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Appeals court reverses decision to suppress evidence

Police had probable cause for search

By: Bennett Loudon//August 10, 2023

Appeals court reverses decision to suppress evidence

Police had probable cause for search

By: Bennett Loudon//August 10, 2023//

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A state appeals court has reversed a lower court ruling and vacated a decision to suppress physical evidence in a drug case.

Defendant Shimel Crum was indicted for second-degree criminal possession of a weapon, among other crimes. His attorney filed a motion to suppress physical evidence in the case.

In February, state Supreme Court Justice Karen Gopee, in Queens, granted the motion and the prosecution appealed.

Now the Appellate Division of state Supreme Court, Second Department, reversed Gopee’s ruling and sent the case back to state Supreme Court.

At a suppression hearing, a police officer testified that he stopped Crum’s car after seeing that it had excessively tinted windows. The officer testified that, during the vehicle stop, he detected the smell of marijuana coming from the vehicle and he saw a bag of marijuana in the car.

Crum confirmed that the bag contained marijuana. The officer also saw Crum attempt to push a bag under the driver’s seat with his foot, according to the Second Department’s decision.

After telling Crum to get out of the car and go to the rear of the vehicle, the officer opened the bag and found a gun.

After the suppression hearing in February 2022, Gopee ruled that the prosecution failed to meet its burden of establishing that the officer had probable cause to search the bag and granted the defense motion to suppress the evidence.

Gopee granted a motion from the prosecutor to reargue the issue, but, Gopee reached the same decision.

The prosecution appealed to the Second Department, which reversed Gopee’s ruling.

“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 Second Department wrote, referring to People v Vargas, a 2011 Second Department decision.

“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search,” the court wrote.

The Second Department ruled that the prosecution established the legality of the search.

“The officer had probable cause to search the defendant’s vehicle because, upon making a valid traffic stop, the officer smelled what he identified, with the aid of experience and training, as an odor of marijuana emanating from inside the vehicle,” the court wrote.

The search “could lawfully include any closed containers found therein in which there was probable cause to believe that the marihuana may be found,” the court wrote.

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