PEOPLE v. MCGANN (2021)

The defendant has been charged by superseding misdemeanor information with Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. 220.03) and Unlawful Possession of Marihuana in the Second Degree (P.L. 221.05).

A Mapp hearing was held on February 25, 2021.

At the hearing, Mount Vernon Police Officer Tariq Hylton testified that he has been a member of the police force for four years and received police training at the Westchester Police Academy.

On November 1, 2019, Officer Hylton was on patrol. At approximately 6:52 pm he was in the vicinity of Park Avenue and East 1st Street in Mount Vernon when he observed a 2019 Toyota Camry with license plate NY-JHK9288 make a left turn onto Park Avenue onto East 1st Street without signaling to turn, in violation of VTL § 1163 (B). The officer pulled the vehicle over and approached the driver's side of the vehicle. As she approached he smelled a strong odor of burning marijuana. He asked the driver, later identified as the defendant, if he had been smoking marijuana. Officer Hylton testified that defendant stated that he had as small amount of marihuana in his possession, which was in a black bag on the vehicle's passenger side floor. Defendant was then asked to exit his vehicle. The officer then searched the black bag. The contents included a brown cigarette containing marihuana, a glass jar containing marihuana, a scale and several empty ziploc bags, as well as 23 individually packaged blue and yellow pills. The officer stated that based on his training and experience that the pills appeared to be some type of narcotic but he was not sure what kind. The officer testified that he asked the defendant what type of pills they were, to which defendant responded that they were Ectascy pills that his friend left in the car.

Conclusions of Law

The stop of a vehicle by law enforcement “is a seizure implicating constitutional limitations” and, as such, is only permitted when the stop is “based on probable cause that a driver has committed a traffic violation” (People v Hinshaw, 35 N.Y.3d 427, 430, 156 N.E.3d 812 [2020] [citations omitted]). Probable cause exists for an officer to effect a traffic stop where the officer observes the traffic violation (see People v Cummings, 157 A.D.3d 982, 983, 69 N.Y.S.3d 394 [2018], lv denied 31 N.Y.3d 982, 102 N.E.3d 437 [2018]; People v Rasul, 121 A.D.3d 1413, 1415, 995 N.Y.S.2d 380 [2014]). As is the case here, “where a police officer has probable cause to believe that the driver of an automobile has committed a traffic violation, a stop does not violate article I, § 12 of the New York State Constitution” (People v Robinson, 97 N.Y.2d 341, 349, 767 N.E.2d 638, 741 N.Y.S.2d 147; see People v Hinshaw, 35 N.Y.3d at 430-431, 156 N.E.3d 812; People v Mundo, 99 N.Y.2d 55, 58, 780 N.E.2d 522, 750 N.Y.S.2d 837; People v John, 119 A.D.3d 709, 710, 988 N.Y.S.2d 885). “In making that determination of probable cause, neither the primary motivation of the officer nor a determination of what a reasonable traffic officer would have done under the circumstances is relevant” (People v Robinson, 97 N.Y.2d at 349, 741 N.Y.S.2d 147, 767 N.E.2d 638) (People v. Harris, 2020 N.Y. App. Div. LEXIS 8256, *9-10, 2020 WL 7757023 [2d Dept. 2020].

Based upon the credible testimony at the hearing, the Court finds that probable cause existed for the defendant's arrest for criminal possession of a controlled substance and unlawful possession of marihuana. The testimony indicated that the officer pulled the defendant over after he observed him make a left turn without signaling, a violation of the Vehicle and Traffic Law (see VTL § 1163 (B)). An automobile may be lawfully stopped for a VTL violation (People v Wright, 98 NY2d [2002]).

As Officer Hylton approached the defendant's vehicle, he smelled what appeared to be burning marihuana based upon his training. Officer Hylton's observations of defendant violating a traffic law coupled with him smelling marihuana permitted him to conduct a reasonable initial investigation during which time the defendant admitted that he had marihuana in his possession. Accordingly, based on the arresting officer's detection of the odor of burnt marijuana emanating from the defendant's vehicle and defendant's admission that he was in possession of marihuana, probable cause existed for the defendant's arrest for unlawful possession of marihuana and a warrantless search of the vehicle (People v George, 78 A.D.3d 728, 910 N.Y.S.2d 508 [2d Dept 2010]; see also People v Schmitt, 262 A.D.2d 588, 692 N.Y.S.2d 656 [2d Dept 1999]). The contraband contained inside of the black bag, including the marihuana cigarette, glass jar of marihuana, and Ecstasy pills were found during a search incident to a lawful arrest. Accordingly, the defendant's motion to suppress physical evidence recovered for lack of probable cause is denied.

This constitutes the Decision and Order of this Court.

Nichelle A. Johnson, J.