| People v Gaines |
| 2008 NY Slip Op 09671 [57 AD3d 1120] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mThe People of the State of New York, Appellant, v Harold E. Gaines,Respondent. |
—[*1] Cheryl Coleman, Albany, for respondent.
Cardona, P.J. Appeal from an order of the County Court of Rensselaer County (Jacon, J.),entered April 18, 2008, which granted defendant's motion to suppress evidence.
At issue on this appeal is whether evidence seized from defendant's car was obtained pursuant to alawful search. County Court granted defendant's motion to suppress the evidence, finding no probablecause to search the vehicle. We do not agree. We therefore reverse the court's order and denydefendant's motion to suppress.
At the suppression hearing, police officer Justin Ashe testified, in relevant part, as follows. Atapproximately 11:00 p.m. on June 2, 2007, he stopped defendant's car after observing defendantcommit several traffic violations. Approaching the car, Ashe, who had training and experience in drugdetection, smelled a strong odor of marihuana coming from the vehicle. Based on the odor, defendant's"glossy" eyes and his driving, Ashe asked defendant to exit the vehicle. Returning to the driver's door ofdefendant's car, Ashe again smelled the strong odor of marihuana. According to Ashe, he looked intothe car and saw an open duffle bag on the passenger seat. Protruding from the duffle bag was a plasticbag containing several smaller plastic bags full of a green leafy substance that looked and smelled likemarihuana. Ashe reached into the duffle bag where he discovered a 9 millimeter assault rifle and 40extra rounds of ammunition. He placed defendant under arrest, then returned to the police station wherehe [*2]wrote out a narrative of the episode and drew up the accusatoryinstrument.
At the conclusion of the hearing, County Court found that the People did not meet their burden ofestablishing that the search was lawful. In that regard, the court did not credit Ashe's testimony as to thelocation of the duffle bag, among other things, based upon contradictions within his testimony, as well asdiscrepancies between his testimony and the paperwork that he completed following the incident.
While deferring to these credibility determinations (see People v Willette, 42 AD3d 674, 675 [2007], lv denied 9NY3d 883 [2007]; People v Reid, 2AD3d 1061, 1062 [2003], lv denied 3 NY3d 646 [2004]), we base our decision that thesearch was lawful on County Court explicitly crediting Ashe's testimony indicating that he smelled thestrong odor of marihuana prior to the search. The "odor of marihuana" emanating from a vehicle, whendetected by an officer "qualified by training and experience" to recognize it, is sufficient to constituteprobable cause to search the vehicle (People v Chestnut, 43 AD2d 260, 261 [1974],affd 36 NY2d 971, 973 [1975]; seePeople v Badger, 52 AD3d 231, 232 [2008], lv denied 10 NY3d 955 [2008]; People v Pierre, 8 AD3d 904, 905[2004], lv denied 3 NY3d 710 [2004]; People v Martin, 169 AD2d 1006, 1007[1991]). Here, given Ashe's training and experience, we find that his detection of the odor of marihuanagave him probable cause to search defendant's car. Accordingly, we conclude that the evidence wasseized pursuant to a lawful search.
Mercure, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the order is reversed, on thelaw, motion to suppress denied, and matter remitted to the County Court of Rensselaer County forfurther proceedings not inconsistent with this Court's decision.