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THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT PROVIDES NO BROADER SCOPE FOR THE SEARCH THAN WOULD A WARRANT ISSUED BASED ON THE SAME FACTS; HERE THE SMALL AMOUNT OF MARIJUANA ON THE CONSOLE OF DEFENDANT’S CAR DID NOT PROVIDE PROBABLE CAUSE TO SEARCH THE TRUNK WHERE A FIREARM WAS FOUND (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court and holding that decisions to the contrary should no longer be followed, determined the odor of marijuana smoke and the small about of marijuana on the console of the defendant’s car did not, pursuant to the automobile exception to the warrant requirement, justify the full search of the trunk of the car. Therefore the firearm found in the trunk should have been suppressed:

… “[T]he automobile exception. . . is an exception only to the warrant requirement; it does not, in contrast to the search-incident-to-arrest exception, dispense with the requirement that there be probable cause to search the vehicle” … . * * *

We are left with the question of whether the presence of a small amount of marijuana consistent with personal use provided the requisite probable cause and nexus to justify a search of the trunk. We find that in this case it did not. The only reasonable conclusion supported by the evidence here was that the de minimis amount of unburnt marijuana was for personal use, not for distribution or trafficking. The officer did not find any drug paraphernalia in the car. Indeed, in this case, there was “scant evidence of drugs in the car” … , and there was no probable cause to believe there was contraband in the trunk of the car. Therefore, because a proper search pursuant to the automobile exception “is no narrower-and no broader-than [sic] the scope of a search authorized by a warrant supported by probable cause, [and] otherwise is as the magistrate could authorize” … , we find that here the search of the trunk was not supported by probable cause. Consequently, the gun found therein, and the statements made by defendant thereafter, should have been suppressed. People v Ponder, 2021 NY Slip Op 02880, First Dept 5-6-21

 

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