| People v Green |
| 2019 NY Slip Op 04608 [173 AD3d 1690] |
| June 7, 2019 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Robert Green, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo, Hodgson Russ LLP (Patrick E. Fitzsimmonsof counsel), for defendant-appellant.
John J. Flynn, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.),rendered February 20, 2015. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Erie County, for further proceedings in accordance with the followingmemorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).The charge arose after a police officer observed the vehicle in which defendant was a passengerbeing operated in violation of the Vehicle and Traffic Law. The officer followed the vehicle inorder to initiate a traffic stop, but the driver pulled over and stopped before the officer activatedhis lights. Upon approaching the vehicle, the officer observed that there were two occupants, oneof whom, i.e., defendant, was moving around in the backseat and putting his hands in his frontpocket as if he was "stuffing something either in his coat or in his pants as if to conceal it from[the officer]." Although it was winter, both the driver's and defendant's windows were open, andthe officer detected the odor of marihuana emanating from the vehicle. The officer asked thedriver and defendant for identification and thereafter learned that the driver's license of the driverhad been revoked and that defendant did not have a driver's license.
The officer directed defendant to exit the vehicle and place his hands on the patrol car so thatthe officer could conduct a pat search. Defendant exited the vehicle as directed but thereafterfled, discarding components of a 9 millimeter Glock semiautomatic pistol as he ran. Defendantcontends, inter alia, that Supreme Court erred in refusing to suppress the gun on the ground thatthe officer exceeded his authority in ordering defendant to exit the vehicle and place his hands onthe patrol car.
Because the driver pulled over of his own volition before the officer activated his emergencylights to initiate a traffic stop, the officer needed only an articulable basis to lawfully approachthe occupants of the vehicle and request information (see People v Harrison, 57 NY2d470, 475 [1982]). That basis was supplied by the officer's observation that the vehicle was beingoperated in violation of Vehicle and Traffic Law § 375 (2) (a) (1) (see People vRobinson, 97 NY2d 341, 349 [2001]). Thus, the officer's conduct "was justified in itsinception" (People v Nicodemus, 247 AD2d 833, 835 [4th Dept 1998], lv denied92 NY2d 858 [1998]).
The court determined that the officer had a founded suspicion of criminality prior to orderingdefendant to exit the vehicle for the pat search. A founded suspicion of criminality standingalone, however, was insufficient to justify the officer's conduct in ordering defendant to place hishands on the patrol car in preparation for a pat search (see generally People v Whorley, 125 AD3d 1484, 1484 [4th Dept2015], lv denied 25 NY3d 1173 [2015]). Nevertheless, in making its determination, thecourt credited the officer's testimony that he smelled fresh marihuana emanating from the vehicleand was experienced in detecting marihuana. It is well settled that "[t]he odor of marihuanaemanating from a vehicle, when detected by an officer qualified by training and experience torecognize it, is sufficient to constitute probable cause to search a vehicle and its occupants" (People v Cuffie, 109 AD3d 1200,1201 [4th Dept 2013], lv denied 22 NY3d 1087 [2014] [internal quotation marksomitted]). The court, however, did not address whether the officer's observation providedprobable cause to search defendant's person, and we cannot affirm the court's refusal to suppressthe gun "on a theory not reached by the suppression court" (People v Ingram, 18 NY3d 948, 949 [2012]; see People v Concepcion, 17 NY3d192, 195 [2011]; People v LaFontaine, 92 NY2d 470, 473-474 [1998], reargdenied 93 NY2d 849 [1999]). We therefore hold the case, reserve decision, and remit thematter to Supreme Court for a determination whether the officer possessed the requisitejustification to conduct a search of defendant (see generally People v Sykes, 110 AD3d 1437, 1438 [4th Dept2013]). Present—Carni, J.P., Lindley, DeJoseph, NeMoyer and Winslow, JJ.