The Defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192.4, Driving While Impaired by Drugs as an unclassified misdemeanor, one (1) count of violating Vehicle and Traffic Law §319.1, Driving Without Insurance as a traffic infraction, one (1) count of violating Penal Law §221.10, Criminal Possession of Marijuana in the 5th Degree as a Class B misdemeanor, and one (1) count of violating Penal Law §221.05, Unlawful Possession of Marijuana as a violation.

On April 4, 2007, upon stipulation by both parties, this Court conducted a Huntley, Mapp, and Dunaway hearing. The Huntley hearing pertained to statements allegedly made by the Defendant to the Police prior to his arrest, namely:

"I was smoking, I was smoking marijuana. It's right here in my ashtray. I just picked up an eighth, here it is. I smoked a bowl's worth. I was just smoking the last hit of the bowl. I have been smoking for the last half hour. There may be something in the trunk. Is this test only for marijuana because I might not want to take the urine test if they are testing for other drugs."

The Mapp portion of the hearing was regarding a wooden pipe and a bag of marijuana allegedly seized from the defendant.

The People called one witness at the hearing, Police Officer Jeffrey Toscano of the Nassau County Police Department. The Defendant did not call any witnesses. Based on the testimony of Police Officer Jeffrey Toscano, this Court makes the following findings of fact and conclusions of law:

This Court finds the testimony of Police Officer Jeffrey Toscano to be credible. Police Officer Toscano is a three year veteran of the Nassau County Police Department.

On April 16, 2007, Police Officer Toscano was patrolling the third precinct of Nassau County, in uniform, in a marked Nassau County Police car. At approximately 9:08 p.m. he was traveling west on Hempstead Turnpike in East Meadow, New York. Officer Toscano stopped for a red traffic light at the intersection of Hempstead Turnpike and Merrick Avenue. Officer Toscano looked towards his right and observed a car in the lane immediately next to his which was also stopped at the red light. Officer Toscano's attention was drawn to the driver of the vehicle who was smoking from a brown wooden pipe. Officer Toscano testified that the driver had a pipe in one hand and a lighter in the other hand. Officer Toscano observed the driver look over at him and then abruptly make a "furtive, concealing movement of hiding of the pipe." Officer Toscano then saw the driver pull his hands down out of view and he looked away from Officer Toscano. Officer Toscano immediately pulled the vehicle over.

Officer Toscano approached the passenger side of the vehicle and spoke with the driver, whom he identified in Court as the Defendant, Samer El-Khawam. Officer Toscano testified that he could smell the strong odor of marijuana emanating from the defendant's vehicle. He noticed that the defendant had red, bloodshot eyes. When Officer Toscano asked the defendant what he was doing, the defendant stated that he was smoking. Officer Toscano asked the defendant what he was smoking and the defendant stated he was smoking marijuana. The defendant further stated that he was smoking a bowl. When Officer Toscano asked the defendant where the bowl was, the defendant stated that the bowl was in his ashtray and that he had just picked up "an eighth." The defendant then opened his center console and handed Officer Toscano a clear plastic bag containing what Officer Toscano described as "a green leafy substance." Officer Toscano testified that based on his training and experience, he believed the contents of the bag to be marijuana. Officer Toscano asked the defendant how long he had been smoking and how much he had been smoking and the defendant replied that"he had smoked a bowl's worth, that he was smoking the last hit of the bowl and that he had been smoking for the last half hour."

Officer Toscano asked the defendant to exit his vehicle and the defendant complied. Officer Toscano asked the defendant to perform Standardized Field Sobriety Tests; namely, the Horizontal Gaze Nystagmus test, the Nine Step Walk and Turn test, and the One Leg Stand test, which are all physical tests used to determine whether a person is intoxicated or impaired by drugs. Officer Toscano indicated that the Defendant exhibited positive clues for impairment by drugs during each test. Officer Toscano concluded that the defendant was impaired by drugs. The Defendant was then arrested and charged with Driving While Impaired by Drugs. After the defendant was arrested Officer Toscano asked the defendant if there was anything else in the vehicle that he needed to know about. The defendant responded that "there might be something in his trunk." There was no testimony that the trunk was searched or any other items were removed from the vehicle. No further testimony was elicited by the People regarding the alleged bag of marijuana or the wooden pipe.

The defendant was taken to the Central Testing Section of Police Headquarters where he was asked to submit to a urine test. Upon being asked to take a urine test the defendant asked "whether the test was only testing for marijuana, if it's not he might not want to take the urine test."

The 4th Amendment to the United States Constitution guarantees that Citizens shall be free of unreasonable searches and seizures, of individual liberty and privacy, and the right to be left alone.

The landmark Court of Appeals decision in the case of People v. De Bour, 40 NY2d 210, 352 N.E.2d 562 (1976), firmly established that "Before the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present," and "the police may not justify a stop by a subsequently acquired suspicion resulting from the stop."

In addition, the Court of Appeals has long held that a police officer may stop a moving vehicle if he or she at least reasonably suspects that the occupants had been, are then, or are about to be engaged in conduct in violation of the law (People v. Spencer, 84 NY2d 749, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995]; People v. Sobotker, 43 NY2d 559, 563, 402 N.Y.S.2d 993, 373 N.E.2d 1218 [1978].)

Defense counsel argues that there was no reason or basis for the stop of the defendant's vehicle. Defense counsel asserts that the testimony adduced at the hearing failed to establish that the defendant was doing anything wrong since the defendant was merely smoking from a wooden pipe. The People argue that Officer Toscano had a basis to stop the defendant's vehicle because when Officer Toscano observed the defendant smoking the pipe, based on his training and experience, he suspected that the defendant was smoking marijuana. The People further argue that the defendant's pipe was drug paraphernalia.

Brown Wooden Pipe

This Court finds that the People's contention that the brown wooden pipe which Officer Toscano saw the defendant holding was "drug paraphernalia," is wholly unsupported by the testimony adduced during the hearing and is therefore without merit. Specifically, the record is devoid of any testimony by the Officer that based on his training an experience the pipe which he observed was one commonly used for drugs. In fact, the only testimony regarding the pipe was that it was brown and that it was wooden. There was no testimony differentiating the defendant's pipe from a pipe ordinarily used to smoke pipe tobacco. Therefore, the People's argument that the pipe was drug paraphernalia is without factual basis.

Basis Of The Vehicle Stop

The People's assertion that when Officer Toscano observed the defendant smoking a pipe he suspected that the defendant was smoking marijuana is directly contradicted by Officer Toscano's testimony. Officer Toscano testified on cross-examination that when he observed the defendant smoking he did not know what he was smoking. Indeed, Officer Toscano testified that upon his initial observation of the defendant in his vehicle, he did not suspect that the defendant was smoking marijuana. Officer Toscano stated that when he first observed the defendant in the car he did not [*3]make any observations which would indicate that the defendant was doing anything wrong.

This Court finds that during Officer Toscano's initial observation of the defendant there are no facts elicited in the record which would provide a legal basis for a car stop. The defendant was merely smoking a pipe. There is no prohibition against smoking a pipe and operating a motor vehicle.

However, when the defendant looked over at Police Officer Toscano, who was in uniform and in a marked Nassau County Police car, it is the defendant's conduct at that instant which provided Police Officer Toscano with the legal basis for the car stop. Police Officer Toscano testified that after the defendant looked over at him, the defendant made a "furtive" and "concealing" motion with the pipe and immediately dropped his hands down out of sight and looked away from Officer Toscano. Said actions were sufficiently suspicious enough to indicate that criminal activity had been or was present. Therefore, this Court holds that Officer Toscano had reasonable suspicion to stop the defendant's vehicle based on the defendant's suspicious conduct.

STATEMENTS BY THE DEFENDANT:

The defendant made numerous statements to Officer Toscano. The statement allegedly made by the defendant, "I was smoking, I was smoking marijuana. It's right here in my ashtray. I just picked up an eighth, here it is. I smoked a bowl's worth. I was just smoking the last hit of the bowl. I have been smoking for the last half hour," occurred during Officer Toscano's initial interaction with the defendant after the traffic stop. This Court finds that when the defendant made the statements he was not in custody, he was not under arrest and he was not being interrogated. The questions asked by Officer Toscano were investigatory in nature. Consequently, Miranda warnings were not required. This Court finds that the responses by the defendant were voluntarily given by the defendant. Therefore, the defendant's motion to suppress these statements is hereby denied.

The statement allegedly made by the defendant,"There may be something in the trunk,"

was made in direct response to Officer Toscano's question whether there was anything else in the car that he should know about. This Court finds that when the defendant made the statement he had already been arrested and was in custody. Additionally, this Court finds that based on the fact specific circumstances leading up to the defendant's arrest coupled with the statements already made by the defendant, Officer Toscano's question regarding "anything in the trunk that he should know about"was intended to illicit an incriminating response. Consequently, Miranda warnings were required. There was no testimony that any Miranda warnings had been given to the defendant prior to or after he was arrested. Therefore, the defendant's motion to suppress this statement is hereby granted.

The statement allegedly made by the defendant,"Is this test only for marijuana because I might not want to take the urine test if they are testing for other drugs," was made by the defendant in response to Officer Toscano requesting that he submit to a urine test. The defendant was in [*4]custody at the time; however, the defendant was not being interrogated, he was simply being asked to submit to a urine test. This Court finds that the statement was voluntarily made by the defendant and spontaneously given by the defendant. Therefore, the defendant's motion to suppress this statement is hereby denied.

PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANT:

This Court finds that there was probable cause to arrest the Defendant based on the observations of the defendant by Officer Toscano together with the defendant's poor performance on the Standardized Field Sobriety Tests. The defendant exhibited signs of impairment by drugs, i.e., red and bloodshot eyes, and the strong odor of marijuana. The Defendant also admitted to smoking marijuana for a half hour. Therefore, this Court finds that Officer Toscano had probable cause to arrest the Defendant.

SEIZURE OF MARIJUANA AND THE PIPE:

Although the hearing was also a Mapp hearing regarding the admissibility of an alleged bag of marijuana seized from the defendant and a wooden pipe allegedly seized from the defendant, neither the alleged marijuana or pipe were presented at the hearing. There was no testimony regarding the facts and circumstances surrounding the seizing, vouchering, testing, and chain of custody of the alleged bag of marijuana by Officer Toscano from the defendant other than a statement that the defendant handed a bag containing a "green leafy substance" to Officer Toscano. No testimony was elicited as to what Officer Toscano did with the alleged bag of marijuana, whether he in fact seized it, whether it was brought back to headquarters, whether it was tested, how it was tested, by whom it was tested, or what in fact it was found to be. Similarly, there was no testimony regarding whether the wood pipe was seized, by whom, whether it was brought to headquarters, whether it was tested for residue, or what happened to it. The People failed to provide this Court with the essential item(s) allegedly seized and sought by the People to be admitted into evidence at trial.

Without evidence — neither tangible, physical or testimonial — this Court finds that the People have failed to satisfy their burden of proof as to the Mapp component of the hearing. As a result, the alleged bag of marijuana and the wooden pipe are hereby suppressed.

This constitutes the opinion, decision and Order of the court.

ENTER: [*5]

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Norman St. George, County Court Judge

Acting Supreme Court Justice