This is a proceeding wherein the defendant, ND, charged with operating a motor vehicle while having .08 of one per centum or more by weight of alcohol in her blood (Vehicle and Traffic Law § 1192 ) and operating a motor vehicle while in an intoxicated condition (Vehicle and Traffic Law § 1192 ), has moved to suppress any statements attributed to her, the results of any chemical analysis of her breath, and all other evidence allegedly obtained from her.
Based upon the People’s responding affidavit, which effectively concedes the truth of all allegations necessary to the court’s determination of this motion under CPL 710.60  [a] and People v Gruden, and after giving both parties an opportunity to be heard on 17 July 2008, the court denies the People’s request for a Dunaway/Scott hearing and decides the instant motion on the papers.
On 2 September 2007 at about 1:00 A.M., defendant’s vehicle was stopped at a New York State Police sobriety checkpoint on Fluvanna Avenue in the City of Jamestown. After allegedly displaying certain outward indicia of intoxication and failing four out of five field sobriety tests, defendant was asked to give a breath sample, which resulted in a reading of a .13% blood alcohol content level. Defendant challenges the constitutionality of the checkpoint stop upon the grounds that the New York State Police failed to follow their own self-established, written guidelines.
In addition to establishing a seemingly stringent protocol for the selection of sites, scheduling, briefing, setup, system of stops and interview procedures, the written guidelines of the New York State Police call for the making of certain records and/or reports before, during and after the date of the checkpoint.
When a sobriety checkpoint “is first scheduled,” a “DWI (Driving While Intoxicated) Program Notification” message is supposed to be transmitted to Assistant Deputy Superintendent JS, using a prescribed format. This memorandum is essentially a list of particulars pertaining to the planned checkpoint, including time and location, enforcement personnel and system of stop (every vehicle, every third vehicle, etc.).
During the checkpoint, the “DWI Investigative Note Card (TB-38) should be used to record pertinent impairment information” including the officer’s observations, the motorist’s responses to specific questions and the specific cues, or signs of impairment, observed during field sobriety tests. Not later than two business days following the completion of the checkpoint, a “DWAI Program Activity Record” is required to be received at “Division Traffic Services.” This record appears to be a data collection tool, containing useful post-checkpoint information, e.g., the number of vehicles passing through the checkpoint, the number of vehicles stopped and the number of motorists arrested for DWI or Driving While Intoxicated. These guidelines provide that it is imperative that these reports be completed in a timely and accurate manner. These documents are further described as legal records that are often referenced in both criminal and civil proceedings.
The parties’ submissions agree on one essential point, to wit: that none of the above-described documents was ever prepared, let alone transmitted to the appropriate official or division of the New York State Police. Thus, the stage is set for the court to consider the legal consequences of an admitted failure to strictly or substantially observe sobriety checkpoint guidelines.
Whether a law enforcement agency’s failure to follow its own sobriety checkpoint guidelines renders the stop unlawful under the Fourth Amendment of the United States Constitution or article I (§ 12) of the New York Constitution appears to be a question of first impression.
People v Scott, Michigan Dept of State Police v Sitz, Indianapolis v Edmond, People v Jackson and People v Trotter settled that a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment. As a general rule, a seizure of an automobile, whether on a highway or at a roadblock, requires an individualized suspicion of wrongdoing. The United States Supreme Court has recognized only limited circumstances in which the usual rule does not apply. In general, a sobriety checkpoint aimed at removing drunk drivers from the road does not violate the Fourth Amendment.
In the case of Brown v Texas, the People’s burden of proof as to the programmatic purpose is derived from the constitutional principle underlying the reasonableness of a suspicionless roadblock stop, i.e., a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. Absent such proof, a court is left “without any basis to assess `the gravity of the public concerns served by the seizure’ or `the degree to which the seizure advanced the public interest. The primary programmatic purpose must be determined by examining “the underlying reason for undertaking it” as opposed to the particular manner in which the checkpoint was conducted.
In order to remove the legal stigma of ostensibly violating the Fourth Amendment proscription against warrantless and suspicionless stops, the government bears the burden of satisfying the following, additional requirements. First, a checkpoint must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. The criminal court held that there had to be a plan for officers to follow and by which personnel’s actions could be objectively measured. Second, the United States Supreme Court has “insisted that the discretion of the official in the field be circumscribed as held in Delaware v Prouse.
Thus, primarily because of the “legal stigma” attached to warrantless and suspicionless stops, the People bear the burden of proving at a suppression hearing that the particular checkpoint in question was conducted in a non-discretionary manner, that is, the officers did not exercise individual discretion as to which cars to stop or what questions to ask akin to People v Cabrera.
Third, there should be adequate precautions as to safety, lighting and fair warning of the existence of the checkpoint.”
Fourth, the location of a fixed checkpoint should be chosen not by officers in the field, but by officials responsible for making overall decisions as to the effective allocation of limited enforcement resources as held in Matter of Muhammad F. The plan, directive or guidelines, as it were, should emanate from the higher echelons of the police department, sheriff or State Police.
These requirements constitute a substitute for the constitutional norm of individualized suspicion.
It is obvious that the plan should emanate from the higher echelons of the law enforcement agency and officers in the field must conform. In Commonwealth v Anderson, the Supreme Court of Massachusetts held that the Commonwealth must carefully comply with written, checkpoint guidelines and that “substantial compliance” is not the standard for a roadblock seizure. Thus, where the state police guidelines imposed a two-hour limit on the duration of any roadblock unless the troop commander ordered otherwise, and where the supervisor on the scene without the troop commander’s authorization extended the duration of the roadblock by 30 minutes, the evidence was held to be lawfully suppressed.
In Commonwealth v Yastrop, the Supreme Court of Pennsylvania ruled that “substantial compliance with guidelines established in two earlier precedents of Pennsylvania’s highest court is all that is necessary to minimize the intrusiveness of a roadblock seizure to a constitutionally acceptable level.”
The court believes the fairest course is to require law enforcement agencies to adhere to a standard of substantial compliance with their own guidelines. However, not every trivial deviation from written guidelines will turn a sobriety checkpoint into an unreasonable seizure.
In the case at bar, the court concludes that the checkpoint at issue was unconstitutional and represented an unlawful search and seizure.
In the first instance, the DWI Program Notification is more than a mere ministerial act. The DWI Program Notification is the first step in obtaining the requisite “higher echelon” approval of the chosen sites. By requiring the DWI Program Notification to be sent to the Assistant Deputy Superintendent, the State Police have in effect designated the Assistant Deputy Superintendent as the appropriate supervisory level officer with the responsibility for making overall decisions as to the effective allocation of limited enforcement resources.
In the second instance, the DWAI Program Activity Record is more than a redundant collection of post-checkpoint statistics. Not completing this record deprives courts and the State Police alike of the kind of empirical data demonstrating the effectiveness of the means chosen by law enforcement officials.
Based upon the foregoing, the court grants defendant’s motion to suppress the results of any chemical analysis of defendant’s breath, any and all statements attributed to her and all other evidence allegedly obtained from her.
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