when he testified that the defendant’s greeting to him was fine and that he was okay.

The questions that the officer asked of the defendant were not questions that concerned a welfare stop; instead, they were specific questions that were investigative in nature of a DWI stop. These questions were not in regard to the welfare of either the defendant or his vehicle, which was the officers’ stated reason for pulling up behind the vehicle and activating his take down lights and spotlight.

It is obvious, to the fact finder, that the officer was not concerned about the welfare of the defendant or his vehicle. He failed to ask any questions regarding the welfare of the defendant as reflected in the candid record of his testimony. He clearly did not ask how the defendant was doing, whether he was lost or injured, whether he was having car problems or whether he needed assistance in any way, shape or form.

The fellow officer also testified that the only reason for approaching the vehicle was to conduct a welfare check to determine if the defendant was lost, looking for cell phone reception, or was injured. However, he testified that he failed to ask any questions concerning the defendant’s welfare and, in fact, never asked one single question, at any time that morning including the booking process after the arrest, regarding the defendant’s welfare.

Notwithstanding both officers’ testimony regarding the welfare check, the officer, upon approaching the driver’s window, asked whether the defendant was drinking prior to driving, where the defendant came from and where the defendant was going. These questions were clearly indicative of a DWI investigation, not a welfare check and are designed to solicit incriminating evidence from a motorist.

He testified that activating his vehicle’s lights this was a safety measure and that the defendant could have started up his car again and drove off. He also testified that when a police officer activates the police lights, the person is supposed to stop and is not free to leave until the police speak with the person. By his testimony alone the custodial status of the defendant from the very inception was admitted by the police.

Moreover, the fellow officer frankly testified that when he asked for the defendant’s license and registration the defendant was no longer free to drive away as the police wanted to conduct further questioning of the defendant. His fellow officer wanted to pursue a police line of questioning despite testifying that he believed the defendant was fine.

Interesting, and as a salient point, the officer testified that when the police lights were activated upon approaching the vehicle that the defendant was not free to leave. By his testimony alone the custodial status of the defendant, from the very inception, was admitted by the police. It was at this point, before the police officers even approached the vehicle that the defendant was, seized and anything said was intended to be used against him.

The testimony surrounding the violation of the Vehicle and Traffic Law is equally inconsistent and incredible. The officers wrote in their report that the defendant violated the traffic law by parking on the pavement. However, neither officer testified that the reason the officers approached the vehicle was because of the defendant parking on the pavement, indeed this was not a Vehicle and Traffic stop. Both officers testified that it was not a vehicle and traffic stop because the officers were only checking on the welfare of the defendant, not that they stopped or approached the defendant for a vehicle traffic law violation.

The police officers’ actions are also inconsistent with their testimony that the approach of the defendant’s vehicle was solely for a welfare check. All testimony showed that the only questioning of the defendant was to determine whether the defendant was driving while intoxicated (DWI). Neither of the officers’ sworn testimony was credible, as a matter of fact, regarding the stop being a welfare check.

After the officer stopped questioning the defendant, at the scene, the fellow officer then proceeded to inform the defendant that he would be administering Field Sobriety Tests (FSTs). Although FSTs are only tests that are not absolutely determinative of a person’s actual intoxication level, the tests do serve as useful tools that give police officers reasonable information to determine if a person has been driving while intoxicated (DWI).

Since the officer testified that he observed three or four clues, it is possible that the defendant could have only demonstrated three clues and therefore would be less likely to be intoxicated. The third test successfully administered was the one legged stand test. The defendant initially refused to take the test. Thereafter, the officer admonished the defendant and stated that if he refused to participate in any further testing, he would be under arrest.

The officer placed the defendant under arrest and was read his Chemical Test and Miranda warnings. The officer testified that he informed the defendant three times that the defendant knew what he was refusing. However, the statement is inconsistent with a written report, which was placed into evidence. The report was written by one of the officer but was also reviewed by both officers. One of the officers admitted in his testimony that nowhere in the report does it say that the defendant was asked three more times whether the defendant understood the consequences of refusing to take a Breathalyzer test.

What is especially troubling about the testimony of the officer is that he only recorded some of the incident. He failed to record some of the more important events that occurred during the incident. Most notably, he failed to record the administration of the Miranda warnings, the Chemical Test (Breathalyzer Test refusal) warnings, and the incident that took place at the police station. Moreover, both of the officers’ sergeants were also at the scene. They could have easily given the phone to and instructed one of the two individuals to record what was going on.

Moreover, the photographs that the officers arbitrarily took at the scene of the incident were incomplete. They took pictures of the alcohol that the officers found on the floor of the backseat of the defendant’s vehicle. However, the officers failed to take pictures of other events that were equally or more important to the case. These events include the defendant performing the FSTs, the defendant’s vehicle and how it was situated on the roadway, and the actions that took place at the police station.

Both officers testified that they had no way to secure the liquid in the containers, and the officers testified that they sniffed the contents of the bottle and determined that the bottles contained alcohol. Thereafter, the officers poured out the contents of the containers and stored the bottles to be put in evidence bags at a later time.

The testimony is contradictory. The officer testified that he was trained to secure evidence at the scene of a crime, not to destroy it. Furthermore, it was unbelievable for him to conclude that, out of the three police officers at the scene of the crime, not one of them had the ability to secure two containers of alcohol so that they could be admitted into evidence after proper testing. The officers at the scene had reasonable ways to secure the evidence and chose not to use them. The police intentionally spoiled the evidence. The pouring out of the liquid in the containers is borderline incredible. No bail was set.

The Court finds that the arrest of the defendant was illegal. Said finding is based upon the numerous inconsistencies in the testimony of both police officers, the lack of probable cause to arrest the defendant and that the purpose of the police officers in approaching the defendant’s vehicle initially was mere pretext.

Furthermore, the Court finds the testimony of both police officers not credible. As such the prosecution did not meet the required burden of proof necessary for these hearings.

Law enforcers are presumed to be always aware of how to handle situations.

When they miss on steps or procedures, the life of other could be at risk. If you were arrested questionably for alcohol related allegations, bring your case to the hands of the New York Criminal Lawyers or the NYC Drunk Driving Attorneys. Stephen Bilkis and Associates also have the best NY DWI Defense Lawyers and NYC DUI Attorneys.

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