People v. Fudge
Decision Date | 26 August 2021 |
Docket Number | 229,KA 18-02388 |
Parties | The PEOPLE of the State of New York, Respondent, v. Anthony FUDGE, Defendant-Appellant. |
Court | New York Supreme Court — Appellate Division |
The olfactory detection of street-level PCP by a trained and experienced police officer constituted probable cause to search defendant's car. Supreme Court thus properly refused to suppress the cocaine discovered during that search.
On August 31, 2017, police officers Dorchester and Brown were patrolling a high-crime area in the City of Syracuse when they noticed an illegally-parked car. The officers approached the vehicle, which had three occupants; defendant was in the driver's seat. "[A]s soon as I walked up to the vehicle," Dorchester testified, "I could smell a really strong chemical odor that was familiar to myself as PCP." Dorchester had received PCP training at the police academy; he regularly received updated training on PCP and other drugs; and he had encountered PCP and its distinctive smell "hundreds" of times over the course of his career as a police officer. Based on his training and experience, Dorchester testified, he immediately recognized the odor emanating from defendant's vehicle as PCP. When pressed on whether he could have been smelling something else, Dorchester held firm: the smell of PCP, he explained, was "pretty distinct."
The officers asked defendant for his name, but he stuttered and hesitated, and he ultimately provided a fake name. According to Dorchester, defendant's eyes were glossy, his speech was slurred, and he was clearly under the influence of something. The officers therefore directed defendant to exit the vehicle. As defendant began to do so, Brown saw him make a sweeping gesture with his right hand toward the center console and the front-seat passenger; in Brown's experience, such a gesture was often deployed to discard or obscure illegal items.
After defendant got out, the officers searched the vehicle and discovered a clear plastic bag containing a beige, chunky substance, which field-tested positive as cocaine. Defendant then waived his Miranda rights and confessed to possessing the cocaine. Notably, PCP-dipped cigarettes were discovered in the possession of the rear, driver-side passenger.
Defendant was thereafter indicted for, inter alia, criminal possession of a controlled substance in the fourth degree in connection with the cocaine. Following a hearing at which Dorchester and Brown testified as indicated above, the court, inter alia, refused to suppress the cocaine.1 In its written decision, the court initially found that both officers had testified credibly at the suppression hearing. The court then held that the parking violation gave the officers an objective, credible reason for approaching defendant's vehicle in the first instance, and "[o]nce Officer Dorchester smelled what he recognized, in his training and experience, to be the distinct odor of PCP, he had probable cause to ... search the [vehicle]" in which the cocaine was discovered.
Defendant thereafter pleaded guilty to criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]) and was sentenced, as promised, to a determinate term of four years' imprisonment and two years' postrelease supervision (PRS). Defendant did not waive his right to appeal as part of the plea bargain. Defendant appeals, and we now affirm.
Defendant primarily challenges the court's refusal to suppress the cocaine. Given the undisputed parking infraction, defendant concedes—as he must—that the police validly approached his car in the first instance. He nevertheless insists, at great length, that the subsequent search of his vehicle was impermissible. For the reasons that follow, we reject defendant's arguments on the merits. And perhaps more importantly, we reprove the tactics that his lawyer used in making those arguments.
Defendant first argues that probable cause may never arise solely from a trained officer's detection of the smell of street-level PCP. Defendant is wrong.
Law enforcement "may search a vehicle without a warrant when they have probable cause to believe that evidence or contraband will be found there" (People v Galak, 81 N.Y.2d 463, 467 [1993]; see People v Blasich, 73 N.Y.2d 673, 678 [1989]; People v Thomas, 181 A.D.3d 831, 833 [2d Dept 2020], lv denied 36 N.Y.3d 976 [2020]). Probable cause exists when, "[b]ased on the articulated, objective facts ... and the reasonable inferences to be drawn therefrom, it was `more probable than not' that criminal activity was taking place" (People v Mercado, 68 N.Y.2d 874, 877 [1986], cert denied 479 U.S. 1095 [1987], quoting People v Carrasquillo, 54 N.Y.2d 248, 254 [1981]; see People v Ray, 159 A.D.3d 1429, 1429-1430 [4th Dept 2018], lv denied 31 N.Y.3d 1086 [2018]).
Reversing the suppression order, the First Department held that the officers' testimony regarding "[t]he distinctiveness of the [PCP] odor was enough, when combined with the officers' other observations and knowledge, to give [them] probable cause for stopping and searching defendant" (id. at 114).
Darby is not the only case in which a New York court found probable cause based exclusively on a trained officer's olfactory detection of PCP. More recently, the First Department cited Darby in holding that the police had "obtained probable cause to search [a] car upon detection of a strong odor ... indicative of street level phencyclidine (PCP)" (Sanchez v City of New York, 168 A.D.3d 584, 585 [1st Dept 2019]). Various trial courts, also citing Darby, have likewise refused to suppress drugs when the underlying search was predicated solely on the officer's olfactory detection of PCP. As one trial judge wrote, "PCP has been recognized to have a distinct odor ... and the smell of this distinct odor, combined with the training and experience of the police officer smelling it, is sufficient probable cause ... for the [warrantless] search of [a] vehicle" (People v Gambino, 42 Misc.3d 1216[A], 2014 NY Slip Op 50049[U], *2-3 [Crim Ct, Richmond County 2014]; accord People v Vester, 60 Misc.3d 1202[A], 2018 NY Slip Op 50901[U], *2 [Mount Vernon City Ct 2018]).
New York is no outlier on this issue. Indeed, as far as we can discern, every single court in the United States to ever consider this precise issue has come to the same conclusion as Darby and Sanchez: a trained officer's olfactory detection of PCP, standing alone, constitutes probable cause. Take, for example, this strong pronouncement from the Court of Appeals of the District of Columbia:
(Minnick v United States, 607 A.2d 519, 525 [DC 1992]).
Our research has uncovered scores of similar rulings from courts across the country (see e.g. United States v Glover, 681 F.3d 411, 418 [DC Cir 2012, Kavanaugh, J.], cert denied 568 U.S. 995 [2012] [officer's detection of PCP smell emanating from a home was sufficient probable cause to obtain a search warrant]; United States v Hubert, 48 Fed Appx 481, 481 [5th Cir 2002], cert denied 537 U.S. 1146 [2003] ["officers detected the distinctive and unmistakable smell of PCP in (defendant's) vehicle, which provided the probable cause necessary to search the entire vehicle"]; United States v Smith, 373 F.Supp.3d 223, 242 [D DC 2019] ["a distinctive odor of PCP, alone, can establish probable cause to search the place from which the smell is emanating"]; United States v Fattaleh, 746 F.Supp. 599, 601 [D Md 1990] ["officer ... smelled the odor of PCP emanating from (defendant's) car and, therefore, had probable cause to search the vehicle"]; Hall v State, 981 A.2d 1106, 1114 [Del 2009] [] ; Commonwealth v Cottman, 198 A.3d 497 [Penn Super Ct 2018] [table; text at 2018 WL 4624262, *3, 2018 Pa Super Unpub LEXIS 3618, *5-6 (2018)], appeal denied 206 A.3d 488 [2019] ["the odor of PCP ... provided the police officer with ... probable cause"]; State v Groomes, 2016 WL 1562754, *5, 2016 NJ Super Unpub LEXIS 894, *12 [NJ Super Ct App Div 2016], certif denied 151 A.3d 94 [2016] ["The odor of PCP also ... satisf(ied) probable cause"]; State v Friday, 2016 WL 7337494, *10, 2016 .
In light of the foregoing, it is astoundingly inaccurate for defendant's brief to assert that "[t]his is a case of first impression." Moreover, the representation in defendant's brief that "none of the Appellate Divisions ... has ever passed upon the question of whether the smell of PCP may, standing alone, constitute probable cause to...
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