New York Criminal Lawyer Blog
A Kings Marijuana Possession Lawyer said that, defendant is charged with Attempted Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 110/220.03), and Criminal Possession of Marijuana in the Fifth Degree, both Class B Misdemeanors, as well as Unlawful Possession of Marijuana (PL Sec. 221.05), a violation.of
A Kings Criminal Lawyer said that, at the hearing, the People offered the testimony two witnesses; two Police Officers. The Defense offered no testimony, but did place into evidence two photographs of the location where Defendant was arrested. The Police Officer testified that he is assigned to the 77 Precinct. He has made approximately 50 arrests for criminal drug possession of marijuana in his four year career with the New York City Police Department, and has received training in the identification of marijuana crime possession.
A Kings Drug Possession Lawyer said that, on June 25, 2011, he was working in uniform. While driving eastbound on St John’s Place, Brooklyn, New York, “a call came over the radio involving three male blacks smoking marijuana.” That call was received “approximately 30 minutes prior” to the arrest of Defendant. At approximately 7:20 PM, the said Police Officer arrived at the location to which he was allegedly directed by the call, 417 St. John’s Place, Brooklyn, NY. The Officer testified that “at this point, we proceeded to go over there. We observed two defendants in possession of a marijuana cigarette. There was a very strong smell at this point. We went over to stop the defendant. Once we made eye contact, he flicked the marijuana cigarette over his right shoulder.” The Officer then identified Defendant as the person who “flicked” the marijuana away. He testified that he recovered the marijuana from “the ground where the defendant threw it.”
A Kings Criminal Lawyer said that, on cross examination, the Police Officer repeated that “a radio run came over the radio,” the location given was “417 St John’s,” and the description was “three male blacks smoking marijuana.” When he received the call, he was “patrolling in a marked van. I don’t know where. Somewhere in the 77.” Upon arriving at the scene, the Police Officer observed a group of three black males from “approximately 15 yards away.” Defendant was “leaning up against a black fence with a marijuana cigar in his right hand.” The Officer stated that from 15 yards away, “there was a strong smell of marijuana coming from the area.” When asked by Defense Counsel “when did you smell that strong smell of marijuana,” the Officer stated, “When I saw the defendant.”
The only description the Police Officer could give of the other two individuals, one of whom was subsequently arrested for possession of marijuana, was “black males.” After collecting the marijuana from the ground, the Police Officer gave it to the other Police Officer. The People’s next witness was the other Police Officer. The other Police Officer, also assigned to the 77 Precinct, has also been with the NYPD for four years, has made approximately 60 arrests for possession of marijuana, and has also received training in the identification of marijuana. He also received training in the identification of controlled substances, and had made approximately 10 arrests for the possession of controlled substances.
On June 25, 2011, the Police Officer remembered “encountering three people in front of 417 St. John’s Place,” Brooklyn, NY at approximately 7:20 PM. The Officer stated “we saw him coming out of the building. I saw (defendant) leaning on a fence smoking weed.” After Defendant’s arrest, the other Police Officer took him back to the 77 Precinct. During a search of Defendant’s wallet, “I observed a plastic straw with a white, powdery substance, residue.” In his opinion, the Officer believed this substance to be cocaine. Upon cross examination, the other Police Officer was asked if he could recall “why you were driving on St. John’s Place at that time?” The Officer stated “patrolling the street.” He also stated that he was “five feet, ten feet” away from Defendant when he observed him throw the marijuana away. When the Officer described the distance as “from here to the Defendant,” the Court noted the distance between the witness and the Defendant was “approximately 15, 17 feet.” When asked to describe the other two individuals, the other Police Officer could not remember what they looked like, or what they were wearing.”
A Kings Criminal Lawyer said that, once the People rested, the Court instructed the People to provide the defense with the “arrest paperwork” for the other individual arrested at the same time as Defendant. The People’s witnesses were subject to recall pending Defendant’s review of the requested discovery. On May 31, 2012, the defense requested, in writing, that the People produce “the radio run and accompanying SPRINT report that was mentioned in the Officer’s testimony.” The hearing was resumed on September 13, 2012. Based upon the People’s production of the arrest documentation for the other individual arrested at the same time as this Defendant, Defendant recalled both Officers to the stand.
The issue in this case is whether there is a probable cause for the defendant’s arrest for unlawful possession of marijuana.
Based upon the testimonial evidence offered by the People at the hearing, this Court finds both Officers not credible. The People have therefore failed to establish probable cause for Defendant’s arrest. The evidence collected by the police must be suppressed.
A determination of the facts and circumstances bearing on the issue of probable cause hinges primarily on questions of witness credibility, which is a question of fact. When the witness exhibits an inconsistent memory of the events to which he testifies, “it undermines the credibility of his memory.” In this matter, neither officer was credible.
The first Police Officer testified clearly and repeatedly that he and his partner were drawn to the location of Defendant’s arrest by a radio call of three black males smoking marijuana. Yet, not only were the People unable to produce any record of any such call, his partner, the other Police Officer, contradicted that testimony, and indicated they were on a routine patrol.
Based upon the People’s inability to locate any record of any radio call, this Court is left with no alternative but to hold the first Police Officer’s memory as incorrect regarding the events which brought him to the scene of Defendant’s arrest.
Further, the inability of both officers to recall any details of the arrest of an individual who was taken into custody at the same time as this Defendant defies credibility. The first Police Officer’s inability to identify a photograph of the location of Defendant’s arrest is also without any semblance of truthfulness. It is also highly unlikely that the said Officer would be able to smell a strong odor of marijuana from a distance of`15 yards, particularly when his partner indicates their van was only 15 to 17 feet away from Defendant at the time this observation was made.
Accordingly, the court held that, since this Court finds both Officers to have not been credible, “probable cause cannot be established because the officer’s claimed observations are suspect.” Without probable cause, the evidence collected by the police must be suppressed. All other arguments advanced by the People and Defendant have been reviewed and rejected by this Court as being without merit. This shall constitute the opinion, decision, and order of the Court.
When the witness exhibits an inconsistent memory of the events to which he testifies, it undermines the credibility of his memory. If you are being charged of a criminal case in a similar situation, seek the assistance of a Kings Marijuana Possession Defense Attorney and/or Kings Drug Possession Attorney at Stephen Bilkis and Associates in order to properly defend your case. Call us.