Officer’s “Odd” Observation suffices for Approaching Driving Under The Influence, DWI, suspect in her Car

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In the People v. Karagoz, 2016 NY Slip Op. 06842 (App. Div. Second Department October 19, 2016), the Second Department reviews whether evidence was properly suppressed, the inquiry focuses on whether the police were correct in approaching the defendant.

The Court reviewed the testimony from the officer – “he observed a Buick in the northbound left turning lane on Oceanside Road; the operator of the Buick appeared to be unconscious behind the wheel. The officer parked his vehicle behind the Buick. Another police vehicle arrived on the scene and parked in front of the Buick. In addition, two ambulances arrived on the scene and were facing south on Oceanside Road blocking southbound traffic. Both police vehicles and the ambulances had their lights on. Traffic could pass through on the northbound side of Oceanside Road; the left northbound turning lane and southbound traffic were blocked.” A short time after, the officer walked back to his vehicle and noticed the Defendant stopped her vehicle behind his in the turning lane. The officer approached the vehicle and asked for the basic stuff: license, registration and insurance card. Upon this inquiry, the officer noted the bloodshot eyes, slurred speech and detected the odor of an alcoholic beverage. The officer approached the Defendant based on his observation that the Defendant’s stop seemed “odd.”

The question in this case is whether the police could approach the Defendant’s vehicle on this basis – that the officer found it odd she was there:

“In People v De Bour (40 NY2d 210 [1976]), the Court of Appeals established a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity. The first level permits a police officer to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality. The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater intrusion. The third level permits a police officer to forcibly stop and detain an individual. Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime. The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime” (People v Clermont, 133 AD3d 612, 613 [2015] [citations omitted]; see People v De Bour, 40 NY2d at 223).

In People v Hollman (79 NY2d 181 [1992]), the Court of Appeals clarified the difference between a request for information and the common-law right of inquiry. The Court stated that, as a general matter, “a request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination” (id. at 185). These questions need be supported only by an objective, credible reason not necessarily indicative of criminality (see id.) However, “[o]nce the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer’s investigation, the officer is no longer merely seeking information. This has become a common-law inquiry that must be supported by a founded suspicion that criminality is afoot” (id.)

The Second Department finds that the lower court was incorrect in suppressing the evidence: the subsequent breath test and field sobriety tests. The observation is enough and meets the oft-cited DeBour standard. The case is remanded to the lower court.

If you or a loved one is charged with Driving Under the Influence/DWI, call the Law Offices of Cory H. Morris: 631-450-2515.

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