FACTS Defendants Kevin Suncar and Jeremiah Medina move this Court for the suppression of items seized in a search of a parked vehicle. THE HEARING The People called a single witness: Police Officer Freddy Pichardo of the 46th Precinct. Pichardo has been a police officer for four years and serves as a patrol officer, mainly responding to 911 calls. He stated that he received training at the police academy four years ago in the recognition of controlled substances and marijuana including smelling, texture, and the packaging of controlled substances and marijuana. He was also trained in the way to approach motor vehicles, including identifying violations from “running a red light, tinted windows, things that we can stop a vehicle for.” Officer Pichardo has made less than thirty arrests in four years and assisted in over 200. One involved cocaine and one arrest involved marijuana and this is the only one. He assisted in less than 50 drug arrests that “involved marijuana”. On March 11, 2019, at 9:20 in the morning, Officer Pichardo was with his partners, Officer Gonzalez and Sergeant Beharry, all of whom were in uniform. Officer Pichardo saw the defendants in a red Hyundi sedan which was parked and with the engine off. It was blocking the pedestrian crosswalk. This was a parking violation. The officer indicated that they issued a summons, an A summons, for the violation. It was never introduced into evidence. The officer was unable to indicate what law it violated. The time of the defendant’s arrest was 9:27 am. on the street by the car. He and the Sergeant approached the vehicle. Pichardo was standing on the passenger side of the vehicle on the sidewalk. He did not recall where Beharry was. Medina was in the front passenger seat and Suncar was sitting in the rear passenger seat. They appeared to the officer to be sleeping. Pichardo knocked on the window to tell them to move the car but he got no response. Then “we gave them a command” which was quoted as “Hey, can you hear me? Can you hear me? Wake up. Wake up.” The command was delivered through the closed window. Pichardo said that he then thought they needed medical help. They then decided to enter the vehicle. The Sergeant opened the rear driver side door, where one of the defendants was sleeping. Pichardo stated “As we approached there was a strong smell of marijuana coming out of the vehicle.” The doors and windows of the car were closed, however, as they approached. Officer Pichardo repeatedly injected the “strong smell of marijuana” into many of his answers. Pichardo stated that they opened the door and tried to wake them up. He stated that he open the door and then answered that the Sergeant not he opened the car door. They yelled at them and shook them a little bit. Then they were waking up. When they were awake they were asked to step out of the vehicle. By that time it was clear that they did not need medical attention. They stumbled out. Pichardo opined that clearly they were tired or under the influence of something. They were ordered to stand by the building away from the car. The Sergeant called Pichardo over. Pichardo stated that we then saw that there were narcotics in the middle of the rear seat. Pichardo did not see anything until he was called over after the Sergeant had been searching the car. The drugs that he saw he saw only after the Sergeant called him over after he had searched the car and only then called Pichardo over to see the drugs in the middle of the rear seat. On cross examination Pichardo stated that the drugs were in a brown bag and a plastic bag. The marijuana was in baggies but he could not recall whether they were open or not. He testified that the Sergeant gave him the drugs and he put them in his pocket to transport them to the precinct. The Sergeant showed Pichardo multi colored packaging of a rock like white powder he believed was cocaine and marijuana in a little bag or maybe two bags. He stated that the marijuana was bundled, adding “with a strong smell”. The claim is that he could smell the raw marijuana from the two closed little bags. He said you can smell it from two feet away although there was no evidence that he was two feet away. Further he said you could smell it when you opened the bag. He admitted on cross examination that he found no burning marijuana cigarettes in the car. Pichardo asked Medina who the vehicle belonged to and Medina said his aunt and then he said his mother. Pichardo said he stopped asking questions because he concluded that he could not get a “straight answer”. One of the two men told Pichardo that they did not have keys to the vehicle. WAIVER OF STANDING ISSUE BY THE PEOPLE The defense asserts that the People, by failing to raise the issue of the defendants’ standing until their reply papers were filed after the close of the hearing, have functionally forfeited the right to challenge the defendants’ standing. Citing to People v. Sylvester, 129 AD3d 1666 (4th Dept 2015), the defense contends that the challenge is untimely. No existing First Department case addresses this issue. But see People v. Graham, 211 AD2d 55, 57-58 (1st Dept), lv denied 86 NY2d 795 (1995) (finding unpreserved the People’s contention that the defendant lacked standing to challenge a search, noting that the People failed to raise the issue in either their motion opposing suppression or at the hearing, citing People v. Hunter, 17 NY3d 725, 726-727 [2011]). In fact, the People objected at the suppression hearing as to relevance when the defense sought to prove standing by and through the credit card found in the inventory search, in effect arguing that it was not in issue. But of most significance was the fact that the People stood silent when the Court stated that the People have not challenged standing. The People in papers claim that the hearing is still ongoing because there are papers being submitted. The hearing consists of the evidence and not subsequent filings. The attempt to “keep the hearing open” by the People is specifically not permitted once they have rested. See People v. Havelka, 45 N.Y.2d 636 (1978). As in Sylvester, the People’s challenge to defendants’ standing was made after the proof at the suppression hearing was closed, and was thus untimely, citing Hunter, 17 NY3d at 727-728 The People further argue that that People v. Sylvester is not “binding law” because it is a Fourth Department case. (Although they erroneously state that it is a Third Department case). Sylvester relies upon the Court of Appeals reasoning in People v. Hunter, 17 NY3d 725 (2011), and appears to this Court to be perfectly good law. The People have failed to demonstrate that any other court has rejected the Sylvester rule. Once the hearing is concluded the People can no longer raise the standing issue to block the hearing. The simplest reason is fundamental fairness to the defense so the defense cannot be ambushed with the issue after the hearing is closed. The issue of standing must be raised as soon as practicable so that the court can appropriately exercise its discretion and the parties can tailor their hearing strategy to avoid ‘substantial possibilities of surprise. Further it is a matter of fairness to the Court itself which could have disposed of the matter on the standing issue at the first opportunity. Therefore, as a matter of law the People must raise the challenge to the defendants’ standing as part of the actual hearing. Their silence is to be read as an admission that standing was not contested. PEOPLE v. DEBOUR ANALYSIS Prior to an arrest, justifiable police intrusion upon a citizen in a public place is of three levels. Police, in a first level encounter, may approach civilians to request information when there is some objective credible reason for that interference not necessarily indicative of criminality. The common-law right to inquire, or the second level, allows police to interfere with a citizen’s freedom, short of seizure, “to the extent necessary to gain explanatory information,” provided the police have a founded suspicion that criminal activity is afoot. People v. DeBour, 40 NY2d 210, 223 (1976). Here, the officer had a credible objective reason for approaching the vehicle when he observed it was partially parked in a crosswalk. After observing the occupants asleep in the vehicle, the officer was justified in making a level one DeBour request for information. People v. Lovelle, 33 Misc 3d 1212(A) (Crim Ct, Kings County 2011). It is well established that approaching an occupied stationary vehicle is a minimal intrusion which is not the equivalent of a stop. See People v. Harrison, 57 NY2d 470 (1982). As such an encounter is analogous to approaching a citizen on the street to request information and the same four-tiered analysis set forth in People v. DeBour, 40 NY2d at 223, is utilized. See People v. Ocasio, 85 NY2d 982 (1995). Utilizing the DeBour analytic framework, it is clear that the approach in this case was a wholly justified level one intrusion. While valid traffic related issues are widely regarded as the less intrusive level one inquiry [People v. Ocasio, 85 NY2d 982 (1995); see People v. Hollman, 79 NY2d 181 (1992)], the common-law right to inquire focuses on the citizen as a suspect and whether there is “founded suspicion that criminal activity is afoot” People v. DeBour, 40 NY2d at 223. Courts have described this level two inquiry as one that closes in on a defendant as a “suspected law breaker” In re Antoine W., 162 AD2d 121, 122 (1st Dept 1990], affd 79 NY2d 888 (1992). Although this level of intrusion entitles an officer to interfere with a citizen “to the extent necessary to gain explanatory information,” it may not involve a forcible stop and seizure. People v. DeBour, 40 NY2d at 223; see also People v. Hollman, 79 NY2d at 181; In re Wesley M., 195 AD2d 350 (1st Dept 1993), affd 83 NY2d 898 (1994). Pursuant to DeBour the police have a common law right of inquiry and can ask pointed questions that would reasonably lead one to believe that he is a suspect of criminality, once they have founded suspicion, an articulable good faith reason, to suspect a particular person of criminal activity. Depending on the particular facts of the case, a level one inquiry can elevate to a level two inquiry in an instant when an officer comes to suspect a particular person of criminal activity. Under a level three intrusion, however, the focus is not simply whether there is a founded suspicion of criminal activity, but whether there is reasonable suspicion that a certain individual is believed to be involved in such criminal activity. People v. DeBour, 40 NY2d at 223. Reasonable suspicion exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was (or is being) committed and that such person committed it. CPL 140.50(1); People v. Cantor, 36 NY2d 106, 112-113 (1975). Thus, before a person may be stopped in a public place, a law enforcement officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime. CPL 140.50(1). The officer must be able to state the specific and articulable facts reasonably prompting that intrusion; mere vague or unparticularized hunches are insufficient. United States v. Cortez, 449 US 411, 417 (1981); Terry v. Ohio, 392 US 1 (1968). Unlike the common-law right of inquiry, a level three intrusion is indeed a forcible stop and constitutes a seizure “[w]henever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action” People v. Cantor, 36 NY2d at 111; see also People v. Martinez, 80 NY2d 444, 447 (1992). PROBABLE CAUSE AT EACH STAGE Once the defendants have standing even if acquired by waiver, the civilian police encounter must be evaluated at every step to determine whether there is a violation of the search and seizure law. At each stage of an encounter, the level of police intrusion must be justified by the factual basis leading to it. People v. Grunwald, 29 AD3d 33 (1st Dept 2006). ASLEEP IN A CAR IN THE CROSSWALK While the officer could not identify the statutory or regulatory violation, and it is odd that the 911 responders have time to have cars moved from random crosswalks when they pass, the presence of a parked car in the cross walk is a violation of the VTL 1202(a)(1)(d). This is not a moving violation. While the officer had authority to issue a summons and claimed that he did, the People presented no evidence that a summons was actually issued. The evidence is that the car was parked in the cross walk for some time prior to the officer’s observation. THE OPENING OF THE DOOR Officer Pichardo claimed that when the defendant continued to sleep in the car while they called out commands into the closed car, the officers feared that the defendants were in the throes of a health emergency. Once they woke up and were removed from the car, they were satisfied that there was no issue as to their health. The officer opening the door to check on the defendants was proper. THE SMELL OF MARIJUANA Officer Pichardo claimed that he could smell marijuana even before the sealed car was opened by the Sergeant opening the driver’s rear door. The marijuana that he smelled had to be the raw marijuana unsmoked and sealed in the baggies in the car because no one found marijuana cigarettes or burnt marijuana in the car. There were no rolling papers or other paraphernalia. There was no evidence that there was a lighter in the car. Thus to credit this testimony the sleeping defendants had also to be magicians, disappearing the burnt marijuana, or else Pichardo smelled raw marijuana contained in closed plastic bags. He testified in effect that he was trained at the academy to be able to smell raw marijuana at 2 feet. In effect he claimed that he could smell raw marijuana. The claim of smelling raw marijuana without any description of the smell itself gives the lie to the testimony. And he did so here in his first marijuana arrest. The Court does not believe Officer Pichardo that there was a smell of marijuana. In People v. Hill, Judge Newbauer labeled the smell of marijuana testimony as a canard. In Hill the Court suggested and rightly so that the testimony about the smell of marijuana emanating from a car should be subject to a heightened level of scrutiny. In this case, the heightened level of scrutiny test is not necessary. Primarily because the amount of marijuana was so small and in sealed baggies within another bag, and there was not a scintilla of evidence of marijuana such as ashes, papers, a lighter, clips or evidence that the defendants discarded anything, the testimony concerning the smell of marijuana is contradicted by the evidence in the record. The People also have claimed that Pichardo and the Sergeant shared the information of the smell of marijuana, which only compounds the initial fabrication and implicates both officers in the collective untruth to manufacture probable cause to justify a search. The Court finds Officer Pichardo incredible on this issue and as a result declines to credit his testimony as to the subsequent search. In People v. Kim, 29 Misc 3d 1218(A) (Nassau Dist Ct 2010), the court noted that although some courts have recognized that “plain smell” can serve as an analogue to “plain view” [citing to People v. Williams, 822 F2d 1174 (DC Cir 1987) and Matter of Marrhonda G., 151 Misc 2d 149 (Fam Ct, NY County 1991)], they have done so where circumstances contribute to the conclusion that probable cause actually exists, such as warm weather and a sealed room indicate that something could be smelled. Further the bare testimony that the officer could smell marijuana is not enough. The law enforcement officer making use of the sense of smell has a demonstrated familiarity with the smell of the substance in question and more than the standard training at the academy whatever that training is. The People neither had the officer describe the training or the actual smell. Additionally, there has to be a sufficient quantity to occasion the smell; two little sealed bags of raw marijuana would not generate the smell that Officer Pichardo claimed he smelled. The officer in this case detected what he described as a “strong” or “very strong” smell of unburnt marihuana. However, such characterizations of odors as strong or weak are inherently subjective; what one person believes to be a powerful scent may fail to register as potently for another. See Doty, Wudarski, Marshall, & Hastings, Marihuana Odor Perception: Studies Modeled from Probable Cause Cases, 28 Law & Hum. Behav. 223, 232 (2004). This paper significantly found that the odor of marijuana was not reliably discernable by persons with an excellent sense of smell in two cases replicated in simulated real life situations encountered by law enforcement. In the first, they simulated a situation in which, during a routine traffic stop, the odor of packaged marijuana located in the trunk of an automobile was said to be detected through the driver’s window. The second study was not relevant to this matter. The study determined that there was no special accuracy in the detecting of marijuana. Factors include the temperature and other environmental considerations, exposure to the smell so as to permit recognition and other variables. In the instant case, there is no evidence that Officer Pichardo had access to the smell of raw marijuana in any way since he left the Police Academy, assuming that his training included the smell of raw marijuana, especially since this was his first marijuana arrest. For a hearing court to make a finding that an officer had probable cause to conduct a search, the officer’s expertise, training or experience with respect to knowledge of the smell of marijuana must be adequately developed in the record. In this matter, the simple declaration that he smelled raw marijuana is not enough. Of significance is the lack of description of the smell undermining the credibility of the claim even further. The People failed to come forward with a demonstration that Officer Pichardo was familiar with the smell of unburnt marijuana. People v. Walker, 128 AD3d 1499 (4th Dept 2015). They presented no circumstance other than smell to justify what occurred here. Indeed, it appears that the People assume both that smell alone justifies an exploratory search of every part of the car and every container in it, and that because police discovered what they suspected was there the intrusion was lawful. Further the People cannot rely upon the Chestnut line of cases. In People v. Chestnut, 43 AD2d 260 (3rd Dept 1974), affd 36 NY2d 971 (1975), the Third Department held that during a lawful stop of a vehicle for a traffic violation, when police officers “qualified by training and experience” detect the “distinctive odor of marihuana smoke” emanating from the vehicle, the officers may search both the vehicle and its occupants without a search warrant due to the existence of both “probable cause” that the defendant has committed a crime and the “exigent circumstances” presented by the movable nature of the automobile which may contain contraband. Id., at 261-262. Chestnut has not yet grown stale and is still the law in New York. See People v. Acevedo, 118 AD3d 1103 (3rd Dept 2014); People v. Rasul, 121 AD3d 1413 (3rd Dept 2014); People v. Cuffie, 109 AD3d 1200 (4th Dept 2013); People v. Walker, 128 AD3d 1499 (4th Dept 2015) (holding that even the odor of “unburned marihuana” emanating from an automobile authorizes the warrantless search of the vehicle and its occupants). cf., People v. Kim, 29 Misc 3d 1218(A) (Nassau Dist Ct 2010) (mere smell of marihuana alone did not justify search of defendant’s car). Chestnut and progeny represent a narrow marihuana offshoot of the case law which falls under the broader scope of 4th Amendment jurisprudence known as the “automobile exception.” It is well settled that a traffic stop is lawful where “a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation.” People v. Robinson, 97 NY2d 341, 349 (2001). In the instant case there was no traffic stop but rather a VTL parking violation. Finally the smell of marijuana as sufficient for probable cause needs to be re-examined. The re-examination of the Chestnut line of cases might put an end to the claim that raw marijuana in small amounts can be smelled by police officers through closed containers, or even open windows. Unlawful Possession of Marihuana (Penal Law §221.05) is a mere violation, not a crime. It would then ordinarily require the police officer to issue a summons as to the public use of marijuana. Chestnut was decided in 1974 when possession of any amount of marihuana was still a crime in New York. In 1977, New York’s “Marihuana Reform Act of 1977,” made possession of less than 25 grams of marihuana a non-criminal violation carrying a maximum penalty of $100.00. Penal Law §221.05. The legislature found that the purpose of the [Marihuana Reform Act of 1977] “was to reduce the penalties for possession and sale of marihuana and in particular to decriminalize” the possession of a small amount of marihuana for personal use. That purpose was emphasized by the excision of the marihuana offenses from Article 220. In the unconsolidated portion of the legislation, the Legislature expressed its findings and its purpose: “The legislature finds that arrests, criminal prosecutions and criminal penalties are inappropriate for people who possess small quantities of marihuana for personal use.” William C. Donnino, Practice Commentaries, McKinney’s Cons. Laws of N.Y., Penal Law §221.00. Thereafter the New York City Police Department initiated a policy that went into effect as of September 1, 2018, months after this arrest, calling for the issuance of a summons rather than an arrest for the B misdemeanor of smoking marijuana in public. Here the defendants under the prior policy were never arrested for smoking marijuana in public. Simple possession of marijuana is a violation and not a crime. Chestnut has been weakened by subsequent legislation and policy. If possession of marijuana in small quantities is no longer a crime then the mere odor of unburnt marihuana could not provide probable cause for the arrest of the occupants of a vehicle that has not committed a moving violation. Although the odor of unburnt, rather than burnt, marihuana could be more consistent with the presence of larger quantities, it does not follow that such an odor reliably predicts the presence of a criminal amount of the substance, that is, more than one ounce, as would be necessary to constitute probable cause. See e.g. Com. v. Antobenedetto, 366 Mass. 51, 56 n. 2, 315 NE2d 530, (Sup Judicial Ct Massachusetts, Middlesex 1974). This Court does not follow Massachusetts law, but our sister state’s reasoning concerning whether the mere odor of burnt or unburnt marihuana, standing alone, could provide probable cause of a crime is at least instructive for this trial court, where New York courts have yet to specifically address this precise issue. THE ACTUAL SEARCH Separate and apart from the marijuana smell canard, this Court has grave doubts as to the legality of the search based upon Pichardo’s testimony. Pichardo testified in effect that the contraband he saw, he observed when it was shown to him after his Sergeant searched the car. Thus pursuant to People v. Gonzalez, 80 NY2d 883, 885 (1992), the People failed to produce a witness with firsthand knowledge of the particular police conduct in dispute, the search. Clearly Pichardo being shown the packaging and the drugs by the Sergeant after the search is not plain view observation. The suggestion that it was in plain view makes no sense given that it was in a bag inside another bag. The evidence strongly suggests that the Sergeant, who the People did not call as a witness, searched the bag in the car, found the drugs and then called Pichardo over to show him what now was in plain view. Officer Pichardo was unable to testify as to the condition of the bags, brown and plastic, prior to the Sergeant showing him what he found. Pichardo was shown the fruit of the search without even seeing the closed bag being opened. Pichardo never testified to seeing anything in plain view prior to the Sergeant’s search. The failure to call Sergeant Beharry, the officer who in fact conducted the search, is inexplicable. It was he and not Pichardo who had personal knowledge of the facts of the search of the items in the car. Pichardo did not observe the actions of the Sergeant. “Where…an arrest is challenged by a motion to suppress, the prosecution bears the burden of establishing that the officer imparting the information had probable cause to act.” People v. Ketcham, 93 NY2d 416, 420 (1999) (internal citation omitted). An illegal search cannot be justified by what it finds. THE DEBOUR INQUIRY The parked car in the crosswalk allows the police to conduct a level one inquiry. Assuming the truth of the marijuana smell, it is only enough to provide the officers with a founded suspicion that criminality was afoot, DeBour, supra, permitting them a level two common-law right of inquiry. But instead, the officer ordered the two men out of the car and placed them against the wall of a building. This detention and the search of the car was not authorized under the circumstances observed. There was no observation of any burnt marijuana or paraphernalia. The items in the sealed plastic bags were inside another brown bag. There was no observation of the tell-tale glowing end of a burning blunt, a smoking pipe, or even the effervescent waft of a tiny cloud of smoke coming from the vicinity of the defendants. Under settled DeBour jurisprudence, in order to elevate the level two common-law right of inquiry to the level three right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable suspicion of criminal behavior. The Court of Appeals has “frequently rejected the notion that behavior, which is susceptible of innocent as well as culpable interpretation, will constitute probable cause. It is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand.” People v. DeBour, 40 NY2d at 216 (citations omitted). In this instance the traffic violation and the possibility of marijuana being present could lead to no more than a summons for a violation. While the smell of raw marijuana could be a basis for a trafficking suspicion, there is woefully little in this case to support that suspicion since no indicia of trafficking were observed prior to the ordering of the defendants out of the car. The officers did not possess reasonable suspicion to justify the level three detention of the defendants and subsequent search of the car. Even if the officers had possessed the level three reasonable suspicion that defendants violated the law (i.e., Criminal Possession of Marihuana in the 5th Degree, Penal Law §221.10), it would have only permitted a temporary detention of defendants and not the full blown search of the vehicle. A level three temporary detention justifies only a pat-down frisk if there is reason to believe that the suspect is armed and poses a threat to officer safety. It does not permit a full-fledged warrantless search for evidence. People v. DeBour, 40 NY2d at 223. There is no evidence in the hearing record that either officer observed anything which would have indicated defendants possessed a weapon. At no time was there anything threatening or unusual about the defendants, except that they were sound asleep in the illegally parked car in the morning. There certainly was nothing to suggest defendants were in possession of any weapon. Here the officer abandoned the questioning of the defendants as to the owner of the car in favor of a full blown search of the vehicle. The search violated the rights of the two defendants. CONCLUSION The People have failed to meet their burden of establishing the legality of the police conduct because the testimony of the officer cannot be credited. The marijuana and the cocaine must be suppressed as the fruits of an unlawful search and seizure. See People v. Berrios, 28 NY2d 361 (1971); Wong Sun v. United States, 371 US 471 (1963). This constitutes the decision and order of the Court. Dated: December 20, 2019 Bronx, New York
