19 N.Y.S.3d 713
N.Y. City Crim. Ct.2015Background
- On Aug. 5, 2014, Officer Douglas Winn observed defendant commit multiple traffic violations, stopped him, smelled alcohol, and noted bloodshot/watery eyes and unsteadiness. Defendant first denied drinking, later admitted a “sip of wine.”
- Officer Winn administered field sobriety tests (HGN) and a portable breath test (.07/.08); he arrested and transported defendant to the precinct IDTU for chemical testing.
- At the precinct, the IDTU room phone was not working; Officer Winn confiscated defendant’s phone and provided his own cell phone but kept physical possession and put calls on speakerphone while videotaping the session.
- Defendant used the speakerphone to call his wife and then his attorney; Officer Winn remained close enough to overhear and the conversation was recorded on video. After about 24 minutes, Officer Winn ended the call, read refusal warnings, and defendant agreed to the Intoxilyzer test (.07).
- Defendant moved to suppress evidence arguing the stop/arrest lacked probable cause and that his qualified right to counsel was violated; court held a hearing and found the officer credible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for stop/arrest | Officer observed traffic violations and signs of intoxication warranting arrest | Stop and arrest lacked probable cause; evidence should be suppressed | Held: Probable cause existed for the stop and for arrest for DWI; motion denied as to stop/arrest-based suppression |
| Admissibility of portable breath test as basis for probable cause | Portable breath test results can establish probable cause even if not admissible at trial | Portable test should not be credited for probable cause without foundation | Held: Portable breath test may be used to establish probable cause (court relied on it for arrest) |
| Right to consult counsel before chemical test | Qualified right to consult counsel can be accommodated briefly without unduly interfering with testing; access must be meaningful | Police permitted consultation but used officer’s phone on speaker with officer present and videotaped, so communication was not private | Held: Right to counsel violated because communication was not private; evidence from that consultation suppressed |
| Remedies for counsel violation (breath result/statements/video) | Exclusion of breath test results and statements is required when qualified right is infringed | People argued prior cases differed (e.g., conversation not on speaker/recorded) and suppression not warranted | Held: Suppressed Intoxilyzer results, defendant’s statements to counsel, and video portions showing the consultation; remaining motion denied |
Key Cases Cited
- People v Gursey, 22 N.Y.2d 224 (1968) (recognizes qualified right to consult counsel before breath test; call may be accommodated briefly)
- People v Smith, 18 N.Y.3d 544 (2012) (reaffirms Gursey; failure to permit counsel consultation requires suppression of breath test results)
- People v Washington, 23 N.Y.3d 228 (2014) (police duty to notify defendant when attorney calls after consent but before test; violation of qualified right)
- People v Cooper, 307 N.Y. 253 (1954) (right to consult counsel in private without fear that communications will be accessed by prosecutors)
- Dunaway v. New York, 442 U.S. 200 (1979) (fruit of an illegal seizure doctrine; hearing required to determine probable cause)
- Wong Sun v. United States, 371 U.S. 471 (1963) (fruits of illegal police conduct inadmissible)
- People v Vandover, 20 N.Y.3d 235 (2012) (defines probable cause standard for arrests)