People v. Terrero

• Decision Date: 14 April 1988
• Parties: The PEOPLE of the State of New York, Respondent, v. Cesar TERRERO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 135

527 N.Y.S.2d 135

139 A.D.2d 830

The PEOPLE of the State of New York, Respondent, v. Cesar TERRERO, Appellant.

Supreme Court, Appellate Division Third Department.

April 14, 1988.

J. Raymond Fisher, Albany, for appellant.

Sol Greenberg, Dist. Atty. (Michael J. Connolly, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and MERCURE, JJ.

WEISS, Justice.

Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered June 7, 1987, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the second degree.

The pivotal question on this appeal is whether County Court properly denied defendant's motion to suppress certain contraband taken from his person and automobile during a warrantless search. The suppression hearing minutes show that on August 26, 1986, at approximately 6:30 P.M., a State Trooper observed defendant's vehicle speeding on Interstate Route 787 in Albany County. The Trooper stopped defendant's vehicle and approached to obtain license and registration information. When defendant rolled his window down, the Trooper "detected a strong odor of marijuana inside the vehicle and * * * also observed a partially burnt marijuana cigarette in an ash tray". The Trooper directed defendant to get out of the car and conducted a search of his person, retrieving a folded dollar bill from his inside jacket pocket containing a white powder later identified as cocaine. Defendant was placed under arrest and, upon the arrival of assistance, the Trooper conducted a second body search which produced a packet of cocaine hidden inside defendant's trousers. Thereafter, defendant was charged in a single-count indictment with criminal possession of a controlled substance in the second degree. After defendant's motion for suppression of the evidence seized was denied, defendant pleaded guilty to the charge. This appeal ensued.

We affirm. Defendant has not questioned the initial stop of his vehicle but maintains that upon detection of the odor and presence of marihuana, the Trooper's only permissible response was to issue an appearance ticket pursuant to CPL 150.75. He therefore concludes that the ensuing search of his person and arrest were illegal. We disagree. Initially, we observe that this case involves more than a mere custodial arrest for a traffic infraction ( cf., People v. Howell, 49 N.Y.2d 778, 426 N.Y.S.2d 477, 403 N.E.2d 182; People v. Adams, 32 N.Y.2d 451, 346 N.Y.S.2d 229, 299 N.E.2d 653; People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783). Nor is there any indication that the traffic stop was a mere pretext for an otherwise illegal search (2 La Fave, Search and Seizure § 5.2[e], at 456-461 [2d ed] ). The distinctive marihuana odor and presence of a marihuana cigarette in plain view clearly authorized the Trooper to direct defendant out of the car and provided probable cause to place him under arrest ( see, People v. Sauger, 58 A.D.2d 919, 920, 396 N.Y.S.2d 910; see also, People v. Schobert, 93 A.D.2d 949, 950, 463 N.Y.S.2d 277). As in People v. Sauger (supra), the full search of defendant's person was justified as incidental to his arrest (id., at 920, 396 N.Y.S.2d 910; see, United States v. Robinson, 414 U.S. 218, 224-235, 94 S.Ct. 467, 471-477, 38 L.Ed.2d 427; People v. Troiano, 35 N.Y.2d 476, 478, 363 N.Y.S.2d 943, 323 N.E.2d 183; People v. Weintraub, 35 N.Y.2d 351, 353-354, 361 N.Y.S.2d 897, 320 N.E.2d 636; People v. Blajeski, 125 A.D.2d 582, 509 N.Y.S.2d 648, lv. denied 69 N.Y.2d 877, 515 N.Y.S.2d 1024, 507 N.E.2d 1094; see also, 2 La Fave, Search and Seizure § 5.2, at 437 [2d ed] ). We recognize that the Trooper did not formally arrest defendant until after seizing the dollar bill, but since the Trooper testified that defendant was in custody before the search began and the search and arrest were contemporaneous, we perceive no impropriety ( see, People v. Evans, 43 N.Y.2d 160,...