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A SMALL AMOUNT OF COCAINE IN PLAIN VIEW IN DEFENDANT DRIVER’S POCKET DID NOT PROVIDE PROBABLE CAUSE TO SEARCH THE TRUNK OF DEFENDANT’S CAR AFTER A TRAFFIC STOP (SECOND DEPT).

he Second Department, on an appeal by the People, determined finding a small amount of cocaine on defendant driver’s person did not provide probable cause to believe drugs would be in the trunk. Therefore the weapon and drugs found in the trunk, as well as defendant’s statements about searching the trunk, were properly suppressed:

… County Court concluded that the recovery of a small quantity of what appeared to be cocaine, along with a cut straw, in plain view on the defendant’s person, was insufficient to give the police probable cause to believe that additional contraband would be found in the vehicle’s trunk, particularly after a search of the passenger compartment revealed nothing. This Court has, in a factually similar case, reached the same conclusion … . Under the facts of this case, we decline to disturb the court’s finding as to lack of probable cause.

Contrary to the People’s contention, cases in which there is circumstantial evidence of recent drug use within the passenger compartment, such as when the police, during a routine traffic stop, detect the odor of burning marijuana …  are distinguishable, since such evidence provides good reason to believe that the unseen drugs may be located somewhere within the vehicle. By contrast, the fact that a small quantity of drugs is found on the defendant’s person, with no other drugs being found in the passenger compartment of the vehicle, does not, without more, provide probable cause to believe that additional drugs may be found in the trunk of the vehicle … . People v Garcia, 2019 NY Slip Op 06509, Second Dept 9-11-19

 

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