        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

889
KA 13-01956
PRESENT: SMITH, J.P., FAHEY, LINDLEY, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL R. WIDEMAN, DEFENDANT-APPELLANT.


THOMAS J. EOANNOU, BUFFALO, FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Michael L.
D’Amico, J.), rendered September 13, 2013. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree and criminal possession of marihuana in the fifth
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated, that part of the
omnibus motion seeking to suppress tangible property is granted, the
indictment is dismissed, and the matter is remitted to Erie County
Court for proceedings pursuant to CPL 470.45.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of criminal possession of a weapon in the second
degree (Penal Law § 265.03 [3]) and criminal possession of marihuana
in the fifth degree (§ 221.10 [2]), defendant contends that County
Court erred in refusing to suppress a handgun and marihuana obtained
by the police during a warrantless search of his vehicle. We agree.
At approximately 9:45 p.m., two uniformed police officers in Buffalo
observed a vehicle with excessively tinted windows. The vehicle was
parked on the side of the street and defendant, the only occupant, sat
in the driver’s seat. The officers pulled up behind the vehicle and
approached on foot. As they did so, the officers observed another
person approaching the vehicle as well, but that person abruptly
changed direction and began to walk away. The officers stopped and
frisked that person before allowing him to go on his way, and they
then approached defendant’s vehicle, one on each side. The officer
who approached defendant asked for his driver’s license, and defendant
produced a valid license. After ascertaining that the vehicle was
registered to defendant’s mother, the officer asked defendant whether
there were any guns or drugs in the vehicle. Defendant answered no,
whereupon the officer asked if he could look inside the vehicle.
Defendant said, “Yeah.” He was then removed from the vehicle, patted
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                                                         KA 13-01956

down, and placed in the patrol vehicle while the search was conducted.
The officer found a bag of marihuana and a firearm hidden under a
loose panel next to the gear shift. The marihuana weighed less than
two ounces. Defendant was thereafter charged with criminal possession
of a weapon in the second degree and criminal possession of marihuana
in the fifth degree.

     At the suppression hearing, the officer who conducted the search
testified on direct examination that, “at some point” while he was
standing next to the vehicle questioning defendant, he noticed the
smell of raw marihuana emanating from the vehicle. Using his
flashlight, the officer also observed small pieces of marihuana inside
the vehicle. On cross-examination, the officer was asked whether he
saw and smelled raw marihuana before he asked defendant whether there
were any guns or drugs in the vehicle, and the officer answered, “I
don’t remember the sequence of events.” When asked again, the officer
answered, “I don’t remember if I saw the drugs first or smelled the
marihuana first, or how that sequence went down.” In refusing to
suppress the evidence, the court determined, inter alia, that the two
officers smelled the “strong odor” of marihuana as soon as they
approached the vehicle and before defendant was asked whether he had
any guns or drugs. Defendant later pleaded guilty to the crimes
charged and was sentenced to a term of imprisonment of 3½ years.

     The law is well settled that the police may not ask an occupant
of a lawfully stopped vehicle if he or she has any weapons unless they
have a founded suspicion that criminality is afoot (see People v
Garcia, 20 NY3d 317, 324). It is equally well settled that the police
may not ask for consent to search a vehicle absent that same degree of
suspicion (see People v Battaglia, 86 NY2d 755, 756; People v Mercado,
120 AD3d 441, 442-443). Here, as both defendant and the People
recognize, the legality of the police conduct turns on whether the
officer who engaged defendant at the side of his vehicle smelled or
observed marihuana in the vehicle before asking defendant whether he
had any guns or drugs and before asking for consent to search. We
conclude that there is no basis in the record to support the court’s
finding that the officers smelled marihuana as soon as they approached
the vehicle. The officer who engaged defendant frankly acknowledged
at the hearing that he did not know the relevant sequence of events.
Although the other officer testified that he smelled raw marihuana
while his partner was talking to defendant, that officer did not
testify that he smelled the marihuana before his partner asked whether
defendant had any guns or drugs and asked for consent to search. In
any event, it cannot be assumed that the two officers smelled the
marihuana at the same time. We also note that neither officer
testified that he detected a “strong odor” of marihuana while standing
outside the vehicle, as the court stated in its finding of fact. The
only testimony about a “strong odor” of marihuana came from the
officer who conducted the search, and he testified that he made that
observation while he was inside the vehicle conducting the search.

     In the absence of exigent circumstances, which did not exist
here, “all warrantless searches presumptively are unreasonable per
se,” and the People have the burden of overcoming the presumption
                                 -3-                           889
                                                         KA 13-01956

(People v Hodges, 44 NY2d 553, 557). The People also have a “heavy
burden” of proving that a defendant voluntarily consented to a search
(People v Gonzalez, 39 NY2d 122, 128; see People v McCray, 96 AD3d
1480, 1481, lv denied 19 NY3d 1104). Here, in the absence of any
evidence that the officers smelled marihuana before engaging defendant
in a common-law inquiry and asking for consent to search his vehicle,
we conclude that the People failed to prove that the police conduct
was justified by a founded suspicion that criminality was afoot. We
therefore reverse the judgment, grant that part of defendant’s omnibus
motion seeking to suppress tangible property seized from his vehicle,
dismiss the indictment, and remit the matter to County Court for
proceedings pursuant to CPL 470.45.




Entered:   October 3, 2014                      Frances E. Cafarell
                                                Clerk of the Court
