People v. Chestnut

• Decision Date: 10 January 1974
• Citation: 43 A.D.2d 260,351 N.Y.S.2d 26
• Parties: The PEOPLE of the State of New York, Respondent, v. Paul R. CHESTNUT, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 26

351 N.Y.S.2d 26

43 A.D.2d 260

The PEOPLE of the State of New York, Respondent, v. Paul R. CHESTNUT, Appellant.

Supreme Court, Appellate Division, Third Department.

Jan. 10, 1974.

Robert L. Miller, Waverly, for appellant.

Andrew F. Siedlecki, Dist. Atty., Waverly (Robert J. Simpson, Owego, of counsel), for respondent.

Before HERLIHY, P.J., and COOKE, SWEENEY, KANE and MAIN, JJ.

MAIN, Justice.

This is an appeal from a judgment of the County Court of Tioga County, rendered January 4, 1973, convicting defendant on his plea of guilty of the crime of criminal possession of a dangerous drug in the sixth degree.

At approximately 1:00 A.M. on December 5, 1971, defendant was operating an automobile on Route 17 in Tioga County when he was stopped by Troopers Carmody and Standish of the New York State Police after they observed his vehicle traveling at an extremely low rate of speed. As the officers conversed with the occupants of the car, each detected what they considered to be the odor of marihuana smoke emanating from the vehicle and, as a result, proceeded to search the vehicle and each of its occupants. What proved to be a quantity of marihuana was found in defendant's possession and, additionally, three cold marihuana butts and several open beer cans were found on the rear floor of the vehicle. Defendant was thereupon arrested on a possession charge while the remaining occupants were given traffic summonses for transporting open containers of alcoholic beverages.

At a suppression hearing on a defense motion to suppress the substances alleged to be marihuana, Troopers Carmody and Standish both testified as to their previous training and experience with and knowledge of the smell of burning marihuana and as to that substance's distinctive odor. Thereafter, finding that there was probable cause for the warrantless search and seizure of the substances as an incident to an arrest, the Tioga County Court denied the defense motion, and defendant's guilty plea and conviction followed.

The primary question to be decided on this appeal is whether the smell of marihuana smoke, with nothing more, can be sufficient to provide police officers with probable cause to search an automobile and its occupants. We hold that it can.

While 'unreasonable searches and seizures' are expressly prohibited by the Fourth Amendment of the United States Constitution and by the Constitution of the State of New York (N.Y.Const., Art. I, § 12), it is equally certain that even a warrantless search and seizure can be 'reasonable' and, hence, permissible under appropriate circumstances. Thus, where there is a reasonable belief before the search begins that an automobile contains contraband or evidence of a crime, this constitutes probable cause and a search of the vehicle may lawfully proceed without a warrant (People v. Brown, 28 N.Y.2d 282, 321 N.Y.S.2d 573, 270 N.E.2d 302; People v. LaBelle, 37 A.D.2d 135, 322 N.Y.S.2d 746). Similarly, a warrant is unnecessary to search the operator of the vehicle where there is probable cause to believe that he is 'guilty of a crime, rather than merely a simple traffic infraction' (People v. Marsh, 20 N.Y.2d 98, 101, 281 N.Y.S.2d 789, 792, 228 N.E.2d 783, 786; People v. Baer, 37 A.D.2d 150, 152, 322 N.Y.S.2d 534, 536).

The crucial element, which is present in each of the cited cases and justifies the searches therein, is 'probable cause' which exists where:

"the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543.' Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879.

Such is the situation here, where two police officers, qualified by training and experience, detected what they considered to be the distinctive odor of marihuana smoke. Surely, they were warranted in believing that an offense had been or was being committed (cf. Brinegar v. United States, Supra; People v. Baer, Supra), and that the automobile contained contraband or evidence of a crime (cf. People v. LaBelle, Supra). Therefore, while we cannot subscribe to the determination of the court below that the search was made incident to an arrest, which was apparently only effectuated as a result of the challenged search, we do, nevertheless, concur in the result because of the existence of probable cause, which justified the search independently of an arrest (Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; People v. LaBelle, Supra).

We would further emphasis that it is 'only in exigent circumstances' where the judgment of the police will serve as 'sufficient authorization for a search' without a warrant (Chambers v. Maroney, Supra, 399 U.S. at 51, 90 S.Ct. 1975, 26 L.Ed.2d 419). Thus, it is critical to the outcome of this case that we are here concerned with an automobile, which is stopped on the highway and readily movable, whose occupants have been alerted, and whose contents 'may never be found again if a warrant must be obtained.' (Chambers v Maroney, Supra, 399 U.S. at 51, 90 S.Ct. at 1981; Carroll v. United States, Supra.) Equally important is the experience and training of the police officers involved. ...