People v Johnson

[*1] People v Johnson 2009 NY Slip Op 52096(U) [25 Misc 3d 1214(A)] Decided on September 4, 2009 Supreme Court, Queens County Kohm, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 4, 2009
Supreme Court, Queens County

The People of the State of New York

against

Kevin Johnson, Defendant.



133/09

Robert C. Kohm, J.

Defendant, Kevin Johnson, was indicted for two counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, assault in the second degree, and resisting arrest. On April 22, 2009 and June 1, 2009, this Court conducted a Dunaway/Mapp hearing. Lieutenant Andrew Hepworth testified for the People. Ms.Lorna Francis testified for the defendant.

FINDINGS OF FACT

Lieutenant Hepworth was on routine patrol along with officers McAuliffe and Georg,on September 10, 2008, at approximately 9:45 pm, in the vicinity of 142nd Ave and Farmers Blvd. in Queens County. Lieutenant Hepworth, while seated in the front passenger seat of the marked NYPD van, testified that as the vehicle drove past a parked SUV at approximately 15 miles per hour, he smelled marijuana. He testified that his "attention" was drawn to the vehicle when Ms. Lorna Francis, seated in the drivers seat of the parked vehicle, with the window open, said " something like hello or evening officers". Ms. Francis denied saying anything to the officer. Lieutenant Hepworth ordered the driver of the police vehicle to stop so that they could investigate where the marijuana smell was coming from. The police van pulled over and the three police officers exited their vehicle. Lieutenant Hepworth walked toward the passenger side of the vehicle and the other two officers walked towards the drivers side of the vehicle.

Lieutenant Hepworth testified that as he approached the vehicle the odor of marijuana became stronger and that he could also see a "marijuana cloud of smoke inside the vehicle". Based upon his observations Lieutenant Hepworth, with his gun holstered, without any questioning, immediately ordered the defendant passenger to exit the vehicle and place his hands on the roof of the automobile. Lieutenant Hepworth went on to testify that the defendant began to comply but then began to reach for his waist band with his one hand. Lieutenant Hepworth further testified that he ordered the defendant in a louder voice to comply with the order to keep his hands on the vehicle , but that instead of complying, began to reach for his waistband area with his other hand. It is only at this point that the Lieutenant touched the defendant's waist area and felt the outline of a firearm which he then pulled out from underneath defendant's shirt. The Lieutenant and his fellow officers then attempted to handcuff the defendant, defendant resisted and a struggle ensued causing injuries to the defendant as well as the officers.

Ms. Francis testified that she was the driver of the vehicle, that her window was down, and that one of the officers asked her if she was smoking marijuana. Both Lieutenant Hepworth and Ms Francis testified that she denied smoking marijuana. She also, testified that she saw the police severely beating the defendant Mr. Johnson. Ms. Francis was arrested for driving under the influence of marijuana. However, the charges were dismissed because all the test results for marijuana in her system came back negative. No marijuana or drugs of any kind were recovered by police.

CONCLUSIONS OF LAW

Based on defendant's motion to suppress physical evidence, the burden is on the prosecution to come forward with evidence to show the legality of the police conduct in the first instance and to establish probable cause for the arrest (People v Berrios, 28 NY2d 361; People v Malinsky, 15 NY2d 86).

Before the Police can forcibly or constructively stop an individual, there must be articulable facts, either initially or during the course of the encounter , that establishes reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers. (See, CPL 140.50[1], [*2]People v. DeBour, 40 NY2d 210[1976])

Certainly, greeting or saying hello to a police officer is not grounds for further inquiry. A forcible stop requires reasonable suspicion that a suspect has committed a crime. Under these facts, Lieutenant Hepworth was permitted to exercise the common- law right of inquiry when he approached the vehicle (People v. De Bour, id).

Lieutenant Hepworth at the time he ordered the defendant out of the vehicle, did not have a basis for reasonable suspicion and therefore could not lawfully direct defendant to exit the parked vehicle(see, People v Thomas, 275 AD2d 276 [1st Dept 2000], appeal denied, 95 NY2d 939 [2000] and People v Atwood, 105 AD2d 1055 [4th Dept 1984], which held that ordering a defendant out of a parked vehicle requires reasonable suspicion; see also, People v Harrison, 57 NY2d 470 [1982]).

Regarding the smell of marijuana and the cloud of marijuana smoke seen inside the car, it is well settled that the smell of marijuana alone is sufficient to provide police who are trained and experienced in the use of marijuana, with probable cause to search a vehicle and its occupants (See, People v Chestnut, 43 AD2d 260[1974]affd 36 NY2d 971[1975], People v Turchio, 244 AD2d 366[1997]). However, for the Court to make a finding that an officer had probable cause to search a vehicle or it's occupants based upon the smell of marijuana, the officer's expertise, training, or experience with respect to knowledge of the smell of burnt marijuana must be adequately developed in the record (See, People v Martin, 169 AD2d 1006[1991], People v Hanson, 5 Misc 3d 67[2004]). In People v. Chestnut, supra, and People v. Mangan, 55 AD2d 247[1976], the Appellate Division went to great lengths to articulate how important it was for the officers to testify as to their previous training, experience, and knowledge of the smell of burning marijuana. Lieutenant Hepworth, did not testify as to any training with respect to drugs, narcotics, or the recognition of marijuana or its smell. The Lieutenant did not even testify as to any experience he had in making arrests for possession of narcotics or marijuana.

The court finds that nothing was adduced at the hearing that would have justified ordering the defendant out of the vehicle, including the defendant's exiting the vehicle, taking several steps and making a motion toward his waist, before returning to the car.

Lieutenant Hepworth can not claim he ordered the defendant out of the car for his safety since he did not testify that he was in fear of the defendant when he approached the vehicle with his gun holstered.

Lieutenant Hepworth's approaching of the vehicle without any demonstrable evidence of his ability to recognize the smell of marijuana or of his ability to differentiate a " marijuana cloud of smoke" from a cloud of cigarette smoke renders his actions pretextual and requires suppression of the evidence.

Based on the foregoing, defendant's motion to suppress physical evidence is granted.

Order entered accordingly.

The clerk of the court is directed to mail a copy of this decision and order to defendant's attorney and to the District Attorney.

ROBERT CHARLES KOHM, J.S.C.

September 4, 2009