Calendar Date: May 21, 2013
Mark D. Suben, District Attorney, Cortland (Kevin A. Jones of counsel), for appellant.
Randolph V. Kruman, Cortland, for respondent.
Before: Rose, J.P., Spain, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
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 he was charged with criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the seventh degree, driving while ability impaired by drugs and moving from lane unsafely. The Troopers testified at a Mapp hearing, and County Court concluded that defendant voluntarily consented to the search of his vehicle. Following a subsequent Huntley hearing, with testimony from the same witnesses, County Court concluded that defendant was in custody after having failed field sobriety tests and, no Miranda warnings having been given at that point, his subsequent statements were inadmissible. The court then revisited its prior decision and held that defendant's consent to search the vehicle was involuntary and the heroin found in the vehicle was inadmissible. The People appeal.
County Court's decision to suppress any statements made after defendant failed the field sobriety tests is erroneous as a matter of law. The evidence at the suppression hearings revealed that, after receiving a report of an erratic driver, two State Troopers observed defendant's vehicle leave the roadway, travel onto the median and then return to the roadway. The Troopers received confirmation that the vehicle they observed was the subject of the report and they effected a traffic stop. Defendant stopped his vehicle and, in response to initial questioning, denied that he consumed any alcohol and claimed that his vehicle had hit a pothole, causing trouble with the alignment. One of the Troopers asked defendant to exit the vehicle and observed him to be unable to maintain his balance. Defendant unsuccessfully performed four of six field sobriety tests, but an alcosensor test was negative for the presence of alcohol in his system. Believing defendant to be intoxicated by something other than alcohol, one of the Troopers testified that, at that point, he formed the unexpressed intention to arrest defendant. When the Troopers requested permission 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 out to be heroin.
County Court articulated the appropriate standard for determining whether an interrogation is custodial, that is, would a reasonable person in defendant's position but innocent of any crime have thought that he or she was in custody (see e.g. People v Rhodes, 83 A.D.3d 1287, 1288 ). The court, however, overlooked the settled proposition that "[a] temporary roadside detention pursuant to a routine traffic stop is not custodial within the meaning of Miranda " (People v Mathis, 136 A.D.2d 746, 747 , lv denied 71 N.Y.2d 899 , citing Berkemer v McCarty, 468 U.S. 420 ; see People v Kulk, 103 A.D.3d 1038, 1039 ; People v Hasenflue, 252 A.D.2d 829, 830 , lv denied 92 N.Y.2d 982 ). The facts here reveal a reasonable initial interrogation attendant to a roadside detention that was merely investigatory (see People v Harris, 186 A.D.2d 148, 148 ; People v Mathis, 136 A.D.2d at 748). The Troopers' inquiries, the mixed results of the field sobriety tests and a negative alcosensor test would not have caused a reasonable person innocent of any wrongdoing to believe that he or she was in custody (see People v Kulk, 103 A.D.3d at 1039; People v McAleavey, 159 A.D.2d 646, 646 ; People v Brown, 104 A.D.2d 696, 697 , lv denied 64 N.Y.2d 778 ). In our view, the Troopers' observations of defendant's condition justified the further detention for the limited purpose of investigating whether he was operating his motor vehicle in an impaired condition (see People v Hasenflue, 252 A.D.2d at 830; People v Noonan, 220 A.D.2d 811, 812-813 ).
Although County Court relied upon People v Baez (95 A.D.3d 654 , lv denied 19 N.Y.3d 994 ), the facts of that case are distinguishable. In Baez, the officer'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 she was 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 determining whether defendant was in custody for purposes of Miranda (see People v Bell, 182 A.D.2d 858, 859 , lv denied 80 N.Y.2d 927 ; People v Brown, 104 A.D.2d at 697).
Our conclusion renders academic County Court's finding that, because defendant was in custody, his consent to the search was involuntary. In any event, "'[t]he voluntariness of a consent to search is not vitiated, per se, by the failure to give Miranda warnings to an accused while subject to custodial interrogation'" (People v McCray, 96 A.D.3d 1480, 1481 , lv denied 19 N.Y.3d 1104 , quoting People v Tremblay, 77 A.D.2d 807, 807 ). Here, the evidence supports County Court's original conclusion that, based on the totality of circumstances, defendant's consent to the search was voluntary (see People v Young, 86 A.D.3d 796, 797 , lv denied 17 N.Y.3d 905 ; People v Quagliata, 53 A.D.3d 670, 672 , lv denied 11 N.Y.3d 834 ; People v Leiva, 33 A.D.3d 1021, 1023 ).
Spain, McCarthy and Egan Jr., JJ., concur.
ORDERED that the order is reversed, on the law, motion denied and matter remitted to the County Court of Cortland County for further proceedings not ...