| People v Garcia |
| 2019 NY Slip Op 06509 [175 AD3d 1319] |
| September 11, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Julio A. Garcia, Respondent. |
Robert V. Tendy, District Attorney, Carmel, NY (David M. Bishop of counsel), forappellant.
David J. Squirrell, Carmel, NY, for respondent.
Appeals by the People from (1) an order of the County Court, Putnam County (James F.Reitz, J.), dated July 12, 2017, and (2) an order of the same court dated July 21, 2017. The orderdated July 12, 2017, insofar as appealed from, after a hearing, granted those branches of thedefendant's omnibus motion which were to suppress certain statements made by the defendant tolaw enforcement officials and certain physical evidence recovered from the vehicle that thedefendant was driving. The order dated July 21, 2017, insofar as appealed from, uponreargument, adhered to the prior determination.
Ordered that the appeal from the order dated July 12, 2017, is dismissed, as that order wassuperseded by the order dated July 21, 2017, made upon reargument; and it is further,
Ordered that the order dated July 21, 2017, is affirmed insofar as appealed from.
On the night of October 13, 2016, after observing the defendant pull his vehicle into aparking spot without signaling, an investigator with the Putnam County Sheriff's Departmentapproached the driver's side of the defendant's vehicle and asked the defendant for his license andregistration. The defendant complied, presenting a conditional driver license, which allowed himto drive only to and from work. When asked about his destination, the defendant replied that hewas going to a nearby bar to meet a girl.
The defendant was directed to step out of the vehicle, at which time the investigatorobserved, in plain view, the corner of a small clear plastic bag containing a white powder, and aplastic straw "that had been cut to a shorter length," protruding from the front right pocket of thedefendant's jeans. Believing the white powder to be cocaine and the plastic straw to be drugparaphernalia, the investigator placed the defendant under arrest and proceeded to search thevehicle for additional contraband. A search of the passenger compartment of the vehicleproduced nothing. However, when the investigator opened the trunk of the vehicle, the defendantstated, in sum and substance, "I don't think you can check back there." The investigatorsubsequently found a loaded semiautomatic pistol inside a child's booster seat, at which point thedefendant stated, "[Y]ou guys put it there." In the same booster seat, the investigator also foundadditional plastic bags containing more suspected cocaine and other illegal drugs.
Prior to trial, in an omnibus motion, the defendant moved, inter alia, to suppress the physicalevidence and all of his statements to law enforcement officials. Insofar as relevant to this appeal,the County Court, after a hearing, granted certain branches of the defendant's motion,suppressing, inter alia, all of the evidence recovered from the trunk of the vehicle, as well as thedefendant's statements relating to the search of the trunk and the weapon found therein. ThePeople moved for leave to reargue their opposition to those branches of the omnibus motion. Thecourt granted leave to reargue and, upon reargument, determined, inter alia, that the drugs anddrug paraphernalia recovered from the defendant's person were admissible. However, the courtadhered to its prior determination regarding the physical evidence found in the trunk, as well asthe oral statements relating thereto. The People appeal.
When the occupant of a vehicle is arrested, the circumstances that supply probable cause forthe arrest may also give the police probable cause to believe that the vehicle contains contraband,evidence of a crime, a weapon, or some means of escape (see People v Blasich, 73 NY2d673, 678 [1989]). Ultimately, "the nature of the crime and the circumstances surrounding thearrest are what provide (or fail to provide) probable cause for the search" (id. at 680).
Here, the County Court concluded that the recovery of a small quantity of what appeared tobe cocaine, along with a cut straw, in plain view on the defendant's person, was insufficient togive the police probable cause to believe that additional contraband would be found in thevehicle's trunk, particularly after a search of the passenger compartment revealed nothing. ThisCourt has, in a factually similar case, reached the same conclusion (see People v Romeo,15 AD3d 420 [2005]). Under the facts of this case, we decline to disturb the court's finding as tolack of probable cause.
Contrary to the People's contention, cases in which there is circumstantial evidence of recentdrug use within the passenger compartment, such as when the police, during a routine trafficstop, detect the odor of burning marijuana (see People v Singletary, 156 AD3d 731[2017]; People v Francois, 138 AD3d 1165 [2016]; People v Valette, 88 AD3d461 [2011]; People v Horge, 80 AD3d 1074 [2011]; People v Hughes, 68 AD3d894 [2009]; People v Semanek, 30 AD3d 547 [2006]; People v Morgan, 10 AD3d369 [2004]) are distinguishable, since such evidence provides good reason to believe that theunseen drugs may be located somewhere within the vehicle. By contrast, the fact that a smallquantity of drugs is found on the defendant's person, with no other drugs being found in thepassenger compartment of the vehicle, does not, without more, provide probable cause to believethat additional drugs may be found in the trunk of the vehicle (see People v Romeo, 15AD3d 420 [2005]).
That the defendant had been suspected of selling drugs and carrying a weapon, which wasbased on information previously conveyed to the police by a confidential informant, has not beenconsidered in deciding the issue of probable cause, since the People, at the hearing, expresslydisclaimed any reliance on such information and acknowledged that "[i]t would have beeninappropriate" for the police to act on that information.
The People's contention that the County Court should not have orally dismissed certaincounts of the indictment without notice to the People is without merit, as the court did not, infact, orally dismiss any counts of the indictment.
Accordingly, we affirm insofar as appealed from the order dated July 21, 2017, made uponreargument.
The defendant's remaining contention is not properly before us (see CPL 710.70 [2];People v Richberg, 56 AD2d 279, 281 [1977]). Leventhal, J.P., Chambers, Austin andCohen, JJ., concur.