You are here: / / AT THE SUPPRESSION HEARING THE OFFICER TESTIFIED THE SEARCH OF DEFENDANT’S...
,

AT THE SUPPRESSION HEARING THE OFFICER TESTIFIED THE SEARCH OF DEFENDANT’S PERSON AFTER A TRAFFIC STOP WAS BASED UPON THE ODOR OF MARIJUANA; THE OFFICER DID NOT TESTIFY HE WAS QUALIFIED BY TRAINING AND EXPERIENCE TO RECOGNIZE THE ODOR OF MARIJUANA; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the traffic stop was proper (inoperable brake light) but the search of defendant’s person, based on the odor of marijuana, was not:

… [T]he officer’s testimony was insufficient to establish that there was probable cause for the search of the defendant’s person. As the law existed in 2020, “the odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, [was alone] sufficient to constitute probable cause to search the vehicle and its occupants” … . Here, however, the officer did not testify that he had any training or experience in detecting the odor of marihuana … .

Accordingly, the Supreme Court should have granted that branch of the defendant’s omnibus motion which was to suppress physical evidence. People v McLeod, 2025 NY Slip Op 01108, Second Dept 2-26-25

Practice Point: Under the law as it was in 2020, the search of a person could be justified by the odor of marijuana, but only if the officer was qualified by training and experience to recognize the odor of marijuana. Here the officer did not testify he was qualified to recognize the odor of marihuana. Therefore, defendant’s motion to suppress should have been granted.

 

You might also like
Elements of a Constructive Trust Not Adequately Pled
CAUSE OF ACTION FOR MONEY HAD AND RECEIVED SHOULD NOT HAVE BEEN DISMISSED.
DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF SNOW AND ICE ON THE SIDEWALK AND DID NOT DEMONSTRATE HE DID NOT CREATE THE HAZARD BY SNOW REMOVAL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
Submission of Affidavit of Merit in Reply Improper​
DEFENDANT ENTITLED TO PERMISSIVE ADVERSE INFERENCE JURY INSTRUCTION BASED UPON THE PEOPLE’S LOSS OR DESTRUCTION OF EVIDENCE REQUESTED BY THE DEFENDANT (SECOND DEPT).
SUPREME COURT’S DENIAL OF DEFENDANT’S PETITION TO MODIFY HIS SORA RISK LEVEL CLASSIFICATION WITHOUT HOLDING A HEARING VIOLATED THE CORRECTION LAW (SECOND DEPT).
Question of Fact Raised About Whether Any Delay In Insured’s Notifying the Insurer of the Accident Was Attributable to the Insured’s “Good-Faith Belief of Non-Liability”
PLAINTIFF SERVED THE COMPLAINT ON NOVEMBER 27, 2018; DEFENDANT ATTEMPTED TO SERVE AN ANSWER, WHICH WAS REJECTED, ON JANUARY 9, 2019; DEFENDANT’S EXCUSE WAS “THE DELAY WAS CAUSED BY THE INSURANCE CARRIER;” THAT EXCUSE WAS INSUFFICIENT AND DEFENDANT’S MOTION TO COMPEL PLAINTIFF TO ACCEPT THE ANSWER SHOULD HAVE BEEN DENIED (SECOND DEPT).

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

WHETHER THE JUDGMENT DEBTOR IS ENTITLED TO RESTITUTION AFTER REVERSAL OF A RESTRAINING... SUBSEQUENT COMPLAINTS WHICH REPEAT THE ALLEGATIONS IN THE INITIAL COMPLAINT...