Opinion
2003NY027829.
Decided December 4, 2003.
The defendant, Jose Ulerio, is charged with possession of a weapon in the fourth degree, PL 265.01(1) and criminal possession of marijuana in the fifth degree, PL 221.10. He moved to suppress statements and physical evidence and a Dunaway, Mapp and Huntley hearing was granted.
The hearing was held on October 22, 2003. At the hearing, Police Officer Kevin Whalen testified that he was a member of the New York City Police Department for over three years, was currently serving in an anti-crime unit, had made approximately 100 arrests and had special training in recognizing weapons including gravity knives and in identifying the smell of marijuana. He further testified that on April 23, 2003, he arrived at the scene of a vehicle stop made by two other police officers (Mackenzie and Fox). Officers Fox told Officer Whalen that the car had been stopped for running a red light. The area was a "high drug prone" location.
When Officer Whalen approached the stopped vehicle the windows were down and he smelled the odor of marijuana. Whalen asked the defendant, who was a passenger in the rear seat, to step out so that he could be frisked for a weapon. When he frisked the defendant, Whalen felt a hard object which he believed was a knife. Officer Whalen removed a knife from defendant's pocket and found it to be a gravity knife. He then asked the defendant, "do you have anything else on you", to which the defendant responded "I have weed in my pocket". The officer recovered four ziplock bags of marijuana from the defendant's pocket.
Officer Whalen arrested the defendant and placed him in handcuffs. The defendant said that he carried the knife for protection. Whalen did not remember whether this was said in response to any question he asked. No Miranda warnings had been given to the defendant. The People concede that they did not meet their burden concerning this post-arrest statement and that statement is suppressed.
The defense called Alexis Martinez who testified that he, too, was a passenger in the car, and was seated next to the driver. He testified that none of the occupants of the car had been smoking marijuana. He admitted, on cross-examination, that he had been convicted previously of "smoking marijuana". Martinez also admitted giving false information to defense counsel concerning his name and birthdate.
The court, after both sides had rested and made argument but before ruling, summarized that applicable law and framed the legal issues which counsel were asked to address in written memoranda. At that point, the prosecutor requested leave to reopen to call a second witness (Officer Mackenzie) after the luncheon recess. The court, over objection by defense counsel, granted permission to call the additional witness that afternoon but stated that if the witness did not appear at 2:15 P.M. the hearing would be closed. When court reconvened the witness, Police Officer Mackenzie, was present and was permitted to testify. He testified that he had stopped the car in which defendant was a passenger because it ran a red light.
Defendant contends that the court improperly permitted the People to present the testimony of Officer Mackenzie because the People already had a full and fair opportunity to meet their burden of showing that the car stop was lawful. It is clear from the record that the prosecutor believed he had met his burden of proof but elected to make a fuller record after hearing the issue as framed by the court.
Permission to reopen a suppression hearing before a ruling has been made rests in the sound discretion of the court. People v. Tirado, 266 AD2d 130 (1st Dept. 1999); People v. Torres, 257 AD2d 672 (2nd Dept.), lv. denied 93 NY2d 879 (1999); cf. People v. Ynoa, 223 AD2d 975 (3rd Dept. 1996).
The court finds that the testimony of Officer Mackenzie was not "patently tailored to nullify constitutional objections." Torres, id.; (see also People v. Crandall, 69 NY2d 459 (1987)). Rather it was consistent with testimony already in the record and was not contradicted (as to the reason for the stop) by the witness called by the defense.
The cases relied on by the defendant, for the proposition that the reopening was improper, involved hearings that were reopened days or weeks after the hearings had concluded, or followed appellate rulings. Here, the hearing was concluded in a single day without undue delay and the permission to present a further witness was given before the court made any ruling on the motion.
Next, defendant argues that the court improperly interjected itself into the proceedings. That argument is found to be without merit. The court appropriately discussed the questions of law raised by the testimony and framed the issues which the parties were asked to address in post-hearing memoranda. The court did not suggest that the prosecutor seek leave to reopen or call additional witnesses. The prosecutor obviously made an independent judgment that a fuller record, which he had the ability to, virtually, immediately present, might contribute to a resolution of one of the unsettled legal issues identified by the court. Nothing about these circumstances would suggest that the court was taking on "either the function or appearance of an advocate." People v. Arnold, 98 NY2d 63 (2002).
In view of the court's ruling, that the hearing was properly reopened, the defendant's argument that, absent the testimony of Officer Mackenzie, the People have not met their burden of showing the legality of the stop, is rendered moot. As discussed above, the testimony of Officer Mackenzie was properly received and established the lawfulness of the stop.
Defendant's next argument is that, even if the hearing was properly reopened, the People have not shown that the frisk and search of defendant was lawful because the smell of marijuana coming from the vehicle, without more, did not provide justification. To the contrary, the law is well settled that "the smell of marijuana smoke, with nothing more, can be sufficient to provide police officers with probable cause to search an automobile and its occupants." People v. Chestnut, 43 AD2d 260, 261 (3rd Dept. 1974), affd. 36 NY2d 97 (1975).
Here, Officer Whalen, who had special training in recognizing the odor of marijuana, testified that, while standing at the rolled down window of a lawfully stopped vehicle, he smelled the odor of marijuana coming from the car. This occurred at the close to 11 P.M. in a "high drug-prone location" and the officer, who had participated in approximately 200 arrests, and was a member of the anti-crime unit, testified that he asked the defendant to exit the car and frisked him for weapons. In doing so the officer felt a hard object in defendant's pants pocket and removed a gravity knife.
As already discussed, Officer Whalen had probable cause to search the defendant based upon the odor of marijuana emanating from the car. People v. Chestnut, supra; see also People v. Darby, 263 AD2d 112 (1st Dept. 2000) (odor of PCP gave the police probable cause for stopping and searching defendant); People v. Maier, 47 AD2d 344 (1st Dept. 1975) (unmistakable odor of marijuana justified seizure of van).
Even if there was a lack of probable cause, the police certainly had reasonable suspicion that the crime of marijuana possession had been or was being committed. "The law is well settled `that the police may stop an automobile and frisk its occupants when they have a reasonable suspicion of criminal activity'." People v. Jackson, 175 AD2d 751, 753 (1st Dept. 1991) quoting People v. Coutin, 168 AD2d 269, 272 (1st Dept. 1990); lv. granted 77 NY2d 846 (1991). Officers face an inordinate risk when approaching a person seated in an automobile even when the stop is for a traffic infraction. People v. Alvarez, 308 AD2d 184 (1st Dept. 2003). Under all of the attendant circumstances, it was reasonable for Officer Whalen to frisk defendant for a weapon. Upon recovery of the knife, the officer, to ensure that defendant had "nothing else sharp", properly asked him whether he had anything else on him, to which defendant responded "I have weed in my pocket". Since the question was asked to ensure the officer's safety and not to elicit an incriminating statement, Miranda warnings were not required and the statement is admissible. People v. Jenkins, 208 AD2d 459 (1st Dept. 1994). The recovery of the marijuana from defendant's pocket was justified as incident to a lawful arrest. People v. De Santis, 46 NY2d 82 (1978).
For the reasons set forth above, defendant's motions to suppress statements (except the statement conceded to have been improperly obtained) and physical evidence are denied.
This opinion constitutes the decision and order of the court.