Opinion
10427/2006.
Decided July 3, 2008.
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.
The People called one witness, New York City Police Officer Danny Rodriguez who was assigned to the 75 Precinct Anti Crime-Unit at the relevant times. The defense called New York City Police Officer Abraham Arteaga who, at the relevant times, was Officer Rodriguez's partner in the 75 Precinct Anti-Crime Unit; New York City Police Department Detective Raymond Martinez who, at the relevant times, was assigned to the Gun Enhancement Unit; and Stacy Jacob who, at the relevant times, was working in the Kings County District Attorney's Office. The Court credits Police Officer Rodriguez's testimony as set forth below and makes the following findings of facts and reaches the following conclusions of law.
Findings of Fact
On November 29, 2006, Officer Rodriguez was on anti-crime patrol with Officer Arteaga and Sergeant McGary. They were in plain clothes in an unmarked police car. Officer Rodriguez was in the right front passenger seat, Officer Arteaga was driving and Sergeant McGary was in the rear.
Officer Rodriguez 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 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. Officers Rodriguez and Arteaga had their windows down so they could hear gunfire and smell drugs such as marijuana.
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 Rodriguez 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 Officer Rodriguez 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, Officer Rodriguez approached the passenger side of the Infinity with his flashlight, which was lit, in his hand. Officer Arteaga approached the driver's side and Sergeant McGary went to the rear of the Infinity. The officers identified themselves as police officers by displaying their shields. Officers Rodriguez and Arteaga did not have their guns drawn. Once the officers approached the Infinity, Officer Rodriguez noticed that other officers, in other police cars, arrived. Some were in uniform.
As he approached the Infinity on foot, with his flashlight pointing to the Infinity, Officer Rodriguez smelled a faint odor of burning marijuana. He later learned that the driver's name was Orlando Rowe and the front right passenger's name was Todd Coutain.
When Officer Rodriguez approached, the passenger window of the Infinity was down and Mr. Coutain, the passenger, stated, "We were just smoking a little weed."When Mr. Coutain said that, Officer Rodriguez observed a three inch by four inch clear ziploc bag containing a green leafy substance on the floor of the car between Mr. Coutain's feet. In his field test report, Officer Rodriguez indicated, in substance, that he observed the co-defendant, Mr. Coutain, drop the marijuana. At the hearing, he corrected this and stated that he did not observe Mr. Coutain drop the marijuana. The Court credits Officer Rodriguez's testimony at the hearing.
Officer Rodriguez removed Mr. Coutain from the vehicle and placed him under arrest. Officer Rodriguez then passed Mr. Coutain into the custody of another officer and recovered the marijuana from the floor. Officer Rodriguez also detected a strong odor of unburnt marijuana coming from the rear of the Infinity. This odor was different from the odor he smelled when he was in his car behind the Infinity. At that point, the defendant, Mr. Rowe, was still in the vehicle. As he walked around the rear of the vehicle to go to Mr. Rowe, Officer Rodriguez continued to smell unburnt marijuana. He believed it was coming from the trunk.
Defendant Rowe 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 Mr. Rowe's license was suspended. Because of this, Officer Rodriquez arrested the defendant and ordered him out of the vehicle.
After Officer Rodriguez had arrested both defendants, he still smelled a strong odor of unburnt marijuana which he believed was coming from the trunk. After Mr. Rowe was arrested, Officer Rodriguez reached into the car and took the key out of the ignition and, with it, opened the trunk. Officer Rodriguez testified, with candor, that he does not recall Mr. Rowe consenting to this.
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.
Conclusions of Law
This court concludes that Officer Rodriguez 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. People v Ingle, 36 NY2d 413 (1975) (a police officer may stop a vehicle when he reasonably suspects a violation of the Vehicle and Traffic Law); People v Spencer, 84 NY2d 749, 753 (1995) (stops based on "at least a reasonable suspicion that the driver or occupants have committed, are committing a crime, or about to commit a crime (citations omitted)" are legal.)
When Mr. Coutain stated, in substance, "We were just smoking a little weed", Officer Rodriguez had probable cause to arrest Mr. Coutain. When Officer Rodriguez saw the ziploc of green leafy substance, which he reasonably believed to be marijuana, he had a right to seize it. When Officer Rodriguez learned Mr. Rowe's license was suspended, Officer Rodriguez had probable cause to arrest the defendant, Orlando Rowe.
This court further concludes Officer Rodriguez 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 Rodriguez smelled the odor of burning marijuana coming from the Infinity. After the Infinity was stopped, Mr. Coutain, the passenger, admitted they were smoking marijuana. While Mr. Coutain was making this admission, Officer Rodriguez observed a ziploc of green leafy substance, which he reasonably believed to be marijuana, inside the Infinity between Mr. Coutain's 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 Mr. Rowe, Officer Rodriquez smelled the odor of unburnt marijuana coming from the trunk of the Infinity. After he arrested Mr. Rowe, Officer Rodriquez determined that the strong odor of unburnt marijuana was coming from the trunk of the Infinity. All of the above provided Officer Rodriquez with probable cause to the search the trunk. People v Guzman , 23 AD3d 579 (2005) (officer's observation of glassine envelope, which he believed contained heroin, coupled with the defendant's inability to produce registration or rental agreement, provided probable cause to search the vehicle); People v Cirigliano , 15 AD3d 672 (2005) (officer's experience in the detection of both burnt and unburnt marijuana and his smelling marijuana coming from the vehicle provided probable cause to search the vehicle); People v Figueroa , 6 AD3d 720 (2004) (the odor of marijuana provided probable cause to search a vehicle and its contents); People v Collado, 304 AD2d 836 (2003) (where the police recovered a ziploc containing what the police believed to be cocaine and the police recovered an imitation air pistol from the passenger, the police had probable cause to believe the van may contain other drugs or weapons); and People v Martin, 169 AD2d 1006 (1991) (when the officers detected the odor of marijuana coming from the vehicle, they had probable cause to search the vehicle.)
Summary
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.