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PEOPLE STATE NEW YORK v. FRANK AMITRANO (04/09/69)

DISTRICT COURT OF NEW YORK, FIRST DISTRICT, SUFFOLK COUNTY 1969.NY.41024 <http://www.versuslaw.com>; 299 N.Y.S.2d 275; 59 Misc. 2d 471 April 9, 1969 THE PEOPLE OF THE STATE OF NEW YORK, PLAINTIFF,v.FRANK AMITRANO, DEFENDANT Block & Kops for defendant. George J. Aspland, District Attorney (Thomas J. Klei of counsel), for plaintiff. Angelo Mauceri, J. Author: Mauceri


Angelo Mauceri, J.

Author: Mauceri

 The defendant was charged with a violation of section 385 of the Vehicle and Traffic Law, which is operating an overloaded vehicle on a public highway.

Defendant's motion made during the trial, is to suppress evidence as to the weight of defendant's vehicle, on the ground that such evidence was obtained in violation of defendant's right against an unlawful search and seizure as proscribed by the Fourth Amendment, and in violation of defendant's privilege against self incrimination under the Fifth Amendment.

Defendant's contention is, that absent a search warrant, a search is improper unless made incident to a lawful arrest. (Harris v. United States, 331 U.S. 145.)

As to whether or not an arrest for a traffic infraction is lawful, defendant avers, depends upon the existence of probable cause. (People v. Loria, 10 N.Y.2d 368.)

There is no question but that a traffic infraction is treated procedurally as a misdemeanor for most purposes, and that section 177 of the Code of Criminal Procedure, which provides for the circumstances under which a warrantless arrest may be made, is applicable. (Vehicle and Traffic Law, ยง 155.)

Under subdivision 1 of section 177 of the code, a peace officer without a warrant may arrest a person where he has reasonable cause to believe that an offense is being committed or attempted in his presence by that person.

Section 167 of the code defines an arrest as follows: "Arrest is the taking of a person into custody that he may be held to answer for an offense." This statute defining arrest makes it clear that the Legislature did not intend that the stopping of a vehicle on the public highway, for purposes of inspection and in order to detect overloading, makes it an arrest.

Section 390 of the Vehicle and Traffic Law provides: "The superintendent of state police shall cause inspection to be made of the motor vehicles and motorcycles operating on the public highways to detect inadequacy of equipment, overloading and other violations of law governing the use of the public highways by motor vehicles and motorcycles."

As noted in United States v. Vita (294 F. 2d 524, 530) the line between detention and arrest is a thin one, but a necessary one if there is to be any effective enforcement of the criminal law. As stated in People v. Fidler (280 App. Div. 698, 700): "When the State provides a public facility for private use and the use is by mechanical equipment, dangerous if defective, the right of public authority to examine the equipment as an incident to such use would seem incontestable." Nor would it appear that the inspection of the vehicle is prohibited by the Fourth Amendment. "The cloak of the right to privacy extends generally to an automobile, but it does not protect the driver against an inspection to determine if there is immediate danger in the very thing which the citizen has placed in present operation on the public way. A defective vehicle on a teeming traffic lane may require instant intervention of public power and that kind of intervention on the highway is not an invasion of privacy in truth or in the sense in which the draftsmen of constitutional language had of the protection they were affording against unreasonable searches." (People v. Fidler, supra, p. 701.)

It may be fairly concluded therefore, that stopping a vehicle on a public highway for purpose of inspection is not an arrest, and that the inspection does not constitute an illegal search.

As to the claim of self incrimination, defendant relies heavily upon section 155 of the Vehicle and Traffic Law, in support of his contention that a traffic infraction is a crime within the purview of the Fifth Amendment. This section however, makes it crystal clear that a traffic infraction is not a crime, and is to be deemed a misdemeanor for purposes of jurisdiction only, outside of cities having a population in excess of one million.

A traffic infraction is treated as a misdemeanor for purpose of procedure only. (People v. Wilson, 168 N. Y. S. 2d 391.)

In People v. Letterio (16 N.Y.2d 307, 312, 313) the Court of Appeals discussed the status of a traffic infraction. Justice ...


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