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A FOUNDED SUSPICION OF CRIMINALITY WAS NOT A SUFFICIENT GROUND FOR A PAT SEARCH; HOWEVER THE SMELL OF MARIJUANA, ABOUT WHICH THE OFFICER TESTIFIED, WOULD JUSTIFY A SEARCH; BECAUSE THE SUPPRESSION COURT DID NOT RULE ON THE MARIJUANA-SMELL ISSUE, THE MATTER WAS REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department determined that, although the suppression court determined the police officer had a founded suspicion of criminality when he ordered defendant out of the car, a founded suspicion of criminality did not justify ordering the defendant to place his hands on the patrol car in preparation for a pat search. However. the officer testified he smelled marijuana, which would justify and search. Because the court did not rule on that issue, the matter was sent back for a ruling:

Upon approaching the vehicle, the officer observed that there were two occupants, one of whom, i.e., defendant, was moving around in the backseat and putting his hands in his front pocket as if he was “stuffing something either in his coat or in his pants as if to conceal it from [the officer].” … The officer asked the driver and defendant for identification and thereafter learned that the driver’s license of the driver had been revoked and that defendant did not have a driver’s license.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 that the officer could conduct a pat search. Defendant exited the vehicle as directed but thereafter fled, discarding components of a 9 millimeter Glock semiautomatic pistol as he ran. …

Because the driver pulled over of his own volition before the officer activated his emergency lights to initiate a traffic stop, the officer needed only an articulable basis to lawfully approach the occupants of the vehicle and request information … . That basis was supplied by the officer’s observation that the vehicle was being operated in violation of Vehicle and Traffic Law § 375 (2) (a) (1) … . Thus, the officer’s conduct “was justified in its inception” … .

The court determined that the officer had a founded suspicion of criminality prior to ordering defendant to exit the vehicle for the pat search. A founded suspicion of criminality standing alone, however, was insufficient to justify the officer’s conduct in ordering defendant to place his hands on the patrol car in preparation for a pat search … . Nevertheless, in making its determination, the court credited the officer’s testimony that he smelled fresh marihuana emanating from the vehicle and was experienced in detecting marihuana. It is well settled that “[t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search a vehicle and its occupants”  … . People v Green, 2019 NY Slip Op 04608, Fourth Dept 6-7-19

 

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