Drug conviction reversed over illegal search

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A state appeals court has reversed a drug conviction, suppressed the evidence, and tossed the indictment because of an illegal search.

Defendant Torey Smith was convicted of fourth-degree criminal possession of a controlled substance in Wayne County Court in May 2019 before Judge Daniel G. Barrett.

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, reversed the conviction, granted a defense motion to suppress the physical evidence in the case, and dismissed the indictment.

Smith’s appellate lawyer argued that Barrett should have granted the motion to suppress the evidence “because the evidence was the fruit of an unlawful search by a police investigator.”

“We agree,” the court wrote.

The incident that led to Smith’s arrest started when a police investigator asked Smith’s parole officer for help in finding Smith for an interview about an unrelated case.

The parole officer knew Smith would be at a health facility on a particular date and time, so he arranged to meet the investigator and two other parole officers there.

As Smith left the facility, the parole officers stopped him and told him the investigator wanted to speak with him.

The investigator did a pat frisk of Smith “purportedly for the purpose of officer safety, and discovered no weapons but did find a set of car keys,” according to the decision.

The parole officer asked for the keys. He pressed the key fob and it activated the lights of a car in the parking lot.

After Smith was interviewed in the back of a police car, the investigator left. But the parole officers questioned Smith about the car in the parking lot because, under the terms of his parole, Smith was not allowed to drive.

Smith claimed the car belonged to someone else who was still in the building. Smith said he was waiting for that person to come outside.

The parole officers waited with Smith for an hour, but nobody came outside to claim the vehicle. While they waited, one of the parole officers checked surveillance video which showed that Smith had driven the car to the facility that day.

The parole officers searched the vehicle and found cocaine inside.

After the suppression hearing, Barrett ruled that the police investigator’s frisk of Smith and the seizure of the keys was unlawful, but it “did not taint the parole officers’ discovery of the vehicle and search thereof because a lawful justification for the search of the vehicle arose from the parole officers’ own independent investigation,” according to the decision.

The Fourth Department panel wrote that Smith has constitutional rights against unreasonable searches and seizures regardless of being on parole.

The panel wrote that a parolee’s constitutional protection from unreasonable searches and seizures is not violated when a parole officer conducts a warrantless search that is “rationally and reasonably related to the performance of the parole officer’s duties,” the court wrote.

“The record establishes that the discovery of the contraband in the vehicle was the direct result of, and not entirely free and distinct from, the police investigator’s unlawful search of defendant and seizure of the keys, and the court thus erred in refusing to suppress that evidence,” the Fourth Department ruled.

The parole officer went to the health facility only at the request of the police investigator and not for any separate parole investigation and Smith was not under suspicion for any parole violations.

The parole officers’ suspicion of a parole violation was only the result of the parole officer requesting that the police investigator hand over the fruit of the unlawful search and seizure: the car keys.

The parole officer did not learn of Smith’s possible connection to the vehicle until he pressed the fob.

Smith’s parole officer claimed that he could tell that Smith was walking precisely toward the vehicle in the parking lot. But the Fourth Department said that claim was “of questionable credibility, if not incredible as a matter of law.”

Evidence showed that Smith was about 100 feet from the car when he was stopped by the parole officer.

“In any event, there is no evidence that the parole officers actually investigated whether defendant operated any vehicle, let alone the particular vehicle at issue, on the basis of defendant’s presence in the parking lot and prior to the unlawful seizure of the keys,” the Fourth Department wrote.

“Moreover, even if defendant’s parole officer had, as he testified, somehow anticipated that the key fob might open the vehicle, his testimony indisputably establishes that he confirmed any such suspicion by pressing the fob that had been illegally seized by the police investigator,” the court wrote.

“We conclude that the court erred in refusing to suppress the physical evidence obtained from the vehicle,” the panel wrote.

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