On July 29, 2010 at approximately 10:16 P.M. the defendant was driving eastbound on Klem Road in the Town of Webster. In so doing he passed a

Webster Police Car, operated by Officer Mark C. Reed, driving westbound on said road. At that

time the officer observed that the head lights on defendant's 1981 Chevrolet were off. Officer

Reed then turned his vehicle around and pursued the defendant, stopping the defendant on

Treasure Circle, a side road south of Klem Road. Upon approaching the drivers side window of

defendant's vehicle, Officer Reed advised the defendant as to why he was stopped. The

defendant indicated that there was a problem with the vehicle in that the headlights went out

when anyone pushed on the floor board. In speaking to the defendant the Officer detected the

smell of burnt marijuana. In response to the officer's inquiry the defendant allegedly stated that

he and his friends had just smoked marijuana at the Drumm Road Park. The defendant was [*2]

asked to get out of the vehicle, whereupon he was placed in the rear of the police car, pending a

search of the his vehicle, which turned up a small amount of marijuana.

Based on Officer Reed's observations, he asked the defendant to perform certain roadside

tests. The defendant took and allegedly failed the Horizontal Gaze Nystagmus test, the Walk and

Turn test, the One Leg Stand test and the Romberg test. As a result of the defendant's

observations the defendant was charged with VTL 375(2)(A)(1), no headlights, VTL 1192(3),

driving while intoxicated, VTL 1192(4) driving while ability impaired by drugs and P.L. 221.05

unlawful possession of marijuana. The defendant subsequently submitted to a breath test at the

Webster Police Department, which resulted in a blood alcohol count of .00%. This resulted in

the charge of VTL 1192(3) common law driving while intoxicated charge being dismissed upon

defense counsel's motion. The Omnibus motions of defense counsel also requested, among

other things, Probable Cause and Huntley Hearings, which were conducted by the court.

Issues Presented.

Does a minor traffic infraction amount to probable cause to stop a vehicle?

Did the officer have probable cause to conduct a warrantless search the defendant's

vehicle?

Were the statements made by the defendant voluntary?

Legal Analysis.

A. Vehicle Stops. The defense maintains that the headlights on defendant's vehicle were

only off momentarily. That as a result the officer did not have probable cause to stop the

defendant's vehicle. The standard for stopping a vehicle in New York had long been the lower

standard of reasonable suspicion. See People v. Chilton, 69 NY2d 928,929 [*3]

[1987] wherein the Court of Appeals stated "... the legality of the stop should be measured

against a reasonable suspicion standard ...." In so ruling the court relied on People v. Sobotker,

43 NY2d 559 (1978) and People v. Ingle, 36 NY2d 413

[1975].^[FN1]The law in this are has evolved to the higher standard of probable cause

when the stop is based on a traffic infraction. In People v. Rose, 67 AD3d 1447,1448 [4th , Dept. 2009] the court stated

"... in the time since Ingle the Court of Appeals has made it abundantly clear' ... that police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or where there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime' ... or where the police have probable cause to believe that the driver ... has committed a traffic violation' ( People v. Washburn, 309 AD2d 1270, 1271; see People v. Robinson, 97 NY2d 341, 348—349; People v. Spencer, 84 NY2d 749, 752—753, cert. denied 791 516 US 905; People v. White, 27 AD3d 1181."

B. Minor Traffic Infraction. The defense argues that because the defendant's

headlights were off only very briefly, there was no basis to stop the defendant's vehicle.

However, it is well established that

"An officer may choose to stop someone for a minor' violation after considering a number of factors, including traffic and weather conditions, but the officer's authority to stop a vehicle is circumscribed by the requirement of a violation of a duly enacted law. In other words, it is the violation of a statute that both triggers the officer's authority to make the stop and limits the officer's discretion." People v. Robinsion, 97 NY2d 341,345 [2001].

In the more recent decision of People v. Rose, 67 AD3d 1447,1448 [4th , Dept. 2009], the [*4]court reiterated that the standard to stop a vehicle in New York is now

that of reasonable suspicion to believe that the driver has committed or is about to commit a

crime or probable cause in the case of a traffic infraction. In Rose the defendant was charged

with flashing his high beams at an approaching vehicle in violation of V.T.L.375(3) and driving while intoxicated in violation of V.T.L. 1192(3). However the basis for the stop was the flashing of the defendant's headlights.

"At the suppression hearing, the police officer who stopped defendant's vehicle testified that, as he was traveling behind defendant's vehicle on a divided highway, he observeddefendant flash his high beams while there was a vehicle approaching from the opposite direction. The officer then stopped defendant's vehicle based on his belief that defendant had violated Vehicle and Traffic Law § 375(3). The officer testified that he understood that statute to mean that a driver is not allowed to flash his or her high beams for particularly no reason at an oncoming vehicle.' Section 375(3) actually provides in relevant part that, whenever a vehicle approaching from ahead is within [500] feet ..., the headlamps, if of the multiple beam type ... shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle....' The mere flashing of lights, alone, does not constitute a violation of the statute ( see People v. Meola, 7 NY2d 391, 397; People v. Hines, 155 AD2d 722, 724, lv. denied 76 NY2d 736; People v. Lauber, 162 Misc 2d 19, 20)." ^[FN3]

In the instant case the defendant was charged with operating without headlights, in

violation of V.T.L. 375(2)(A)(1) after the defendant drove by Officer Mark C. Reed on July 29,

2010 at 10:16 P.M, with his headlights off albeit for a very short period of time. The officer [*5]

testified at a suppression hearing that he observed that the headlights on defendant's vehicle were

shut off as the defendant drove passed him. On cross-examination the officer testified as to what

he observed of the headlights as being a "short off and on" and that they were off for a couple of

seconds. The defendant's witness, one of the passengers in the vehicle at the time of the arrest,

indicated that the lights flickered as they passed the police officer and that the headlights were off

less than one second. The witness, who actually owned the vehicle in question, testified that the

head lights went off when the brake pedal rubbed against a particular wire. Defense counsel

argues that because the headlights were off for such a short period of time, the defendant could

not be in violation of V.T.L. 375(2)(A)(1), which would have denied the officer the basis for the

stop in question. The defense cites People v. Wright, 53 Misc 2d 942 [1967]

in support of its position. In that case the defendant had been charged with a Vehicle and Traffic

Law section that prohibited certain vehicles from having lights that "... cast a constantly moving,

oscillating, revolving, rotating or flashing beam of white light".^[FN5] The defendant was charged

with that section after officers observed the defendant flick his light on and off presumably to

warn other drivers of a radar checkpoint.^[FN6] The conviction after trial in the Justice Court of the

Town of Blooming Grove was reversed by the Orange County Court, since the lights in question

where neither the kind of lights prohibited by the statute, nor were they operated in a way that was proscribed by the statute.^[FN7] The reversal of the trial court was not based on the length of the

alleged violation, but on the misinterpretation of the statute upon which the defendant was charged. However, see People v. Richardson 2 AD3d 175 [1 Dept., 2003] wherein the court held, in denying the suppression motion of the defendant, that "The police properly stopped [*6]defendant's vehicle because he committed a traffic violation by driving with his headlights off ... and the ensuing police conduct was entirely lawful."

The defense does not contest that the headlights on defendant's vehicle went off briefly at

that date and time in question. However, it maintains that the length of time the headlights were

out did not justify the stop of defendant's vehicle. There is an entire line of cases that deal with

the length and extent of a traffic stop by the police. These cases deal with what other inquires or

searches that the officer can make once the stop is made. See People v. Banks, 85 NY2d 558 [1995]. There are no reported cases that deal with the degree to which a

particular action violated a vehicle and traffic law or the length of time a particular action needed

to take place to be a violation of the Vehicle and Traffic law, which would be the basis for the

stop of a vehicle. For example, there is no case that says that someone who is only going one

mile over the speed limit cannot be stopped by the police. More to the point, there is no case

that says that a vehicle's headlights need be out for a particular time before that vehicle can be

stopped by the police. In fact, as previously stated, People v. Robinsion, 97 NY2d 341,355,

[2001] stands for the opposite principle, i.e. that minor traffic

infractions can be the basis of a stop. Whether to stop a vehicle who is in violation of a traffic

infraction is left to the discretion of the police. Thus it may be true that by custom those going

five to ten miles an hour over the speed limit may not be stopped for speeding on a regular basis.

Nevertheless, there would be no prohibition to a stop a vehicle in such a case. "While New

Yorkers may ubiquitously disobey parts of the Vehicle and Traffic Law, that does not render is

commands unenforceable."^[FN8]

C. Search of the Vehicle. Upon stopping the vehicle and initially speaking to the [*7]

defendant, the officer testified to smelling a strong odor of burnt marijuana. Upon some initial

questioning at the scene of the stop, the defendant admitted that he and his passengers did smoke

marijuana a short time before. The defendant and then the passengers were asked to get out of

the vehicle. Subsequently Officer Reed searched the vehicle in question and after one to two

minutes found a small amount of marijuana on a back seat in what was described as a "1980's

van". The seat in question was described by the officer as a "couch" in the back of the van. The

defendant's Omnibus Motions requested the suppression of any illegally obtained physical

evidence pursuant to C.P.L. 710.20 and 710.60.

The search of the defendant's van was without a warrant.

"Under the Fourth Amendment of the United States Constitution, a search conducted without a warrant issued by an impartial Magistrate is per se unreasonable unless one of the established exceptions applies ( California v. Acevedo, 500 US ___, ___, 114 L Ed 2d 619, 634; Mincey v. Arizona, 437 US 385, 390; Katz v. United States, 389 US 347, 357). One such exception is the so-called automobile exception', under which State actors may search a vehicle without a warrant when they have probable cause to believe that evidence or contraband will be found there ( California v. Carney, 471 US 386, 390; Cady v. Dombrowski, 413 US 433, 442; Carroll v. United States, 267 US 132). Elimination of the warrant requirement in these cases has been justified both by the mobility of vehicles-and the concomitant likelihood that evidence or contraband will disappear if the search is delayed-and by the diminished expectation of privacy held by those who occupy motor vehicles ( California v. Carney, supra, 471 US at 392-393). Although the search may proceed without a warrant, it must still be supported by probable cause ( id., at 394-395; Carroll v. United States, supra, 267 US at 154)." People v. Galak, 81 NY2d 463,467-468 [1993].

A police officer has probable cause for a warrantless search of a vehicle that was properly

stopped for a traffic infraction "... based on the arresting officer's detection of the odor of burnt

marijuana emanating from the defendant's vehicle and the defendant's admission that the

smoked marijuana...." People v. George, 78 AD3d 728-729 [2010].

The court credits Officer Reeds testimony that he was familiar with the odor of burnt marijuana. [*8]

See People v. Hanson, 5 Misc 3d 67 [2004].

D. Statements of the Defendant. A Huntley hearing was conducted in conjunction with

the probable cause hearing. People v. Huntley, 15 NY2d 72 [1965]. The

defendant admitted to smoking marijuana in response to initial questions at the scene of

the stop and at the Webster Police Department during processing. However, the statements made

to Officer Reed were either made during the initial investigatory portion of the stop of the

defendant's vehicle or after being advised of his Miranda rights.Based on said circumstances

the statements made by the defendant to Officer Reed were voluntary in nature.^[FN9]

Conclusion.

The stop of the vehicle was based on probable cause that defendant had violated a traffic

infraction, i.e. V.T.L. 375(2)(a)(1), requiring the use of headlights one half hour after sunset.

The officer had probable cause to conduct a warrantless search of the defendant's vehicle based

on the officers recognition of the smell of burnt marijuana coming from the defendant's vehicle

and the defendant's admission that he had recently smoked marijuana. Thus defendant's motion

to suppress physical evidence obtained as a result of the stop of the defendant's vehicle is hereby

denied. Defendant's motion to suppress the statements of the defendant to Officer Reed as being

involuntary are also denied. This constitutes the decision and order of this court.

Dated: July 5, 2011 [*9]

__________________________________

Hon. Thomas J. DiSalvo

Webster Town Justice