People v Gambino
Annotate this CaseDecided on January 21, 2014
Criminal Court of the City of New York, Richmond County
The People of the State of New York, Plaintiff,
against
Dennis Gambino and Andrew Franco, Defendants.
2012RI008972
The People represented by: Daniel M. Donovan Jr., District Attorney
Richmond County,
Of Counsel: Assistant District
Attorney Brooke Baranoski
130 Stuyvesant Place
Staten Island, New York 10301
718 556-7064
The Defendant, Dennis Gambino, represented by: Louis Gelormino, Esq.
2550 Victory Blvd. Suite 306
Staten Island, New York 10314
718 273-9000
The Defendant, Andrew Franco, represented by: Kevin J. Byrne, Esq.
25 2nd Place
Brooklyn, New York 11231
718 935-9339
Mario F. Mattei, J.
The issue before the Court is whether the smell of PCP emanating from a parked automobile provides probable cause to search the car.
The Court held a Dunaway/Mapp hearing on November 15, 2013. The People called one witness, Detective John Brooks, of the Staten Island Narcotics District Office.
The detective testified that on October 3, 2012 he and a partner, Sergeant Smirnov, were assigned to Staten Island Narcotics and on that evening they were assigned to do enforcement. The detective indicated that he has made over a thousand arrests related to drug offenses. While [*2]driving near a New York City Housing development located at 20 Roxbury Street he spotted someone suspicious in the parking lot of that building so he proceeded to drive into the lot. As he pulled into the parking lot he smelled a strong odor of phencyclidine (PCP). He described the smell of PCP as a very strong distinct chemical odor, like ammonia, but twenty times stronger. The detective testified that he had smelt the odor of PCP before that day and had made fifteen to twenty arrests involving PCP. As he proceeded into the parking lot the smell became stronger. He traveled into the lot following the smell until he observed a Chevy Impala legally parked with the front of the car away from the lane of travel. There were no other cars near the Impala. The smell of PCP got stronger as he got closer to the Impala. The detective parked his car directly behind the Impala so that his front bumper was near the rear bumper of the Impala and got out of his car. He approached the Impala on the driver's side. The detective indicated that there was no reason to approach the Impala other than the distinct odor of PCP.
As Detective Brooks approached he observed that the window of the Impala was open and partially down and that the smell of PCP was coming from inside the car. He could see that there were two people in the car and he observed some movement therein.
Detective Brooks opened the door to the Impala. He observed a small cloud of smoke and a "wet' cigarette on the center console between the gear shift and the arm rest. "Wet" means that the cigarette was dipped in PCP. The cigarette also had the strong distinct chemical odor of PCP. The cigarette had not been lit and did not appear to have been smoked. At the time the detective opened the door the driver punched the ceiling of the vehicle.
The detective asked the person in the driver's seat to step out of the vehicle and placed him under arrest. The person in the driver's seat was defendant Dennis Gambino. The detective's partner asked the person seated in the front passenger seat to step out of the vehicle. That person was defendant Andrew Franco. He was also placed under arrest. A search of the car revealed no further contraband.
At the conclusion of the hearing the defendants requested that the cigarette be suppressed. They collectively argued that the detective's testimony was not credible and that he did not have probable cause to peer into the Impala, open the door and search the vehicle, since all that he observed was the smell of PCP. The People opposed the motion and submitted that the detective had probable cause to search the Impala.
The Court finds that Detective Brooks and his testimony were credible.The Court is not persuaded by the defendant's arguments.
The police need no justification to walk towards or look into a parked car as those actions do not constitute a search (People v. Manganaro, 176 AD2d 354 [2d Dept 1991], appeal denied 79 NY2d 860 [1992] ) and "the opening of a car door is minimal intrusion into [the] defendant's expectation of privacy" (People v. David L. 56 NY2d 698 [1982], writ of certiorari denied 459 US 866 [1982] ).
"If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more" (Pennsylvania v. Labron, 518 US 938 [1996]; see also People v. Milerson, 51 NY2d 919 [1980] ). This "automobile exception" to conduct a warrantless search applies to cars that are parked (People v. Orlando, 56 NY2d 441 [1982]; People v. Rosen 112 Ad2d 253 [2d Dept 1985]).
PCP has been recognized to have a distinct odor (People v. Darby, 263 AD2d 112 [2d Dept 2000], lv denied 95 NY2d 795 [2000]); In the Matter of Devon H., 225 AD2d 135 [1st Dept 1996 ] ) and the smell of this distinct odor, combined with the training and experience of the police [*3]officer smelling it, is sufficient probable cause to search a person's pockets ( People v. Darby, supra. ). Since the smell of marijuana emanating from a car constitutes probable cause for the warrantless search of the vehicle (People v. George, 78 AD3d 728 [2d Dept 2010], lv denied 16 NY3d 859 [2011], post conviction relief denied 2012 NY App Div LEXIS 4307 [2d Dept 2012]; People v. Chestnut, 43 AD2d 260 [3rd Dept 1974], affirmed 36 NY2d 971 [1975]; Matter of Darnell U., 108 AD3d 774 [2d Dept 2013]; People v. Black 59 AD3d 1050 [4th Dept 2009], appeal denied In re Black 12 NY3d [2009] ), it seems logical that the smell of PCP emanating from a vehicle suffices to provide probable cause for the search of that vehicle.
The Court finds that the search of the Impala was authorized and further that the cigarette dipped in PCP was lawfully seized; accordingly, it is hereby
ORDERED, that the Defendants' motion to suppress is denied.
This shall constitute the decision and order of the Court.
Dated: January 21, 2014
Staten Island, New York
Hon. Mario F. Mattei
Judge of the Criminal Court
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