There was an odd EMS technician who lived in Throgs Neck, a neighborhood in the Bronx. His name is Jeff. Jeff drove a minivan that had a magnetic emergency roof light on top.
He would activate the light when he pulled out of his driveway and then de-activate it when he had safely negotiated his exit. The lights would be activated again when he was pulling the minivan back into the driveway. It was the evening of September 11, 2001, and Jeff was coming down the block. But the roof light was activated. He pulled into his driveway and got out of his minivan. He looked at a bunch of his neighbors and told them that he had been missing for ten hours during this chaotic day. One of the kids listening to Jeff asked, “You didn’t know where you were?” Jeff, clearly annoyed, did not answer. He just went into his house. For the next week, Jeff would leave his emergency light activated whenever and wherever he drove that minivan.
Many years later, Jeff had his minivan parked outside of a store in the neighborhood and he was blocked in. Jeff, activated his roof emergency light and leaned on the minivan’s horn. The man who walked toward the double-parked car to move it looked at Jeff and Jeff looked back. It was the kid (not a kid anymore) who had asked Jeff if he knew where he was when he was missing on 911. He got in and pulled away. But before Jeff could pull away, an NYPD cruiser briefly sounded its siren and blocked Jeff’s minivan. Jeff was given a ticket. Why?
Jeff, violated the Vehicle and Traffic Law: a private citizen may neither “display . . . emergency lights from their private vehicle,” nor “falsely express by words or actions that he or she is acting with approval of authority of a public agency or department with the intent to induce another to submit to such pretended official authority…”
You could look it up: Vehicle and Traffic Law § 375(41).
But this week’s case is not about missing EMTs or double-parking.
This is a case that determines whether a law enforcement official who is not a police officer or peace officer may impersonate one in order to pull someone over and arrest them.
One summer evening, using the emergency lights on his unmarked Chevrolet Tahoe, a federal marine interdiction agent with the United States Customs and Border Protection stopped the driver of a vehicle for driving dangerously on a public highway in Erie County. After pulling the driver over, the agent waited in his truck for members of the Buffalo Police Department who, upon arriving at the scene, took over and made an arrest.
Can a border patrol agent activate their emergency lights and pull someone over on a highway in New York for unsafe driving, or should they be treated like Jeff, the missing EMT, making the stop unauthorized?
Here is a transcript of the proceedings.
TESTIMONY OF THE FEDERAL AGENT
Q. How are you employed?
A. I am a federal marine interdiction agent with the United States Customs and Border Protection.
Q. Were you on-duty at the time of this event?
Q. And were you operating an agency vehicle?
A. Yes. It was an unmarked Chevy Tahoe, outfitted with an emergency radio as well as red and blue emergency lights in the grille of the front of the truck, and a little light bar inside the windshield.
Q. Is that a full complement of lights and sirens typically found on a police vehicle?
A. No, it was not.
Q. Now, Special Agent, you were driving Interstate 190 in Erie County. Where were you coming from and where were you going?
A. Well, I had just concluded a maritime patrol and I was merging the Tahoe onto Interstate 190 in Erie County on my way to make security checks at the local marinas.
Q. Did you observe anything unusual after you entered I-190?
A. Yes. As I was merging, I suddenly noticed a pair of headlights coming up from behind in my rearview mirror. The driver of that vehicle rapidly closed in behind me, then suddenly hit the brakes to avoid rear-ending the Tahoe.
Q. So then what happened?
A. Although the driver pulled back, he started weaving between the right and left lanes and then passed my Tahoe on my driver’s side leading to a second near-collision with another car that was merging from Route 198 onto I-190.
Q. Did you continue to observe the vehicle that almost rear-ended your Tahoe?
A. I did. The vehicle continued to drive erratically, leading to a third near-collision, and I followed.
Q. What did you do next?
A. I first attempted to contact the State Police on the radio equipped in the Tahoe. No immediate response so I dialed 911 on my personal phone to report the incident. I continued following that vehicle as it exited the freeway. I became increasingly concerned for public safety and energized the lights on the Tahoe, and that prompted the driver to pull over. I then relayed our location to the 911 operator, and I just sat in the parked Tahoe and waited roughly five minutes for the police to arrive.
Q. Who arrived?
A. An officer of the Buffalo Police Department arrived and spoke to me before approaching defendant’s vehicle. As a safety measure, I accompanied the lone officer to defendant’s car and I saw the driver speaking with the occupants.
Q. Did you speak with anyone in the stopped car?
A. No, I did not speak with defendant or anyone else in the vehicle directly.
Q. What did you do next?
A. I left the scene when additional Buffalo police officers arrived. They informed me that I was longer needed, so I left to continue my security checks.
TESTIMONY OF BUFFALO POLICE
Q. Did the federal agent make any statements to the Buffalo Police Department regarding recommended charges that should be filed?
Q. Did the agent issue any traffic tickets in conjunction with his stop.
Q. What did you do after the agent’s departure?
A. We conducted a search of the vehicle.
Q. Did you find anything?
A. We recovered a gun. All three occupants were arrested and defendant was charged with criminal possession of a weapon in the second degree.
Your Honor, this case must be dismissed because the gun was obtained after an illegal stop by the federal agent.
The agent had no authority to follow and then force the driver of the car to pull over.
The agent was not a police officer, but instead was a peace officer acting out of his jurisdiction.
JUDGE: Counsel, let’s say that the court agrees with you that the agent was not a police officer or a peace officer, why could it not be determined that the stopping of the vehicle was a citizen’s arrest?
DEFENSE ATTORNEY: Well, Your Honor, it is true that a citizen would have been able to make the stop, but only if the person was truly just a citizen. Here, the agent created the appearance of having the authority to pull over the car. He wasn’t.
In fact, the agent violated section 375(41) of the Vehicle and Traffic Law, which says that a private citizen may neither display emergency lights from their private vehicle, nor falsely express by words or actions that they are acting with approval of authority of a public agency or department with the intent to induce another to submit to such pretended official authority. The agent knew that he was not authorized to make the arrest — that is why he called 911.
This case must be DISMISSED.
FINAL DECISION AFTER ALL APPEALS
If this Court finds that the federal agent is a peace officer then the stop of the drunk driver was illegal and the recovery of the gun was what is known as the fruit of the poisonous tree. And what that means is that the gun itself cannot be used against the defendant and any other evidence gathered against the defendant regarding the drunk driving charge would also not be available for use against him at trial.
HOWEVER, because the agent’s title is not listed as a peace officer in the criminal statute, we cannot put it there. The agent is not a peace officer. That means the arrest was a proper citizen’s arrest. As to the use of the emergency lights, nothing in the citizen’s arrest statutes themselves set forth the methods that must be employed when, as here, a crime is committed in the responding citizen’s presence.
THE CASE WILL NOT BE DISMISSED.
So now the case will proceed to trial – the evidence obtained by the Buffalo PD after the stop by the federal agent has been approved by the court. Some people may be bothered by the fact that the agent used his emergency lights and gave the false appearance that he was not just an ordinary citizen, but that is the decision of NY’s highest court.
Here is the case: http://www.nycourts.gov/reporter/3dseries/2020/2020_03265.htm