New York Criminal Lawyer Blog
On April 22, 23 and 28, 2008, this Court conducted a hearing pursuant to defendant’s 710.20 motion to suppress a gun, the magazine in the gun and the nine rounds of ammunition in that magazine. The issue of preclusion of other recovered objects is not before this court. A New York Marijuana Drug Possession Lawyer said that, the People called one witness New York City Police Officer who was assigned to the 75 Precinct Anti Crime-Unit at the relevant times. The defense called another New York City Police Officer who, at the relevant times, was the former Officer’s partner in the 75 Precinct Anti-Crime Unit; New York City Police Department Detective who, at the relevant times, was assigned to the Gun Enhancement Unit; and who, at the relevant times, was working in the Kings County District Attorney’s Office. The Court credits Police Officer’s testimony as set forth below and makes the following findings of facts and reaches the following conclusions of law.
A New York Criminal Lawyer said that, on November 29, 2006, the said Officer was on anti-crime patrol with the Officer and Sergeant. They were in plain clothes in an unmarked police car. The Officer was in the right front passenger seat, the other Officer was driving and the Sergeant was in the rear. The Officer received training in the Police Academy, about five years earlier, regarding the packaging of marijuana. Moreover, as a police officer he had experience with marijuana possession in that he had made about ten arrests for marijuana during which he had been exposed to the odor of both burning and unburnt marijuana. In addition, he had assisted in about 20 other arrests involving marijuana during which he again was exposed to odor of both burning and unburnt marijuana. At approximately 1:10 A. M., the three officers were driving north on Georgia Avenue towards Linden Boulevard, an industrial and drug prone location. At that time there was no vehicular or pedestrian traffic. The Officers had their windows down so they could hear gunfire and smell drugs such as marijuana.
A New York Criminal Drug Possession Lawyer said that, as the officers proceeded north on Georgia Avenue, a light-colored Infinity with Connecticut plates passed them. When the Infinity was about a half car length or six to ten feet in front of the unmarked police vehicle, Officer smelled a strong odor of burning marijuana emanating from the Infinity. He mentioned this to the other two officers who agreed that there was an odor of burning marijuana. The officers followed about six to ten feet or more behind the Infinity for about a block to Linden Boulevard where it took a right and then proceeded on Linden Boulevard for a block to Sheffield Avenue. During this time the Officer continued to smell burning marijuana. Near the intersection of Linden Boulevard and Sheffield Avenue, the officers, using their lights and sirens, stopped the Infinity.
After they stopped the Infinity, the Officer approached the passenger side of the Infinity with his flashlight, which was lit, in his hand. The other Officer approached the driver’s side and Sergeant went to the rear of the Infinity. The officers identified themselves as police officers by displaying their shields. The Officers did not have their guns drawn. Once the officers approached the Infinity, Officer noticed that other officers, in other police cars, arrived. Some were in uniform.
A New York Criminal Possession of Marijuana said that, as he approached the Infinity on foot, with his flashlight pointing to the Infinity, Officer Rodriguez smelled a faint odor of burning marijuana. When the Officer approached, the passenger window of the Infinity was down and the passenger, stated, “We were just smoking a little weed.”When the passenger said that, the Officer observed a three inch by four inch clear ziploc bag containing a green leafy substance on the floor of the car between the passengers’s feet. In his field test report, the Officer indicated, in substance, that he observed the co-defendant, drop the marijuana. At the hearing, he corrected this and stated that he did not observe co-defendant the marijuana. The Court credits the Officer’s testimony at the hearing.
A New York Drug Possession Lawyer said that, defendant produced his license, registration and insurance. According to the registration, the defendant was the owner of the vehicle. Another officer ran the defendant’s license through a Mobile Digital Terminal (MDT). The result of the MDT check was that his license was suspended. Because of this, the Officer arrested the defendant and ordered him out of the vehicle. After the Officer had arrested both defendants, he still smelled a strong odor of unburnt marijuana possession which he believed was coming from the trunk. After he was arrested, Officer reached into the car and took the key out of the ignition and, with it, opened the trunk. Officer testified, with candor, that he does not recall the former consenting to this.
A New York Criminal Marijuana Possession Lawyer said that, when he opened the trunk, he saw bunched up cellophane wrapping, which he believed is commonly used in packaging marijuana, covering half the floor of the trunk. As he was recovering the cellophane, he saw a handgun, a black 9 millimeter semi-automatic, underneath the cellophane wrapping. The handgun was loaded with nine 9-millimeter rounds of ammunition. Next to the gun there was 74 9-millimeter hollow point rounds which are not the subject of this hearing. Other objects were also recovered from the car but they too are not the subject of this hearing. After searching the vehicle on the street, Officer Rodriguez drove the Infinity back to the 75 Precinct. When the officers went to the station house, the green leafy substance was field tested. It tested positive for marijuana.
The issue in this case is whether defendant’s motion to suppress the evidence should be granted.
This court concludes that the Officer had probable cause, and at least reasonable suspicion, to stop the Infinity. On Georgia Avenue, he smelled burning marijuana coming from the Infinity. There were no other vehicles or pedestrians in the area. He continued to smell it coming from the Infinity as it traveled to Linden Boulevard and took a right and proceeded to Sheffield Avenue where the police stopped it.
When co-defendant stated, in substance, “We were just smoking a little weed”, Officer had probable cause to arrest him. When Officer saw the ziploc of green leafy substance, which he reasonably believed to be marijuana, he had a right to seize it. When Officer learned license was suspended, Officer had probable cause to arrest the defendant.
This court further concludes Officer had probable cause to believe there was marijuana in the trunk and thus probable cause to search it. Starting on Georgia Avenue and continuing to the area of Linden Boulevard and Sheffield Avenue, Officer smelled the odor of burning marijuana coming from the Infinity. After the Infinity was stopped, c0-defendant, the passenger, admitted they were smoking marijuana. While co-defendant was making this admission, Officer observed a ziploc of green leafy substance, which he reasonably believed to be marijuana, inside the Infinity between co-defendants feet. When Officer Rodriquez recovered that ziploc, he smelled a strong odor of unburnt marijuana coming from the rear of the vehicle. When he walked around the rear of the vehicle, before he arrested defebdant, Officer smelled the odor of unburnt marijuana coming from the trunk of the Infinity. After he arrested defebdant, Officer determined that the strong odor of unburnt marijuana was coming from the trunk of the Infinity. All of the above provided Officer with probable cause to the search the trunk.
In summary, the police had probable cause to stop the Infinity and to search the trunk. Consequently, the defendant’s motion to suppress the gun, the magazine in the gun and the bullets in the magazine is denied in all respects. This constitutes the decision and order of the court.