Firearm Suppressed after Criminal Appeal

The issue in People v. Ponder, is whether the Court will "reject a per se rule that the search of the entire vehicle, including the trunk, is permissible in every circumstance where police have probable cause to believe that the occupant of the car has committed a crime."

This New York Criminal Case goes to the First Department on Appeal, after the plea of guilty, for the Criminal Defense Appellate Lawyer to argue that the evidence that would have been used against the Defendant should not have been allowed in by the lower court judge. Preserving the right to appeal, the case goes to the court Defendant appeals from a judgment of the Supreme Court, New York County (Thomas Farber, J. at suppression hearing; Gregory Carro, J. at plea; Ann E. Scherzer, J. at sentencing), rendered October 22, 2018, convicting defendant, upon his guilty plea, of criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of five years.

The Defendant successfully argued that the automobile exception to the Fourth Amendment’s rule prohibiting warrantless searches requires a fact-specific probable cause analysis and a factual nexus between the criminal activity suspected and the area searched. The Court held that "the odor of marijuana, together with a de minimis amount of marijuana found in the center console of the vehicle, did not furnish the requisite probable cause to search the trunk of defendant’s vehicle and that there was no factual nexus between the possession of an amount of marijuana consistent with personal consumption and a search for contraband in the trunk of the vehicle."

The Fourth Amendment of the United States Constitution protects “against unreasonable searches and seizures,” providing that “no Warrants shall issue, but upon probable cause.” Indeed, warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions” (Katz v. United States, 389 US 347, 357 [1967] [footnote omitted]). One such exception is the automobile exception, which was first established in 1925 in Carroll v. United States (267 US 132 [1925]), in which the U.S. Supreme Court held that “contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant” (id. at 153). Pursuant to the automobile exception, “police may conduct a warrantless search of a vehicle where they have probable cause to believe that the vehicle contains evidence or contraband, and there is a nexus between the arrest and the probable cause for the search” (People v. Baez, 24 AD3d 112, 115 [1st Dept 2005], lv denied 6 NY3d 809 [2006]). The permissible scope of a warrantless search pursuant to the automobile exception is defined as a “search of the vehicle that is as thorough as a magistrate could authorize in a warrant ‘particularly describing the place to be searched’” (United States v. Ross, 456 US 798, 800 [1982]). The rationale behind the automobile exception stems from the fact that contraband concealed in a vehicle can be readily moved and “put out of reach of a search warrant” (Ross, 456 US at 806, quoting Carroll, 267 US at 151). Further, the reduced expectation of privacy associated with automobiles owing to their pervasive regulation also justifies the exemption of vehicles from the warrant requirement, in appropriate circumstances (People v. Blasich, 73 NY2d 673, 678 [1989]; People v. Belton, 55 NY2d 49, 53 [1982]; People v. Baez, 24 AD3d at 116). However, “[t]he automobile exception…is an exception only to the warrant requirement; it does not, in contrast to the search-incident-to-arrest exception, dispense with the requirement that there be probable cause to search the vehicle” (People v. Blasich, 73 NY2d at 678, citing People v. Langen, 60 NY2d 170, 181 [1983], cert denied 465 US 1028 [1984]).

The Appellate Defender sucessfully argued for suppression: "motion to suppress a firearm and statements granted, and all weapons possession counts of the indictment dismissed. The charge of unlawful possession of marijuana should be dismissed in the interest of justice."

The case is People v. Ponder, 2021 NY Slip Op 02880 Decided on May 06, 2021 Appellate Division, First Department.

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