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Officer’s testimony is heard again


A man initiated an appeal from a decision convicting him of criminal possession of marijuana in the first degree, upon his plea of guilty and imposing sentence. The appeal brings up for review the denial of the branch of the man’s motion which sought suppression of physical evidence.

Consequently, the court ordered to reverse the previous decision and the branch of the man’s motion is granted while his indictment is dismissed. The case then was remitted to the Supreme Court. There was no bail.

The complainant’s evidence revealed that the man’s car was stopped by two police officers. Soon after, another officer, who was also patrolling the area, arrived at the scene. Even if the officers had not called for assistance, the officer who recently arrived testified that he left his car and walked towards the man’s car in order to check the inspection sticker on the windshield. As he walked from the back to the front of the man’s car, on the driver’s side, he happened to look down and saw a bag, lying on its side on the floor behind the driver’s seat. He noticed a white substance and some pills protruding from the top of the bag.

The officer asserted that based on his training in the identification of controlled substances, he felt that the white substance was cocaine. He stated that he opened the car door, removed the bag and looked inside. Thereafter the man was put under arrest.

The officer also testified that he smelled what he felt was marijuana coming from the trunk. About an hour after the man was arrested, the trunk was searched, and a quantity of marijuana was found inside the plastic bags.

As the officer testified on direct examination that he was looking straight down through the driver’s window when he saw the bag, it was brought out then on cross examination that there were two windows on the driver’s side of the two-door car and the officer was then asked as to which window he looked through. He stated that he don’t recall which window.

On redirect examination, after the officer looked at a photograph of the car, which he testified was a fair and accurate image of the man’s vehicle, the officer testified that he had been looking through the rear window when he saw the bag.

Based on records, the hearing court resolved the discrepancy in the officer’s testimony by finding the fact that the bag was just to the rear of the driver’s seat and he was looking directly down through the driver’s window. However, the court went on to consider the officer’s further testimony that he had noticed a detectable and identifiable odor of marijuana, and held that under the totality of the situation there was probable reason for arrest and the seizure without a warrant was permissible.

On a motion to suppress, even if the man who challenges the legality of a search and seizure has the burden of proving illegal, it is the complainant who has the burden of going forward to show the legality of the police conduct.

Having concluded that the officer could not have seen the bag in plain view, the court found that the complainant failed to meet their burden of showing the legality of the police conduct. The court stated that there was no evidence that any police officer believed that they were in danger, nor any independent indication of criminality to entitle the officer to open the door and look inside the man’s car. As a result, the branch of the man’s motion which sought suppression of physical evidence is granted and the indictment is dismissed.

Sometimes a person’s involvement in a case is just one wrongful allegation. If such happened to you and you want to prove them wrong, you can ask the Suffolk County Criminal Lawyer for legal representation. You can also avail of the expertise of the Suffolk County Drug Possession Attorney at Stephen Bilkis and Associates.

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