| People v Smith |
| 2012 NY Slip Op 05934 [98 AD3d 590] |
| August 8, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v GaryV. Smith, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Maria I. Wager, Steven A. Bender, andRichard Longworth Hecht of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Warhit,J.), rendered July 12, 2011, convicting him of criminal possession of a weapon in the seconddegree, possession of an alcoholic beverage in a motor vehicle, failing to give the appropriateturn signal, and operating a motor vehicle with side windows composed of or covered by materialwith light transmittance of less than 70%, upon a jury verdict, and imposing sentence. The appealbrings up for review an order of the same court entered November 16, 2010, which, after ahearing, denied that branch of the defendant's omnibus motion which was to suppress physicalevidence.
Ordered that the judgment is modified, on the law, by vacating the conviction of criminalpossession of a weapon in the second degree, vacating the sentence imposed thereon, anddismissing that count of the indictment; as so modified, the judgment is affirmed, that branch ofthe defendant's omnibus motion which was to suppress physical evidence is granted, and theorder entered November 16, 2010, is modified accordingly.
At the suppression hearing, a police officer testified that while on patrol on the evening ofDecember 12, 2009, he observed the defendant driving a vehicle with dark tinted windows andfailing to signal when turning right. Upon stopping the defendant, the police officer went to thedriver's side of the defendant's vehicle, requested his license and registration (hereinafter thedocuments), looked into the car, and saw an open beer bottle, but did not smell any odor ofmarijuana or see any smoke emanating from the car. The officer waited by the car until the [*2]defendant produced the documents, but did not smell any marijuanaodor. While standing by the car, the officer briefly looked at the documents, then returned to hispatrol car to verify the documents. After determining that the documents were in order, theofficer returned to the defendant's vehicle, and advised the defendant that he would beconducting a field sobriety test. However, this test was never conducted.
The officer further testified that, as the defendant exited the vehicle, "I had a strong odor ofmarijuana coming off his person . . . [and] he continued walking to the passengerrear side where . . . he spit towards a bush." After directing the defendant to openhis mouth, the officer "observed what appeared to be marijuana pieces inside the cracks of [thedefendant's] teeth." At this point the officer's partner arrived, the defendant was handcuffed andplaced in the back of the police vehicle, and the two officers spent "a good 10 to 15 minutes"searching the bush area "to locate what [the defendant] had spit into the bush." No marijuana wasdiscovered in the bushes or on the defendant's person. The officer further admitted that eventhough the defendant had been placed in handcuffs, he was "probably not" going to arrest thedefendant "because I did not have other evidence for the marijuana. I couldn't find themarijuana." Nevertheless, the officer then did an inventory search of the defendant's car. Theofficer described this search as follows: "I searched under the seat, glove box, nothing of anyillegal nature. And then I went to the armrest, the center console where I located a green bagwhich I had opened up and found another pill bottle . . . While I was doing that, thebottom of the interior portion of the center console was extremely loose. I removed the contents.I lifted up the base of the interior where I observed that bandana with the red markings. . . I removed the bandana, placed it on to the seat, I unfolded it and I observed thatthere was a semiautomatic handgun [which had been wrapped in the bandana]." The officerstated that he discovered the gun at approximately 9:40 p.m., or 40 minutes after the initial stopof the defendant's vehicle. The County Court denied that branch of the defendant's omnibusmotion which was to suppress physical evidence.
A vehicle may be searched without a warrant pursuant to the "automobile exception" if lawenforcement officials have probable cause to believe that the vehicle "contains contraband,evidence of [a] crime, a weapon or some means of escape" (People v Blasich, 73 NY2d673, 678 [1989]; see People v Galak, 81 NY2d 463, 467 [1993]; People v Henderson, 57 AD3d562, 564 [2008]; People vMartin, 28 AD3d 583, 584 [2006]). Nevertheless, "[a] police officer's entry into acitizen's vehicle and his inspection of personal effects therein are significant invasions of privacyand such intrusions must be justified in their inception and be reasonably related in scope andintensity to the circumstances which rendered their initiation permissible" (People vGuzman, 153 AD2d 320, 322 [1990]; see People v Woods, 189 AD2d 838, 841[1993]). Here there was no probable cause for the officer to search the defendant's vehicle.Although the officer testified that he detected the odor of marijuana emanating from thedefendant's person after he exited his vehicle, the officer also stated that he neither smelled anysuch odor coming from inside the vehicle nor saw any smoke at any time (cf. People v Horge, 80 AD3d 1074[2011]). Morever, the officer saw only what "appeared to be marijuana" in the defendant's mouth,and neither he nor his partner discovered any marijuana on the ground outside the vehicle despitea 10-15 minute search therefor. Nor did they retrieve any marijuana from the defendant's mouth.In fact, the officers never even sought to recover the alleged green substance which was [*3]observed in the defendant's mouth. Furthermore, the officeradmitted that he searched the car despite the fact that, at that time, he had not discovered any"evidence for the marijuana."
Such circumstances did not provide a reasonable basis for the search of the defendant's car(see People v Romeo, 15 AD3d420 [2005]; see also People v Torres, 74 NY2d 224 [1989]; People v Bryant,245 AD2d 1010 [1997]). In addition, contrary to the conclusion of the County Court, since thegun was the "primary evidence" found during this search, it was not subject to admission underthe doctrine of "inevitable discovery" (People v Stith, 69 NY2d 313, 318 [1987]; see People v Mais, 71 AD3d 1163,1165 [2010]). Thus, that branch of the defendant's omnibus motion which was to suppressphysical evidence should have been granted.
The defendant's remaining contentions need not be reached in light of our determination.Rivera, J.P., Belen, Sgroi and Miller, JJ., concur.