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

2021 NY Slip Op 04801

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ANTHONY FUDGE, DEFENDANT-APPELLANT.

No. 229 KA 18-02388

Supreme Court of New York, Fourth Department

August 26, 2021

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.

PRESENT: CENTRA, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.

NeMoyer, J.

Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.), rendered August 10, 2018. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth degree.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

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.

FACTS

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 4 years' imprisonment and 2 years' postrelease supervision (PRS). Defendant did not waive his right to appeal as part of the plea bargain. Defendant appeals, and we now affirm.

DISCUSSION

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.

I

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.

A

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]).

The First Department, in a full signed opinion, applied this rule in circumstances virtually identical to those at bar (see People v Darby, 263 A.D.2d 112 [1st Dept 2000] [Saxe, J.], lv denied 95 N.Y.2d 795 [2000]). In Darby, the "officers testified at the suppression hearing that when they were several feet from defendant, they detected the very strong smell invariably associated with street-level phencyclidine (PCP) wafting from him. They explained that in their training at the Police Academy, and in the course of approximately 50 prior arrests for PCP possession or sale, they have learned to recognize the distinctive odor" (id. at 113). 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 [NYC 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:

"The question for this court is an easy one: did Detective Keenan have probable cause to believe that drugs were to be found inside [defendant's] car? The odor of PCP noticed by both detectives provides a clear answer to that question... [T]he search in this case was justified by the strong, distinctive odor of PCP which both detectives smelled as they approached [defendant's] car" (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] ["The strong odor of PCP establishes probable cause to believe the vehicle occupied by [defendant] contained evidence of criminal activity. Thus, the warrantless search of [that vehicle] was proper."]; Commonwealth v Cottman, 2018 WL 4624262, *3 [Penn Super 2018], appeal denied 651 Pa 570 [2019] ["the odor of PCP... provided the police officer with... probable cause"]; State v Groomes, 2016 WL 1562754, *5 [NJ A.D. 2016], certif denied 227 N.J. 260 [2016] ["The odor of PCP also......