Opinion
00528-2014
12-30-2019
The PEOPLE of the State of New York, Plaintiff, v. Robert GREEN, Defendant.
John Flynn, Esq., Erie County District Attorney, BY: Michael J. Hillery, Esq., Assistant District Attorney, Attorney for the People Patrick E. Fitzsimmons, Esq., Attorney for the Defendant
John Flynn, Esq., Erie County District Attorney, BY: Michael J. Hillery, Esq., Assistant District Attorney, Attorney for the People
Patrick E. Fitzsimmons, Esq., Attorney for the Defendant
Russell P. Buscaglia, J.
The defendant is charged by this Indictment with Criminal Possession of a Weapon in the Second Degree, Penal Law § 265.03. The defendant moved to suppress the physical evidence seized. A hearing was conducted pursuant to Mapp v. Ohio , 367 U.S. 643 (1961) and Dunaway v. New York , 442 U.S. 200 (1979). On November 6, 2014 the defendant's motion was denied by this Court. On January 5, 2015 the defendant pled guilty to one count of Criminal Possession of a Weapon in the Second Degree, Penal Law § 265.03. On February 20, 2015 the defendant was sentenced to a determinate period of imprisonment of eight (8) years and a period of post-release supervision of five (5) years. An appeal of the judgment convicting the defendant was filed. On June 7, 2019 the Appellate Division, Fourth Judicial Department, reserved decision and remitted the matter to Supreme Court for a determination whether the arresting officer possessed the requisite justification to conduct a search of the defendant. A hearing was conducted on July 25, 2019 and this Court reserved decision pending written submissions by the People and the defendant.
The credible testimony at the hearing is referred to in the original Decision and Order of this Court dated November 6, 2014 denying the defendant's motion to suppress the physical evidence seized.
It is well settled that the odor of marijuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants, People v. Cuffie , 109 AD3d 1200 (4th Dept. 2013) and People v. Chestnut , 43 AD2d 260 (3rd Dept. 1974). In People v. Garcia , 20 NY3d 317 (2012), the Court of Appeals held that the People v. DeBour , 40 NY2d 210 (1976) framework for evaluating the constitutionality of police-initiated encounters with private citizens applies with equal force to traffic stops. Probable cause exists where the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed, Chestnut . Post Garcia , no Appellate Courts have departed from the Chestnut holding.
When Officer Matusiak approached the stopped vehicle both front and back windows on the driver's side were down. Officer Matusiak smelled an odor of fresh marijuana emanating from the vehicle. Officer Matusiak was trained and experienced in detecting the smell of raw or fresh marijuana. This observation, his training and experience, provided Officer Matusiak the requisite probable cause to search the defendant, Cuffie . While the arguments submitted by the defendant have merit, they are not ultimately persuasive. Perhaps in light of the fact that marijuana has been decriminalized to some extent and not enforced to some degree by prosecutors in New York, Appellate Courts may depart from this analysis. Perhaps Appellate Courts may not depart from this analysis considering the People's argument regarding the automobile exception to Fourth Amendment jurisprudence, see also , People v. Gates , 31 NY3d 1028 (2018) (Garcia, J. dissenting). Thus, following Garcia , Chestnut and its progeny still controls under the facts and circumstances of this Indictment.
Therefore, the officer's observations, including the odor of fresh marijuana emanating from the vehicle and his training and experience, provided the requisite probable cause to search the vehicle and its occupants, People v. Sykes ,110 AD3d 1437 (4th Dept. 2013). Since the officer had the requisite probable cause to search the defendant, his flight and abandonment of the handgun components were not in response to unlawful police conduct, People v. Howard , 50 NY2d 583 (1980) and People v. Bell , 296 AD2d 836 (4th Dept. 2002).
Accordingly, the defendant's motion to suppress the physical evidence seized is DENIED.
This decision constituted the Order of this Court.