| People v Hines |
| 2019 NY Slip Op 03853 [172 AD3d 1649] |
| May 16, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jamel Hines, Appellant. |
Coleman & Haas, LLP, Albany (Cheryl Coleman of counsel), for appellant.
P. David Soares, District Attorney, Albany (Jonathan Catania of counsel), forrespondent.
Garry, P.J. Appeal from a judgment of the County Court of Albany County (Lynch, J.),rendered May 8, 2017, convicting defendant upon his plea of guilty of the crime of attemptedcriminal possession of a weapon in the second degree.
Following two controlled buys of marihuana at an apartment in the City of Albany, a searchwarrant (hereinafter the first warrant) was executed at the apartment, and defendant was foundinside with marihuana and items associated with its sale. Upon his arrest, a key fob for hisvehicle was found on his person. A detective lieutenant (hereinafter the lieutenant) approachedthe vehicle, which was parked on the street outside the apartment, and noticed a "very strong"odor of marihuana emanating from the car. He opened a door and partly entered the car(hereinafter the warrantless search), but then exited the car to determine whether the first warrantincluded the vehicle. He learned that the car was not encompassed in the first warrant, and asearch warrant for the vehicle (hereinafter the second warrant) was obtained. In the ensuingsearch, marihuana and a gun were found in the vehicle.
Defendant was charged with criminal possession of a weapon in the second degree, criminalpossession of marihuana in the first degree and criminal possession of marihuana in the thirddegree. Following a hearing, County Court denied defendant's motion to suppress the gun and themarihuana. Defendant pleaded guilty to attempted criminal possession of a weapon in the seconddegree pursuant to an agreement by which he reserved his right to appeal the suppression ruling.He was sentenced as a second felony offender, in accordance with the plea agreement, to a prisonterm of five years followed by five years of postrelease supervision. Defendant appeals.
In denying defendant's suppression motion, County Court found that the warrantless searchwas supported by probable cause and was permissible under the automobile exception to thewarrant requirement and, further, that the inevitable discovery doctrine applied even if thewarrantless search was improper.[FN1] Turning first to the warrantless search, policeofficers may conduct a warrantless search of a vehicle, as pertinent here, "when they haveprobable cause to believe that evidence or contraband will be found there" and a nexus existsbetween the probable cause and a defendant's arrest (People v Galak, 81 NY2d 463, 467[1993]; see People v Jemmott, 116AD3d 1244, 1246 [2014]). The automobile exception to the warrant requirement is notbased solely upon the mobility of vehicles, but also on the "reduced expectation of privacy in anautomobile" (Pennsylvania v Labron, 518 US 938, 940 [1996]; see People vGalak, 81 NY2d at 467). Thus, the automobile exception is not limited to vehicles that aremoving or occupied when observed by police and may also be applied when, as here, a vehicle isparked in "a public place where access [is] not meaningfully restricted" (Cardwell vLewis, 417 US 583, 593 [1974]; see People v Orlando, 56 NY2d 441, 445-446[1982]; People v Baez, 24 AD3d112, 116 [2005], lv denied 6 NY3d 809 [2006]).
The testimony at the suppression hearing established that, upon entering the apartment toexecute the search, police saw several individuals, including defendant, in the apartment's frontroom, as well as marihuana, currency, scales and "baggies" often used to package marihuana inplain view on a table. Defendant ran into a back room, where he was taken into custody. Adetective removed the key fob from his pocket and gave it to the lieutenant, who went outsideand used the fob to locate the vehicle, which was parked across the street from theapartment.
The lieutenant testified that he was familiar with the smell of marihuana, was trained torecognize the odor and had smelled it on prior occasions. He testified that he could smellmarihuana as he "started walking over to [defendant's] vehicle." He opened a door on thepassenger side, kneeled on the seat, looked around and noticed a bag in the backseat. Before hefound any contraband, something "clicked in [his] head" and caused him to realize that he did notknow whether the vehicle was included in the first warrant. He exited and locked the vehicle andspoke with a detective sergeant. As the first warrant did not cover the vehicle, the lieutenantadvised the detective sergeant that a second warrant should be obtained as "you can smell[marihuana] as soon as you walk up to the car." While the process of obtaining the secondwarrant was underway, a tow truck was summoned. The lieutenant again entered the vehicle,intending to drive it to the truck, but was advised that the vehicle could not be moved until thesecond warrant was obtained. He directed the tow truck to leave the scene; the tow truck returnedafter the second warrant was signed and transported the vehicle to the police station, where thevehicle was searched. The lieutenant testified that a gun and one or two pounds of marihuanawere found in the bag in the backseat, and an additional eight or nine pounds of marihuana werefound in the trunk.
The warrantless search was permissible under the automobile exception. "[I]t is wellestablished that the odor of marihuana emanating from a vehicle, when detected by an officerqualified by training and experience to recognize it, is sufficient to constitute probable cause tosearch a vehicle" (People v Cuffie,109 AD3d 1200, 1201 [2013] [internal quotation marks, brackets and citations omitted],lv denied 22 NY3d 1087 [2014]; accord People v Williams, 145 AD3d 1188, 1190 [2016], lvdenied 29 NY3d 1002 [2017]; People v Rasul, 121 AD3d 1413, 1415 [2014]; see People v Kaid, 163 AD3d1151, 1151-1152 [2018], lv denied 32 NY3d 1005 [2018]). A nexus existed betweendefendant's arrest and the warrantless search because defendant was found with the key fob in anapartment with a quantity of marihuana, his vehicle—smelling strongly ofmarihuana—was parked nearby and "the search was reasonably close in time and place tothe point of arrest" (People v Blasich, 73 NY2d 673, 681 [1989]; see People vOrlando, 56 NY2d at 446-447; People v Myers, 303 AD2d 139, 144-145 [2003],lv denied 100 NY2d 585 [2003]; see generally People v Belton, 55 NY2d 49,54-55 [1982]).
We find no merit in defendant's contention that the warrantless search was impermissiblebecause the lieutenant testified that he had already decided to search the vehicle before he noticedthe smell of marihuana. It is well established that "[s]ubjective intentions play no role inordinary, probable-cause Fourth Amendment analysis" (Whren v United States, 517 US806, 813 [1996]) and that the validity of a search or seizure under the Federal and StateConstitutions does not depend "on judicial determinations of the subjective motivation of policeofficers" (People v Garvin, 30NY3d 174, 186 [2017] [internal quotation marks and citations omitted], cert denied586 US &mdash, 139 S Ct 57 [2018]; see Kentucky v King, 563 US 452, 464 [2011]).Instead, probable cause analysis is based upon reasonableness, and a search or seizure ispermissible where, as here, "the circumstances, viewed objectively, justify the action"(People v Garvin, 30 NY3d at 186 [internal quotation marks and citation omitted]; seeWhren v United States, 517 US at 814). As the smell of marihuana outside the vehicleobjectively provided probable cause for the warrantless search, the lieutenant's subjectiveintentions are irrelevant.
To the extent that defendant questions the credibility of the lieutenant's testimony that he wasable to smell marihuana outside the vehicle, this Court defers to County Court's factualdetermination that the lieutenant noticed the smell as he walked toward the vehicle, as well as itsfindings that he and the other police witnesses were "frank, candid, and trustworthy" and that"their testimony had the general force and flavor of credibility" (see People v Madera, 163 AD3d1295, 1296 [2018], lv denied 32 NY3d 1005 [2018]; People v Robinson, 156 AD3d1123, 1130 [2017], lv denied 30 NY3d 1119 [2018]).[FN2] Thus, the court properly determined that thewarrantless search was permissible.
As a result of this determination, we need not address the parties' arguments about theinevitable discovery doctrine.
Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment is affirmed.
Footnote 1:The People concede that thelieutenant's entry into the vehicle before the second warrant was obtained was a search.
Footnote 2:We note that the record does notsupport defendant's argument that the lieutenant contradicted his own testimony as to when hesmelled marihuana by stating in the search warrant application that he was "securing" the vehiclewhen he noticed the smell. The lieutenant did not in fact complete the warrant application; thattask was undertaken by another detective who had not approached the car, and who based hisstatements in the application on what he was told by the detective sergeant, who in turn hadspoken with the lieutenant.