The defendant is charged by this Indictment with Criminal Possession of a Controlled Substance in the Fourth Degree, Penal Law § 220.09 and Unlawful Possession of Marihuana, Penal Law § 221.05. The defendant moves to suppress the physical evidence seized and the statements allegedly made by him pursuant to Section 710.20 of the Criminal Procedure Law. A hearing was conducted pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), Dunaway v. New York, 442 U.S. 200 (1979), People v. Huntley, 15 NY2d 72 (1965) and People v. Ingle, 36 NY2d 413 (1975). Officers Alan Ortiz and Mitchell Thomas of the City of Buffalo, New York Police Department testified at the hearing.

The credible testimony at the hearing revealed that on December 3, 2017 at approximately 2:20 a.m., Officer Thomas and his partner, Officer Jonathan Jackson, stopped a vehicle, in which the defendant was a passenger, for failing to signal at the corner of Mercer Avenue and Hill Street in Buffalo, NY. Upon approaching the passenger side of the vehicle as [*2]Officer Jackson approached the driver's side of the vehicle, Officer Thomas, based upon his training and experience, detected the odor of fresh and burnt marihuana coming from the vehicle. Based upon this odor of fresh and burnt marihuana, the officers removed the two (2) occupants from the vehicle. The defendant and the driver of the vehicle were to be placed in the backseat of the patrol vehicle while the officers conducted a search of the vehicle in which the defendant was a passenger. Prior to placing the defendant in his patrol vehicle, Officer Thomas conducted a pat down to ensure officer safety. During the pat down, Officer Thomas felt a large, hard container in the shape of a vial, in the defendant's left, front pants pocket. Unsure as to whether what he felt was a weapon or drugs, Officer Thomas removed it from the defendant's pocket. The vial was later determined to contain cocaine. A burning marihuana blunt was also found in the vehicle, as well as marihuana in the defendant's right, front pants pocket. The defendant was placed under arrest and put in the patrol vehicle.

In order to stop a moving vehicle, a police officer must have a reasonable suspicion that its occupants have committed a crime or personally observed a Vehicle and Traffic violation, People v. May, 81 NY2d 725 (1982) and Ingle, supra. Upon lawfully stopping a vehicle, officers are entitled to question its occupants and order them out of the vehicle, People v Carvey, 889 NY2d 707 (1997) and People v. Dunnigan, 1 AD3d 930 (4th Dept. 2003). Officer Thomas observed the vehicle in which the defendant was a passenger commit a Vehicle and Traffic violation. He then activated his overhead lights and siren and stopped the vehicle. Upon approaching the passenger side of the vehicle and with the window rolled down, Officer Thomas detected the odor of fresh and burnt marihuana coming from the vehicle and the defendant admitted to having been smoking. At this time, the officers had probable cause to search the vehicle and its occupants, People v Black, 59 AD3d 1050 (4th Dept 2009) and People v. Cuffie, 109 AD3d 1200 (4th Dept. 2013). Furthermore, the officer was not limited to conducting a protective, pat down search of the defendant once he was removed from the vehicle. The officer's detection, based upon his training and experience, of the odor of fresh and burnt marihuana coming from the vehicle and the defendant's statement that he had been smoking, notwithstanding the fact that the defendant did not specifically say that he was smoking marihuana, provided the probable cause to search the defendant for drugs, People v. Chestnut, 63 AD2d 260, aff'd. 36 NY2d 971 (1975), People v. Walker, 18 AD3d 1499 (4th Dept. 2015) and People v. Contant, 90 AD3d 770 (2nd Dept 2011). Therefore, under the totality of the circumstances, the search and seizure of the cocaine in the vial and the marihuana was lawful.

The People have the burden of establishing the voluntariness of a person's statement beyond a reasonable doubt, People v. Witherspoon, 66 NY2d 973 (1985). Miranda warnings are an absolute prerequisite to custodial interrogation, Miranda v. Arizona, 384 U.S. 436 (1966). The test to determine custody is what a reasonable person innocent of any crime would have thought had he been in the defendant's position, People v. Yukl, 25 NY2d 585 (1969). After the vial containing cocaine was found in the defendant's left, front pants pocket, the marihuana that was found in his right pants pocket and the burning marihuana blunt in the vehicle, the defendant was placed in the patrol vehicle. At this time, Officer Ortiz read the defendant the appropriate Miranda warnings from a card. The defendant did not verbally or non-verbally acknowledge that he understood these rights. Officer Ortiz believed the defendant understood these rights because of the look he made. Upon further inquiry by this Court to describe what he meant by the look [*3]made by the defendant, the officer was unable to do so. Officer Thomas then asked the defendant questions that were intended to elicit an inculpatory statement. The interaction between the defendant and Officer Thomas went beyond a threshold crime scene inquiry, People v. Clanton, 151 AD3d 1576 (4th Dept. 2017). Absent a full and effective warning of the rights and a knowing, intelligent and voluntary waiver, statements made by a suspect during custodial interrogation must be suppressed, People v Dunbar, 24 NY3d 304 (2014). Therefore, under the totality of the circumstances, the defendant's statements were not voluntarily made.

Accordingly, the defendant's motion to suppress the physical evidence seized is DENIED and his motion to suppress the statements allegedly made by him is GRANTED.

This decision constitutes the Order of this Court.