| People v Brown |
| 2013 NY Slip Op 04850 [107 AD3d 1305] |
| June 27, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Appellant, v TerenceQ. Brown, Respondent. |
—[*1] Randolph V. Kruman, Cortland, for respondent.
Rose, J.P. Appeal from an order of the County Court of Cortland County (Campbell,J.), entered July 6, 2012, which granted defendant's motion to suppress evidence.
Following a traffic stop, State Troopers found heroin in defendant's vehicle and hewas charged with criminal possession of a controlled substance in the third degree,criminal possession of a controlled substance in the seventh degree, driving while abilityimpaired by drugs and moving from lane unsafely. The Troopers testified at aMapp hearing, and County Court concluded that defendant voluntarily consentedto the search of his vehicle. Following a subsequent Huntley hearing, withtestimony from the same witnesses, County Court concluded that defendant was incustody after having failed field sobriety tests and, no Miranda warnings havingbeen given at that point, his subsequent statements were inadmissible. The court thenrevisited its prior decision and held that defendant's consent to search the vehicle wasinvoluntary and the heroin found in the vehicle was inadmissible. The People appeal.
County Court's decision to suppress any statements made after defendant failed thefield sobriety tests is erroneous as a matter of law. The evidence at the suppressionhearings revealed that, after receiving a report of an erratic driver, two State Troopersobserved defendant's vehicle leave the roadway, travel onto the median and then return tothe roadway. The Troopers received confirmation that the vehicle they observed was thesubject of the report and they effected a traffic stop. Defendant stopped his vehicle and,in response to initial questioning, denied that he [*2]consumed any alcohol and claimed that his vehicle had hit apothole, causing trouble with the alignment. One of the Troopers asked defendant to exitthe vehicle and observed him to be unable to maintain his balance. Defendantunsuccessfully performed four of six field sobriety tests, but an Alco-Sensor test wasnegative for the presence of alcohol in his system. Believing defendant to be intoxicatedby something other than alcohol, one of the Troopers testified that, at that point, heformed the unexpressed intention to arrest defendant. When the Troopers requestedpermission to search defendant's vehicle, he responded affirmatively three separate times.The Troopers then opened the trunk and found a plastic bag containing what turned outto be heroin.
County Court articulated the appropriate standard for determining whether aninterrogation is custodial, that is, would a reasonable person in defendant's position butinnocent of any crime have thought that he or she was in custody (see e.g. People v Rhodes, 83AD3d 1287, 1288 [2011]). The court, however, overlooked the settled propositionthat "[a] temporary roadside detention pursuant to a routine traffic stop is not custodialwithin the meaning of Miranda" (People v Mathis, 136 AD2d 746, 747[1988], lv denied 71 NY2d 899 [1988], citing Berkemer v McCarty, 468US 420 [1984]; see People vKulk, 103 AD3d 1038, 1039 [2013]; People v Hasenflue, 252 AD2d829, 830 [1998], lv denied 92 NY2d 982 [1998]). The facts here reveal areasonable initial interrogation attendant to a roadside detention that was merelyinvestigatory (see People v Harris, 186 AD2d 148, 148 [1992]; People vMathis, 136 AD2d at 748). The Troopers' inquiries, the mixed results of the fieldsobriety tests and a negative Alco-Sensor test would not have caused a reasonable personinnocent of any wrongdoing to believe that he or she was in custody (see People vKulk, 103 AD3d at 1039; People v McAleavey, 159 AD2d 646, 646 [1990];People v Brown, 104 AD2d 696, 697 [1984], lv denied 64 NY2d 778[1985]). In our view, the Troopers' observations of defendant's condition justified thefurther detention for the limited purpose of investigating whether he was operating hismotor vehicle in an impaired condition (see People v Hasenflue, 252 AD2d at830; People v Noonan, 220 AD2d 811, 812-813 [1995]).
Although County Court relied upon People v Baez (95 AD3d 654 [2012], lv denied 19NY3d 994 [2012]), the facts of that case are distinguishable. In Baez, theofficer's threat to arrest the occupants of the vehicle was expressly stated to them,creating a situation in which no reasonable person would have believed that he or shewas free to leave (id. at 654-655). Here, on the other hand, the Troopers'intention was not expressed to defendant and, therefore, it is irrelevant in determiningwhether defendant was in custody for purposes of Miranda (see People vBell, 182 AD2d 858, 859 [1992], lv denied 80 NY2d 927 [1992]; Peoplev Brown, 104 AD2d at 697).
Our conclusion renders academic County Court's finding that, because defendant wasin custody, his consent to the search was involuntary. In any event, " '[t]he voluntarinessof a consent to search is not vitiated, per se, by the failure to give Mirandawarnings to an accused while subject to custodial interrogation' " (People v McCray, 96 AD3d1480, 1481 [2012], lv denied 19 NY3d 1104 [2012], quoting People vTremblay, 77 AD2d 807, 807 [1980]). Here, the evidence supports County Court'soriginal conclusion that, based on the totality of circumstances, defendant's consent to thesearch was voluntary (seePeople v Young, 86 AD3d 796, 797 [2011], lv denied 17 NY3d 905[2011]; People v Quagliata,53 AD3d 670, 672 [2008], lv denied 11 NY3d 834 [2008]; People v Leiva, 33 AD3d1021, 1023 [2006]).
Spain, McCarthy and Egan Jr., JJ., concur. Ordered that the order is reversed, on thelaw, motion denied and matter remitted to the County Court of Cortland County forfurther proceedings not inconsistent with this Court's decision.