51 A.D.2d 880 | N.Y. App. Div. | 1976
reversed, on the law, motion to suppress granted and indictment dismissed. Memorandum: This is an appeal from a judgment of conviction, following a denial of a motion to suppress, upon a plea of guilty to attempted criminal possession of a controlled substance in the seventh degree. The sole question presented is whether the mere presence of "zig-zag” cigarette rolling paper on the floor of an automobile presents the requisite facts and circumstances to justify a finding of probable cause to search the vehicle and its occupants. We conclude that it does not. On March 22, 1974 at approximately 9:30 p.m. two Buffalo Police Department officers while on patrol observed an automobile parked on the sidewalk with its lights and engine off. One officer approached the person sitting in the driver’s seat and asked to see his license and registration. Following the officer’s request, the driver got out of the car and produced a valid license and registration. The officer testified at the hearing on the motion to suppress that he observed "zig-zag” cigarette rolling paper on either the seat or the floor where the driver had been sitting. He immediately ordered the three other occupants out of the car and the two officers began to "frisk” or "search” them. The officer further testified that his partner found a bag of marijuana in the trousers of the defendant. The second officer, however, did not testify at the hearing. Defendant was arrested at the scene and taken into custody. The testifying officer readily conceded that the sole reason the occupants were ordered from the car and searched was because the packet of rolling paper had been observed in the automobile. He stated that all the occupants had been co-operative and responded to the order to get out of the car and submit to the search and that, other than the marijuana, no other contraband was found. The fact that a police officer has knowledge that marijuana is often used in conjunction with cigarette rolling paper is insufficient to sustain a finding that there is probable cause to believe that criminal activity is occurring.