You are here: / / PROBABLE CAUSE FOR SEARCH OF DEFENDANT’S VEHICLE UNDER THE AUTOMOBILE...
,

PROBABLE CAUSE FOR SEARCH OF DEFENDANT’S VEHICLE UNDER THE AUTOMOBILE EXCEPTION WAS PROVIDED BY THE ODOR AND OBSERVATION OF MARIJUANA; SEIZURE OF A TRANSPARENT BAG OF PILLS WAS NOT JUSTIFIED BY THE PLAIN VIEW EXCEPTION TO THE WARRANT REQUIREMENT BECAUSE IT WAS NOT IMMEDIATELY APPARENT THE PILLS WERE CONTRABAND AND THERE WAS NO MARIJUANA IN THE BAG (SECOND DEPT).

The Second Department, reversing defendant’s conviction stemming from a transparent plastic bag of pills seized from defendant’s vehicle after a traffic stop. determined the seizure of the pills was not justified by the plain view exception to the warrant requirement. The court noted that the Penal Law statute prohibiting a probable-cause finding based solely on the odor of marijuana is not applied retroactively and therefore the marijuana odor and the observation of the marijuana provided probable cause for a search pursuant to the automobile exception to the warrant requirement here:

The plain view doctrine is not applicable where the object must be moved or manipulated before its illegality can be determined … . The movement or manipulation of an object from its original state in a manner that goes beyond the objectives of the original search constitutes an independent search or seizure … . Such a search or seizure may not be upheld without proof that the officer who moved or manipulated the object had probable cause to believe that the object was evidence or contraband at the time that it was moved or manipulated … .

Here, Cruz [the officer] testified that he did not know what the pills in the ziploc bag were when he seized them. * * *

Since it was obvious that the transparent ziploc bag seized by Cruz did not contain marihuana, and since it was not immediately apparent that the ziploc bag contained any other type of contraband, there was no justification for seizing the bag … . People v Rodriguez, 2022 NY Slip Op 07080, Second Dept 12-14-22

Practice Point: The Penal Law statute prohibiting a probable-cause finding based solely on the odor of marijuana is not applied retroactively.

Practice Point: If an object, i.e., a transparent plastic bag of pills, must be manipulated before it can be determined to be contraband, seizure under the plain view exception is not justified. Here the odor and observation of marijuana provided probable cause for the search of the vehicle, and containers within the vehicle, for marijuana. Because the transparent bag of pills did not contain marijuana, the plain view exception did not apply.

 

You might also like
SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT).
TOWN PLANNING BOARD PROPERLY RESCINDED A 1987 NEGATIVE SEQRA DECLARATION FOR A SUBDIVISION BECAUSE OF THE NEW REGULATORY LANDSCAPE, COURT’S REVIEW POWERS ARE LIMITED TO WHETHER THE BOARD SATISFIED SEQRA PROCEDURALLY AND SUBSTANTIVELY (SECOND DEPT).
DEFENDANT-SELLERS NOT LIABLE FOR MOLD AND MICE IN HOUSE SOLD TO PLAINTIFFS, UNDER THE MERGER DOCTRINE NO PROVISION OF THE CONTRACT SURVIVED THE DELIVERY OF THE DEED, THE DOCTRINE OF CAVEAT EMPTOR APPLIED, NO DUTY OF CARE OWED TO THE PLAINTIFFS OVER AND ABOVE THE CONTRACT PROVISIONS, THE PRIVITY ELEMENT OF NEGLIGENT MISREPRESENTATION WAS ABSENT (SECOND DEPT).
WHERE IT HAS BEEN MORE THAN A YEAR SINCE DEFENDANT FAILED TO ANSWER THE COMPLAINT, THE DEFENDANT IS ENTITLED TO NOTICE BEFORE ENTRY OF A DEFAULT JUDGMENT; HERE THE FAILURE TO GIVE DEFENDANT NOTICE RENDERED THE DEFAULT JUDGMENT A NULLITY (SECOND DEPT).
A LAWSUIT ALLEGING NONCONSENSUAL SEXUAL TOUCHING PURSUANT TO THE ADULT SURVIVORS ACT (CPLR 214-J) NEED NOT ALLEGE PLAINTIFF’S INTIMATE PARTS WERE TOUCHED BY THE DEFENDANT TO STATE A CAUSE OF ACTION; IT IS ENOUGH THAT THE COMPLAINT ALLEGE PLAINTIFF WAS TOUCHED UNDER CIRCUMSTANCES WHICH AFFORDED THE DEFENDANT SEXUAL GRATIFICATION (SECOND DEPT).
PEOPLE DID NOT DEMONSTRATE DEFENDANT WAS AWARE OF THE VICTIM’S AGE, FACTOR 7 SHOULD NOT HAVE BEEN APPLIED TO THE RISK ASSESSMENT.
Default for Failure to File Note of Issue Within 90 Days of Demand Properly Excused
SIDEWALK RISE OF A LITTLE OVER AN INCH WAS A NON-ACTIONABLE TRIVIAL DEFECT.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IF A DEFENDANT IS CONVICTED OF A FELONY IN A FOREIGN JURISDICTION WHICH REQUIRES... THE CITY WAS NOT ENTITLED TO QUALIFIED IMMUNITY IN THIS “UNSAFE INTERSECTION...