Drug Crime Parolee Stopped For Minor Traffic Violation:

This was originally posted on the SGR Blog.

Was There Probable Cause for Search, Seizure and Drug Arrest?

Dane Pennie, on parole after being convicted of a drug offense was stopped for a traffic violation. The police searched the car; drugs were found; the driver was charged with a drug crime–parole violation and traffic offense; prosecuted and found guilty of the parole violation but not the traffic offense; and the drug charge was not prosecuted. Pennie was incarcerated for more than a year after his arrest.

Pennie sued the State of New York for false arrest and wrongful confinement that arose from the seizure of drugs by State troopers from a vehicle he was driving in the Town of Wallkill on July 30, 2017. The drugs were seized after the troopers stopped the vehicle for a traffic violation and then conducted a search. The Court held a trial by video conference on July14-15, 2021.

Pennie testified on direct examination.

On July 30, 2017, at approximately 1:00 a.m. to 1:30 a.m., he borrowed a 2006 Mercury sedan from a friend to get food with another friend, Isaiah Caesar. They were coming from the apartment where he was living in Middletown, New York. Pennie was on parole after his 2015 conviction for Criminal Possession of a Controlled Substance in the 5th Degree. As a condition of parole, he had an 8:00 p.m. curfew and was prohibited from driving unless authorized by his parole officer. Pennie, who was 23-years old at the time, had a learner’s permit and had not received authorization to drive. Caesar did not have a license or a learner’s permit.

When they got into the car, Pennie did not smell anything, he did not have any drugs on him and, to his knowledge. Caesar did not have any drugs and there were none in the car.  Two or three minutes after they left, they were pulled over. Pennie had just turned right onto State Route 211 after driving down the road leaving his housing complex. Neither Pennie nor Caesar had smoked anything or lit a match or lighter. The officer walked to the car and asked for Pennie’s license and registration. He provided the registration and his learner’s permit. The officer went to his squad car. Returned and told Pennie to step out of the vehicle. He got out and asked why he was stopped. The officer said Pennie had failed to signal. The officer then asked to search Pennie, who agreed. After the search, the officer asked whether there was anything illegal in the car and Pennie said “no.” The officer then stated, “[f]or procedure, I have to put you in handcuffs,” and handcuffed Pennie. The officer walked him to the squad car, had him sit on the hood, then returned to the car to speak with Caesar. The other officer got out of the squad car and stood by Pennie. At no time was he told he was under arrest or read his rights. At no time did the first officer say he smelled anything coming from Pennie’s car.

The first officer did not ask for or receive permission to search the car. To Pennie’s knowledge, Caesar did not give permission. The officer pulled Caesar out of the car, handcuffed him, and had him step to the side and frisked him. The officer then proceeded to search the interior of the car, starting with the passenger area. Next, the officer popped open the trunk, searched inside it and went through the belongings it contained, consisting of suitcases and some garbage bags. The officer searched for five or ten minutes without indicating that he had found anything. After approximately ten minutes, additional officers arrived to help with the search–and the officer screamed out that he had found something .

Pennie and Caesar were put into separate squad cars. Pennie was taken to the trooper barracks and placed in a holding cell while he waited to speak with an investigator, who asked about the drugs found in the car. Pennie said the drugs had to belong to the car owner. The investigator showed him pictures of people from the area. Pennie was not familiar with the people because he had just moved to the area. After being at the barracks for seven to eight hours, he was taken to Orange County Jail, then arraigned before Judge Peter Green on charges for criminal possession of marijuana and of a controlled substance. Pennie was appointed an attorney and he pled not guilty.

Pennie spent nine months at Orange County Jail, during which time he had several court appearances and approximately five parole hearings. He was offered a deal by the District Attorney’s Office that was conditioned on becoming an informant. He declined the offer and asked for a trial. After his second parole hearing, his understanding was that he would go home once the felony complaint was dismissed.

Pennie’s attorney filed a speedy trial motion and the case was dismissed in March 2018. Pennie was taken back to Orange County Jail and about two months later he had his next parole hearing. He was found guilty on the parole violation charge of violating curfew and not guilty on the remaining charges. At that point, he had to wait for Downstate Correctional Facility to pick him up and take him to State prison to serve time for the curfew violation. He spent about 45 days at Downstate, a maximum security prison, then completed a drug treatment program at Willard Drug Treatment Campus. Afterward he was sent to Five Points Correctional Facility, also a maximum security prison.

On cross-examination, Pennie said the owner of the car he was stopped in was named Chris. He could not provide the man’s last name although when asked if it was Rubel, he agreed. Pennie testified that he was outside his apartment complex with Chris and others at 1:00 a.m. when he asked to borrow Chris’s car to get food. He had “just met the guy” and denied having driven the car the day before to Brooklyn to get drugs and weapons, or at any other time.

Pennie testified there was a stop sign at the intersection with State Route 211, and that he signaled and came to a full stop before turning right. On being shown a Google Earth photograph of the intersection, he acknowledged there was a traffic signal there and not a stop sign. He also testified, as he had on direct, that the second officer remained in the police car while he was being handcuffed by the first officer. Caesar was not handcuffed until after the other officers arrived. The second officer, a young Caucasian female, asked Pennie where he was going and he said “to get food down 211.” He did not identify a specific destination, but he might have mentioned McDonald’s, Wendy’s or Denny’s, which were along the way. He denied telling the officer they were going to Olive Garden, which was in the opposite direction.

Pennie acknowledged his arrest in 2015 for drug possession and failing to notify the Department of Motor Vehicles of a change of address. And denied selling Caesar two packs of marijuana for $425. He did not know about the marijuana found in the car he was driving until later when he was informed of the charges against him. Pennie was not aware that a parole warrant was issued against him on August 1, 2017, but acknowledged that, after the felony complaint was dismissed, the parole warrant was the only thing holding him at Orange County Jail.

Pennie finished testifying the next day, July 15, 2021, then rested his case. The State moved to dismiss the claim, arguing that it was Pennie’s burden to prove there was a lack of probable cause for the arrest, and that he failed to meet his burden because the drugs found in the vehicle provided probable cause. Pennie opposed the motion on the ground there was no probable cause for the search. He argued that, based on his testimony, there was nothing in the vehicle that could have provided the source for the marijuana odor that the trooper claimed he smelled, which was the only possible justification for the search. The Court reserved decision on the motion.

New York State Trooper Alfred D. Napolitano testified at the trial and the deposition testimony of Trooper Emily O’Connell was entered in evidence:

During their training they learned how to detect the odor of fresh and burnt marijuana. On July 30, 2017, they were working the overnight shift in a marked state police patrol vehicle which Napolitano was driving. As they drove south on Scotchtown Road (Goshen Turnpike) in the Town of Wallkill, they saw a vehicle fail to come to a full stop before turning right at the red light onto State Route 211. Napolitano turned right and activated the lights with no sirens. They ran the license plate then stopped the vehicle on State Route 211. After both troopers got out of the patrol vehicle, Napolitano approached the driver’s side and O’Connell approached the passenger’s side of the car. Napolitano testified that the car’s windows were open, while O’Connell recalled only the driver’s window being open. Both troopers “detected” a “strong odor of marijuana emanating from the vehicle.” Napolitano was at the rear of the vehicle and O’Connell was standing on the passenger side between the front and rear windows . Napolitano testified that “[i]t smelled like unburnt marijuana.”

Napolitano asked the driver for his license and registration. The driver handed the officer a registration document and a learner’s permit. Napolitano testified that Pennie said he could not get a ticket because he was on parole and out past curfew.  O’Connell testified that she heard him say he was on parole, out after curfew, and they were en route to Olive Garden. She recalled there was an Olive Garden on State Route 211 and that the restaurant was not open at that time of night. Because Napolitano wanted to investigate the marijuana odor, he asked Pennie to exit the vehicle and go to the rear. Pennie complied. O’Connell positioned herself so she could see both the passenger and Pennie. She could not hear Napolitano’s conversation with Pennie at the rear of the car. The passenger’s name was Isaiah Caesar.

Napolitano asked about the marijuana odor and Pennie said Caesar might have some marijuana. The troopers then switched sides and Napolitano walked to the passenger window, where he asked Caesar to step out of the vehicle. Caesar complied and they moved to the front of the vehicle, “for officer safety, to keep them separated,” where they talked. Caesar did not have a valid driver’s license. Napolitano told him that Pennie said he might have some marijuana. “[A]t some point,” Caesar said he had some marijuana underneath the passenger seat. Napolitano patted him down, then left him and checked underneath the seat, where he saw a piece of a plastic bag coming out from underneath the seat. He pulled the bag out and saw marijuana, then handcuffed Caesar and put him in the back of the patrol car. Napolitano called for a second unit to come to the scene and conducted “a probable cause search of the vehicle.” He searched the interior of the vehicle without finding any other drugs.

O’Connell testified that when Napolitano moved to the passenger side, she went back to stand near Pennie. She was not asked to do so by Napolitano. She could not hear what Napolitano and Caesar were saying. Pennie told her he was going to Olive Garden; had recently been released; and was on parole. She saw Napolitano handcuff Caesar and conduct “a probable cause search of the vehicle based on the strong odor of marijuana emanating from the interior.” She observed two closed clear plastic Ziploc bags containing a green leafy substance that were found under the front seat. She smelled the odor of raw marijuana.

Napolitano testified that he proceeded to search the trunk. A second unit arrived with two troopers and later on a canine unit that had been requested arrived. There were a total of six troopers. Napolitano opened the trunk, which contained bags, speaker boxes and clothing. He started opening them with troopers from the second unit. Eventually they found a clear plastic bag containing what he knew from experience was crack cocaine. The contents later tested positive for crack. Pennie was still outside Napolitano’s patrol car when the crack was found. He was then handcuffed and put into the second patrol car. O’Connell testified that the other troopers did not help Napolitano search the vehicle or the trunk. She learned that about 58.9 grams of marijuana was found under the front seat, and about 123.7 grams of crack cocaine were found in a suitcase in the trunk along with a single .38 caliber round.

According to both troopers, Miranda rights were not read to either Pennie nor Caesar at the scene. And they did not exhibit signs of drug use. They did not have bloodshot or glassy eyes, slurred speech or the odor of marijuana on their breath, and they did not have marijuana on their person. Napolitano did not see, and O’Connell did not recall seeing, smoke or flames or anything that appeared to be lit or burnt in the car. Napolitano had not previously met Pennie or encountered the vehicle he was driving that night

After the canine unit arrived, Pennie and Caesar were transported to the barracks and the car was towed from the scene. Napolitano prepared two felony complaints and signed them as the complainant on July 30, 2017. He also issued Pennie tickets for being an unlicensed operator, failing to stop at a red light, and for an unsafe tire.  Although O’Connell was called to appear in the Grand Jury three times, neither she nor Napolitano ever testified. The case ended up not being presented to the Grand Jury and it was ultimately dismissed. O’Connell testified that the Assistant District Attorney handling the case told her he “forgot about the case.”

The State rested and renewed its motion to dismiss the claim, arguing that Pennie failed to meet his burden to prove there was an absence of probable cause. Pennie argued that Trooper Napolitano’s testimony about smelling the odor of marijuana was incredible and hence there was no probable cause for the initial search. The Court reserved decision on the motion.

At trial and in his post-trial closing memorandum, Pennie limited his causes of action against the State to false arrest and wrongful confinement. The Court limited its substantive analysis to those two causes of action. To prove a claim for false arrest or wrongful confinement, a claimant must show: (1) the defendant intended to confine him; (2) the claimant was conscious of the confinement; (3) the claimant did not consent to the confinement; and (4) the confinement was not otherwise privileged.

The Court found that the first three factors were uncontested and supported by ample proof.  So a finding of liability against the State would rise or fall on the fourth factor—whether the confinement was privileged. Where, as here, an arrest was made without a warrant, a presumption arose that it was unlawful, and the burden of proving that the arrest was otherwise privileged was cast upon the State. The existence of probable cause serves as a legal justification for the arrest and an affirmative defense to the claim.

The State argued that probable cause for the arrest was provided by Trooper Napolitano’s retrieval of the marijuana and crack cocaine from the vehicle Pennie was driving, and it did not depend on the trooper’s claim that he smelled the odor of marijuana. Pennie argued that the State failed to meet its burden because Trooper Napolitano’s claim that he smelled the odor of marijuana was incredible and there was no probable cause to search the vehicle in the first place.

But contrary to the State’s argument, in civil actions for false arrest and wrongful confinement, evidence seized pursuant to an illegal search cannot be used to establish probable cause for an arrest, and such an arrest is not privileged. The fruit of an illegal search cannot give rise, in a juristic sense, to probable cause to arrest, and the illegality of the search and seizure is thus conclusive against the defendant on the issue of privilege. Thus, the central issue here was whether the State had shown, by a preponderance of the evidence, that Napolitano had probable cause to search the car in the first place.

Pennie did not challenge the initial traffic stop or that Napolitano ordered him to get out of the car. And a police officer is permitted to order the occupants of a stopped vehicle to either exit or remain inside to enable the officer to safely conduct an appropriate investigation or inquiry. However, a police officer may not search the vehicle and his inquiry is limited to questions related to the traffic violation unless there is evidence of some other criminal conduct. Here, the evidence showed that neither Pennie nor Caesar displayed symptoms of drug use and no drugs or drug paraphernalia were in plain sight. The only evidence of criminal conduct that would arguably justify Napolitano’s inquiries about marijuana and the ensuing search was Napolitano’s testimony that he smelled marijuana.

The Court was cognizant of settled law that an experienced, trained officer’s recognition of the odor of marijuana was sufficient to constitute probable cause to search a vehicle and its occupants. The seminal Court of Appeals decision, allows police officers who smell burning marijuana to question the occupants of a stopped vehicle beyond merely seeking information and to conduct a search, if the officers have the proper training and experience.  And subsequent cases permit searches of cars and their occupants upon a credible showing that police officers smelled raw or burnt marijuana.

After observing the trooper as he testified, listening to the testimony at trial, and reviewing the admitted exhibits and the parties’ post-trial memoranda, the Court found that the State failed to make a credible showing that Napolitano smelled raw marijuana before he questioned the vehicle’s occupants and conducted the search. Both troopers testified that they were trained to detect the odor of unburned marijuana. Yet they did not identify the conditions in which such an odor would be detectable, such as amount, proximity, location and packaging. And the mere recitation of the word “training,” encompassing all possible scenarios and conditions, was not sufficient without connecting that training to the circumstances and conditions of the particular incident.

In addition, the State did not argue that Napolitano had probable cause based on his testimony about smelling the odor of marijuana, instead choosing to downplay the importance of Napolitano’s testimony. Here, the unburned marijuana was contained in a sealed Ziploc bag under the front passenger seat, the front windows were open when the vehicle was stopped and there was no indication from the evidence that the windows were closed prior to the search.

The Court would not hesitate to refuse to credit testimony which had all appearances of having been patently tailored to nullify constitutional objections. Napolitano testified to smelling “a strong odor of marijuana emanating from the vehicle,” and that he conducted “a probable cause search of the vehicle.” That legally significant, formalistic language was identical to the language in his incident report, as well as to O’Connell’s deposition testimony. Under those circumstances, the Court was constrained to find that both troopers tailored their testimony to “nullify constitutional objections”.

Upon consideration of all the evidence presented at trial, including listening to the witnesses testify and observing their demeanor as they did so, the Court found that Pennie established by a preponderance of the credible evidence that he was falsely arrested and wrongfully confined. The Court did not credit Napolitano’s testimony about smelling the odor of raw marijuana and found that the State failed to meet its burden to show there was probable cause for the search.

Accordingly, the State’s motions to dismiss, made at the close of Pennie’s case and at the conclusion of trial, were denied. The Court found the State 100% liable for false arrest and wrongful confinement.  And directed a trial on the issue of damages.

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