People v. PonderPeople v. Ponder
Defendant appeals from a judgment of the Supreme Court, New York County (Thomas Farber, J. at suppression hearing; Gregory Carro, J. at plea; Ann E. Scherzer, J. at sentencing), rendered October 22, 2018, convicting defendant, upon his guilty plea, of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of five years.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes and Andrew E. Seewald of counsel), for respondent.
KAPNICK, J.P.
Defendant asks this Court to reject a per se rule that the search of the entire vehicle, including the trunk, is permissible in every circumstance where police have probable cause to believe that the occupant of the car has committed a crime. Defendant argues that the automobile exception to the
Detective Michael Tedeschi testified at defendant‘s suppression hearing that on the night of January 7, 2017, he and his partner, Sergeant Perez, as part of the anti-crime patrol unit of the 32nd Precinct, were in an unmarked car patrolling the area around Eighth Avenue and 148th Street in Manhattan. Shortly after midnight, Tedeschi observed a car driving southbound on Eighth Avenue between 149th and 148th Streets with its taillights off, which constituted a traffic infraction. He followed the car southbound for approximately two blocks before using his turret lights to signal the driver to pull over. Tedeschi testified that the vehicle‘s “taillights came on, then the brake lights, and the car pulled over.” Tedeschi approached the driver‘s side of the car while Perez approached the passenger side. The detective then asked defendant, who was driving the vehicle, to lower the windows, and defendant complied. Tedeschi detected a strong odor of burnt marijuana emanating from the vеhicle and observed that the inside of the vehicle looked smoky. Tedeschi further testified that “[it] smelled like they just got done smoking in the car.”
Upon request, defendant produced his license and registration. Tedeschi asked defendant to step out of the car, patted him down, and asked him to stand at the rear of the vehicle. Perez then asked the pаssenger to step out of the car; he too was patted down and then moved to the rear of the vehicle. Tedeschi proceeded to search the vehicle, starting with the driver‘s-side door, under the seat, and “anywhere drugs could be secreted.” He also searched the passenger side of the vehicle. Upon his search of the center console, Tedeschi recovered a small plastic bag containing an amount of loose unburnt marijuana consistent with personal use. He did not find any evidence of burnt marijuana or used cigarettes, nor did he find any ashes. Defendant and the passenger were both placed back into the vehicle, and Tedeschi searched the trunk of thе car, including a closed but unlocked compartment in the trunk, where he found a loaded firearm. Defendant and the passenger were subsequently arrested. In his arrest report, Tedeschi did
Defendant was charged with three counts of criminаl possession of a weapon in the second degree and unlawful possession of marijuana. He pleaded guilty to criminal possession of a weapon in the second degree and was sentenced, as a second felony offender, to a prison term of five years.
The motion court denied defendant‘s suppression motion, finding that it was сonstrained by this Court‘s decisions in Valette and Mena to hold that the search of the trunk was permissible. However, the court noted in a footnote in its written decision,
“Were this a matter of first impression, I question whether the odor of marijuana and the recovery of a small bag of marijuana from the center console of the car really provides probable cause to search closed containers in the trunk. Is it really likely that because someone is smoking marijuana in a car they have a stash in a closed container in the trunk? This is not, however, a case of first impression.”
The
In the case befоre us, defendant argues that the presence of marijuana smoke plus the small amount of unburnt marijuana found in the center console did not provide the officers with probable cause to search the trunk of the vehicle or a closed compartment therein. Defendant relies on the U.S. Supreme Court‘s statement in Ross that
“[t]he scope of a wаrrantless search of an automobile... is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garagе will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab” (456 US at 824).
Defendant also relies upon the decision of the Court of Appeals in People v Langen, in which the Court stated that in order to be a permissible search, there must be “both probable cause to search the automobile generally and a nexus between the probable cause to search and the crime for which thе arrest is being made” (60 NY2d at 181). In the case at bar, defendant argues that the requisite “nexus” is missing, because the small
The People argue that pursuant to this Court‘s decisions in Valette and Mena, the odor of marijuana was sufficient to provide probable cause to search thе entire vehicle, including the trunk and any closed compartments therein. The People also rely on Ross, pointing to the Court‘s statement that
“[a] warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand” (456 US at 821).
The People also point out that, “[t]hough Langen characterized the nexus as а connection between the probable cause to search and the crime for which the arrest is being made, . . . the requirement of a connection is flexible” (People v Galak, 81 NY2d 463, 467 [1993]). Here, the People argue, the nexus was sufficient to permit a search of the entire vehicle where marijuana might be found, including the trunk. Indeed, the People contend that pursuant to People v Cruz (7 AD3d 335 [1st Dept 2004], lv denied 3 NY3d 672 [2004]), when the police find evidence of the crime that provides them with probable cause for the initial search, they are not required to stop the search, but are permitted to search for additional evidence. Therefore, according to the People, upon finding the small amount of marijuana, the officer was permitted to сontinue searching the entire vehicle, including the trunk.
The application of United States v Ross and People v Langen to individual cases addressing the question of whether the odor of marijuana is sufficient to provide probable cause to search the trunk of a vehicle pursuant to the automobile exception to the
However, in People v Ramos (122 AD3d 462 [1st Dept 2014]), this Court reached a different result. In Ramos, the officer stopped the defendant‘s vehicle upon observing the driver smoking whаt appeared to be a marijuana cigarette. The officer testified that he smelled marijuana, but during a search of the vehicle did not locate a marijuana cigarette. However, the officer did see an empty glassine envelope on the floor of the vehicle. This Court found that “there was scant evidence of drugs in the car” (id. at 466) in that the officer never found the marijuana cigarette he claimed he saw the defendant smoking, defendant did not appear to be under the influence, the glassine envelope was empty, and the officer was equivocal about whether he smelled burnt or unburnt marijuana. Thus, the Ramos Court found, there was no probable cause to search the trunk (see also People v Romeo, 15 AD3d 420, 420 [2d Dept 2005], lv denied 4 NY3d 890 [2005]).
Moreоver, there are cases where, although the court found that the smell of marijuana provided
As noted by the U.S. Supreme Court in Ross, “[T]here is . . . no dispute among judges about the importance of striving for clarification in this area of the law” (456 US at 803). Defendant argues that Ross cannot and should not be divorced from its facts. In Ross, police officers received a tip that narcotics were being sold from the trunk of the defendant‘s car. The tip also included a description of the car, the defendant‘s alias, and the location of the car. When the police stopped the defendant, they instructed him to get out of the car. While two officers searched the defendant, a sergeant discovered a bullet on the car‘s front seat. He then searched the interior of the car and found a pistol in the glove compartment. The defendant was arrested, and the police officers searched the trunk of the vehicle and found a closed paper bag. The officers searched the brown paper bag at the scene and found glassine bags with white рowder, which was later confirmed to be heroin. A red, zippered leather pouch, which was found to contain cash, was also discovered and searched once the car was moved to the police station.
The question presented to the Ross Court was not whether the search of the trunk was permissible, but rather whether the officers had probable cause to search the closed containers found in the trunk. The Ross Court found that if there was probable cause to search the trunk, then there was probable cause to search the closed containers therein. Nothing in the Ross decision altered the probable cause requirement, nor does Ross stand for the proposition that all vehicle searches must
We are left with the question of whether the presence of a small amount of marijuana consistent with personal use provided the requisite probable cause and nexus to justify a search of the trunk. We find that in this case it did not. The only reasonable conclusion supported by the evidence here was that the de minimis amount оf unburnt marijuana was for personal use, not for distribution or trafficking. The officer did not find any drug paraphernalia in the car. Indeed, in this case, there was “scant evidence of drugs in the car” (Ramos, 122 AD3d at 466), and there was no probable cause to believe there was contraband in the trunk of the car. Therefore, because a proper search pursuant to the automobile exception “is no narrower — and no broader — than the scope of a search authorized by a warrant supported by probable cause, [and] otherwise is as the magistrate could authorize” (Ross, 456 US at 823), we find that here the search of the trunk was not supported by probable cause. Consequently , the gun found therein, and the statements made by defendant thereafter, should have been suppressed.
In view of the foregoing, we need not address the parties’ remaining arguments.
Accordingly, the judgment of the Supreme Court, New York County (Thomas Farber, J. at suppression hearing; Gregory Carro, J. at plea; Ann E. Scherzer, J. at sentencing), rendered October 22, 2018, convicting defendant, upon his guilty plea, of
Judgment, Supreme Court, New York County (Thomas Farber, J. at suppression hearing; Gregory Carro, J. at plea; Ann E. Scherzer, J. at sentencing), rendered October 22, 2018, reversed, on the law, defendant‘s motion to suppress a firearm and statements granted, and all weapons possession counts of the indictment dismissed. The charge of unlawful possession of marijuana should be dismissed in the interest of justice.
Opinion by Kapnick, J.P. All concur.
Kapnick, J.P., Mazzarelli, Moulton, Shulman, JJ.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: May 6, 2021
BARBARA R. KAPNICK
JUSTICE OF THE APPELLATE DIVISION