PEOPLE v. LIGHTNER (2008)

 The People appeal from an order that, inter alia, granted those parts of the motions of defendants seeking to suppress the tangible property underlying the indictment against them.  We agree with the People that County Court erred in granting those parts of defendants' motions, and we therefore modify the order accordingly.  The police were justified in their initial stop of the vehicle driven by one defendant in which the other defendant was a passenger, based on their observation that a traffic infraction had been committed, i.e., that the vehicle did not display a front license plate as required by Vehicle and Traffic Law § 402 (see People v. Robinson, 97 N.Y.2d 341, 741 N.Y.S.2d 147, 767 N.E.2d 638;  People v. Romeo, 15 A.D.3d 420, 789 N.Y.S.2d 537, lv. denied 4 N.Y.3d 890, 798 N.Y.S.2d 735, 831 N.E.2d 980;  People v. Sherman, 106 A.D.2d 416, 482 N.Y.S.2d 338).  Upon reaching the vehicle, one of the police officers detected the odor of marihuana.  That police officer's detection of “the smell of marihuana smoke, with nothing more, [was] sufficient to provide [the] officer[, qualified by training and experience,] with probable cause to search” the vehicle (People v. Chestnut, 43 A.D.2d 260, 261, 351 N.Y.S.2d 26, affd. 36 N.Y.2d 971, 373 N.Y.S.2d 564, 335 N.E.2d 865), as well as “its contents” (People v. Harrington, 30 A.D.3d 1084, 1085, 817 N.Y.S.2d 483, lv. denied 7 N.Y.3d 848, 823 N.Y.S.2d 778, 857 N.E.2d 73;  see People v. Morgan, 10 A.D.3d 369, 370–371, 781 N.Y.S.2d 652).  The search of the vehicle produced the tangible property at issue herein.

 Contrary to the contention of the People, however, we conclude that the court properly suppressed the statement made by defendant William Turner while he was in custody but had not waived his Miranda rights.  “In deciding whether a defendant was in custody at the time a statement was [made], the test is not what the subjective beliefs of the defendant were, but instead what a reasonable person, innocent of any crime, would have thought if [he or she] were in defendant's position” (People v. Smith, 214 A.D.2d 845, 847, 625 N.Y.S.2d 684, lv. denied 86 N.Y.2d 741, 631 N.Y.S.2d 622, 655 N.E.2d 719).  Here, Turner was not questioned until the police officers were escorting both defendants to the police vehicle after one of the officers had detected the odor of marihuana (see People v. Long, 27 A.D.3d 1053, 1054, 810 N.Y.S.2d 754, lv. denied 7 N.Y.3d 758, 819 N.Y.S.2d 884, 853 N.E.2d 255).  The record therefore supports the court's determination that Turner was in custody, and we further agree with the court that the officer's question to Turner at that time, in response to which Turner made the statement in question, was “designed ․ to elicit [his] inculpatory cooperation” (People v. Hardy, 5 A.D.3d 792, 793, 775 N.Y.S.2d 322, lv. denied 3 N.Y.3d 641, 782 N.Y.S.2d 412, 816 N.E.2d 202, 3 N.Y.3d 675, 784 N.Y.S.2d 13, 817 N.E.2d 831;  see Long, 27 A.D.3d at 1054, 810 N.Y.S.2d 754).

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying those parts of the motions seeking to suppress tangible property and as modified the order is affirmed, and the matter is remitted to Erie County Court for further proceedings on the indictment.

MEMORANDUM: