AMENDED SUPPRESSION DECISION Defendant is charged with Criminal Possession of a Weapon in the Second Degree and other related charges. Defendant moved to suppress the gun that was recovered during a car stop. Defendant also moved to suppress statements that he made during and after the car stop. The court conducted a Mapp/Huntley/Dunaway hearing on January 13 and 14, 2022. The People called two witnesses at the hearing, Police Officers Marquise Walcott and Jasmine Nunez-Ramos, whose testimony the court credits. After reviewing the hearing testimony, the exhibits, the arguments of the parties and the relevant case law, the court granted defendant’s motion to suppress the physical evidence in a short-form decision dated March 15, 2022. The court also suppressed defendant’s statements at the precinct after his arrest, and denied suppression of his statements during the car stop. The following constitutes the court’s findings of fact and conclusions of law. Findings of fact On November 14, 2020, Officer Marquise Walcott from the 42nd Precinct was on public safety patrol with his partner, Officer Nunez-Ramos and Sergeant Duerr. Walcott was driving an unmarked police car in the vicinity of 169th Street and Lyman Place, toward Prospect Avenue in Bronx County. At approximately 11:04 p.m., Walcott saw a white Honda Accord making a right turn from Lyman Place without signaling. Walcott followed the car and saw that it had temporary license plates that had expired. Walcott pulled the car over on Prospect Avenue. Walcott, Nunez, and Duerr approached. The driver’s window was open and defendant was in the driver’s seat. There were two women seated in the car — one in the front passenger seat, and the other was in the rear behind the front passenger. Walcott smelled “an odor of marijuana emanating from the vehicle.” Although he could not describe the smell, Walcott testified that it smelled like dry, as opposed to burning, marijuana based on his training and experience dealing with marijuana. Walcott testified that he had probable cause once he smelled it because it was illegal to possess marijuana. Walcott introduced himself and explained that he stopped the car due to the expired temporary license plate. Walcott asked defendant for his license but defendant did not have it with him. When Walcott asked defendant his name, defendant told him it was Gabriel Tejada. Walcott did not learn that defendant’s real name was Samuel Javier until after he was arrested and Nunez-Ramos processed the arrest paperwork. Walcott and Nunez-Ramos saw a marijuana cigarette in the center console of the car. Walcott asked defendant “if there was any more weed in the car…besides that blunt” in the center console. Defendant responded that he had a “few more” baggies of marijuana. Defendant then showed Walcott a “small [black] plastic bag that you like get from a grocery store.” Defendant opened the bag for Walcott. Although Walcott could not say how much marijuana was in the bag, the contents were produced at the hearing for inspection by the court. (People’s Exhibit 3). The plastic bag contained eleven small bags of what appeared to be pre-packaged edible marijuana products in “gummy” form. Five of the bags were labeled “Gummie Bearz.” One bag was labeled “Bubble Gum Gelato.” Three of the little bags were open, and one was empty. Nunez-Ramos described it as “multiple little baggies of marijuana” and “one cigarette.” The marijuana cigarette was lab tested; the gummy edibles were not. Even assuming that all of these “baggies” contained marijuana, it was clearly less than two ounces in total. Walcott directed defendant to exit the car so that he could make sure that there were “no large amounts of marijuana inside the vehicle.” Walcott frisked defendant and directed him toward the trunk of the car. The two passengers got out of the car and were also directed toward the trunk of the car. During a search of the car, Walcott found a gun located in a bag of food that was on the floor behind the front passenger seat. The bag was open. Initially, Walcott could only see the handle of the gun because there were food containers on top of the gun. According to Walcott, the bag was located within the “grabbable area” and within arm’s reach of the driver. Walcott saw that it was an actual gun when he removed the food containers. Defendant and the passengers were then placed under arrest and transported to the 42nd Precinct. Walcott drove the Honda back to the precinct as well. The car stop and the search were recorded on Walcott’s body-worn camera. (People’s Exhibit 1). It was recorded on Sergeant Duerr’s body-worn camera as well. (Defendant’s Exhibit A). Officer Nunez-Ramos was present for defendant’s statement to Detective Bray at the precinct after his arrest. The video statement began at approximately 1:18 a.m. Prior to any questioning, a detective read defendant the Miranda warnings. Defendant acknowledged that he understood each right and he agreed to make a statement. In the statement, defendant claimed to have found the gun in a park that same day. The video statement ended at 1:47 a.m. Defendant was not threatened or coerced into making a statement. No promises were made to induce defendant to make a statement. The video statement was introduced into evidence at the hearing. (People’s Exhibit 2). Defendant was initially charged with Unlawful Possession of Marijuana in the Second Degree. (PL §221.05 [McKinney's 2020]). That statute was repealed in 2021. (Ch 92, §15, eff March 31, 2021). At the time of the car stop in this case, the possession of less than 2 ounces of marijuana was a violation, not a crime (PL §§221.05, 221.10 [McKinney's [2020]).1 CONCLUSIONS OF LAW A. The Car Stop Where a defendant challenges the legality of a stop and detention the court must determine whether the police action was “justified at its inception.” (People v. Wheeler, 2 NY3d 370, 374 [2004]); see also People v. Packer, 49 AD3d 184, 185 [1st Dept 2008]; affirmed, 10 NY3d 915). It is well-settled that a police officer may lawfully stop a vehicle based on probable cause when there has been a violation of the Vehicle and Traffic Law (People v. Robinson, 97 NY2d 341, 348-49 [2001]), such as changing lanes without signaling. (People v. Rice, 44 AD3d 247, 253 [1st Dept 2007], appeal denied, 9 NY3d 992). The court finds that the car stop was lawful based on Walcott’s observation of a traffic violation and an expired temporary license plate. Defendant does not dispute that the car stop was lawful. Instead, defendant argues that the evidence must be suppressed because the legal justification for the search was lacking. For the reasons set forth below, the court agrees with defendant. B. The Search/Physical Evidence In People v. Chestnut, an Appellate Court held that the smell of marijuana smoke alone can provide probable cause to conduct a warrantless search of a car and its occupants where there is a reasonable belief that the car contains contraband or evidence of a crime. (43 AD2d 260, 261 [3rd Dept 1974], affirmed, 36 NY2d 971 [1975]). This has been a constant in New York search and seizure jurisprudence for the last forty-five years. (See, e.g., People v. Robinson, 103 AD3d 421 [1st Dept 2013], appeal denied, 20 NY3d 1103). In 2019 the legislature amended the Penal Law to decriminalize the possession of up to two ounces of marijuana. (L 2019, ch 131, §2. PL §§221.05, 221.10 [McKinney's [2020]). Nevertheless, the long-standing precedent under Chestnut would have allowed a search of defendant’s car for “contraband” even though the possession of the small amount of marijuana that was recovered in this case was not a crime at the time of the car stop. Therein lies the problem. For years, the term “contraband” has been synonymous with physical evidence of a crime, such as narcotics or weapons, items that are clearly unlawful to possess. (See e.g., People v. Cheatham, 54 AD3d 297, 299 [1st Dept 2008], appeal denied, 11 NY3d 899). Even in the prison context, “contraband” is defined as “any article or thing which a person…is prohibited from obtaining or possessing by statute, rule, regulation or order.” (PL §205.00[3]). However, if the possession of a small amount of marijuana is no longer a crime that justifies a warrantless search, it is difficult to fathom how that same amount can still be considered “contraband” to justify a warrantless search. In People v. Ponder (195 AD3d 123 [2021]), the First Department recently rejected a per se rule that would allow the search of an entire vehicle, including the trunk, based on nothing more than the odor of marijuana and the existence of a de minimis amount of marijuana that is consistent with personal consumption. The police in Ponder lawfully stopped defendant’s car after observing defendant driving, after midnight, with his taillights off. The police detected a strong odor of burnt marijuana emanating from the car and removed the occupants to search the entire car for drugs. A small bag of loose, unburnt, marijuana was recovered from the center console; the police also recovered a gun that was found in a closed compartment in the trunk. Although the Ponder decision was limited to the facts before it, there is nothing in that decision to suggest that its holding was meant to be limited to trunk searches. On the contrary, in suppressing the gun, the Court specifically agreed with the defendant that a warrantless search required “a fact-specific probable cause analysis and a factual nexus between the criminal activity suspected and the area searched.” (Ponder, 195 AD3d at 124 [emphasis added]). Moreover, the Court also held that the only reasonable conclusion that was supported by the evidence “was that the de minimis amount of unburnt marijuana was for personal use, not for distribution or trafficking.” (Ponder, 195 AD3d at 131). Although the Court did not distinguish between evidence of a crime and contraband, the court specifically held that the facts before it did not provide “probable cause to believe there was contraband in the trunk of the car.” (Ponder at 131). This court sees no reason why that same rationale would not apply to the rest of the car, or to the facts of this case. In People v. Pasley (Sup Ct, Bronx County, Aug. 6, 2021, Clancy, J., Indictment No. 00396-2019),2 this court suppressed a gun that was recovered following a car stop. In Pasley, this court granted suppression based primarily on credibility issues regarding the testifying police officers. However, this court also relied on Ponder in granting suppression. In doing so, this court held that the de minimis amount of marijuana that the officers observed merely provided the police with a reasonable belief, at best, that the car contained evidence of a violation, as opposed to a crime, and did not provide the requisite justification for a search of the vehicle and its occupants. In the instant matter, the court specifically invited the People to address this court’s Pasley decision and to persuade the court that it was wrong in that case. The People did not address the Pasley decision at all. Instead, the People relied mostly on case law that pre-dates Ponder, with one exception. That case is People v. McCray (195 AD3d 555 [1st Dept 2021], appeal denied, 37 NY3d 1028), a First Department decision that was handed down after Ponder that is distinguishable from Ponder and the instant matter. As defendant correctly notes, the search in McCray occurred before the 2019 decriminalization of marijuana and was not predicated solely on the odor and presence of marijuana. McCray involved a 2016 car stop after the police smelled marijuana from a moving car, saw defendant smoking marijuana in that car, and saw smoke coming from the car. After the stop, the police saw marijuana on the floor of the car and defendant “furtively stuffing an object into his sock,” thereby providing probable cause to believe that defendant and the co-defendant possessed marijuana in the car. (McCray, 195 AD3d at 556). Moreover, at the time of the car stop in McCray, the possession of marijuana in a public place, where the marijuana was burning or open in public view, was a crime, a class B misdemeanor. (PL §221.10[1] [McKinney's 2016]). In contrast, the police in this case did not see anyone smoking, let alone any furtive movements by defendant or any passenger that could be interpreted as an attempt to hide marijuana or drugs. Walcott testified that there was an odor of marijuana emanating from the vehicle, and he merely observed one marijuana cigarette on the center console in the car. By Walcott’s own account, defendant presented him with a small plastic shopping bag that contained a small amount of marijuana. Once again, the court credits the officers’ testimony. It is undisputed that Walcott decided to search the car based on nothing more than less than two ounces of marijuana. The People attempt to distinguish Ponder by noting that the search in this case was not of the trunk but of the driver’s “grabbable area.” To be clear, this court is not taking issue with the area searched or the nexus between the officer’s belief and the area searched. The court is taking issue with the basis for the officer’s belief and the search itself. In this regard, the court does not agree with the People that the odor of marijuana, the presence of an unburnt marijuana cigarette in plain view, as well as a plastic bag with a few marijuana edibles, provided Walcott with probable cause to believe that defendant possessed more marijuana in any amount that constituted a crime. As in Ponder, this court finds that the only reasonable conclusion to be drawn from the evidence in this case is that the de minimis amount of marijuana in defendant’s car was for personal use and not for distribution or trafficking. (Ponder, 195 AD3d at 131). As such, the facts did not provide the officers with probable cause to believe that there was evidence of a crime or contraband in the car or, in Officer Walcott’s words, to make sure that there was “no large amounts of marijuana inside the vehicle.”3 Accordingly, the court finds that the search was unlawful and the gun must be suppressed. Defendant also argues that this result is dictated by the Marijuana Regulation and Taxation Act (MRTA). Effective on March 31, 2021, the MRTA repealed Penal Law Article 221 and replaced it with Article 222, a new statutory scheme addressing the use, possession, and sale of cannabis. Pursuant to the newly enacted PL §222.05(3), entitled “Personal use of cannabis,” the legislature has prohibited any finding of “reasonable cause to believe that a crime has been committed” based solely on “the odor of cannabis,” burnt or otherwise, or “the possession of or the suspicion of possession of cannabis or concentrated cannabis in the amounts authorized” in Article 222, either individually or in combination. (PL §222.05[3][a]-[c]). This section applies to any criminal proceeding, including suppression hearings. (PL §222.05[3]). The new Article authorizes the possession of up to three ounces of cannabis without penalty; more than three ounces but less than sixteen ounces is a violation punishable by a fine. (PL §222.25). The People argue that the MRTA was not meant to be applied retroactively. Citing to legislative history, defendant argues that the MRTA was meant to “repair the harm done by decades of disproportionate enforcement of the marijuana laws against people of color.” (Defendant’s Brief in Support at 20). Defendant also argues that the prospective application of the statute to suppression hearings that are still pending comports with the statutory language and the legislative intent. Until recently, there was no binding precedent on the applicability of the MRTA to pending suppression hearings or pending appeals involving searches that predated the MRTA, and the Ponder Court did not address this issue. After the parties’ post-hearing submissions, however, the Second Department held that the MRTA did not apply in the absence of language in the statute or the legislative history that evinces a clear intent that PL §222.05(3) was meant to be applied retroactively. (People v. Babadzhanov, — AD3d —, 2022 NY Slip Op 02273 [2d Dept 2022]). In the absence of First Department case law to the contrary, this court is bound to follow that decision. (D’Alessandro v. Carro, 123 AD3d 1, 6, [1st Dept 2014] [citing People v. Turner, 5 NY3d 476, 478 [2005]; Mountain View Coach Lines v. Storms, 102 AD2d 663, 664 [2d Dept 1984]). Accordingly, this court reaches its decision without relying on the MRTA. Nevertheless, this court relies on Ponder. When taken to its logical conclusion, the People’s rationale to support the search in this case makes little sense. There was no evidence, testimonial or otherwise, to suggest that the police in this case had any reason to believe that the car contained an amount of marijuana that was anything other than for personal use, or any other contraband. Without a basis to conduct a search, the gun must be suppressed. Since the police lacked probable cause to search the car for evidence of marijuana, the cigarette butt recovered at the precinct after defendant’s arrest, and any evidence derived therefrom, must be suppressed as the product of an unlawful arrest. (Wong Sung v. United States, 371 US 471 [1963]). C. The Statements The People bear the burden of proving the voluntariness of defendant’s statements to the police beyond a reasonable doubt. (People v. Huntley, 15 NY2d 72, 78 [1965]). The elements of custody and interrogation must both be present before the police are constitutionally required to provide the Miranda warnings. (People v. Huffman, 41 NY2d 29, 33 [1976] [citations omitted]). Pre-Miranda statements made in response to investigative questioning are admissible when the questions are asked for the purpose of clarifying the nature of the situation, as opposed to coercing a statement. (Huffman, 41 NY2d at 33-34). The court finds that any questions prior to the search were investigatory. As such, any statements defendant made prior to the search are admissible. However, any statements made after the unlawful search must be suppressed as the fruit of an unlawful arrest. (Wong Sung, 371 US 471). Based on the foregoing, the physical evidence recovered from defendant, and his statements to the police after the unlawful search, must be suppressed. This opinion constitutes the decision and order of the court. Dated: April 25, 2022
