A Suffolk Marijuana Possession Lawyer said that, the defendant is charged, with Criminal Possession of Marijuana in the Fifth Degree, in violation of Penal Law § 221.10(1), and, , with Driving While Intoxicated DWI, Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree, Operating an Uninsured Vehicle, Operating Without a Seatbelt, and Unauthorized Possession of a License, in violation of VTL §§ 1192(2), 511(1), 319(1), 1229(c)(3)(a) and 509(6), respectively, as well as Possessing Alcohol while being under twenty-one (21) years of age, with intent to consume, in violation of Alcohol Beverage and Control Law § 65-c. All of these charges arise out of the same incident of October 14, 2007.
A Suffolk Criminal Lawyer said that, on October 14, 2007, at approximately 9:19 p.m., the Officer, an eleven (11) year member of the Nassau County Police Department, was on patrol in the vicinity of the South Gate Shopping Center located in Massapequa Park, New York. At that time, the Officer was alone, in uniform, and traveling in a marked police car, driving from the back to the front of the shopping center. As he came around to the front parking lot, Officer observed a dark vehicle parked approximately fifty (50′) feet away, within the confines of a parking space, in front of the King Kullen supermarket, with two (2) males standing outside the vehicle, one (1) of which he observed on the passenger’s side of the vehicle making the motion of throwing objects at the supermarket. Upon seeing this, Officer turned off his headlights so that he might further observe these individuals. Shortly thereafter, upon seeing the Officer, the two (2) individuals entered the vehicle by which they were standing and began to pull away. As the passenger got into the vehicle the Officer observed him place an object which looked like a beer bottle down beside the vehicle.
A Suffolk Drug Possession Lawyer said that, seeing this, the Officer pulled up behind the vehicle and activated his emergency lights and siren to effectuate a stop. The vehicle traveled a short distance, now no longer within a single parking space, but straddling the lines between two (2) spaces. Upon stopping the vehicle, Officer approached the driver, who he later identified as the Defendant, and asked for his license, registration and insurance card. The Defendant produced a license and registration, but not an insurance card. At that time, he also observed an open beer bottle next to where the vehicle had been parked; and, upon looking into the vehicle, saw an unopened bottle of beer on the floor behind the passenger. While standing next to the Defendant’s vehicle, approximately eighteen (18″) inches away from the Defendant, the Officer noticed the Defendant’s speech to be slurred, his eyes bloodshot and glassy and the odor of alcohol emanating from his breath. The Officer testified that as he spoke to the Defendant, the Defendant was relatively cooperative, but was not forthcoming with his answers to the officer’s questions. The Officer then asked the Defendant to step out of the vehicle for the purpose of conducting field sobriety tests (“SFSTs”).
A Suffolk Marijuana Possession Lawyer said that, upon performing the Horizontal Gaze Nystagmus test the Officer observed positive clues for intoxication in both eyes. The Officer also observed positive clues for intoxication in performing the Nine Step Walk and Turn test, including missed heel to toe steps, raised arms for balance and making a complete spin when told to turn around. Similarly, on the One Leg Stand Test he observed the Defendant have difficulty counting while performing this test, and put his foot down and raise his arms for balance, all positive clues for intoxication. At this point, based upon his observations of slurred speech, the aroma of alcohol coming from the Defendant, the Defendant’s glassy and bloodshot eyes and his performance on the SFSTs, the officer placed the Defendant under arrest.
A Suffolk Marijuana Possession Lawyer said that the other Police Officer testified that he arrived on the scene at approximately 9:30 p.m. The Officer is a twenty-seven (27) year member of the Nassau County Police Department, and was previously a member of the New York City Police Department for six (6) years. On the night of the Defendant’s arrest, Officer Judge was in uniform and alone in a marked police car. After the Defendant was placed under arrest, at approximately 9:40 p.m., Officer assisted Officer in moving the Defendant to the right rear passenger’s side of the Officer’s patrol car. Officer then proceeded back to the Defendant’s vehicle to begin what he called an inventory search.
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A Suffolk Unlawful Possession of Marijuana Lawyer said that the Officer conducted his search of the Defendant’s vehicle at the scene, shortly after the arrest. He searched the interior of the vehicle, the glove compartment and the trunk, in that order. As a result of this search, Officer recovered a bottle of Budweiser from the floor in the rear of the vehicle, and nine (9) bags of a brown leafy substance, which appeared to be marijuana, wrapped in a larger bag, from the trunk. During his search, Officer also observed articles of clothing and possibly some compact discs, cassette tapes and paperwork inside the vehicle, as well as a stereo system attached to the car inside the trunk. He did not recall what property, if any, was in the glove compartment.
Following this search, the Officer completed two (2) forms, a property voucher form, on which any recovered evidence was listed, and a departmental form request for testing of evidence. Office also indicated that there exists a form known as an impound sheet, to be completed after an inventory search, on which is listed all valuables recovered which are not going to be used as evidence. Officer did not complete an impound sheet in this case; but, he assumed one was completed by an Officer. No such impound sheet was ever offered into evidence at the hearing; and, Officer testified that the only property that was inventoried was the substance believed to be marijuana and the beer bottle found in the Defendant’s vehicle.
The issue in this case is whether there is probable cause for the criminal Defendant’s arrest.
At a Mapp/Dunaway/Huntley hearing, where a defendant challenges the legality of a search and seizure, along with statements allegedly obtained as a result thereof, the People have the burden of going forward, in the first instance, to establish the legality of the police conduct. Once the prosecution has met this burden, the defendant has the ultimate burden of establishing the illegality of the police conduct, by a fair preponderance of the evidence. Additionally, the People have the burden of proving the voluntariness of any statements allegedly made beyond a reasonable doubt.
Given the Officer’s initial observation of the Defendant and another individual, who appeared to be throwing something at the King Kullen supermarket, even the Defendant concedes that the officer had the right to approach these individuals and inquire as to their conduct. Indeed, it is the court’s opinion that the conduct initially observed by Officer rose to the level of “a founded suspicion that criminal activity is afoot,” permitting the officer to interfere with the Defendant to the extent necessary to gain explanatory information.
The court further finds that, based upon the Officer’s observations of an open bottle of alcohol in the vicinity of the Defendant’s vehicle, a bottle of beer in the Defendant’s vehicle, the Defendant’s physical condition and the alleged positive clues of intoxication observed while the Defendant was performing the SFSTs, the Defendant’s arrest was based upon probable cause.
The performance of a purported inventory search notwithstanding, the open bottle of beer left on the ground beside the Defendant’s vehicle, as the Defendant began to drive away from Officer, was observed by Officer in plain view after having been abandoned “in the face of lawful police activity. Similarly, separate and apart from any inventory search, “the record supports the finding that the officer saw the [unopened bottle of beer] in plain view upon shining his flashlight into the defendant’s car from outside (citation omitted).” Accordingly, that branch of the Defendant’s application seeking to suppress the two (2) recovered beer bottles is denied.
As is apparent from the foregoing, the Officer’s answer regarding the statement allegedly made by the Defendant was responsive to the question posed and no objection or request to strike this answer as non-responsive was made. Moreover, it is equally apparent that the Defendant’s alleged statement was voluntarily made in response to reasonable inquiry following a lawful stop of the Defendant’s vehicle. Accordingly, the Defendant’s application to suppress the statement attributed to him is denied. Assault was not involved.
A different result must be reached for the marijuana seized from the Defendant’s trunk. While a warrant based upon probable cause was not required to search the Defendant’s trunk, given the facts and circumstances presented, such search would only be justified if conducted pursuant to a standard departmental inventory procedure consistent with constitutional dictates. The People bear the initial burden of coming forward with evidence of the existence of such a procedure and that the search was conducted in accordance therewith. The People herein have failed to meet their burden.
Although the People’s failure to place in evidence the alleged written inventory procedure guidelines of the Nassau County Police Department is not, by itself, fatal to the People’s position the Officer exhibited only a cursory “knowledge of the general objectives of an inventory search and failed to establish the existence of any departmental policy regarding inventory searches.”
In the matter sub judice, Officer testified that, although his search revealed the marijuana in question, a stereo system affixed to the trunk of the Defendant’s vehicle, some articles of clothing and possibly some compact discs, audio cassettes and paperwork, he was only aware of the marijuana being vouchered, because it was evidence. As indicated herein above, Officer completed a property voucher form, listing only the marijuana and had no personal knowledge of any other property being listed on an inventory form; he merely assumed one was completed by Officer Grossman. The People offered absolutely no other testimony concerning what was done with the remaining tangible personal property found by Officer and failed to produce any inventory list.
Equally fatal to the search conducted in this matter is the fact, according to Officer Judge, that the officer in the field conducting the inventory search is given complete discretion as to what is deemed “valuable” and what is to be inventoried. Such “arbitrary decision-making about what to seize, creates unacceptable risks of unreasonableness in an inventory search policy.”
Given the unfettered discretion of the officer in the field concerning what to seize and inventory, the failure of the People to proffer evidence of a proper inventory list and the absence of any proof that anything other than evidence was seized and vouchered, “manifestly, the procedure was so unrelated to the underlying justification for inventory searches that [the court has] no difficulty finding it to be arbitraty and irrational, and the search it generated unreasonable.”
Accordingly, the court held that the Defendant’s application to suppress the marijuana possession seized from his trunk is granted.
If you have been charged of criminal possession of marijuana and the evidence were obtained illegally, seek the help of a Suffolk Marijuana Possession Defense Attorney and Suffolk Criminal Attorney in order to defend your case.