New York Criminal Attorney Blog
If you’re stopped by the police in New York (Greenburgh, White Plains, Harrison, etc) for a traffic infraction such as speeding, should the police read you your “rights” prior to questioning you about where you coming from, if you had anything to drink or if you knew why you were stopped? When a person is arrested they lose certain rights. For example, when one is arrested, they lose their right to liberty and they are subject to a warrantless search incident to their arrest. In fact, a search incident to a lawful arrest is one of the many exceptions to the search warrant requirement.
However, while a person loses certain rights when they are arrested, they also obtain certain rights once they are arrested. For example, before the police can question a person who has been arrested they must read that person their “rights” – the police must “Mirandize” an arrested person before questioning.
There is absolutely no doubt that Uniform Traffic Tickets or Simplified Traffic Informations are also appearance tickets. See e.g., People v. Tyler, 1 N.Y.3d 493 (2004)(speeding ticket deemed an appearance ticket); People v. Hollinger, 15 Misc. 3d 130A (App. Term 2nd Dept. 2007)(The front of the uniform traffic tickets directed defendant to appear in the Justice Court of the Village of Old Westbury on September 18, 2003, thus serving as an “appearance ticket” under CPL 150.10); Farkas v. State, 96 Misc. 2d 784, 787 fn 1 (N.Y. Ct. Cl. 1978)(Appearance ticket includes, by definition, uniform traffic tickets); People v. Litean, 2008 N.Y. Misc. LEXIS 5475, 240 N.Y.L.J. 33 (N.Y. Sup. Ct. 2008)(“A summons requiring a defendant to appear in court is the equivalent of a desk appearance ticket . . .”); People v. Genovese, 156 Misc. 2d 569, 571 (J. Ct. 1992)(“the yellow copy of the simplified traffic information is an appearance ticket as defined by CPL 150.10”).
Since People v. Hazelwood, 104 Misc.2d 1121, 1123 (N.Y. City Crim. Ct. 1980) held that the detention of a person by the police for the purpose of issuing such person an appearance ticket creates an “arrest situation” justifying a search of such person just as if they had been formally arrested, doesn’t it follow that the police would have to Mirandize this so-called “arrested” person before questioning them? Why should the police get the benefit of deeming the person “arrested” so they can search them but not allow this “arrested” person the benefit of his Miranda rights just like any other arrested person?
One stopped by the police is clearly not free to go. In People v. Wallgren, 2011 NY Slip Op 51556U, (N.Y. County Ct. Aug. 16, 2011) the police officers testified at the probable cause hearing that defendant’s vehicle was driving erratically and they stopped it only to check on the driver’s “welfare.” However, as observed by the court, the officers were not concerned about the driver’s welfare but instead immediately launched into a DWI investigation:
Notwithstanding both officers’ testimony regarding the welfare
check, Officer Einsfeld, upon approaching the driver’s window,
asked whether the defendant was drinking prior to driving, where
the defendant came from and where the defendant was going.
These questions were clearly indicative of a DWI investigation,
not a welfare check and are designed to solicit incriminating
evidence from a motorist.
Furthermore, the police admitted that “when a police officer activates the police lights, the person is supposed to stop and is not free to leave until the police speak with the person.” Id. The court therefore concluded that the police testimony established that the defendant was in custody from the very inception of the defendant’s encounter with the police: “By [Officer Einsfeld’s] testimony alone the custodial status of the defendant from the very inception was admitted by the police.” Id.
The court further noted additional police testimony that made clear what every motorist knows: a motorist is not free to leave when stopped by the police:
Moreover, Officer Einsfeld frankly testified that when he asked
for the defendant’s license and registration the defendant was no
longer free to drive away as the police wanted to conduct further
questioning of the defendant.
Id.
If the driver is not free to go when stopped for a traffic infraction; and if it’s an arrest situation when one is stopped by the police for the purpose of issuing them an appearance ticket as the Hazzelwood decision held; isn’t one in “custody” thus requiring the police to inform that person of their Miranda rights?
For more information, feel free to contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com. More detailed information can be found in our book “Appearance Tickets in New York” available at Amazon.com.