Appendix — Johnson v. United States
Supreme Court brief1980
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In The
Supreme Court of the United States
OCTOBER TERM, 1980
THE PEOPLE OF THE STATE OF NEW YORK,
Vv.
ROGER BELTON,
Respondent.
On Writ Of Certiorari To The
Court Of Appeals Of New York
JOINT APPENDIX
JAMES R. HARVEY PAUL J. CAMBRIA, JR.
District Attorney, Lipsitz, Green, Fahringer,
Ontario County, New York Roll, Schuller & James
Ontario County Courthouse One Niagara Square
Main Street Buffalo, New York 14202
Canandaigua, New York 14424 (716) 849-1333
(716) 394-5220 Counsel for Respundent
Counsel fur Petitioner
Petition for Certiorari Filed September 2, 1980
Certiorari Granted January 19, 1981
No. 80-328 |
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INDEX
Page
Chronological List of Relevant Docket Entries ........ A-1
Indictment, Filed May 24, 1978.................... A-3
Defendant’s Motion Papers, Filed July 1, 1978:
Notice of Motion, Dated June 30, 1978............. A-4
Affidavit of Paul J. Cambria, Jr., Dated June 30, 1978 . A-5
Affidavit of Roger Belton, Dated July 1,1978........ A8
Answering Affidavit in Response to Motion, Filed July
NS eg ee nie vs BS a ooo eet e A-9
Transcript of Proceedings, Dated July 26, 1978:........ A-10
Testimony of Douglas Nicot, for the People
ME ee ey, A-ll
CR aad Ne ad, wk dips «bo A-A47
Transcript of Proceedings, Dated August 2, 1978: ...... A-46
Testimony of Douglas Nicot, for the Peopie
MES CU Oke ie he et wd RE eo esd ok vee 47
IS arte te SON Sg ew LM oe wh abe Ok Kad A-56
Findings and Conclusions .............ccccce00- A-64
Order Denying Suppression, Filed September 29,1978 .. A-67
Notice of Appeal, Filed September 29, 1978........... A-68
Judgment of the New York Supreme Court, Appellate
Division, Fourth Department, Filed May 22,1979.... A-69
Opinion of the New York Supreme Court, Appellate
Division, Fourth Department, Filed May 22,1979.... —A-70
**
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uv
Page
Order of the New York Court of Appeals Granting Leave
to Appeal and Fixing Bail, Filed June 27,1979 ...... A-74
Judgment of the New York Court of Appeals, Filed June
a ih OR dah bak Wie ee Hea al bie Sow men oe A-75
A-1
Chronological List of Relevant Docket Entries
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES,
No. 1-78-28 The People of the State of New York
May 24, 1978
May 31, 1978
July 1, 1978
July 17, 1978
July 26, 1978
August 2, 1978
August 17, 1978
August 29, 1978
v. Roger Belton
Indictment charging defendant with
- Criminal Possession of a Controlled
Substance in the 5th Degree filed.
Arraignment of defendant; not guilty
plea entered.
Defendant’s omnibus pre-trial motions
filed.
People’s answering affidavit in
response to defendant’s omnibus
motions filed.
Oral argument on motion. Suppression
hearing commenced; testimony of
Douglas Nicot, for the People, direct
and cross.
Suppression hearing continues;
testimony of Douglas Nicot, cross.
Findings of fact and conclusions of law
orally placed on record. Suppression
motion denied.
Defendant pleads guilty to reduced
charge of Attempted Criminal
Possession of a Controlled Substance
in the 6th Degree.
Second felony information filed.
Defendant sentenced to 112-3 years in
state prison.
Defendant’s motion for stay of
execution of judgment pending appeal
’s
7%
A-2
Chronological List of Relevant Docket Entries
December 19, 1978
January 19, 1979
May 22, 1979
June 27, 1979
August 29, 1979
September 4, 1979
September 18, 1979
September 26, 1979
filed. Order granting stay of execution
of judgment pending appeal and fixing
bail filed. Notice of appeal filed.
Defendant’s motion for extension of
time to perfect appeal in New York
Supreme Court, Appellate Division,
Fourth Department filed.
Order of the New York Supreme
Court, Appellate Division, Fourth
Department granting defendant’s
motion for extension of time to perfect
appeal filed.
Opinion and judgment of the New
York Supreme Court, Appellate
Division, Fourth Department, unani-
mously affirming defendant’s
judgment of conviction filed.
Order granting leave to defendant to
appeal to New York Court of Appeals
and continuing bail filed.
Defendant's motion for extension of
time to perfect appeal in New York
Court of Appeals filed.
People’s answering affidavit in op-
position to defendant’s motion filed.
Order of the New York Court of
Appeals granting defendant’s motion
for extension of time to perfect appeal
filed.
Defendant’s motion to maintain
appeal as poor person filed.
A-3
Indictment, Filed May 24, 1978
October 23, 1979 — Order of the New York Court of
Appeals granting defendant’s motion
to appeal as poor person filed.
June 5, 1980 — Opinion and judgment of the New
York Court of Appeals reversing
defendant’s judgment of conviction
and dismissing indictment filed.
Indictment, Filed May 24, 1978
STATE OF NEW YORK
COUNTY OF ONTARIO COUNTY COURT
THE PEOPLE OF THE STATE OF NEW YORK
v8.
ROGER BELTON,
Defendant.
THE GRAND JURY OF THE COUNTY OF ONTARIO, by
this indictment, accuse the defendant of the crime of CRIMINAL
POSSISSION OF A CONTROLLED SUBSTANCE IN THE
FIFTH DEGREE COMMITTED AS FOLLOWS:
The defendant, in the County of Ontario, on or about April 9,
1978, knowingly and unlawfully possessed one or more prepara-
tions, compounds, mixtures or substances of an aggregate weight
of one-eighth of an ounce or more containing a narcotic drug, to
wit: the defendant possessed 10.08 grams of cocaine. —
James R. Harvey, District Attorney
Bunny Bell, Acting Foreman
1-78-28
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A-4
Notice of Motion, Dated June 30, 1978
(SAME TITLE)
Sirs:
PLEASE TAKE NOTICE that upon the annexed affidavit of
PAULJ. CAMBRIA, JR., sworn to on the 30th day of June, 1978,
and upon all tie proceedings heretofore had herein, a motion
will be made in this Court on the 26 day of July, 1978, at 10:00
a.m. in the forenoon of that day or as soon thereafter as counsel
can be heard for orders granting the relief requested in the
affidavit annexed hereto, together with such other and further
relief as may be just and proper under the circumstances herein.
DATED: Buffalo, New York
June 30, 1978
Yours, etc.
LIPSITZ, GREEN, FAHRINGER,
ROLL, SCHULLER & JAMES
PAUL J. CAMBRIA, JR., ESQ.,
Attorney for Roger Belton
One Niagara Square
Buffalo, New York 14202
(716) 849-1333
TO: JAMES HARVEY, ESQ.
Ontario County Courthouse
Main Street
Canandaigua, New York 14424
A-5
Affidavit of Paul J. Cambria, Jr., Dated June 30, 1978
(SAME TITLE)
STATE OF NEW YORK
COUNTY OF ERIE \ SS:
CITY OF BUFFALO
PAUL J. CAMBRIA, JR., being duly sworn, deposes and says:
1. I am an attorney at law duly licensed to practice in the
State of New York and I am a member of the law firm Lipsitz,
Green, Fahringer, Roll, Schuller & James, with offices located at
One Niagara Square, Buffalo, New York, 14202.
2. I am thoroughly familiar with all the facts and circum-
stances surrounding this case by reason of my own investigation
and conferences had with the defendant, a review of the relevant
pleadings, proceedings and the law in this matter.
3. The defendant stands charged with criminal possession of a
controlled substance in the fifth degree in violation of P. L.
§220.09(1). The defendant was arraigned on or about May 31,
1978, and thereafter the matter was set down for the filing of
motions within the forty-five (45) day period provided for in CPL
§255.20.
4. This affidavit is made on your deponent’s information and
belief, the sources of such information and the grounds for said
belief being the pleadings herein, conferences had with the
defendant and your deponent’s investigation into the cir-
cumstances.
5. This affidavit is made in support of an application for a
number of different forms of relief. The affidavit is divided into
a number of different subheadings, each requesting an order
granting different relief from the Court. There follows an index
of the various forms of relief requested, together with the page
number upon which they appear.
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AS
Affidavit of Paul J. Cambria, Jr., Dated June 30, 1978
MOTION TO SUPPRESS
52. The defendant respectfully moves, pursuant to Article 710
of the Criminal Procedure Law that any and all evidence of
whatsoever kind and nature acquired directly or indirectly as a
result of the search and seizure conducted of items of personal
clothing of the defendant, or in areas in which the defendant had
a legitimate expectation of privacy, specifically a jacket from
which it is alleged that the subject controlled substances were
discovered, together with any and all fruits obtained therefrom
or thereby be in all respects suppressed.
53. On or about April 9, 1978, at approximately 9:50 a.m. on
the New York State Thruway, Trooper Douglas Nicott stationed
at Junius Ponds, New York, stopped a vehicle in which the
defendant was a passenger, and which was owned by one Larry
Vance, and was being driven by an individual other than the
defendant. Such vehicle was also occupied by approximately four
individuals.
54. Subsequently, Trooper Nicott ordered the defendant out
of the car and directed him to “empty his pockets” and otherwise
subjected his person to a search and seizure.
55. Officer Nicott thereafter picked up a jacket allegedly
belonging to the defendant, opened a zipper pocket and allegedly
discovered a controlled substance which is the subject of the
indictment herein and a card bearing the name of the defendant,
Roger Belton.
56. That such search and seizure was violative of the
defendant’s rights under the Fourth and Fourteenth Amend-
ments to the United States Constitution and Article 1, Section
12 of the New York State Constitution as well as the New York
State Civil Rights Law.
57. That said search and seizure was conducted in the absence
of a warrant or probable cause, was not incident to a valid
A-7
Affidavit of Paul J. Cambria, Jr., Dated June 30, 1978
arrest, nor made pursuant to any of the other recognized limited
exceptions to the warrant requirement.
58. Under no circumstances did the defendant in any way
knowingly and voluntarily consent to any such search and
seizure, nor did he at any time give Trooper Nicott permission to
search his belongings.
59. That immediately prior to the conduct of the search and
seizure herein, defendant was committing no crime in the
presence of the officer, nor did the officer have probable cause to
so believe, nor was there any other legitimate and legal basis
upon which the subject search and seizure may be based.
WHEREFORE, it is respectfully requested that the evidence
seized herein which forms the basis for the indictment herein to-
gether with any and all fruits thereof be in all respects sup-
pressed. )
OTHER MOTIONS
60. Depending upon the Court’s granting of the relief
requested in these papers, the defendant respectfully reserves
the right to make further and additional motions which may be
required and advisable in light of the Court’s ruling on relief
sought herein.
61. It is further requested that the defendant have an Op-
portunity to make any and all motions necessary in connection
with the alleged statements made by him at the time of his
arrest.
62. It is further requested that the Court grant such other
and further relief as it may deem just and proper under the
circumstances of this case.
is/PAUL J. CAMBRIA, JR.
Paul J. Cambria, Jr.
(Jurat omitted in printing)
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A8
Affidavit of Roger Belton, Dated July 1, 1978
(SAME TITLE)
STATE OF NEW YORK
COUNTY OF ERIE \ SS:
CITY OF BUFFALO
ROGER BELTON, being duly sworn, deposes and says:
1. Iam the defendant in the above referenced case, and I am
represented by PAUL J. CAMBRIA, JR., of Lipsitz, Green,
Fahringer, Roll, Schuller & James, One Niagara Square, Buffalo,
New York, 14202.
2. Ihave read my attorney’s affidavit and the allegations set
forth therein are true and accurate to the best of my knowledge
and belief, and I join in them and join in my attorney’s motion
for suppression of the evidence herein.
3. That at no time on April 9, 1978, did I in any way consent
to the search and seizure, nor did I in any way give permission to
Officer Nicott to search any of the articles or areas involved.
WHEREFORE, it is respectfully requested that the Court
grant the motion to suppress, and grant the various other ap-
plications made by my attorney on my behalf.
IsSROGER BELTON
Roger Belton
(Jurat omitted in printing)
A-9
Answering Affidavit in Response to Motion,
Filed July 17, 1978
(SAME TITLE)
STATE OF NEW YORK Sg.
COUNTY OF ONTARIO
JAMES R. HARVEY, being duly sworn, deposes and says:
1. That he is the District Attorney of the County of Ontario,
New York.
2. That this affidavit is made in response to defendant’s
Omnibus Motion dated June 30, 1978.
12. MOTION TO SUPPRESS THE EVIDENCE OB-
TAINED FROM THE VEHICLE IN WHICH THE
DEFENDANT WAS A PASSENGER
21. The search of the vehicle and defendant’s belongings by
Trooper Nicot was in all respects legally sufficient. The
defendant’s Constitutional Rights were in no way violated by
Trooper Nicot. However, the People have no objection to the
Courts conducting a hearing in regard to the lawfulness of the
search which obtained the evidence which is the basis of the
charge set forth in the indictment.
WHEREFORE, the People request an Order of this Court
denying defendant’s motion in all respects, with the exception of
the demands which the People indicate that the defendant is
entitled to as a matter of law, and for such other and further
relief as to the Court may seem just and proper.
ls\JAMES R. HARVEY
James R. Harvey, District Attorney
(Jurat omitted in printing)
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A-10
Transcript of Proceedings, Dated July 26, 1978
and August 2, 1978
STATE OF NEW YORK
COUNTY OF ONTARIO COUNTY COURT
The People of the State of New York
against
Roger Belton,
Defendant.
BEFORE:
Hon. George A. Reed, County Court Judge.
HELD:
July 26, and August 2, 1978 at a Regular Adjourned Term of
County Court held in and for the County of Ontario at Canan- |
daigua, New York.
APPEARANCES:
For the People, James R. Harvey, Esq., District Attorney
Attorneys for the Defendant, Lipsitz, Green, Fahringer, Roll,
Schuller and James, BY: Paul J. Cambria, Jr., Esq., of counsel.
Roger Belton, the defendant, appears in person.
a
A-11
Douglas Nicot, for the People, Direct
[5]
MR. HARVEY: Your Honor, the people are ready to
proceed in regard to the
[6]
suppression in the case of the People v. Roger Belton.
We call as our first witness Douglas Nicot.
DOUGLAS NICOT, called in behalf of the people, being first
duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. HARVEY:
Q. State your full name please?
A. Douglas Nicot.
A-12
Douglas Nicot, for the People, Direct
Q. What is your occupation?
A. Assigned to the New York State Police Troop T at Junius
Ponds.
Q. How long have you been a New York State Policeman,
Trooper Nicot?
A. Over twelve years.
Q. What are your primary duties with the troopers?
A. Investigating accidents and investigating the possibility of
crime and patrolling the Thruway.
Q. I call your attention to April 9, 1978. Do you recall that
day?
A. Yes, I do.
Q. Were you on duty that particular day?
A. Yes, I was.
[7]
Q. What area of the Thruway were you on duty, can you
recall?
A. Yes. I was working Post 18 which is generally four town-
ships which includes the Town of Phelps, Town of Manchester,
Town of Farmington and Town of Victor.
Q. Now, Trooper Nicot, this is exclusively on the Thruway, is
that correct?
A. That’s correct.
Q. Did you have any particular device on your vehicle on that
particular day?
A. Any particular device?
Q. Yes. Were you on radar duty?
A. No, I was not.
A-13
Douglas Nicot, for the People, Direct
A. And did there come a time when you were in the area of the
Town of Phelps on the Thruway that you noticed a vehicle
behind you proceeding at a high rate of speed?
A. Yes, I was.
Q. Can you describe that vehicle?
A. Yes, a late model Chrysler, blue in color going west in the
passing lane.
Q. Where were you located?
A. I was also located in the westbound, in the passing lane.
Q. When you first observed this vehicle, what did you first do?
[8]
A. When I first observed it, it was rapidly gaining on my
patrol vehicle so I pulled my patrol vehicle to the driving lane or
right hand lane of the Thruway and continued to observe the
vehicle and there came a time when this vehicle did pass my
patrol car.
Q. Okay. Did you have an opportunity to look at your
speedometer at about the time the vehicle passed you?
A. Yes. I clocked this vehicie at a time when my patrol car was
not gaining on the observed vehicle and it was not gaining on me
and it was at that point I determined the vehicle was exceeding
the speed limit and it was going at about seventy-five miles per
hour.
Q. Okay. What did you do then?
A. Pulled my patrol vehicle to the right hand driving lane and
at that point the vehicle I was observing passed my patrol
vehicle.
Q. Okay. What is the speed limit on the New York State
Thruway, do you know?
rs
A-14
Douglas Nicot, for the People, Direct
A. Fifty-five miles per hour.
Q. After your vehicle was passed by the late model Chrysler,
what did you do?
A. At that point I continued behind the Chrysler for a short
period of time aind did motion it over, turned my
[9]
grill lights on and a vehicle did pull over to the north shoulder of
the road.
Q. What type of vehicle were you driving on patrol on this
particular day, do you recall?
A. Yes. It was a 1976 Plymouth, an unmarked patrol car.
Q. Okay. And after you pulled this vehicle over, what did you
do next?
A. At that point I proceeded to walk up to the driver’s win-
dow.
Q. Let me get this straight. Is _your vehicle in back of the
Chrysler?
A. Yes, it was.
Q. Okay. Go ahead.
A. I walked up to the Chrysler, to the driver’s door, and the
driver rolled the window down and I asked for a license and
registration.
Q. About what time is this now?
A. About 9:00 a.m.
Q. And then what happened?
A. The driver produced a license and a registration was also
produced at that time and at that point I did smell marijuana
burning or burned marijuana from within the vehicle.
A-15
Douglas Nicot, for the People, Direct
[10]
MR. CAMBRIA: That is objected to, Your Honor.
MR. HARVEY: Your Honor, I will qualify the witness.
THE COURT: The objection at this time will be
sustained.
BY MR. HARVEY:
Q. Trooper Nicot, have you ever had any schooling in regard to
drug detection?
A. Yes. I have been to three different schools.
Q. Okay. Would you tell the court where these schools were
held and for what time in each school?
A. 1966 I graduated from the New York State Police
Academy, the Academy being at Oneonta State Teachers College
and also in Albany and in 1974 I graduated from the Bureau of
Narcotic and Dangerous Drug School.
Q. How long a course was that?
A. That was a two week course.
Q. Where was that held?
A. That was held at the State Police Academy also in Albany
but it was run by the Department of Justice or the old Bureau of
Narcotic and Dangerous Drug.
Q. Did your education include drug detection?
[11]
A. Yes, it did.
Q. In that case tell the court how you determined its
marijuana exclusively?
A. With marijuana alone, the history of the plant, the dif-
ferent types of marijuana, the identification of both male and
ss
A-16
Douglas Nicot, for the People, Direct
female plants, the identification of the seeds, also the smell of
burning marijuana and also field tests that were conducted for
positive identification or belief of positive identification.
Q. These were all done clinically as part of the class, is that
correct?
A. Yes.
Q. Within the laboratory situation. You said there were three
schools. What was the third?
A. I recently graduated from the Drug Enforcement Admin-
istration School also run by the Department of Justice.
Q. How long a school was that?
A. Also two weeks.
Q. Where was it held? ,
A. Also at the State Police Academy in Albany.
Q. What did you do in regard to the detection of marijuana in
this particular case?
[12]
A. Basically that same thing. All of the afore mentioned facts
were brought out plus some new. Observing seeds under a
microscope. Marijuana seeds have a particular characteristic
that most seeds do not.
MR. CAMBRIA: I’m sorry. Do we have a date on the
last school?
THE WITNESS: Last week.
MR. CAMBRIA: Then I object to it, Your Honor, as
being after the time of the search we are talking about.
THE COURT: Overruled. It might be receivable subject
to confirmation of something he observed at an earlier
time. It may go to its weight but not admissibility.
A-17
Douglas Nicot, for the People, Direct
BY MR. HARVEY: .
Q. Now, you testified at the time the license and registration
were produced in this vehicle you were on what side of the
vehicle?
A. Iam on the driver’s side.
Q. Could you tell us whether or not the window was up or
down on that side?
A. The driver rolled the window down when I approached the
side of the vehicle and the window remained down during ~ ~ -
[13]
the process of getting the license and registration.
Q. Then what happened?
A. That was at the point when I determined there was burned
marijuana in the vehicle or the aroma from burnt marijuana
coming from the car.
Q. Okay. What did you do then?
A. At that point I asked the driver a series of minor questions
as to who owned the vehicle. The vehicle was registered to a
female who resided in Buffalo who was.not with the vehicle.
Nobody in the vehicle was a relative of the owner of the vehicle.
Q. How many people were in the vehicle? Did you notice at
this time?
A. Yes. There were four colored males.
Q. By colored, do you mean black?
A. Yes, I do.
Q. Okay. Go ahead.
A. Two in the front seat, two in the back seat.
-*
A-18
Douglas Nicot, for the People, Direct
Q. Four all together?
A. That’s correct.
Q. Go ahead. What did you do next?
A. At that point I advised the driver that I did smell
marijuana and to please step out of the vehicle and in
[14]
succession the four occupants were taken from the vehicle and
placed under arrest for unlawful possession of marijuana.
Q. Okay. Now, did you later determine the identification of all
these four occupants of the vehicle?
A. Yes, I did.
Q. Do you recognize the defendant in this case?
A. Yes, I do.
Q. Okay. Would you point to him and state his name?
A. His name is Roger Belton.
MR. HARVEY: For the record, he has pointed out the
defendant at counsel table.
BY MR. HARVEY:
Q. Where was he located in the vehicle, do you recall?
A. Yes. He was sitting in the rear of the vehicle behind the
driver.
Q. Okay. And who got out of the vehicle first?
A. The fellow who presented a license in the name of Vance
who was driving the vehicle who later turned out to be Ronald
Sessum.
Q. Okay. Who got out next?
A-19
Douglas Nicot, for the People, Direct
A. The other passenger in the front seat who was a Mr. Brown,
Jerry Brown.
[15]
Q. Okay. Who got out next?
A. Mr. Vance.
Q. Okay.
A. And finally, Mr. Belton.
Q. Okay. And you placed all four of the individuals under
arrest for unlawful possession of marijuana at that time?
A. Yes, that’s correct.
Q. Then what did you do?
A. With this particular defendant?
Q. Yes.
A. Each particular defendant, individual, was patted down
after he got out of the car for the possibility of a weapon and I
split them up into four separate areas of the Thruway at this
time so they would not be in physical touching area of each other
and then I observed what was in the car.
Q. Okay. You went back to the car after you got all the
defendants segregated?
A. Yes. Weare all in close proximity of the car.
Q. All around the car?
A. Yes.
Q. You went back to the car for what purpose?
A. To retrieve an envelope which I had seen on the floor
A-20
Douglas Nicot, for the People, Direct
[16]
boards of the car, a small manila envelope approximately four
inches high and approximately two inches wide.
Q. You saw a small envelope where in the car?
A. On the floor boards, the front floor boards. It was on the
floor boards of the front seat near the passenger side.
Q. What did you do next with this envelope?
A. I determined that it did contain a trace of marijuana in the
envelope.
Q. Were there any markings on this envelope?
A. Yes. The envelope had been stamped “Supergold.” I seen
these initials before and evidently it’s a way of distributing—
MR. CAMBRIA: I object to “evidently,” Your Honor.
THE COURT: The court will disregard it.
BY MR. HARVEY:
Q. Have you seen this type of envelope before?
A. Yes, I have.
Q. Okay. Go ahead. What did you know it to be in your ex-
perience?
A. Containing marijuana.
[17]
Q: You say there was a substance in the envelope?
A. Yes, there was.
Q. Which you determined to be, with your experience,
marijuana?
A. Yes.
A-21
Douglas Nicot, for the People, Direct
Q. What did you do next?
A. At that point all four subjects were brought together and I
retrieved my summons book from my patrol car and I read their
rights under the Miranda decision to them jointly and then I
asked each one individually if they understood their rights and
they all answered in the affirmative. At that point, to check for
further contraband, each individual was searched, the contents
of their pockets was searched individually and then I completed
a search of the vehicle.
Q. Okay. What else, if anything, was in the vehicle at this
time, any items of civthing?
A. Yes.
Q. Go ahead.
A. During the search of the vehicle a black leather jacket was
located in the back seat, in the center of the back seat. A further
search revealed that there was a United States twenty dollar bill
in one pocket and
[18]
contained in that twenty dollar bill was a white crystalline
powder. In the opposite pocket there was a plastic bag containing
a larger amount of white powder.
Q. I show you People’s Exhibit 1 marked for identification and
ask you if you recognize it, Trooper Nidot?
A. Yes. I believe this to be the same twenty dollar bill I
retrieved from the pocket of the black leather jacket.
Q. How do you recognize it?
A. The evidence tag that was secured at State Police Junius
Ponds, New York by myself giving a description of the bill and
the contents of the white powder.
>
-~
A-22
Douglas Nicot, for the People, Direct
Q. Okay. Around the twenty dollar bill?
A. That’s correct.
Q. I show you People’s Exhibit 2 marked for identification and
ask you if you recognize it?
A. Yes, I do.
Q. What is it?
A. That is the plastic bag that was retrieved from the opposite
pocket of the black leather jacket containing a white crystalline
powder. It was also placed in a bag by myself along with this
evidence tag signed by me.
Q. And your testimony was that Peoplc’> Exhibits 1 and 2
[19]
marked for identification were found in opposite pockets, is that
correct, in the black jacket?
A. They were.
Q. What, if anything, else did you find in this jacket?
A. There were two marijuana cigarettes in a third pocket.
This jacket contained multiple pockets and there were two
marijuana cigarettes rolled up, unsmoked, and a further search
of the car revealed approximately five or six partially smoked
marijuana cigarettes in the ashtrays of the vehicle.
Q. Okay. Go ahead. What else, if anything, did you find in the
black jacket?
A. There was some identification in the name of Roger Belton,
a blue-cross and blue shield card, and I believe there was another
card, possibly 4 union type card with his name on it also.
Q. Okay. Do you still have these items in your evidence locker?
A. They are in my personal locker, yes.
A-23
Douglas Nicot, for the People, Direct
THE COURT: You say “These items.” You are now
referring—
THE WITNESS: The identification card only.
THE COURT: What happened to the
[20]
two marijuana cigarettes?
THE WITNESS: All four subjects were processed through
Justice Court in the Town of Phelps, all four for unlawful
possession of marijuana. The marijuana was forwarded for
destruction to the State Police Laboratory in Albany.
THE COURT: Is that also true of the five or six par-
tially smoked butts in the ashtrays?
THE WITNESS: Yes. I believe they were all forwarded. I did
retain the empty bag marked “Supergold.” I have that in my
possession.
BY MR. HARVEY:
Q. Along with the identification you found in the jacket?
A. That’s correct.
Q. Now, after finding this identification of the defendant
Roger Belton in this black jacket, did you have any conversation
with Mr. Belton?
A. Yes, I did. I had conversation with all four defendants at
that time.
Q. Go ahead.
A. I asked first of all if anyone owned the jacket. They all
denied ownership.
-%
A-24
Douglas Nicot, for the People, Direct
[21]
MR. CAMBRIA: Your Honor, at this time I’m going to
object to any statement attributed to Mr. Belton since I
was told there were none.
Now, if there are, then apparently it’s part of the
statement.
THE COURT: The question is not objectionable. It’s
premature. If there was an answer in the affirmative,
then you may renew the motion.
BY MR. HARVEY:
Q. Go ahead.
A. All four subjects denied ownership of the jacket and a
count of the clothing determined that this was a fifth overcoat or
jacket type piece of garment that was in the vehicle. There were
five outer garments.
Q. Four defendants, five jackets in the vehicle?
A. That’s correct.
Q. Did there come a time you placed all four defendants under
arrest for possession of the white powder I believe you
recognized as cocaine?
A. Yes.
Q. Is that correct?
[22]
A. That’s correct.
Q. What did you do with the black jacket in which People’s
Exhibits 1 and 2 in the identification of Mr. Belton came from?
A. After the jacket was searched thoroughly it was returned to
Mr. Belton when he was released from the Ontario County Jail
after posting bail.
A-25
Douglas Nicot, for the People, Cross
MR. HARVEY: Thank you. I have no further questions.
CROSS EXAMINATION BY MR. CAMBRIA:
Q. Officer, did you make any report or memo, note in con-
nection with this case?
A. Yes, sir, I did.
Q. All right. Do you have those with you?
A. No. They have been forwarded through the proper channels.
Q. Now, Officer, have you testified in hearings such as this
before?
A. Not in this courtroom, no.
Q. Well, in other courtrooms, is that correct?
A. Yes, I have.
Q. All right. And, as a matter of fact during the course of your
examination attorneys have asked you for those
[23]
notes, have they not?
A. Yes.
Q. So therefore you expected to be asked for those notes here
today, didn’t you?
A. No, I didn’t.
Q. You didn’t?
A. No, I did not.
Q. You are telling me that on several occasions or let me ask
you, on several occasions in the past have you been asked for
notes of prior reports you have made?
r%
A-26
Douglas Nicot, for the People, Cross
A. I don’t recall specifically ever having been asked for notes.
MR. HARVEY: Your Honor, I object. I don’t see the
relevance to this particular testimony. He testified he
made the reports and submitted them through channels.
He doesn’t have them today. I can’t see anything else that
is relevant.
THE COURT: We have a discovery motion. If he made
the reports, his credibility is just as, he has the same right
to be attacked in this proceeding and counsel is entitled to
have the notes for
[24]
purposes of cross examination. He is probably entitled to
an adjournment until they are produced.
MR. CAMBRIA: I will continue to cross examine. My
request stands for the prior reports and notes.
THE COURT: They have been denied until such time as
the witness testifies and that has related to the trial and
you also have the ri zht and I now grant you an order that
the notes on prior reports be furnished to you for your
purposes in cross examining the witness in this
proceeding.
MR. CAMBRIA: Thank you, Your Honor.
BY MR. CAMBRIA:
Q. Officer, you testified before the Grand Jury?
THE COURT: What are you going to do, ask for an
adjournment?
MR. CAMBRIA: I am, Your Honor.
THE COURT: You are entitled to it. They are not
available?
A-27
Douglas Nicot, for the People, Cross
THE WITNESS: Judge, all the reports for this case have
[25]
been forwarded. I have some personal—
THE COURT: Forwarded where?
THE WITNESS: Forwarded through our channels, arrest
reports and investigative records. I have personal notes as to who
was sitting where, referring to—
THE COURT: Counsel has an absolute right to have
prior records for the purpose of impeachment under the
cases.
THE WITNESS: I can obtain those.
THE COURT: That blows this hearing out of the water
it looks like to me.
MR. HARVEY: I suggest, Mr. Cambria continue. If he
still wants another shot at the witness, it makes no
difference to me.
MR. CAMBRIA: I would be willing to venture into
some cross, Your Honor, but I would really—
THE COURT: Where you present in Phelps? I am
concerned now. I don’t know whether the prosecutor
intends to call the other witnesses to confirm the smell of
[26]
marijuana. There has been no evidence authorizing a pat
down as I see it here so far. There has been nothing to
indicate what traffic violation, perhaps which marijuana.
There has merely been a violation. At that time there
would have been no authority for a pat down. The stuff
was not found as a result of a pat down. The presence of
burned cigarettes in the cigarette ashtray would tend to
;%
A-28
Douglas Nicot, for the People, Cross
reenforce the credibility of the defendant — excuse me —
of the witness since we had a whole line of sniffing cases.
Did you defend this defendant in Phelps Justice Court?
MR. CAMBRIA: No, not at all, Your Honor.
THE COURT: Did you any defendant?
MR. CAMBRIA: No, sir. They all were unrepresented.
THE COURT: What was presented there?
MR. HARVEY: On the violation
[27]
Mr. Cambria wasn’t involved. The defendants went in
and pled guilty right out of the box so to speak and the
other matter was held for the preliminary examination.
THE COURT: Violation of a misdemeanor?
MR. CAMBRIA: Charged with a violation.
My understanding, Your Honor, is a plea was extracted
before they were released. At that time, while they were
in custody, there were some representations made so, as I
say, I am not even convinced of the validity of the plea
but, nonetheless, it was a violation.
THE COURT: Well—
MR. CAMBRIA: Your Honor, obviously it’s important
to me to see the other eports, all the reports.
Ultimately, it still seems to me, we are getting down
not only to a pat down but then too—
THE COURT: Pat down seems to go
[28]
out of this case since nothing was discovered. It’s just part
of the res gestae. It didn’t seem to me to be offensive since
it didn’t produce anything.
A-29
Douglas Nicot, for the People, Cross
MR. CAMBRIA: I think —
THE COURT: It didn’t produce anything on the
testimony so far. hee
MR. HARVEY: No.
THE COURT: Then you have smell and you have a
warrantless search for contraband.
MR. CAMBRIA: In the jacket. If we are talking about
burned marijuana, it seems to me being in a ashtray as
opposed to a jacket, even if we assume that the smell is
valid and genuine and so not unlimited authority to
search.
THE COURT: You are into a limited search area
although after the arrest was made. You and I are both
familiar with the line of cases.
Are you willing now to proceed without the officer’s
reports? If not, I would
[29]
think in the interest of justice you are entitled to an
adjournment until they can be produced. I am reluctant
to do that but you are on the trial calendar but your case
is at the tail end so I can squeeze you in for a continuance
of this hearing until you are reached for trial.
MR. CAMBRIA: Your Honor, I wonder if we could
conduct perhaps the rest of the or as far as I can go today?
THE COURT: Perhaps subject to recall?
MR. CAMBRIA: Subject to recall and asking for the
reports.
THE COURT: Mr. Harvey?
A-30
Douglas Nicot, for the People, Cross
MR. HARVEY: Whatever the court and counsel! desire,
Your Honor, it makes no difference to me. I certainly will
make, have Trooper Nicot produce the records. That much
I can assure the court will be done. It will probably be by
this afternoon.
THE COURT: All right. We will proceed without
prejudice to the right-
[30]
What am I going to do about making a decision and
findings of facts and conciusions of law?
MR. CAMBRIA: Your Honor, I think we might—
THE COURT: You can tell me whether you wish to
continue or close at the end.
MR. CAMBRIA: All right. Thank you.
BY MR. CAMBRIA:
Q. Officer, did you testify before the Grand Jury in this case?
A. Yes, I have testified.
Q. Did your testimony there relate to the subject matter to
which you have testified to today?
A. Yes.
MR. CAMBRIA: May I have the Grand Jury testimony?
MR. HARVEY: Sure.
THE COURT: So ordered.
Woud you put on the record the page numbers you are
furnishing please.
MR. HARVEY: Sure will, Your Honor.
A-31
Douglas Nicot, for the People, Cross
[31]
I am providing counsel with pages 3 through 20 of the
Grand Jury testimony of this witness.
MR. CAMBRIA: Thank you. May I have a moment,
Your Honor?
Thank you, Your Honor.
THE COURT: Have you had adequate time to examine
the minutes?
MR. CAMBRIA: Yes, I believe so.
THE COURT: Then you may proceed.
BY MR. CAMBRIA:
Q. Now, Officer, you testified here you were driving on this
Thruway and this car started to approach you from the rear, is
that correct?
A. That’s correct.
Q. And you were passing in the passing lane, is that correct?
A. That’s correct.
Q. And you started to speed up, is that correct, and the car
caught up to you, is that true’
A. No. I speeded up to the point where the car was not gaining
on me anymore.
Q. All right. And then you pulled over and ultimately the
[32]
car passed? ;
A. That’s right, After I got a clock on the passing vehicle in the
passing lane, I pulled in the driving lane and allowed the vehicle
to pass.
A-32
Douglas Nicot, for the People, Cross
Q. Now, I believe you walked up to the driver’s side of the
vehicle and the driver rolled the window down and you asked for
the registration and license and he produced it?
A. That’s correct. He pulled a valid license out that was not—
Q. And he produced the registration?
A. That’s correct.
Q. And I think at sometime subsequently you found out that
the license that was produced wasn’t his driver’s license, is that
correct?
A. That’s correct.
Q. All right. Now, is it your testimony that the first person you
took out of the car was the driver?
A. That’s correct.
Q. And did you have your service revolver pulled at that time?
A. No. I had no reason to.
Q. All right. And you took the driver out of the car, is that
correct?
[33]
A. I just asked him to step out of the car, yes.
Q. And when the driver— Did you take all four out at once or
did you take the driver out and then the others in order?
A. In order, yes. It was a two door vehicle and it was hard to
get—
Q. It was a two door vehicle?
A. I believe it was, yes.
Q. Are you sure about that?
A. I’m not positive but, as I recall, it was.
A-33
Douglas Nicot, for the People, Cross
Q. All right. Nonetheless, you took the driver out and then you
searched the driver, is that correct?
A. Just patted him down, I didn’t search every content of his
pockets. I just wanted to make sure he didn’t have a weapon with
him.
Q. Did you tell him to empty his pockets?
A. At that point, no, I did not.
Q. Your testimony is you patted him down on the outside of his
pockets?
A. That’s correct.
Q. Now, in the meantime, the other three people were inside
the car, is that correct?
A. That’s correct.
[34]
Q. So then did you take them out one at a time, is that correct?
A. That’s correct.
Q. And you patted them all down, is that true?
A. Right.
Q. All right. And you never had your own service revolver
pulled at that time? You were working on one person at a time?
A. That’s correct.
Q. All right. Now, you didn’t find any weapons, is that correct?
A. I did not.
Q. All right. And now you have four people outside, is that
true?
A. That is true.
A-34
Douglas Nicot, for the People, Cross
Q. And they ‘were outside because you directed them to be
outside, is that correct?
A. That's correct.
a. And had you arrested the driver for speeding?
A. Yes.
Q. All right. Now, you testified here—
THE COURT: At what stage did you place the driver
under arrest for speeding?
[35]
THE WITNESS: As he was getting out of the car Judge, I
informed him the reason I stopped the vehicle is that he was
speeding and I would issue him a summons for exceeding the
speed limit. The summons wasn’t physically written at that
point but the driver was aware of the fact why I stopped the
vehicle and he would be given a summons for speeding.
BY MR. CAMBRIA:
Q. Now, do you recall testifying before the Grand Jury that
you asked all of the suspects, or subjects as you said, to get out of
the car together, all at once? Do you recall saying that?
A. That would have been physically impossible. They all did
get out.
Q. Excuse me, Officer. Do you recall making that statement.
A. No, I do not.
Q. All right. Now, Officer, midway down Defendant’s A there
is a question to you: What did you do then? And the answer is:
At that point, I asked the subjects to exit the car together, driver
from the driver’s side out
A-35
Douglas Nicat, for the People, Cross
ae ; [36]
and then the other thres-suhiects exited from the passenger’s
side, the north side of the Thruway.
Did you make that statement?
A. Yes, I did.
Q. Now, did you have all of them get out at the same time or
does this statement mean something else?
A. Well, they didn’t all four of them just jump out at the same
time.
Q. I understand that.
A. They were all asked to get out of the car. They were in-
dividually patted down as they got out of the car.
Q. The question is this: Did you, as you said on direct
examination, were you patting one down with the other three in
the car or did you get all four out of the car and then start
patting them down?
A. As the driver got out of the car, I did pat him down. He
walked to the rear. I followed him to the rear of the vehicle that
was stopped. At that point I walked to the driver — excuse me —
passenger side of the car where Mr. Brown exited from the front
seat and he was patted down. The two subjects in the back seat
then exited through the passenger's side.
[37]
Q. So you didn’t do them all at once?
A. The were asked to get out. They were getting ready to get
out of the vehicle. One subject had been sleeping in the vehicle.
One, I believe, had his shoes off so it took a matter of seconds for
them to exit the vehicle.
A-36
Douglas Nicot, for the People, Cross
Q. Now, Officer, is it your testimony here today that you
immediately piaced them under arrest for a violation of
possession of marijuana?
A. As they were patted down, you know, they were split up and
then I retrieved the bag which contained marijuana.
Q. Now, let me ask you a question. All right. So it’s a fact chen,
when you got them all outside, they were not as yet under arrest
for violation of marijuana, correct?
A. That’s correct.
Q. Prior to the pat down they were not under arrest for
violation of marijuana, is that correct?
A. That’s correct.
Q. Now, after the pat down is it your testimony that you look
into the car and you see this envelope we are talking about?
A. Prior to that I had smelled the marijuana.
Q. I understand that. After the pat down did you look in and
see this envelope?
[38]
A. I seen it previously. I went back to retrieve it after the pat
down.
Q. Now, I believe you said there was a trace of marijuana in
the envelope?
_A. That’s correct.
Q. You didn’t see that from the outside?
A. No.
Q. Until you opened it?
A. No. I saw the envelope stamped “Supergold” in large letters
and I have seen envelopes similar to that before.
A-37
Douglas Nicot, for the People, Cross
Q. Now, let me ask you a question: Don’t those envelopes
contain cigarette papers usually?
A. No, they do not. That contains marijuana and that is the
way it is bought. Also retrieved was a—
Q. Let me back up a second. What you are saying is: You see an
envelope and this envelope says “Supergold” on it and that is a
bag of marijuana. In other words labeled right on it “Marijuana
Supergold”.
A. It was labeled “Supergold” and I have seen that before, the
same type of envelope.
Q. How many times?
A. I think on two different occasions prior to this occasion I
have seen envelopes stamped “Supergold” envelopes of
[39]
the same size, same type of stamp and in both cases or both
points in question they did contain marijuana or traces of
marijuana.
Q. Okay. Now, in this particular case you saw this envelope
and you saw the markings on it but you couldn’t see the
marijuana, right?
A. No, I only smelled it, true.
Q. And obviously the envelope itself, if that is what was there
and nothing else, that is not a crime?
A. No, it wasn’t.
Q. You wouldn’t arrest someone for that, would you?
A. The envelope?
Q. Yes.
A. There was enough—
A-38
Douglas Nicot, for the People, Cross
Q. Just a minute. Just the envelope?
~ Ter tte
A. No, I wouldn’t make an arrest.
Q. That envelope that said “Supergoid”, if it didn’t have
anything in it, you wouldn’t have arrested them fer that, is that
correct?
A. No, I would not.
Q. So in this particular case you had the basis for your arrest
when you saw what was in the envelope, is that correct?
[40]
A. No. I would say—
Q. Excuse me. Is that when you felt you had the basis to arrest
them for violation of marijuana?
A. No.
Q. All right. When was it?
A. My basis for the arrest is when I first approached the
vehicle and smelled the marijuana. What I was trying to
determine is how many in the vehicle were smoking and how
much more contraband was in the vehicle.
Q. Let me ask you this question. You mean to tell me you
arrested them on the smell alone?
A. No.
Q. All right. All right then, what did you arrest them on?
A. What did I arrest them on?
Q. Yes.
A. What I arrested them on was the fact I did retrieve an
envelope that did contain a small amount of marijuana.
Q. Okay.
A-39
Douglas Nicot, for the People, Cross
A. Which previously I had smelled marijuana which led me to
believe marijuana was present in the vehicle.
Q. Let me ask you this: If you just smell it and never found
anything, would you have arrested them?
A. If I just smelled it and I didn’t find anything?
[41]
Q. Right.
A. I wouldn’t have the basis for an arrest.
Q. Okay. If you just found the envelope and you had smelled it
but you hadn’t found anything in the envelope, would you have
arrested them?
A. If I had just found a plain envelope?
Q. No, that envelope and nothing in it and your smell, would
you have arrested them?
A. No, I would not.
Q. So, in other words, when you saw the stuff in the envelope,
that is when you had the basis to arrest them, is that correct?
A. That was the point when they were placed under arrest.
Q. Now they had already been taken out of the vehicle and
they had been patted down, is that correct?
A. That’s correct.
Q. All right. So, in other words, you directed them to get out of
the vehicle, is that true?
A. That is true.
Q. By doing that you caused them, obviously, to open the doors
on the vehicle and get out of the vehicle, is that true?
A. That is correct.
A-40
Douglas Nicot, for the People, Cross~
[42]
Q. Now, you say when you came up to the vehicle you say you
smelled burning marijuana, is that true?
CC ——_—
A. Burnt marijuana.
Q. Did you go— Well, strike that. Let me ask you this. I take it
you patted them down all outside and then you go and retrieve
the envelope?
A. I did.
Q. Or did you search the jacket first?
A. No, I retrieved the envelope first.
Q. Okay. And then did you go into the ashtrays and look in the
A. Yes, I did.
Q. All right. Was this before or after you searched the jacket?
A. Before.
Q. Okay. Therefore, you were looking for this burnt marijuana
you said you smelled, is that correct?
A. That’s correct.
Q. And you found it in the ashtrays?
A. I found some roaches or partially burned cigarettes in the
ashtray. I could not tell if they had been recently put out or they
had been there previously.
_—
—
Q. Okay. But in any event the smell you are talking about
[43]
is the result of something that was burning, is that true?
A. That is true.
A-41
; Douglas Nicot, for the People, Cross
Q. So you went to that area of the car where burning things are
usually put and that is the ashtrays, right?
| A. Correct.
Q. Now, this jacket we are talking about with the pockets that
you say contained the alleged cocaine here, that was zipped up,
wasn’t it?
A. I think that jacket contained four or six pockets.
Q. My question is: The pockets contained zippers and the
zippers were zipped up?
A. The twenty dollar bill or you are referring to the plastic
bag?
Q. The pocket containing the alleged cocaine. Let’s say the
plastic bag and make it perfectly clear.
A. The plastic bag was not in a pocket zipped up. The twenty
dollar bill—
Q. Which was zipped up?
A. That was zipped up, right.
Q. Okay. So now what you have done then is you have actually
searched the entire car, everything you found in the car?
[44]
A. And the contents, correct.
Q. And the cocaine search we are talking about came after the
marijuana search was completed, is that correct?
A. No, I don’t search for one particular drug and then go back
and search for another particular drug.
Q. You went into the ashtrays, did you not?
A. Yes, I did.
A-42
Douglas Nicot, for the People, Cross
Q. Then the jacket search came after that, is that correct?
A. Yes.
Q. Did you pat the jacket down before you searched or did you
go right into it, start taking EoaRa vut?
A. No, I believe I patted it down.
—~————
, Q. Did you feel a weapon?
nme No, I did not.
Q. Now, I take it first of dif*Uificer, the people in the car were
initially detained as a result of your traffic violation, is that
correct?
A. No, that is not correct.
Q. Well, what was the first thing that made you stop them?
A. The speeding.
Q. Okay. So you initially stopped them and detained them as a
result of a traffic violation, is that correct?
A. No. If it had only been a traffic violation, they would
~~ es,
;
[45]
not have been detained.
Q. All right, the smell of marijuiana.
A. That’s correct.
Q. That is what made you detain them?
A. That’s correct.
Q. Now, Officer, is it your testimony here that you never told
any of these people when they got out of the car to empty their
pockets?
A-43
Douglas Nicot, for the People, Cross
A. Not when they got out of the car, no, sir.
Q. Did you do that at anytime?
A. Yes, I did.
Q. When was that?
A. After they were placed under arrest, after they were
advised of their rights and prior to transportation in my car.
Q. And I take it that was after you found this residue in the
envelope we are talking about?
A. Yes.
Q. Did you test it at the scene, the residue?
A. No, I don’t have means to test it at the scene.
Q. How much are we talking about in this envelope?
A. In the envelope, just a very minor case.
Q. Well, was it a seed?
[46]
THE COURT: Do we have a glass bag and envelope in
this case?
MR. CAMBRIA: Yes. We are talking about the en-
velope on the floor, right?
MR. HARVEY: The envelope with marijuana.
THE WITNESS: A manila colored envelope that was on the
floor.
BY AR. CAMBRIA:
Q. All right, how much was in there? You said a trace. What
are you talking about seeds, stalks?
A. Enough of the seeds to identify it and yes, there was some
small pieces of leaf material.
A-44
Douglas Nicot, for the People, Cross
Q. But I take it you had to pick the envelope up, open it up and
look in it to see this material, is that correct?
A. Yes, I did.
Q. Was there any smoke emanating from this envelope?
A. No.
Q. Was smoke or anything emanating from the jacket?
A. No.
Q. Okay. So you didn’t smell burning marijuana in the jacket
and you didn’t smell it in the envelope specifically?
A. Specifically, no. It was just the odor was present in the car.
he a [47]
Q. In the car, okay.
MR. CAMBRIA: Pardon me one moment, Your Honor.
Your Honor, I believe that would be all I would have at
this time until I acquire the notes or reports.
THE COURT: The next witness on direct.
MR. HARVEY: No other questions.
THE COURT: The people rest?
MR. HARVEY: That’s correct.
THE COURT: Do you wish to have a few minutes?
MR. CAMBRIA: As I say, Your Honor, we are not going
to put anything on at this time although I would like—
THE COURT: No. If you have taken this procedure —
Well, I want to dispose of it here. Are you asking for a
continuance?
MR. CAMBRIA: Your Honor, I would be prepared at
this point to do this in two steps.
A-45
Douglas Nicot, for the People, Cross
[48]
THE COURT: What I want to do — Of course, you have
legal rights.
Mr. CAMBRIA: What I would like to do, Your Honor,
frankly, based on the testimony we received so far, the
people having the obligation to go forward to sustain the
search into the jacket—
THE COURT: Make your appropriate motion.
MR. CAMBRIA: With regard to that, I would obviously
like to under the circumstances as well as if the court
denies it.
THE COURT: I am thinking about the procedure here.
Your motion may be premature if you are going to
request notes and enumeration of the exhibits, what
happened to the envelope and tracings through the police
records, the marking identification.
~~ Tf the roaches were seized and subsequently destroyed,
there should be a record concerning that, all relating to
[49]
credibility. It seems to me a motion to dismiss at this
time would be premature. You are going to try your case
the way you want to.
MR. CAMBRIA: All I was saying, Your Honor, is I
would like to make the motion but subject to denial being
able then to reopen.
THE COURT: All right then, your motion to dismiss for
failure to prove facts sufficient to deny an order of
suppression at this time is denied for the following
reasons:
You may step down, Officer.
A-46
Douglas Nicot, for the People, Cross
This is not the case of a routine, an isolated road check.
The Officer had, and I find beyond a reasonable doubt—
MR. CAMBRIA: Excuse me, Your Honor. May I say
this, that it seems to me that if these other matters are
produced for me and I am able to cross examine the of-
ficer, then it seems to me findings of fact would be
premature.
[50]
THE COURT: But in order to deny your motion, I have
to state a basis.
MR. CAMBRIA: Then I think the motion should not be
made at this time, it should be withdrawn and we go
through the rest of it.
THE COURT: All right, it will be continued.
Transcript of Proceedings (Continued)
August 2, 1978
[2]
MR. HARVEY: Trooper Nicot?
THE COURT: You are still under oath, Trooper Nicot.
The people rested, according to my notes.
MR. CAMBRTA: I think this is the people’s witness.
MR. HARVEY: Cross.
MR. CAMBRIA: This is cross of the people’s witness.
CROSS EXAMINATION BY MR. CAMBRIA CONTINUED:
Q. Trooper, my recollection is that last week when you
testified, you said that you came up to the car on the Thruway
~——
Se
A-A7
Douglas Nicot, for the People, Cross
and that at a particular point in time you smelled the odor of
burning marijuana, is that correct?
A. Burnt marijuana, yes, sir.
Q. And at that time I believe you also testified that eventually
you ordered these fellows out of the car, is that correct?
A. That’s correct.
Q. You patted them down, is that correct?
A. That’s correct.
Q. And then you went back into the car and looked at an
[3]
envelope which said “Pure gold,” something such as that on it, is
that correct?
A. “Supergold,” that’s correct.
Q. All right, supergold. Then you looked in the envelope, is
that correct?
A. Yes, that’s correct.
Q. And discovered the residue of marijuana or what you
believed to be marijuana, is that correct? .
A. There was marijuana, yes.
Q. Then I believe you testified you arrested the defendants for
possession of that, is that correct?
A. Yes, that’s correct.
Q. I take it at that point and this was before you got to the
jacket, is that correct?
A. That’s correct.
Q. So at that point in time it was fairly clear you had at least
one arrest, is that correct?
—_~
A-48
Douglas Nicot, for the People, Cross
A. No, Thad four.
Q. I’m sorry. You had four people under arrest for possessing
marijuana, is that correct? |
A. That’s correct.
Q. And this was prior to the time you discovered the material
in the jacket, is that correct?
[4]
A. That’s correct.
Q. All right. Now I take it at that point in time, let’s assume
you haven’t found anything else, it’s obvious these guys were
under arrest and they were going in for marijuana, is that
correct?
A. They were under arrest, yes.
Q. Okay. Now, Officer, eventually you say you came around
and looked intw the jacket, is that true?
A. Yes, during the search of the car the jacket was searched.
Q. Okay. And I believe you testified at the time you did this
these fellows were outside the car, is that correct?
A. That is correct.
Q. Now, I believe yuu also testified that the jacket had some
pockets in it and you found these items in the pockets, is that
correct?
A. That is correct.
Q. And one of them was zippered, is that true?
A. Pardon me?
Q. One of them had a zipper on them and it was zippered?
A. Two of the pockets had zippers.
A-49
Douglas Nicot, for the People, Cross
Q. Okay. Two of them were zippered?
A. That’s correct.
(5)
Q. And in one pocket you found a twenty dollar bill, is that
correct?
A. That’s correct.
Q. And in another pocket or perhaps the same one you found a
blue cross and blue shield card, is that true?
A. There was a blue cross and blue shield card, yes.
Q. Found in one of the pockets?
A. Yes.
Q. Now, you actually picked the jacket up, did you not? I
mean, you had it right in your hand, is that correct?
A. Yes, I did.
Q. That was before you went into it?
A. I don’t recal! whether before I reached in the pocket or not.
Q. At that point in time though, you put the jacket in your
possession, is that true?
A. I searched the jacket, yes, in the car.
Q. Did you take it with you?
A. I don’t recall whether I took it to the station or not.
Q. You don’t know if you ever took it to the station?
A. I believe I did. I’m not positive.
Q. Well, would it refresh your recollection that you testified
last week that you had it and that at the end
74%
A-50
Douglas Nicot, for the People, Cross
[6]
of the proceedings before the Judge you gave it back to somebody
for the family, do you remember?
A. Yes. It was returned to the defendant.
Q. So you took it with you from the scene down to the police
station, is that correct?
A. I don’t know if it ever was in the police station.
Q. Well, where did you take it?
A. It may have remained in my patrol car. I’m not sure.
Q. But, nonetheless, it was in your possession?
A. Yes, it was.
Q. Now, where did you take these gentlemen from the scene on
the Thruway? Where did you go?
A. Back to the state police station at Junius Ponds, New York.
Q. All right. And did you make arrangements for a Judge to
appear?
A. Yes, there was a Judge made available.
Q. All right. And was he made available as a result of a call
placed by you?
A. Yes.
Q. Did you do that while you were on the Thruway?
A. Yes.
Q. So apparently he was waiting for you, is that correct?
[7]
A. He was after I called him at the station. I called him from
the Thruway Station.
+ oot
A-51
Douglas Nicot, for the People, Cross
Q. Alli right. So then he was alerted or you attempted to have
him alerted as a result of your call on the Thruway, is that
correct?
A. No. I called him on the telephone at the station.
Q. Did you make any call prior to that time?
A. Call to the Judge?
Q. Yes.
A. No, I did not.
Q. All right. So eventually the Judge then shows up at the
station?
A. No.
I'm sorry. Did you ta xe the defendants to the court?
. That’s correct.
And is that close to the station?
No.
How far away is it?
It’s about six miles, seven miles. ;
All right. It’s not a real long distance?
No.
. So you took all the defendants there and the charge laid
against them included this charge for marijuana
O>OPrPeoropre
(8)
possession, is that correct?
A. The charges were written out formally at the state police
station in Junius Ponds prior to going to the Judge’s residence.
Q. Okay. You lodged the charge of marijuana at the scene, is
that correct?
A-52
Douglas Nicot, for the People, Cross
A. That’s correct.
Q. All right. And then when you got to the Judge, there was a
marijuana charge and there were others, is that true?
A. That’s correct.
Q. All right. Now, Officer, did you prepare any reports in
connection with this?
A. I did.
Q. All right. And may I have them? Do you have them with
you?
A. Yes. Do you want just the report I prepared?
Q. Everything that you have that constitutes a report or
reflection of your testimony here today and last week.
THE COURT: Those reports that you made.
MR. CAMBRIA: Yes.
THE COURT: Or reports others
[9]
made based on any statement you might have made to
them.
THE WITNESS: Yes. These are the rough copies that were
made at the time of the arrest including a note on there as to
who the owner of the vehicle is. On the back it reflects some
information relative to where the car and where the cocaine was
discovered.
BY MR. CAMBRIA:
Q. All right. The report reflects that you arrested the defen-
dants for possession of marijuana, is that correct?
A. That’s correct.
Q. And also the suspected cocaine, is that true?
A-53
Douglas Nicot, for the People, Cross
A. That’s correct.
Q. Thank you. Now, when did you make these reports, Officer?
A. The day of the arrest.
Q. All right. I’m sorry. Maybe to save some time, could you
point out the date to me, the date the report is made?
THE COURT: You may approach the witness.
MR. CAMBRIA: Thank you.
THE WITNESS: (Indicating)
[10]
BY MR. CAMBRIA:
Q. Thank you. Now, are there any other reports or statements,
Officer, which in anyway reflect upon the events here?
A. Yes.
Q. All right. And where are they?
A. Right here.
Q. All right.
A. These are the finished copies of the arrest report for the
four subjects. These are the four arrest reports for the marijuana
violation. These are the four arrest reports for the criminal
possession fifth degree.
Q. All right. You said finished reports. When did you finish
them?
A. I believe they were finished later on the day of the arrest
and subsequently were forwarded through our station, I believe
two days later. Physically I finished the reports that day, as I
recall.
Q. Now, are there any other narrative, narrative reports? In
other words, a recollection or a recitation of the facts by you?
&%
A-54
Douglas Nicot, for the People, Cross
A. No.
Q. So this is it?
A. Here is some other reports relative to the evidence. A
[11]
report that was made by me? This is an evidence report showing
all the evidence that I had was turned over to Inves. Simbari.
Q. Would you just hand them to me, please. Now, eventually
there carne a point in time when one of the defendants pled
guilty. Apparently pled guilty to a marijuana possession, is that
correct?
. That is correct.
And that was at the scene of the Judge, is that correct?
That was at Judge Adam’s residence where he holds court.
And the individual there didn’t have a lawyer, did he?
. Pardon?
Did the individual have a lawyer?
No, he waived his right.
Excuse me, Officer. My question was: Did he have a lawyer?
. No, he did not.
Q. All right. Thank you. What was the disposition? Strike
that. Let me ask you this, Officer: What did you do with the
items that you had seized? In other words, this envelope we are
talking about, the roaches I think you testified about, the
matters you found in the pocket of the jacket. What did you do
with those items?
> OPrPOoPr Oo > oO >
[12]
A. The roaches, the contents of the ashtrays from the vehicle
along with one partially burned marijuana cigarette, the twenty
A-55
Douglas Nicot, for the People, Cross
dollar bill containing the suspected cocaine, the plastic bag with
the suspected cocaine was all turned over to Inves. Simbari at
State Police, Canandaigua.
Q. What did you do with them actually from the premises?
Did you put them in some kind of an envelope and transport
them to the station or what?
A. When I left the vehicle en route to State Police, Junius
Ponds?
Q. Yes.
A. The cocaine was left in the jacket until I got to State Police
Junius Ponds.
Q. So you took the jacket with you then?
A. That’s correct. It was in the vehicle.
Q. All right.
A. I don’t recall whether I physically had it inside the station
or not.
Q. In your vehicle?
A. Pardon?
Q. In your vehicle?
A. In my vehicle, yes.
Q. Go ahead.
[13]
A. The marijuana was placed into an envelope and trans-
ported to the State Police Junius Ponds Station where an
evidence tag was made out and it was secured in another brown
envelope with the evidence tag attached to it.
Q. Okay. In any event, did you ever cuff any of these four
defendants?
A-56
Discussion
A. No. I only had one set of handcuffs.
Q. So you just put them in your vehicle?
A. That’s correct.
Q. Okay. And I suppose you got a little bonus arrest, didn’t
you? You had one for marijuana and then you found this other
material so now you had two.
A. Wedon’t have such a thing as a bonus arrest.
Q. You know what I mean. You had another one. You already
had one and then you found another one, is that correct?
A. Yes, there was more than one arrest made.
MR. CAMBRIA: Okay. At this point, Your Honor, I
have nothing further.
MR. HARVEY: No other questions.
THE COURT: Proofs are closed.
Discussion
[14]
Mr. Cambria?
MR. CAMBRIA: Yes, Your Honor. | will attempt to be
brief, Your Honor but I think under the circumstances
and probably the very unique circumstances, recently I
have discovered a U.S. Supreme Court case which I think
covers this case. Specifically it is the United States v.
Chadwick and I have a copy of it here. I’m sorry I don’t
have the official citation.
THE COURT: Was that the search of the trunk of the
vehicle?
MR. CAMBRIA: That’s right.
A-57
Discussion
[15]
THE COURT: I have the citation.
MR. CAMBRIA: Thank you, Your Honor. I would like
to say first of all—
THE COURT: I have also read it.
MR. CAMBRIA: The search of the car, Your Honor, I do
not believe that the discovery of the so called smell and
certainly we are at the officer’s mercy with regard to
smell, and the search of the ashtray and search of the
envelope all occurred prior to the discovery of the jacket
and the officer testified that he arrested these in-
dividuals—
THE COURT: Excuse me, Mr. Cambria. It’s been some
time since I read the Chadwick case. I think it was
exigent circumstances, wasn’t it?
MR. CAMBRIA: That’s right.
THE COURT: Might I have a copy of the decision.
MR. CAMBRIA: That is the only one I have, Your
Honor in Chadwick.
THE COURT: I will let him read _
[16]
it before he responds.
MR. CAMBRIA: In Chadwick, Your Honor, the im-
portant decision, as Your Honor pointed out or the
important factor is exigent circumstances. In that
particular case some FBI agent had the most probable
cause that probably anyone could have for searching for a
drug. They had a dog, taltum powder coming out of the
trunk, they had an experienced railway official telling
A-58
Discussion
what they observed and there is no question that is a
traditional way drugs have been shipped, talcum powder
and so on, Then the FBI agent comes in. They watch
individuals take the trunk, place it into the open trunk of
their car, their vehicle which is outside the train station
and running. At that point in time they go up and arrest
the two individuals for the possession of a controlled sub-
stance based upon the tremendous showing of probable
cause that they had in that case. They then take the trunk
into their possession
[17]
which weighed two hundred pounds. They take it down to
their facility and they then search the contents of the
trunk and the issue before the Supreme Court and, in
fact, all the courts as it went up is was there exigent cir-
cumstances for searching the trunk without a warrant.
Now, the government attempted to say this came
within the warrantless car search exception and,
therefore, they should be able to search the trunk but the
U.S. Supreme Court and all the other courts that ruled on
the case said that there was no exigent situation and the
reason was because the men were already under arrest.
There was no threat that the material would be wisked
away or anything else, it was readily able to be taken into
custody by the police officer as it was in that particular
case and that regardless of the fact that they had much,
much probable cause, the point of the matter still is there
was no exigent situation because of the predicate arrest.
[18]
Now then, the court then went on to attempt to
distinguish the difference between the search of a car
exception and the search of a personal property located
_—_—
A-59
Discussion
within a car and the Supreme Court said in the car ex-
ception there is not an expectation of privacy as there
would be in personal property, the reason being it’s a
transportation article, the things that are inside, the
articles, are things that usually are in plain view. An
individual inside of that car does not expect that the car
itself would afford him that much personal privacy.
Now the Supreme Court has only gone one step beyond
and the obvious case is Opperman v. South Dakota where
they permitted the search of the glove compartment only
because the ownership papers may be found in the glove
compartment but both Opperman and Chadwick said that
personal property stands on different footing and I might
read from the Supreme Court decision
[19]
one important quote: “One has a lesser expectation of
privacy in a motor vehicle because its function is trans-
portation and it seldom serves as one’s residence or as the
repository of personal effects. It travels the public
thoroughfare where both the occupants and the contents
are in plain view”.
The court then went on:
“A person’s expectation in privacy in personal luggage
are substantially greater than in an automobile”. The
court then said: “Once the law enforcement officers have
reduced the luggage or other personal property not
immediately associated with the person of the arrestee,
then and there they have reduced it to their exclusive
control and there is no longer any chance that the
arrestee might gain access to the property or seize a
weapon or destroy the weapon and it is no longer within
the “incident to arrest” circumstances”,
&
A60
Discussion |
Now, in this particular case we have
| [20]
no exigent situation because the officer tells us they were
all under arrest for marijuana. They are people from out
of town. They are on the Thruway. There is no question
what is going to happen to them. They are already in
custody. Then the personal property that we are talking
about, the jacket, we have e.en a greater expectation of
privacy in a jacket than you would have in a trunk. What
could be more personal than the contents of someone's
pocket. In this particular case we look at the jacket. We
find a twenty dollar bill. That is a very personal item. We
find a very personal medical card. That is a personal
item. There is no question of the expectation of privacy
with regard to the contents of that pocket. We don’t have
a two hundred pound jacket. We have a jacket which the
officer tells us he takes with him to the station.
At that point in time, Your Honor, I would submit to
you that the exigent
[21]
situation disappeared with regard to these personal items
and then it was up to the officer to go to the magistrate
and spread out before him what he has and see whether
or not a warrant would be issued and here we even had a
magistrate within a short period of time.
I might point out in Judge William Ringel’s book which
I am assuming you have on search and seizure, the 1967
supplement, he points to People v. Counterman which is a
Supreme Court of Colorado decision and is cited in 556
Pacific 2nd, 41 in 1976. There the Supreme Court of
Colorado held that the car exception does not apply to a
A461
Discussion
knapsack that happened to be in that vehicle and I think
we certainly have the same thing here.
In Chadwick, ‘because of the fact they were arrested the
exigent situation was gone and the expectation of per-
sonal privacy was much more than the vehicle.
It was ruled to be unlawfully taken
[22]
and, Your Honor, I submit to you in the particular case
here we have exactly the same thing.
THE COURT: All right. Mr. Harvey?
MR. HARVEY: I won't be long. I have another lawsuit
on my mind at this time, Your Honor.
THE COURT: For the record, I am handing counsel the
decision.
MR. HARVEY: Clearly this case, I don’t need to read it,
Your Honor I heard enough of Mr. Cambria, is
distinguishable. That is the case of the People v. Belton
and the circumstances are certainly distinguishable from
Chadwick. This is a jacket laying in plain view on the
back seat. He had every right, the officer, to execute his
search, or the gathering of evidence or potential evidence
at that point in time when he issued an appearance ticket
or placed these people under arrest for a violation which
he admits of marijuana which provides for an appearance
ticket
[23]
under the law. Certainly it would be telling the officer
not to do his job. This is certainly the circumstance and it
is part of the vehicle. The case clearly holds it is not
personal property, i.e., a two hundred pound trunk that
’»%
A-62
Discussion
some individual tucked away in the vehicle but rather it
was in plain view and he would be remiss, the officer, in_
his duties if he did not continue under the circumstances
and obtain what he ultimately obtained. Under the cir-
cumstances of this case it was certainly a proper stop, a
proper look around the vehicle, certainly he smelled
something, and an all together proper warrantless search
in this particular case.
MR. CAMBRIA: Your Honor, I may say one thing. It
was certainly in plain view. In Chadwick the trunk of the
car is open and the trunk is sitting there and the motor
running.
THE COURT: Yes. How do you distinguish the fact the
search was made
[24]
at headquarters some two hours after it was taken into
custody in Chadwick.
MR. CAMBRIA: Your Honor, I think—
THE COURT: As I recall Chadwick, that was the
circumstance, was it not?
MR. CAMBRIA: It was about an hour, hour and a half.
THE COURT: He wasn’t going to go anyplace weighed
down with two hundred pounds there in the station
house, he could have gotten a warrant.
MR. CAMBRIA: Yes.
THE COURT: That is the point that catches my in-
terest.
MR. CAMBRIA: With regard to this, Your Honor, we
take the decision, we see that interest as the telling factor
as far as the Supreme Court is concerned. It’s the ex-
A-63
Discussion
pectation of privacy in the article and whether or not an
exigent situation exists. In this particular situation it
seems to me it’s just as easy to take that jacket. In fact,
easier to take this into
[25]
exclusive custody in taking the people downtown making
an issue of privacy and exigent situation. Those are the
things.
THE COURT: We have bifurcated this hearing so I
might be wrong on the facts and if so, correct me. There
was a search and discovery of cocaine occurring on the
road when the car was stopped, is that not correct?
MR. CAMBRIA: Yes.
THE COURT: Obviously you researched the case and I
compliment you on it because it certainly is a help to the
court. |
Are you also familiar with Daggie against the State an
Alaska Supreme Court case where a car was stopped after
a high speed chase and marijuana was in plain view and
they held that the seizure of a paper bag in the back seat
was okay because it was made contemporaneously with
the arrest even though the driver was out of the car while
the arrest was being made.
[26]
The court in that case said a search could extend only to
the visible area within easy presence of the suspect, not
closed places or closed containers which seems to me to be
a distinction which might be applicable as against
Chadwick.
MR. CAMBRIA: I am not familiar with it, Your Honor.
I would like the opportunity to read and be able to
7%
i
A-64
Findings and Conclusions
respond. It seems to me we are talking about personal
property as opposed to paper bags. It’s still a distinction
as far as privacy. Frankly, I don’t know the rest of the
facts in the case.
THE COURT: I am in a bind for time. I am prepared to
decide the motion. If you find something that would
justify a re-argument, I will certainly be liberal.
Findings and Conclusions
I make the following findings of fact beyond a
reasonable doubt and arrive at the following conclusions
of law.
I find that the state policeman, Douglas Nicot, was on
duty on April 9, 1978
[27]
and he noticed coming from behind him a late model
Chrysler automobile being operated at a high rate of
speed. He waited for it to come abreast of him and then he
pulled to the right and watched it pass and clocked the
vehicle doing seventy-five miles per hour in a fifty-five
mile an hour speed zone.
He at that time was driving an unmarked car. He
followed the vehicle and he stopped it. 3
He caused the driver to produce the registration and
caused him to get out. He crdered the others to get out.
He patted them down and found nothing as a result of the
pat down.
During the procedure he noticed the smell of burned
marijuana.
A-65
Findings and Conclusions
His subsequent search of the vehicle showed roaches,
marijuana residue and partially burned cigarettes in the
ashtray. He saw on the floor of the vehicle in plain view
an envelope marked “Supergold” which by his past
training and experience indicated
[28]
an envelope usually and customarily used for the
possession of marijuana.
They were arrested for possession of marijuana.
He observed a jacket laying inside the seat which
contained eight pockets, two of them were zippered.
In one of the pockets he found a card which identified
the jacket as belonging to the defendant in this case, Mr.
Belton.
In one zippered closed pocket not visible without his
having taken the jacket in his hand and without having
unzippered the pocket, he found the twenty dollar bill
rolled up in which was a substance which he had grounds
reasonably to believe was cocaine and later, for the
purposes of this hearing, was established to be cocaine.
Also a small glassine envelope, plastic which contained
similar powder and he took that into his possession.
I find that because of the speed he had reasonable cause.
This is distinguished
[29]
from People agairist Engel which was a routine traffic
check. This was a car that was speeding at a high rate of
speed. He had reasonable cause to stop. He had reasonable
cause when he smelt the marijuana to get them out and
take them under arrest.
’ 4%
-*%
A66
Findings and Conclusions
I find that Chadwick should be, at least with a line of
cases, restricted to the circumstances. There the police
had possession of the trunk. It was a large bulky object. It
was in the station house. The defendants were in custody
and they weren’t going anyplace. Here a single policeman
in a rural area was in the presence of four defendants,
four men. What would or would not have happened to the
jacket, whether it would be carried to the police station
by one of the individuals?
There is, of course, no evidence in this case from which I
could find there was cause to pat down the jacket for a
weapon, there being absolutely no proof in the case that
was so.
[30]
Following the decision of the Alaska Supreme Court in
Daggie v. the State of Alaska, 14 criminal law reports
2131, I find that there were exigent circumstances and
that the officer was authorized to search the jacket. Even
though its owner was outside and under arrest it was in
open view and it was not in a closed space or in any closed
opening and the fact that the pockets of the jacket were
zippered does not remove the case from the exigent
circumstance exception to search and seizure.
You may have an exception to every one of the findings
of facts and conclusions of law that the court has just
made.
If you wish to re-argue after having read Daggie, I will
assure you I will be liberal in granting that.
MR. CAMBRIA: Thank you.
A467
Order Denying Suppression,
Filed September 29, 1978
(SAME TITLE)
PRESENT: HON. GEORGE REED, Judge
The defendant having moved this Court for an Order sup-
pressing evidence, and any information obtained therefrom and
suppressing the use of said evidence upon the trial of the above
named defendant, and the issues raised by said motion having
been duly heard and tried before this Court on the 26th day of
July, 1978, and the 2nd day of August, 1978,
NOW, on reading and filing the notice of motion dated June
30, 1978, and the affidavit of Paul J. Cambria, Jr. sworn to on
the same date, and the affidavit of Roger Belton sworn to on the
Ist day of July, 1978, with proof of service thereof on behalf of
the defendant, in support of the motion, and the affidavit of
District Attorney James Harvey, sworn to on the 17th day of
July, 1978, in opposition thereto and on all the evidence adduced
before the Court on the trial of the issues raised by said motion
on the above referenced dates, and due consideration having
been had and the Court having rendered its decision on the
record, orally, on August 2, 1978, it is
ORDERED, that the said motion be denied.
Is/HON. GEORGE REED
Hon. George Reed, Judge
Ontario County Court
7%
- °
A-68
Notice of Appeal, Filed September 29, 1978
(SAME TITLE)
SIRS:
PLEASE TAKE NOTICE that the defendant ROGER
BELTON, hereby appeals to the Supreme Court of the State of
New York, Appellate Division, Fourth Judicial Department,
from a judgment of conviction of the County Court of Ontario
County rendered on the 29th day of September, 1978, convicting
the said defendant of attempted criminal possession of a con-
trolled substance in the sixth degree (§§110.00, 220.06 of the New
York State Penal Law), and from the sentence therein imposed
on the same date, and from each and every part of said judgment
and sentence, and from each and every intermediate order
therein made, most particularly the order of this Court denying
suppression of evidence entered August 2, 1978.
DATED: Buffalo, New York
September 26, 1978
Yours, etc.
LIPSITZ, GREEN, FAHRINGER,
ROLL, SCHULLER & JAMES
PAUL J. CAMBRIA, JR., ESQ.
Attorneys for Roger Belton
One Niagara Square
Buffalo, New York 14202
(716) 849-1333
TO: JAMES HARVEY, ESQ.
District Attorney of Ontario County
Courthouse
Main Street
Canandaigua, New York 14424
A-6f
Judgment of the New York Supreme Court,
Appellate Division, Fourth Department,
Filed May 22, 1979
SUPREME COURT OF THE
STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: DILLON, P.J., CARDAMONE, SCHNEPP, DOERR,
MOULE, JJ.
People of the State of New York,
Respondent,
vs.
Roger Belton,
Appellant.
The above named Roger Belton, defendant in this action, having
appealed to this Court from a judgment of the Ontario County
Court, entered in the Ontario County Clerk’s office on September
29, 1978 and said appeal having been argued by Paul Cambria of
counsel for appellant, Timothy Buckley of counsel for respon-
dent, and due deliberation having been had thereon,
It is hereby ORDERED, That the judgment so appealed from
be, and the same hereby is unanimously affirmed.
Opinion by Moule, J., which is hereby made a part hereof.
Entered: May 22, 1979
MARY F. ZOLLER, Clerk
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A-70
Opinion of the New York Supreme Court,
Appellate Division, Fourth Department,
Filed May 22, 1979
The People of the State of New York, Respondent, v Roger
Belton, Appellant.
Fourth Department, May 22, 1979
SUMMARY
Appeal from a judgment of the Ontario County Court (Harold
Stiles, J.), rendered September 29, 1978, convicting defendant,
upon his plea of guilty, of attempted criminal possession of a
controlled substance in the sixth degree.
APPEARANCES OF COUNSEL
Inpsitz, Green, Fahringer, Roll, Schuller & James (Paul J.
Cambria, Jr., of counsel), for appellant.
James R. Harvey, District Attorney (Timothy Buckley of
counsel), for respondent.
OPINION OF THE COURT
On this appeal defendant contends that the trial court erred in
denying his motion to suppress cocaine found in his jacket which
was searched without a warrant in the rear seat of an
automobile from which defendant had exited in order to be
arrested for possession of marihuana. On April 9, 1978 a State
Police officer observed an automobile with four passengers
traveling 75 miles per hour on the New York State Thruway.
Upon stopping the auto and questioning the driver, the officer
smelled the odor of marihuana coming from within the auto and
observed on the floor of the auto an envelope stamped
“Supergold” which he recognized as a type of envelope that is
A-71
Opinion of the New York Supreme Court,
Appellate Division, Fourth Department,
Filed May 22, 1979
commonly used to sell marihuana. The officer ordered the oc-
cupants from the auto and patted each down. He then removed
the “Supergold” envelope from the auto and, when he found that
it contained traces of marihuana, he arrested the four for
possession of marihuana, read them their rights and searched
them. The officer then searched the passenger compartment of
the auto and seized marihuana cigarette butts which he observed
in the ashtrays. He also searched five jackets that he found in the
back seat and, in one of them, he found cocaine and defendant’s
identification. The officer then arrested the four for possession of
cocaine.
On May 24, 1978 the Ontario County Grand Jury indicted
defendant for criminal possession of a controlled substance in
the fifth degree. Defendant pleaded guilty to attempted
possession of a criminal substance in the sixth degree following
the Ontario County Court’s denial of his motion to suppress the
cocaine.
Defendant contends that the warrantless search of his jacket
violated his constitutional rights. The cornerstone of any Fourth
Amendment inquiry is reasonableness and a warrantless search
must come within one of the “specifically established and well-
delineated exceptions” to the warrant requirement (Katz v
United States, 389 US 347, 357). The exceptions are (1) a con-
sensual search; (2) seizure of evidence and contraband in plain
view; (3) search and seizure incidental to a lawful arrest; (4)
search and seizure based upon probable cause, and, applicable to
automobile searches; (5) a search in exigent circumstances where
there exists probable cause (People v Mahoney, 60 AD2d 107,
109-110). Inasmuch as defendant does not challenge the
lawfulness of either the initial stop or the arrest for possession of
marihuana, the narrow question on this appeal is whether the
search of defendant’s jacket in the back seat of the vehicle can be
justified under one of the above exceptions.
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A-72
Opin.on of the New York Supreme Court,
Appellate Division, Fourth Department,
Filed May 22, 1979
The People contend that the search was justified as a search
incident to arrest and we agree. Upon a lawful arrest, a search
may be made of the person of the arrestee and of the area within
the arrestee’s control (United States v Robinson, 414 US 218,
224; Chimel v California, 395 US 752, 763). This area includes
those personal effects of the arrestee that are “ready to hand”
(People v Weintraub, 35 NY2d 351, 354). Warrantless searches
incident to arrest are justified by the officer’s need to find
weapons and easily destructible evidence within the arrestee’s
immediate area (United States v Robinson, supra; Chimel v
California, supra). Such searches are also allowed so that an
officer can discover the fruits of the crime, the instrumentalities
used to commit the crime and contraband (People v Lewis, 26
NY 2d 547, 550-551).
Defendant contends that United States v Chadwick (433 US 1)
mandates suppression of the cocaine. In that case the United
States Supreme Court held unreasonable as a search incident to
arrest the search of a footlocker seized from an automobile upon
the defendant’s arrest and searched one and one-half hours later
at a police station. In People v De Santis (46 NY2d 82) the Court
of Appeals interpreted Chadwick narrowly and allowed, as a
search incident to arrest, the search of a suitcase in defendant’s
possession at the time of arrest. The court found the search
reasonable because it had a close nexus to the time and place of
the arrest (People v De Santis, supra). The court noted that “the
practical impetus for allowing these searches lies in the fact that
the arrest itself constitutes such a major intrusion into the
privacy of the individual that the encroachment caused by a
contemporaneous search of the arrestee and his possessions at
hand is in reality de minimis” (People v De Santis, supra, p 87,
citing People v Perel, 34 NY2d 462, 467-468; see, also, United
States v Ochs, 595 F2d 1247).
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A-73
Opinion of the New York Supreme Court,
Appellate Division, Fourth Department,
Filed May 22, 1979
In People v Cofield (55 AD2d 113, affd 43 NY2d 654), the First
Department found reasonable as a search incident to arrest the
search of a paper bag within a satchel on the back seat of
defendant’s auto while defendant stood outside the auto. Also, in
People v Abramowitz (58 AD2d 921), the Third Department
allowed as a search incident to arrest the search of a leather bag
behind the driver’s seat of a vehicle after the driver had been
arrested for driving while impaired and after pills were found
during a search of his person (see, also, People v Sauger, 58 AD2d
919; People v Mangan, 55 AD2d 247, 249).
The officer’s search of defendant’s jacket which he found in the
vehicle did not exceed constitutional limits. The search was
reasonable in scope, intensity and duration. Once defendant was
validly arrested for possession of marihuana, the officer was
justified in searching the immediate area for other contraband.
The judgment should be affirmed.
Dillon, P.J., Cardamone, Schnepp and Doerr, JJ., concur.
Judgment unanimously affirmed.
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A-74
Order of the New York Court of Appeals
Granting Leave to Appeal and Fixing Bail,
Filed June 27, 1979
STATE OF NEW YORK
COURT OF APPEALS
BEFORE: HON. MATTHEW J. JASEN, Associate Judge
THE PEOPLE OF THE STATE OF NEW YORK
Respondent,
against
ROGER BELTON,
Appellant.
I, MATTHEW J. JASEN, Associate Judge of the Court of
Appeals of the State of New York, do hereby certify that in the
record and proceedings herein* questions of law are involved
which ought to be reviewed by the Court of Appeals and pur-
suant to CPL 460.20 it is
ORDERED that permission be, and it hereby is, granted to the
above named appellant to appeal to the Court of Appeals; and
notice having been given pursuant to CPL 460.60(2), it is further
ORDERED that, pursuant to CPL article 520, the defendant
be continued on bail in the sum of $750.00, as at present
provided.
Dated at Buffalo, New York
June 27, 1979. ls) MATTHEW J. JASEN
Associate Judge
*Description of Order:
Order of Apellate Division, Fourth Department, entered May
22, 1979, affirming Ontario County Court judgment entered
September 29, 1978.
Notice: This stay will terminate if the appeal has not been
argued or submitted within 120 days (CPL 460.60{3).
a
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A-75
Judgment of the New York Court of Appeals,
Filed June 5, 1980
ORDER OF THE NEW YORK COURT OF APPEALS
Remittitur
COURT OF APPEALS
STATE OF NEW YORK
The Hon. Lawrence H. Cooke, Chief Judge, Presiding
4 No. 208
The People &c.,
Respondent,
v.
Roger Belton,
Appellant.
The appellant in the above entitled appeal appeared by Lipsitz,
Green, Fahringer, Roll, Schuller & James; the respondent ap-
peared by James R. Harvey.
The Court, after due deliberation, orders and adjudges that the
order is reversed, motion to suppress granted and indictment
dismissed. Opinion by Cooke, Ch.J. All concur except Gabrielli,
J., who dissents and votes to affirm in an opinion in which Jasen,
J., concurs.
The Court further orders that the papers required to be filed
and this record of the proceedings in this Court be remitted to
the County Court, Ontario County, there to be proceeded upon
according to law.
I certify that the preceding contains a correct record of the
proceedings in this appeal in the Court of Appeals and that the
papers required to be filed are attached.
ls) JOSEPH W. BELLACOSA
Joseph W. Bellacosa, Clerk of the Court
Court of Appeals, Clerk’s Office, Albany, June 5, 1980.
A-76
Opinion of the New York Court of Appeals,
Filed June 5, 1980
The People of the State of New York, Respondent, v Roger
Belton, Appellant.
Argued April 21, 1980; decided June 5, 1980
SUMMARY
Appeal, by permission of an Associate Judge of the Court of
Appeals, from an order of the Appellate Division of the Supreme
Court in the Fourth Judicial Department, entered May 22, 1979,
which affirmed a judgment of the Ontario County Court (Harold
Stiles, J.), convicting defendant, upon his plea of guilty, of at-
tempted criminal possession of a controlled substance in the
sixth degree.
On April 9, 1978, defendant and three companions were
traveling on the New York State Thruway in Ontario County
when their car was stopped by a State trooper for speeding. Upon
approaching the vehicie, the officer smelled the distinct. odor of
marihuana emanating from within and observed on the floor an
envelope which he recognized as a type that is commonly used to
sell the substance. At that point, the officer ordered the oc-
cupants out of the vehicle, patted each down, removed the en-
velope from the floor and ascertained that it contained a small
amount of marihuana. After the marihuana was found, the
individuals, still standing outside the car, were placed under
arrest. The officer then re-entered the vehicle, searched the
passenger compartment and seized the marihuana cigarette
butts lying in the ashtrays. He alse rifled through the pockets of
five jackets on the back seat. Upon opening the zippered pocket
of one of them, he discovered a small amount of cocaine and
defendant’s identification. Following denial of his motion to
suppress the cocaine, defendant pleaded guilty to attempted
possession of a criminal substance in the sixth degree. A
unanimous Appellate Division affirmed, holding that the
warrantless search of the jacket was lawful as incident to
defendant’s arrest for possession of marihuana.
A-77
Opinion of the New York Court of Appeals,
Filed June 5, 1980
The Court of Appeals reversed, granted the motion to suppress
and dismissed the indictment, holding, in an opinion by Chief
Judge Cooke, that, following a lawful arrest, the privacy interest
of the arrestee in an article remains intact once he is effectively
neutralized or the article is within the exclusive control of the
police, at which point any exigency which would otherwise have
justified a warrantless search has been dissipated and the search
is no longer incident to the arrest.
OPINION OF THE COURT
Chief Judge Cooke.
A warrantless search of the zippered pockets of an unaccessible
jacket may not be upheld as a search incident to a lawful arrest
where there is no longer any danger that the arrestee or a
confederate might gain access to the article.
On April 9, 1978, defendant and three companions were
traveling on the New York State Thruway in Ontario County
when their car was stopped by a State trooper for speeding. Upon
approaching the vehicle, the officer smelled the distinct odor of
marihuana emanating from within and observed on the floor an
envelope which he recognized as a type that is commonly used to
sell the substance. At that point the officer ordered the oc-
cupants out of the vehicle, patted each down, removed the en-
velope from the floor and ascertained that it contained a small
amount of marihuana.
After the marihuana was found, the individuals, still standing
outside the car, were placed under arrest. The officer then re-
entered the vehicle, searched the passenger compartment and
seized the marihuana cigarette butts lying in the ashtrays. He
also rifled through the pockets of five jackets on the back seat.
Upon opening the zippered pocket of one of them, he discovered a
small amount of cocaine and defendant’s identification.
A-78
Opinion of the New York Court of Appeals,
Filed June 5, 1980
Following denial of his motion to suppress the cocaine,
defendant pleaded guilty to attempted possession of a criminal
substance in the sixth degree. A unanimous Appellate Division
affirmed, holding the warrantless search of the jacket lawful as
incident to defendant’s arrest for possession of marihuana (68
AD2d 198). There shou.d be a reversal.
Analysis begins with the general proposition that, except in a
few narrowly circumscribed instances, the Fourth Amendment
condemns warrantless searches and seizures as unreasonable
(Coolidge v New Hampshire, 403 US 443, 455). The privacy in-
terest of our citizens is far too cherished a right to be entrusted
to the discretion of the officer in the field. Reasonableness of the
intrusion does not turn upon the belief, however well founded it
may be, that the article sought is concealed in a particular place.
The Constitution, therefore, focuses upon the desirability of
having the judiciary, rather than the police, determine when
searches and seizures are permissible and the limitations that
are to be placed upon such activities. Necessarily, then, the
predicate for the warrantless search must be carefully examined
to ensure that its scope, both temporally and geographically, did
not exceed constitutional limits.
The People maintain that the warrantless search of defen-
dant’s jacket was reasonable on the ground that it was incident
to his lawful arrest. A custodial arrest of a suspect based upon
probable cause without a warrant in a public place constitutes a
reasonable intrusion under the Fourth Amendment (United
States v Watson, 423 US 411). That arrest being a lawful and
substantial intrusion, any search incident thereto requires no
additional justification (People v Perel, 34 NY2d 462; see, also,
People v Weintraub, 35 NY2d 351).
When a suspect is placed under custodial arrest, there is
always present the danger that he may seek to use a weapon to
A-79
Opinion of the New York Court of Appeals,
Filed June 5, 1980
effect an escape or destroy or conceal evidence of a crime. Thus,
to safeguard himself and others, and to prevent the loss of
critical evidence, it is reasonable from a Fourth Amendment
perspective for the arresting officer to conduct a prompt,
warrantless “search of the arrestee’s person and the area ‘within
his immediate control’ — construing that phrase to mean the
area from within which he might gain possession of a weapon or
destructible evidence” (Chimel v California, 395 US 752, 763).
Upon arrest, the privacy interest of the arrestee in possessions
within the arrestee’s immediate control are subsumed within the
State’s interest in discovering weapons, thwarting access to
means of escape and preventing the destruction of evidence (see
United States v Robinson, 414 US 218). But while the arrest
establishes the authority for the warrantless search, it does not
transform the initial predicate into carte blanche justification to
rummage through all articles which might bear some connection
to the arrestee (see Dyke v Taylor Implement Co., 391 US 216;
People v Williams, 37 NY2d 206; People v Lewis, 26 NY2d 547).
The privacy interest of the arrestee in an object remains intact
once he is effectively neutralized or the object is within the
exclusive control of the police (see Arkansas v Sanders, 442 US
753; United States v Chadwick, 433 US 1). At that point, any
exigency which would otherwise have justified a warrantless
search has been dissipated and the search is no longer an in-
cident to the arrest (but cf. People v De Santis, 46 NY2d 82;
People v Darden, 34 NY2d 177).! The critical inquiry focuses
upon the extent to which the arrestee may gain access to the
property rather than the time or space between the arrest and
search (see United States v Edwards, 415 US 800).
1To the extent that these cases may be read to suggest otherwise, they are
disapproved.
A-80
Opinion of the New York Court of Appeals,
Filed June 5, 1980
In this regard, United States v Chadwick (433 US 1, supra) is
instructive. There, railroad officials in San Diego observed two
individuals loading a heavy footlocker onto a train bound for
Boston. Their suspicions were aroused when the trunk leaked
talcum powder, a substance commonly used to mask the odor of
marihuana. The officials notified Federal agents who relayed the
information to their counterparts in Boston. When the train
arrived in that city, the two individuals who had loaded the
footlocker in San Diego were on hand and lifted it into the trunk
of Chadwick's waiting car. At that point, Federal agents
arrested all three, seized the footlocker and transported them to
the Federal building. There, with the arrestees safely in-
carcerated, the agents opened the trunk and seized a large
quantity of marihuana. In holding the search unlawful, the court
rejected the notion that it was incidental to Chadwick’s arrest.
Said the Court: “Once law enforcement officers have reduced
luggage or other personal property not immediately associated
with the person of the arrestee to their exclusive control, and
there is no longer any danger that the arrestee might gain access
to the property to seize a weapon or destroy evidence, a search of
that property is no longer an incident of the arrest” (433 US, at
p 15; see, also, Arkansas v Sanders, 442 US 753, supra).
That defendant retained an expectation of privacy in the
contents of his jacket pockets notwithstanding the fact of his
arrest is beyond dispute. Indeed, it is difficult to imagine a more
private receptacle where one might place one’s most personal
items than the zippered recesses of a jacket. Defendant’s arrest,
standing alone, did not vitiate that privacy interest by being
converted into a license for law enforcement authorities to
engage in a warrantless search of unlimited temporal and
_ geographic scope. Once defendant had been removed from the
automobile and placed under arrest, a search of the interiors of a
private receptacle safely within the exclusive custody and
A81
Opinion of the New York Court of Appeals,
Filed June 5, 1980
control of the police may not be upheld as incident to his arrest
(United States v Chadwick, 433 US 1, supra; Arkansas v Sanders,
442 US 753, supra). The car was in a secure place where it could
have been easily guarded, its occupants under arrest and safely
away from the vehicle, their removal to the police station im-
minent.? There was, therefore, no reason why the search should
not have awaited the issuance of a warrant.
Accordingly, the order of the Appellate Division should be
reversed, the motion to suppress granted and the indictment
dismissed.
Gabrielli, J. (dissenting). I respectfully dissent. Although I am
in agreement with the standard legal principles enunciated by
the majority, I cannot concur in what appears to be an obvious
misapplication of those principles to the facts of this case.
A warrantless search based on probable cause is permissible if
the facts underlying the search bring it within any of several
narrow exceptions to the warrant requirement with which this
court is fully familiar. One such exception to the warrant
requirement is a search incident to a lawful arrest. Although
this particular exception has had a somewhat uncertain history
(compare Trupiano v United States, 334 US 699, with United
States v Rabinowitz, 339 US 56), it is now well settled and
cannot be disputed that a police officer making a valid arrest
may legitimately engage in a limited search of both the person of
2One searches the record in vain for support of the dissenter’s claim that at
the time of arrest—the point from which the predicate for the warrantless
search is measured—“the jackets were within reach of the four suspects and
had not yet been reduced to the exclusive control of the officer” (dissenting
opn, p 454). Indeed, the facts, as found at the suppression hearing and af-
firmed by the Appellate Division, were to the effect that the jacket was
searched after the defendant was removed from the vehicle and then placed
under arrest.
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A-82
Opinion of the New York Court of Appeals,
Filed June 5, 1980
the arrestee and “the area from within which he might gain
possession of a weapon or destructible evidence” (Chimel v
California, 395 US 752, 763) without first obtaining a search
warrant. Moreover, although the general rationale for per-
mitting warrantless searches under certain circumstances is the
need to allow a police officer sufficient flexibility to protect
himself from possible danger and to prevent the destruction of
evidence (see, generally, Arkansas v Sanders, 442 US 753, 759), a
warrantless search incident to a lawful arrest may be made
“whether or not there is probable cause to believe that the person
arrested may have a weapon or is about to destroy evidence”
(United States v Chadwick, 433 US 1, 14).
To be sure, such a search is subject, as it should be, to careful
judiciary scrutiny before its fruits may be admitted into
evidence. As the Supreme Court has recently stated,
“warrantless searches of luggage or other property seized at the
time of an arrest cannot be justified as incident to that arrest
either if the ‘search is remote in time or place from the arrest’
** * or no exigency exists. Once law enforcement officers have
reduced luggage or other personal property not immediately
associated with the person of the arrestee to their exclusive
control, and there is no longer any danger that the arrestee
might gain access to the property to seize a weapon or destroy
evidence, a search of that property is no longer an incident of the
arrest” (United States v Chadwick, supra, at p 15). While these
principles are readily articulated, their application to individual
cases may seem, at first blush, to be a task of some complexity.
This is so in large part because each case must turn upon its
peculiar facts and “an apparently small difference in the factual!
situation frequently is viewed as a controlling difference in
determining Fourth Amendment rights” (Arkansas v Sanders,
442 US 753, 757, supra). This observation is particularly apt
when applied to a case such as this, in which all members of the
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Opinion of the New York Court of Appeals,
Filed June 5, 1980
court are agreed that the validity of the challenged search turns
upon the degree to which the defendant and his property had
come within the exclusive control of the police at the time of the
search. Clearly, we are here presented with a valid arrest based
upon probable cause. This is, as it must be, conceded by all.
Moreover, there exists no dispute but that the officer’s search of
the persons of the defendant and his companions and the initial
search of the car for contraband were entirely proper. The only
issue that divides this court, then, is whether the officer acted
illegally by extending his search to include the pockets of the
jackets thrown on the back seat of the automobile. The courts
below, which by law, unlike this court, are empowered to resolve
disputes of fact, have concluded that the jackets were within |
reach of the four suspects and had not yet been reduced to the
exclusive control of the officer. I find no justification for
disturbing this essentially factual determination and, based
upon this finding, the conclusion that the search was incidental
to a lawful arrest cannot be avoided.
Certainly there exists sufficient evidence in the record before
us to support the factual findings made by the courts below.
Indeed, this case is illustrative of the type of situation in which a
warrantless search is most appropriate. We are not here faced
with an extended search of a defendant’s property after the
defendant has been completely subdued and all actual danger
has passed. Rather, this search was conducted by a lone peace
officer who was in the process of arresting four unknown in-
dividuals whom he had stopped in a speeding car owned by none
of them and apparently containing an uncertain quantity of a
controlled substance. The suspects were standing by the side of
the car as the officer gave it a quick check to confirm his
suspicions before attempting to transport them to police head-
quarters or radioing for assistance. The situation was stil] fluid,
and neither the suspects themselves nor their property had as
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Opinion of the New York Court of Appeals,
Filed June 5, 1980
yet been reduced to the exclusive and certain control of the
police. I cannot agree that under these circumstances the officer
acted improperly in searching the jackets found on the back seat
of the automobile. The potential for danger to the officer or for
the destruction of evidence is patent, and thus the search must
be deemed incidental to the arrest.
I must confess that I am somewhat puzzled by the rationale
adopted by the majority of this court today, for it appears rather
ingenuous. Instead of undertaking that careful factual analysis
of the realities underlying the continuing encounter between the
lone officer and the four suspects which is so necessary to fair)y
judge the reasonableness of the officer’s actions, the ccurt
premises its decision completely upon an uncertain assumytion
drawn from two isolated facts. Apparently the majority believes
that since the suspects were standing outside the car at the time
of the search and had been told that they were under arrest, both
their persons and their property had thereby been conclusively
and safely reduced to the complete control of the officer, as a
matter of law. Although one might well wish that all criminal
suspects could so readily be subdued as a matter of law, I cannot
agree with a decision that requires a police officer to stake his
very life upon the validity of such a questionable presumption.
Accordingly, I vote to affirm the order appealed from.
Judges Jones, Wachtler, Fuchsberg and Meyer concur with
Chief Judge Cooke; Judge Gabrielli dissents and votes to affirm
in a separate opinion in which Judge Jasen concurs.
Order reversed, etc.
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