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A state appeals court has reversed a burglary conviction and suppressed evidence in the case because of an illegal police search.
Defendant Benjamin Marcial was convicted in state Supreme Court in Brooklyn in December 2016 of second-degree burglary and fifth-degree criminal possession of stolen property.
Marcial was arrested after a police traffic stop on Jan. 24, 2015. The officer stopped Marcial after seeing him commit a traffic violation.
The officer later testified that he recognized the car and driver from a “wanted” flier for a burglary committed two days earlier.
A second officer was called to the scene. The second officer also testified that he recognized Marcial from the flier.
One officer took Marcial into custody while the second stayed with Marcial’s car. The second officer retrieved a knapsack from the back seat of the car and found jewelry inside.
“The knapsack was later identified by a complainant as having been taken during the burglary of her home. Some of the jewelry recovered from the knapsack was later identified by complainants as property taken during the burglaries of their respective homes,” according to the decision released Wednesday by the Appellate Division of state Supreme Court, Second Department.
Marcial’s attorney filed a motion to suppress the knapsack and the contents “as the products of an illegal search,” according to the decision.
Referring to People v Mundo, a 2002 New York State Court of Appeals decision, the Second Department explained that, without probable cause, “it is unlawful for a police officer to invade the interior of a stopped vehicle once the suspects have been removed and patted down without incident, as any immediate threat to the officers’ safety has consequently been eliminated.”
“Pursuant to the automobile exception to the warrant requirement, a warrantless search of a vehicle is permitted when the police have probable cause to believe the vehicle contains contraband, a weapon, or evidence of a crime,” the court wrote.
But the circumstances in Marcial’s case “did not rise to the level of probable cause,” the court wrote.
The officer who retrieved the knapsack and its contents acknowledged that he only knew the information on the flier about the vehicle used in the burglary, in addition to the photo and personal information of Marcial.
“The officer who initiated the traffic stop similarly testified that he recognized the defendant’s vehicle from the ‘wanted’ flyer describing the burglary. However, the mere fact that the defendant was driving the same vehicle … as having been used to flee the burglaries did not give the police probable cause to conclude that the vehicle contained evidence of the burglaries,” the court wrote.
“There was also no reasonable basis for the officers to believe that another burglary had just been committed or was afoot as the defendant was apprehended in a different neighborhood than where all of the burglaries occurred, and at the time of his apprehension, a female companion and a young child were traveling as passengers in the defendant’s vehicle,” the court wrote.
The prosecution offered “little to no evidence” that the officer who recovered the property from Marcial’s car had reason to believe that the car may contain evidence related to the burglaries.
“The evidence adduced at the hearing did not reflect that the defendant made any statements suggesting the vehicle contained any contraband, weapon, or evidence of a crime,” the court wrote.
“The officers did not testify that they observed any weapon or contraband in plain view, or that they found any contraband on the defendant’s person when he was taken into custody,” the court wrote.
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