Police Did Not Demonstrate They Had a “Founded Suspicion Criminality Was Afoot” Before Asking For and Receiving Defendant’s Permission to Search His Car

The Fourth Department determined the police failed to demonstrate they had a “founded suspicion that criminality was afoot” when they asked defendant for permission to search his car.  The marijuana and firearm found in the search should have been suppressed:

The law is well settled that the police may not ask an occupant of a lawfully stopped vehicle if he or she has any weapons unless they have a founded suspicion that criminality is afoot … . It is equally well settled that the police may not ask for consent to search a vehicle absent that same degree of suspicion … . Here, as both defendant and the People recognize, the legality of the police conduct turns on whether the officer who engaged defendant at the side of his vehicle smelled or observed marihuana in the vehicle before asking defendant whether he had any guns or drugs and before asking for consent to search. We conclude that there is no basis in the record to support the court’s finding that the officers smelled marihuana as soon as they approached the vehicle.  People v Wideman, 2014 NY Slip Op 06698, 4th Dept 10-3-14