The defendant is charged with Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of Penal Law 220.03, and Criminal Possession of Marihuana in the Fifth Degree, in violation of Penal Law 221.10(1). A Huntley/Dunaway/Mapp hearing was held on April 3, 2007 to determine the admissibility at trial of evidence obtained against the defendant and statements allegedly made by him.

The sole witness at the hearing was Police Officer Michael Demauro, a police officer with the Suffolk County Police Department, who testified on behalf of the People. Based upon the credible evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

Officer Demauro has been a police officer with the Suffolk County Police Department for 6 years, and is currently assigned to the Fifth Precinct COPE unit. He has received training in drug recognition and had made approximately 100 street level drug arrests as of August 6, 2006.

On the night of August 5 to August 6, 2006, Officer Demauro was on patrol in the Bellport area, Town of Brookhaven, County of Suffolk on a 4:00 p.m. to 4:00 a.m. tour of duty. At approximately 1:00 a.m. on August 6, 2006, the officer observed a person, whom he identified as the defendant, standing beside a BMW that was parked at the corner of Hampton Avenue and Bellport Avenue. The front driver's side door and car windows were open, the interior light was on in the vehicle, and music was playing. [*2]The officer observed that the defendant was drinking a Heineken beer.

People v. Bazzey - page 2

Officer Demauro approached the vehicle and asked the defendant for identification, including his driver's license. As the defendant produced the documentation, the officer noticed a strong smell of marijuana coming from the defendant and the defendant's car. The officer asked the defendant if he smoked marijuana and the defendant stated that he had smoked a while ago. Officer Demauro observed a large clear ziploc plastic bag containing numerous clear plastic bags of material he recognized as marijuana on the rear seat of the vehicle. He opened the passenger's side door and picked up the bag, asking the defendant, "Whose weed is this?" The defendant answered, "It's mine." Officer Demauro then asked the defendant, "Do you sell?" and the defendant responded "No, I don't sell it. I use it."

When Officer Demauro picked up the ziploc bag containing the marijuana, he observed another clear plastic bag beneath it on the rear seat containing three additional clear plastic bags of pills inside it. Officer Demauro asked the defendant, "What are these?" The defendant responded "It's my ecstasy. I use them. I don't sell them." The officer then placed the defendant under arrest. The defendant was not advised of his Miranda rights during this encounter.

The legality of encounters initiated by police officers with civilians is governed by the four-tiered analysis set forth by the Court of Appeals in People v. De Bour, 40 NY2d 210 (1976), and reaffirmed in People v. Hollman, 79 NY2d 181, 184 (1992). The first level of police intrusion, approaching an individual and requesting general information, is permitted where there exists an "articulable basis" for the approach, meaning an "objective, credible reason, not necessarily indicative of criminality." People v. Hollman, supra, 79 NY2d at 184; People v. De Bour, supra, 40 NY2d at 223. The police must have an "articulable basis" when approaching the occupant of a stopped or parked vehicle to request information. See, People v. Ocasio, 85 NY2d 982, 985 (1995); People v. Bennett, 70 NY2d 891 (1987); People v. Allen, 15 AD3d 933 (4th Dept. 2005); see also, People v. Smith, 2002 NY Slip Op 40418U (App. Term, 9th & 10th Jud. Dists. 2002). [*3]

The second level of intrusion involves the common-law right of inquiry, which is "activated by a founded suspicion that criminal activity is afoot." People v. Hollman, supra, at 184; People v. De Bour, supra, at 223. The third level, forcibly stopping and detaining a person, is authorized where the officer People v. Bazzey - page 3

has reasonable suspicion that the person is or was involved in a felony or misdemeanor, and at the fourth level, an officer is authorized to arrest a person where the officer has probable cause to believe the person has committed a crime. See, People v. Hollman, supra, at 184; People v. De Bour, supra, at 223.

Officer Demauro, as part of his official duties, had an articulable, objective basis to approach the defendant, who was standing beside his vehicle parked on the side of a public roadway at 1:00 a.m., drinking beer, with the car door open, interior light on and music playing, to request information from the defendant and investigate whether he needed assistance. See, People v. Hollman, supra; People v. De Bour, supra; see also, People v. Smith, supra. Upon approaching the defendant, Officer Demauro's observation of the strong odor of marijuana coming from the defendant and the defendant's vehicle provided him with a founded suspicion to believe that the defendant was engaged in criminal activity, permitting the officer to engage in more intrusive and pointed questioning under the common-law right of inquiry. See, People v. Hollman, supra, at 192. The officer's observations of the packages of marijuana and pills on the rear seat of the vehicle, together with the defendant's admissions as to the nature of the substances, provided the officer with probable cause to arrest the defendant. See, People v. Bennett, supra, 70 NY2d at 893; People v. Brantley, 235 AD2d 546 (2d Dept. 1997); People v. Manganaro, 176 AD2d 354 (2d Dept. 1991), lv. den. 79 NY2d 860 (1992). Any evidence obtained as a result of the defendant's arrest therefore is not subject to suppression for lack of probable cause for the arrest.

It is well-settled that the police may seize contraband which is in plain view inside an automobile, provided the observation is made from a lawfully-obtained vantage point. People v. Manganaro, supra; People v. Whitfield, 255 AD2d 924 (4th Dept. 1998), lv. den. 93 NY2d 981 (1999). The packages of marijuana observed by Officer Demauro while conducting his lawful investigation were in plain view, visible through the open window on the rear seat of the vehicle and illuminated by the vehicle's interior light. Once the officer observed the marijuana, he was authorized to enter the vehicle and seize it. See, People v. [*4]Whitfield, supra; People v. Wilson, 284 AD2d 960 (4th Dept. 2001), lv. den. 96 NY2d 943 (2001). When the officer seized the marijuana, the pills beneath it became visible as well. The marijuana and pills thus were both lawfully viewed by the officer and lawfully seized. See, People v. Whitfield, supra; People v. McKane, 267 AD2d 253 (2nd Dept. 1999), lv. den. 94 NY2d 921 (2000); People v. Scarborough, 31 AD3d 301 (1st Dept. 2006), People v. Bazzey - page 4

lv. den. 7 NY3d 851 (2006). The Court accordingly finds that the search and seizure were lawful, and the physical evidence obtained as a result thereof is admissible at trial.

With respect to the admissibility of the defendant's statements, the applicable standard for determining whether an interrogation is or is not custodial is whether a reasonable person, innocent of any crime, would have believed he was free to leave had he been in the defendant's position. See, People v. Yukl, 25 NY2d 585, 589 (1969), cert. den. 400 U.S. 851; People v. Ellerbe, 265 AD2d 569 (2d Dept. 1999), lv. den. 94 NY2d 903 (2000); People v. Foy, 26 AD3d 344 (2d Dept. 2006). The issue of custody is not determined by the subjective beliefs of the individual defendant or of the police officer, except to the extent that his or her belief is communicated to the defendant. See, People v. Joy, 114 AD2d 517 (2d Dept. 1985); People v. Ellerbe, supra.

The officer's questioning of the defendant at the roadside occurred in a non-custodial setting and was investigatory in nature. There was no evidence at the hearing to suggest that the defendant's statements were obtained by means of coercion or unfairness. The officer thus was not required to administer Miranda warnings before conducting the initial investigation, nor before questioning the defendant about the marijuana and pills observed in plain view. See, People v. Bennett, supra, at 893-894; see also, People v. Parris, 26 AD3d 393 (2d Dept. 2006), lv. den. 6 NY3d 851 (2006); People v. Mackenzie, 9 Misc 3d 129A, 2005 NY Slip Op 51535U (App. Term, 9th & 10th Jud. Dists. 2005), lv. den. 5 NY3d 807 (2005); People v. Allen, supra. The defendant's statements with respect to the marijuana that he had smoked a while ago, that it was his weed, and that he doesn't sell it, he uses it, as well as his statements with respect to the pills that it's his ecstasy, he uses them and doesn't sell them, therefore are admissible at trial.

The parties are directed to appear on the New Court Date set forth below.

New Court Date:

Dated:

J.D.C.

Decision to be published on line: X yesno