Drug Evidence Suppressed Because of Illegal Traffic Stop

A decision came down from the NY Supreme Court 3rd Department Appellate Divison last Thursday upholding a lower court's decision suppressing the evidence of a substantial amount of drugs discovered as the result of a traffic stop. Because the court deemed the traffic stop as illegal, or more specifically, because the police did not have "reasonable suspicion" to pull the defendant over, the resulting evidence must be suppressed, or banned from use at trial. The defendant, Matthew Davis, was initially indicted and charged in Schenectady County Court with Criminal Possession of a Controlled Substance in the Second Degree, Criminal Possession of Marijuana in the Second Degree, and violating New York Vehicle and Traffic law §1128(a).

Without this evidence, the people have no case and the defendant walks. The drugs suppressed in this case included a large amount of marijuana and "nine bags of hallucinogenic mushrooms". The defendant in this case, Matthew Davis, was described by on lookers as "skipping" out the court house door upon hearing the good news. Local famous attorney Terrence Kindlon's office handled the appeal and I'm assuming was Davis's trial lawyer as well. (Terrence Kindlon was Christopher Porco's lawyer)

As a traffic lawyer, this decision caught my attention because it includes a discussion about New York State Vehicle and Traffic Law §1128(a). I'm going to call this the "swerving statute". This particular traffic infraction lays the foundation for many DWI arrests as the police often pull drunk drivers over after observing them violating this law. NY VTL §1128(a) states "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." In this case, the arresting officer testified that he observed Matthew's vehicle briefly contacting the fog line. I've often heard police call this "hitting" the line.

Matthew's argued that he did not violate the statute because his tire never went over the line, only in to the line. Because New York courts have never directly addressed the issue of "hitting" the line as the sole basis for a traffic stop, the court looked at the way other States interpret their similarly worded statutes and noted variations, ultimately concluding that merely encroaching in to the line, without crossing it, cannot by itself be construed as a violation of NY VTL §1128(a).

The Court held:

Here, we decline to hold that fog line encroachment can never be the basis for a valid traffic stop as a matter of law. However, in this case, we are mindful that [the police officer] only testified as to brief contacts with the fog line prior to the stop. He did not indicate that, for example, defendant was weaving, driving erratically or even that he drove onto the shoulder of the road.

People v. Davis

So a prima facie case for violating NY VTL 1128(a) in cases where the driver merely "hits" the line must include evidence that the driver was "weaving" or "driving erratically".

Marijuana In The Local News

In the past twenty four hours, the Albany Times Union has published three stories related to marijuana. As a marijuana lawyer who practices in Albany County and Capital Region courts, I can't help but comment.

Shen hockey in turmoil over alleged marijuana use

"According to multiple sources, the players are accused of smoking marijuana at the hotel the team stayed at while competing at the SUNY Morrisville tournament."

Is this really a story? I mean, would you expect anything else from high school hockey players, or hockey players anywhere for that matter? BIG STORY high school hockey players smoked weed and they are in BIG TROUBLE. Oooohhhh. Those kids are bad!

Traffic stop in Colonie turns up gun

"COLONIE — Two parolees face felony weapons charges after an officer, who smelled marijuana smoke at a routine traffic stop, allegedly found a loaded handgun in the car."

So I guess what happened here is that the cops are saying they smelled "burned marijuana" and that gave them probable cause to search the car without a warrant. As a marijuana lawyer I would be interested to know how the arresting officer can distinguish between burned marijuana and other burned vegetation. Was he trained in this skill? If so, did his instructor burn sage, and then cannibis? Parsley, and then cannibis? Tobacco, and then cannibis? The story does not mention if cannibis was actually recovered from the defendants.

O.D. Heck workers face drug charges

When I started reading this story, I thought these guys must have been smoking crack or doing coke. These guys took what many blue collar guys refer to as a "smoke break". Except, they were smoking the un-lethal illegitimate cousin of tobacco, marijuana. You know, I'm willing to bet these guys are great at their jobs and if they are smoking while working, they are probably self medicating. Two of the accused are grounds workers.

Despite the fact that the legislature of New York State decriminalized the possession of marijuana a long time ago, our society still suffers from "refer madness". The guys in this story are being treated as criminals because they were smoking in public which is a misdemeanor offense under NY Penal Law 221.10. The story says they were observed passing through a patch of woods and were on a deserted golf course where they were observed passing a pipe. The statute outlaws smoking weed in a "public place". It seems to me these guys did everything they could to conceal their smoking by avoiding a place where other people were not likely to be present.