New York Criminal Lawyer Blog
Defendant is charged with Attempted Criminal Possession of a Controlled Substance in the Seventh Degree, and Criminal Marijuana Possession in the Fifth Degree, both Class B Misdemeanors, as well as Unlawful Possession of Marijuana, a violation.
A New York Unlawful Possession of Marijuana lawyer said that the People offered the testimony of two witnesses, both police officers. The Defense offered no testimony, but did place into evidence two photographs of the location where Defendant was arrested.
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.
In June 2011, the first police officer 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 other Officer arrived at the location to which he was allegedly directed by the call. The Officer testified that “at this point, we proceeded to go over there. They observed two defendants in possession of a marijuana cigarette. There was a very strong smell at this point and went over to stop the defendant. Once we made eye contact, he flicked the marijuana cigarette over his right shoulder.”
The Officer than identified Defendant as the person who “flicked” the marijuana away. He recovered the marijuana from “the ground where the defendant threw it.”
At the conclusion of the evidence, the Court asked the People to produce proof of the radio run that the Officer testified had brought him and his partner to the location of the arrest. The People informed the Court that “the Sprint report was not able to be located.” The Court asked again, “All right. I want to be clear. You don’t have the radio run?” The People answered, “Yes, that is right.”
Based upon these facts, the Court makes the following findings: 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 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 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 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 Officer’s inability to identify a photograph of the location of Criminal Defendant’s arrest is also without any semblance of truthfulness.
It is also highly unlikely that he would be able to smell a strong odor of marjiuana 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.
Since this Criminal 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.
Filing of a criminal information must be based upon probable cause. Absent of probable cause would mean defective filing of information. Here in Stephen Bilkis and associates, our New York Criminal attorneys will determine as to the existence of probable cause upon filing of the information, if there is none, we will help you prosecute those who are involved in this negligible act. In case a person was found to be in possession of marijuana, you can consult also our New York Marijuana Possession Defense lawyers, who will defend you in all the stages of litigation. Call us now.