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CONFLICTING ACCOUNTS OF WHAT THE POLICE OFFICERS SAW WHEN THEY APPROACHED THE VAN IN WHICH DEFENDANT WAS A PASSENGER FAILED TO DEMONSTRATE PROBABLE CAUSE FOR THE SEARCH OF THE VAN; THE WEAPON SEIZED FROM THE VAN SHOULD HAVE BEEN SUPPRESSED; DEFENDANT’S POSSESSION OF A WEAPON CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing the possession of a weapon conviction, determined defendant’s motion to suppress a handgun found in a van in which defendant was a passenger should have been granted. Inconsistencies in the police officer’s accounts of what the officers saw when they approached the van rendered the People’s proof at the suppression hearing insufficient to demonstrate a lawful search incident to arrest:

The Supreme Court credited the accounts of both Ramos and Pimentel and concluded that what Pimentel testified that he had observed gave the officers probable cause to search the minivan for a gun … . However, the officers’ versions of events sharply conflicted with each other as to where the defendant was sitting in the minivan, and what he was doing, when the officers arrived at the minivan’s front windows. According to Ramos, the defendant was sitting in the front passenger seat, while Pimentel claimed that the defendant was sitting in the middle row, and attempting to conceal a gun in a bag at his feet. Ramos, though, did not see a gun, furtive movements, or a bag. It seems improbable that, if the defendant did what Pimentel said he did, Ramos could somehow have failed to notice it.

Ramos’s and Pimentel’s accounts both could not have been true, since both officers acknowledged that they approached the minivan simultaneously and reached the front seats at the same time. People v Austin, 2022 NY Slip Op 01306, Second Dept 3-2-22

 

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