Opinion
18–0373
06-15-2018
The PEOPLE of the State of New York, Plaintiff, v. John VESTER, Defendant.
Westchester County District Attorney, Mount Vernon Branch, for the People: Ken Saltzman, Esq., 22 West First Street, Suite 622, Mount Vernon, New York 10550, for Defendant:
Westchester County District Attorney, Mount Vernon Branch, for the People:
Ken Saltzman, Esq., 22 West First Street, Suite 622, Mount Vernon, New York 10550, for Defendant:
Adrian N. Armstrong, J.
The defendant is charged with one (1) count of Criminal Possession of a Controlled Substance in the Seventh Degree in violation of Penal Law § 220.03, and one (1) count of Unlawful Possession of Marihuana in violation of Penal Law § 221.05. A Mapp/Huntley/Dunaway hearing was granted.
At the suppression hearing on June 13, 2018, the People called as its sole witness Police Officer Abdu Lawrence of the Mount Vernon Police Department. The defendant did not testify.
Officer Lawrence testified that on February 6, 2018, at approximately 6:23 p.m., while working with the Task Force Unit, he was traveling in an unmarked police vehicle with two partners in the area of 15 South 1st Avenue, City of Mount Vernon, County of Westchester, when he observed the defendant on the right hand side of the street who seemed to be in distress, and walking unsteady with a limp. The officers exited the vehicle and approached the defendant.
Officer Lawrence further testified that upon approaching the defendant to inquire about his well-being, he detected the strong smell associated with street-level phencyclidine (PCP) coming from the defendant. Officer Lawrence explained that in his training at the Westchester County Police Academy, he learned to recognize the distinctive odor of PCP. He further testified that after asking the defendant if he was okay, in which the defendant responded that he was, Officer Lawrence then informed the defendant that he smelled PCP. The defendant is alleged to have responded by saying that he has PCP on him, but not a gun. One of Officer Lawrence's fellow officers reached into the defendant's pocket and recovered two PCP cigarettes and a bag of marijuana. The defendant was then placed under arrest.
"The touchstone of any analysis of a governmental invasion of a citizen's person under the Fourth Amendment and the constitutional analogue of New York State is reasonableness" ( People v. Batista , 88 NY2d 650, 653 [1996] [internal quotation marks ommitted] ). Whether governmental action is reasonable will turn on the facts of each case and requires consideration of whether the police action at issue "was justified in its inception and whether ...it was reasonably related in scope to the circumstances which created the encounter" ( People v. Powell , 246 AD2d 366, 368 [1st Dept 1998], appeal dismissed 92 NY2d 886 [1998] ). The lawfulness of police-initiated encounters with private citizens is governed by the graduated four-level test first outlined in People v. De Bour (40 NY2d 210, 223 [1976] ; see also People v. Hollman , 79 NY2d 181 [1992] ). The degree of restraint on an individual's freedom of movement must correlate with the necessary level of suspicion to warrant the intrusion. Under level one, a police officer may request information from a person provided that the request is supported by an objectively credible reason that need not be necessarily indicative of criminality. A level two encounter, also known as the common-law right of inquiry, permits a more invasive line of questioning of a person when the officer has a founded suspicion that criminal activity is afoot. A level three encounter allows the police to forcibly stop and detain a person if the officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime. Finally, under a level four encounter, an arrest is authorized when the police have probable cause to believe a person has committed a crime (De Bour , 40NY2d at 223).
Here, the Mount Vernon police officers initial contact with defendant constituted a level one encounter, a mere request for information. Officer Lawrence testified that he and his fellow officers perceived the defendant to be in need of medical assistance since he was swaying and looking disoriented while walking. This image of a pedestrian in distress, presented the officers with a situation that required an inquiry. Upon approaching the defendant, and within ten feet thereof, smelling PCP emanating from the defendant, it was at this point that a drastic change in circumstances occurred.
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 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 person suffices to provide at a minimum reasonable suspicion for the stop and detention of that person.
As to the Huntley issues raised at the hearing, contrary to the defendant's contention, Officer Lawrence's statement to the defendant about smelling PCP was investigatory in nature and asked after a valid stop of the defendant. Consequently, defendant's statement that he had PCP but not a gun, was made voluntarily and is admissible at trial.
Accordingly, defendant's motion is denied in its entirety.