Judge: Decision Reported Below: 4th Dept: 118 AD3d 1445 (Erie)
Here, the police had probable cause to stop the vehicle because they observed the driver pull his car into traffic from its parked position at the curb without using a turn signal (see Vehicle and Traffic Law § 1163[a], [d] ; People v. Hawkins, 45 A.D.3d 989, 991, 845 N.Y.S.2d 171, lv. denied 9 N.Y.3d 1034, 852 N.Y.S.2d 20, 881 N.E.2d 1207 ). Contrary to defendant's further contention, the police had probable cause to search his person inasmuch as "[t]he odor of marihuana 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 A.D.3d 1200, 1201, 972 N.Y.S.2d 383, lv. denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [internal quotation marks omitted]; see People v. Virges, 118 A.D.3d 1445, 1445–1446, 987 N.Y.S.2d 783 ). We reject defendant's contention that the odor of unburned marihuana could not serve as the basis for the search (see People v. Walker, 128 A.D.3d 1499, 1500, 8 N.Y.S.3d 826, lv. denied 26 N.Y.3d 936, 17 N.Y.S.3d 99, 38 N.E.3d 845 ).
Where police officers approach a vehicle that is already parked and stationary, the only level of suspicion necessary to justify that approach is an articulable, credible reason for doing so, not necessarily indicative of criminality (see People v. Ocasio, 85 N.Y.2d 982, 985, 629 N.Y.S.2d 161, 652 N.E.2d 907 ; People v. Phillips, 46 A.D.3d 1021, 1022, 847 N.Y.S.2d 688, lv. denied 10 N.Y.3d 815, 857 N.Y.S.2d 48, 886 N.E.2d 813 ). Here, we conclude that the police officer “had an ‘objective, credible reason’ for approaching [the] parked vehicle and requesting information” based upon the supermarket manager's report (People v. Virges, 118 A.D.3d 1445, 1445, 987 N.Y.S.2d 783, quoting Ocasio, 85 N.Y.2d at 984, 629 N.Y.S.2d 161, 652 N.E.2d 907 ; see People v. Thomas, 19 A.D.3d 32, 33, 792 N.Y.S.2d 472, lv. denied 5 N.Y.3d 795, 801 N.Y.S.2d 816, 835 N.E.2d 676 ), “thereby rendering the police encounter lawful at its inception” (People v. Cady, 103 A.D.3d 1155, 1156, 959 N.Y.S.2d 321 ; see People v. Riddick, 70 A.D.3d 1421, 1422, 894 N.Y.S.2d 260, lv. denied 14 N.Y.3d 844, 901 N.Y.S.2d 150, 927 N.E.2d 571 ). Upon requesting identification from defendant and the other two occupants of the vehicle, and learning that none of the three men had a valid driver's license, the police searched for the vehicle's purported fourth occupant who, they were told, had a valid driver's license.
Furthermore, the court did not abuse its discretion in curtailing defense counsel's cross-examination of the officers because defense counsel's attempts to establish certain "contradictions in time" were not relevant to the suppression issues before the court (see generally People v Colvin, 112 AD3d 1348, 1348-1349, lv denied 22 NY3d 1155; People v Agostini, 84 AD3d 1716, 1717, lv denied 17 NY3d 857; People v Rutley, 57 AD3d 1497, 1497, lv denied 12 NY3d 821). Thus, the officers had probable cause to search defendant (see Cuffie, 109 AD3d at 1201; see also People v Virges, 118 AD3d 1445, 1445-1446; People v Contant, 90 AD3d 779, 780, lv denied 18 NY3d 956). Defendant's reliance on People v Howington (96 AD3d 1440, 1441), a People's appeal, is misplaced because in that case we merely upheld the suppression court's credibility determination that the officer could not have detected the odor of unburned marihuana. Here, we uphold the court's credibility determination otherwise.
Its progeny goes further to permit searches of cars and their occupants upon a credible showing that police officers smelled raw or burnt marijuana.People v. Wideman , 121 AD3d 1514 (4th Dept. 2014), People v. Sykes , 110 AD3d 1437 (4th Dept. 2013), People v. Howington , 96 AD3d 1440 (4th Dept. 2012), People v. Williams , 144 AD3d 1204 (3rd Dept. 2016) cf.People v. Virges , 118 AD3d 1445 (4th Dept. 2014), People v, Black , 59 AD3d 1050 (4th Dept. 2009).The People submit that the facts in People v. Green , 173 AD3d 1690 (4th Dept. 2019) after remittal People v. Green , 66 Misc 3d 1205 (A) (Supreme Court Erie County 2019), People v. Green , 2014 MISC Lexis 6523 Supreme Court Erie County closely parallel the facts here: a traffic stop for a Vehicle & Traffic Law equipment violation, and a loaded gun recovered after a rear seat passenger was removed after the experienced arresting officer smelled marijuana.
"Similarly, a warrant is unnecessary to search the operator of the vehicle where there is probable cause to believe that he is guilty of a crime, rather than merely a simple traffic infraction' (citation omitted)." People v. Chestnut, 43 AD2d 260, 351 N.Y.S.2d 26, 28 (3rd Dept. 1974) aff'd 36 NY2d 971, 377 N.Y.S.2d 564 (1975) See also: People v. Virges, 118 AD3d 1445, 987 N.Y.S.2d 783 (4th Dept. 2014) ["When the police officer smelled marihuana, he had probable cause to search defendant and the vehicle for contraband (citations omitted)."]; People v. Black, 59 AD3d 1050, 1051, 872 N.Y.S.2d 791, 972 (4th Dept. 2009) ["once the officers smelled marihuana, they had probable cause to search the vehicle and its occupants for drugs"]; People v. Hanson, 5 Misc 3d 67, 69, 785 N.Y.S.2d 825, 827 (App. Term 9th & 10th Jud. Dists. 2004) ["It is well settled that the smell of marijuana alone is sufficient to provide trained and experienced police officers in the area of narcotics probable cause to search a vehicle and its occupants"]
“Similarly, a warrant is unnecessary to search the operator of the vehicle where there is probable cause to believe that he is guilty of a crime, rather than merely a simple traffic infraction' (citation omitted).” People v. Chestnut, 43 A.D.2d 260, 351 N.Y.S .2d 26, 28 (3rd Dept.1974)aff'd 36 N.Y.2d 971, 377 N.Y.S.2d 564 (1975)See also: People v. Virges, 118 AD3d 1445, 987 N.Y.S.2d 783 (4th Dept.2014) [“When the police officer smelled marihuana, he had probable cause to search defendant and the vehicle for contraband (citations omitted).”]; People v. Black, 59 AD3d 1050, 1051, 872 N.Y.S.2d 791, 972 (4th Dept.2009) [“once the officers smelled marihuana, they had probable cause to search the vehicle and its occupants for drugs”]; People v. Hanson, 5 Misc.3d 67, 69, 785 N.Y.S.2d 825, 827 (App. Term 9th & 10th Jud. Dists. 2004) [“It is well settled that the smell of marijuana alone is sufficient to provide trained and experienced police officers in the area of narcotics probable cause to search a vehicle and its occupants”]
While the court deferred to the credibility determinations of the suppression court in affirming its grant of suppression, the facts and circumstances of the defendant's case are distinguishable. The defendant also had two (2) marijuana cigarettes in his pocket that were not sealed in plastic and the officer was experienced in detecting raw or fresh marijuana, People v. Chestnut, 36 NY2d 971 (1975), People v. Virges, 118 AD3d 1445 (4th Dept. 2014), People v. Wideman, 889 KA 13-01956 (4th Dept. 2014) and People v. Black, 59 AD3d 1050 (4th Dept. 2009). Therefore, the arresting officer had a founded suspicion that criminal activity was afoot, the defendant's flight after he was instructed to put his hands on the police car gave Officer Matusiak authority to pursue the defendant.