People v. Baldon

• Decision Date: 24 February 1976
• Citation: 380 N.Y.S.2d 181,51 A.D.2d 880
• Parties: PEOPLE of the State of New York, Respondent, v. Lloyd BALDON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 181

380 N.Y.S.2d 181

51 A.D.2d 880

PEOPLE of the State of New York, Respondent, v. Lloyd BALDON, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Feb. 24, 1976.

W. Donn McCarthy, Buffalo, for appellant.

Edward C. Cosgrove, Dist. Atty., Buffalo, Joseph Hodan, Depew, for respondent.

Before MOULE, J.P., and CARDAMONE, SIMONS, DILLON and GOLDMAN, JJ.

MEMORANDUM:

This is an appeal from a judgment of conviction following a denial of a motion to suppress, upon a plea of guilty to attempted criminal possession of a controlled substance in the seventh degree. The sole question presented is whether the mere presence of 'zig-zag' cigarette rolling paper on the floor of an automobile presents the requisite facts and circumstances to justify a finding of probable cause to search the vehicle and its occupants. We conclude that it does not.

On March 22, 1974 at approximately 9:30 p.m. two Buffalo Police Department Officers while on patrol observed an automobile parked on the sidewalk with its lights and engine off. One officer approached the person sitting in the driver's seat and asked to see his license and registration. Following the officer's request, the driver got out of the car and produced a valid license and registration. The officer testified at the hearing on the motion to suppress that he observed 'zig-zag' cigarette rolling paper on either the seat or the floor where the driver had been sitting. He immediately ordered the three other occupants out of the car and the two officers began to 'frisk' or 'search' them. The officer further testified that his partner found a bag of marijuana in the trousers of the defendant. The second officer, however, did not testify at the hearing. Defendant was arrested at the scene and taken into custody. The testifying officer readily conceded that the sole reason the occupants were ordered from the car and searched was because the packet of rolling paper had been observed in the automobile. He stated that all the occupants had been cooperative and responded to the order to get out of the car and submit to the search and that, other than the marijuana, no other contraband was found.

The fact that a police officer has knowledge that marijuana is often used in conjunction with cigarette rolling paper is insufficient to sustain a finding that there is probable cause to believe that criminal activity is occurring. Cigarette rolling paper is a commodity that is openly bought and sold in the marketplace. By definition it is associated and commonly used in a totally innocent manner. That it also may be frequently used in the furtherance of an illicit scheme cannot, as a matter of law, without more, provide the basis for a finding of probable cause to search without a warrant. Thus, we conclude that the officer's observation of 'zig-zag' cigarette rolling papers in the car, although arguably suspicious, is susceptible of various innocent interpretations. Suspicion alone does not constitute probable cause to search (People v. Brown, 24 N.Y.2d 421, 425, 301 N.Y.S.2d 18, 21, 248 N.E.2d 867, 869). In order to raise the status of equivocal behavior from mere suspicion to probable cause more need be shown (cf. People v. Cohen, 23 N.Y.2d 674, 295 N.Y.S.2d 927, 243 N.E.2d 146; People v. Smith, 21 N.Y.2d 698, 287 N.Y.S.2d 425, 234 N.E.2d 460). Since the occupants of the car were cooperative and readily acquiesced to the officers' demands, their behavior did not furnish the officers with supplemental reason to raise the level of their inference from suspicion to probable cause (...