DECISION AND ORDER Defendant Julio Reinoso is charged with possession of a loaded firearm, which was recovered when he fled a police officer who had frisked him after stopping the car Mr. Reinoso had been driving and ordering him out. This decision explains why the non-violent reasons offered for the stop and frisk — the fact that the smell of marijuana came from the car and that the car bore a forged license plate — were insufficient to justify what the officer characterized as a safety pat-down that led to the recovery of the weapon. On January 21, 2022, this court conducted a pre-trial suppression hearing, at which Police Officer Majid Ahmed credibly testified as follows. On February 20, 2021, at 7:45 PM, while accompanied by his sergeant, Officer Ahmed patrolled the 76th Precinct in uniform in an unmarked police car. At the time, he had made almost 100 arrests and participated in an additional 200. These included a total of 14 arrests for firearms, 12 for marijuana possession, and three or four for the possession of a forged license plate, including those purporting to be from Texas. Officer Ahmed’s training notably included five days devoted to automobile crimes, involving, among other things, the identification of forged license plates, and specifically those ostensibly from Texas. Officer Ahmed’s training with respect to marijuana was less comprehensive, appearing to consist of learning that marijuana is packaged in Ziploc bags. He was unable to distinguish the smells of burnt and unburnt marijuana. On the day in question, Officer Ahmed was driving directly, and not more than one car length, behind a grey 2009 BMW when he noticed that the BMW’s rear license plate was laminated and appeared to be a forged Texas temporary plate. It did not bear either the Texas state seal or the three security lines of a real Texas temporary plate. In addition, the fonts of the plate number were of uneven size. As it turned out, the officer’s conclusion was correct, as he learned later that evening, after his encounter with the defendant, when his police database disclosed that the plate did not correspond to a car on record. When Officer Ahmed observed the apparently forged plate, he activated his vehicle’s turret lights and pulled the motorist over without incident. He approached the driver — the defendant — while his sergeant approached the car’s only other occupant, the front seat passenger. Officer Ahmed’s interaction with the defendant was captured on the officer’s body-worn camera, which displayed a calm exchange between the two. In response to Officer Ahmed’s telling him that the temporary plate could not be laminated, the defendant offered that he had just purchased the car and that the dealer had instructed him to laminate it. Officer Ahmed requested paperwork for the vehicle. The defendant was cooperative and immediately provided his learner’s permit and documentation of either registration or insurance. As Officer Ahmed testified, the defendant was calm and the officer had no reason to believe that he was armed or would be violent. During this interaction, Officer Ahmed observed what he characterized as a strong odor of marijuana emanating from the vehicle. He asked the defendant if the defendant had been smoking. The defendant said he had not been. Nonetheless, Officer Ahmed ordered the defendant out of the vehicle. The defendant immediately complied. When the defendant stepped out, Officer Ahmed patted him down for “officer safety”1 and felt what he took to be a large L-shaped metal object in the defendant’s left jacket pocket. Officer Ahmed recognized this to be a gun and therefore pulled the defendant’s arms back in order to rear-cuff him. As he did so, however, the defendant slipped out of the jacket that the officer was holding and fled on foot. The gun fell to the ground. The officers did not pursue the defendant, but he was arrested two days later. A search of the car after defendant’s flight revealed a bookbag on the rear passenger seat filled with plastic bags of marijuana. Based on these facts the court concludes that the initial stop of the defendant’s vehicle was lawful. The officer’s training and experience permitted him to reasonably believe that the defendant was operating a motor vehicle in violation of Penal Law §170.20, which proscribes the possession of forged instruments (even if the officer did not confirm that the plate was a forgery until afterwards), and therefore he could stop the vehicle (People v. Hinshaw, 35 NY3d 427 [2020]; see also People v. Estrella, 48 AD3d 1283, 1284 [4th Dept 2008] [police properly stopped vehicle upon suspicion that its rear window was excessively tinted even though they did not apply tint meter until later], affd 10 NY3d 945, 946 [2008]). Officer Ahmed testified as to what a valid Texas temporary plate looked like and the manner in which defendant’s differed. The record therefore sufficiently supports Officer Ahmed’s conclusion that the defendant was operating a motor vehicle with a forged license plate. Once the vehicle was stopped, Officer Ahmed also had the authority to ask the defendant to step out of the car, because vehicle stops are inherently dangerous (Pennsylvania v. Mimms, 434 US 106 [1977]; People v. Robinson, 74 NY2d 773 [1989]). But to conduct a protective frisk, as Officer Ahmed then did, an officer must “harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous” (Arizona v. Johnson, 555 US 323, 327 [2009]; People v. Batista, 88 NY2d 650, 653-54 [1996]; People v. Robinson, 74 NY2d at 774; People v. Rampersad, 158 AD3d 727, 728 [2d Dept 2018], lv denied 31 NY3d 1086 [2018]; People v. Driscoll, 101 AD3d 1466, 1467 [3d Dept 2012]; Criminal Procedure Law (CPL) §140.50 [3]). The record is barren of any testimony that would justify a pat-down for “officer safety.” Unlike cases in which a defendant’s demeanor or behavior gives rise to a reasonable suspicion that the defendant is armed (see, e.g., People v. Diaz, 146 AD3d 803, 805 [2d Dept 2017] [defendant engaged in furtive behavior after traffic stop and officer observed large bulge in pants leg]; People v. Rampersad, 158 AD3d at 728 [defendant fidgeted and grabbed pants pocket]), the evidence in this case negates a finding of reasonable suspicion that defendant was armed or posed a threat to the officer. It is important to note in this regard that the People bear the burden of going forward to establish the legality of the police conduct in the first instance (see People v. Berrios, 28 NY2d 361, 367-68 [1971]). Where their witness offers a reason for a frisk that the facts do not support, the court cannot find that the People have met that burden. As this court has observed, Officer Ahmed expressly denied any suspicion that the defendant was armed or violent, and the body-worn camera footage confirms that the defendant was calm and cooperative. Without reasonable suspicion that the officer was in danger of physical injury or that the defendant was armed, the safety pat-down of the defendant was unlawful and requires suppression of the weapon that was discovered and recovered directly as a result of that search (cf. Terry v. Ohio, 392 US 1 [1968]; CPL §140.50 [3]). The court recognizes that an officer with adequate training and experience may search a motorist for marijuana upon smelling what he believes to be marijuana emanating from the vehicle (see People v. Chestnut, 43 AD2d 260 [3rd Dept 1974], affd 26 NY2d 971 [1974]). The court further observes that Officer Ahmed’s training and experience with respect to the odor of marijuana may have been lacking, inasmuch as he could not distinguish between the smells of burnt and unburnt marijuana and failed to explain what he learned in training beyond that marijuana may be packaged in Ziploc bags. But even if the court were to conclude that Officer Ahmed had the right to search the defendant for marijuana (see n.1, supra), the court cannot justify the safety pat-down on that putative basis because Officer Ahmed did not exercise his right to search the defendant for marijuana but, rather, expressly engaged in a safety frisk. The court takes pains to note that its conclusion is based on long-standing precedent applicable to motorist-police encounters and not on the recent enactment of Penal Law §222.05 [3], which appears to proscribe searches premised on the odor of marijuana alone.2 The Court of Appeals has recognized that an officer’s safety frisk of a motorist must be based on more than just probable cause to believe that he has committed an offense, be it a traffic infraction or even a misdemeanor; and, in a related line of cases, that even if there is probable cause to arrest a motorist, the officer may not rely on his right to search the motorist incident to arrest unless an arrest has been or is about to be effectuated. Thus, in People v. Marsh, 20 NY2d 98, 101 [1967], the Court held that it was unlawful for the police to search an individual who had been arrested for a traffic violation; in People v. Adams, 32 NY2d 451 [1973], that it was unlawful to search a motorist for a traffic misdemeanor, significantly, the offense of driving with an altered Vehicle Identification Number (which is akin to the forged license offense here); and in People v. Howell, 49 NY2d 778, 779 [1980], that it was unlawful to frisk a motorist accused of the misdemeanor offense of reckless driving based on the “belief that the defendant might be armed [where]…there [wa]s no testimony or finding as to what circumstances led the police officer to that conclusion.” Further, in People v. Reid, 24 NY3d 615 [2015], the Court emphasized that in a suppression hearing, the court must evaluate the reason that the officer proffers for the frisk of a motorist rather than the powers the officer possessed but chose not to exercise. Accordingly, the officer in Reid could not search a motorist incident to a lawful arrest when there was no “actual arrest…just…probable cause that might have led to an arrest, but did not” (id. at 619; see also Knowles v. Iowa, 525 US 113 [1998]; People v. Evans, 43 NY2d 160, 165 [1977]; People v. Erwin, 42 NY2d 1064, 1065 [1977]). On this record, Officer Ahmed’s search of the defendant was based on the officer’s apparent belief that a motorist may be searched for “officer safety” merely because the officer had the right to detain the motorist and remove him from his vehicle. While “officer safety” may have justified the motorist’s removal from the car, it did not also justify the search of his person. And because the record does not contain evidence that the officer was going to arrest the defendant for the forged instrument offense (see n.1), the court does not have to determine whether the search could have been justified as a search substantially contemporaneous to an arrest for that offense (see People v. Reid, 24 NY3d at 619; People v. Driscoll, 101 AD3d at 1467). Again, the outcome here (suppression even though an arrest may have been permissible) has been accepted by both the United States Supreme Court in Knowles v. Iowa, supra, and the Court of Appeals in People v. Reid, supra, when they concluded that, if officers have probable cause to arrest but choose not to, they cannot then justify a search based on an arrest they did not make. Reid specifically distinguishes cases such as Whren v. United States, 517 US 806, 814 [1996], and People v. Robinson, 97 NY2d 341 [2001], which allow officers to choose to exercise their authority to make a lawful traffic stop for a reason other than enforcing the traffic laws (see People v. Reid, 24 NY3d at 619). Together, these cases sensibly differentiate between officers who exercise a power the law bestows on them, regardless of their subjective intentions, and officers who choose not to exercise their power but then attempt to justify an unlawful action by invoking the power they failed to exercise.3 For the foregoing reasons, the court grants the motion to suppress the gun as the fruit of an unlawful search. With respect to defendant’s statements, the conversation that took place between Officer Ahmed and the defendant was not the product of custodial interrogation, nor was it in any way coerced. Rather, defendant’s statements regarding his license plate were the product of investigatory questioning and therefore not subject to suppression (see generally People v. Huffman, 41 NY2d 29, 34 [1976]; People v. Oliver, 103 AD3d 817, 818 [2d Dept 2013], lv denied 21 NY3d 945 [2013]; People v. Ortega-Flores, 70 Misc3d 60, 64 [App Term, 2d Dept, 9th & 10th Jud Dists 2020], lv denied 35 NY3d 1096 [2020]). Accordingly, defendant’s motion to suppress is granted to the extent of suppressing the gun as the fruit of an unlawful search and otherwise denied. The foregoing constitutes the decision of the court. Dated: February 2, 2022
