State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 30, 2014 105653 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

FAQIR RASUL,

Appellant.

________________________________

Calendar Date: September 12, 2014

Before: Peters, P.J., Stein, Garry, Egan Jr. and Clark, JJ.

__________

Carolyn B. George, Albany, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp

of counsel), for respondent.

__________

Egan Jr., J.

Appeal from a judgment of the Supreme Court (Lamont, J.),

rendered January 19, 2012 in Albany County, convicting defendant

upon his plea of guilty of the crime of criminal possession of a

controlled substance in the third degree.

Prior to assuming his patrol duties on the evening of

February 10, 2011, State Trooper Gary Denise reviewed a criminal

intelligence bulletin, commonly known as a be-on-the-lookout

(hereinafter BOLO) alert, advising that a white 2008 Lincoln MKX

bearing a certain license plate number might be traveling from

New York City to the Albany County area. According to the BOLO,

which was based upon an anonymous tip, the vehicle contained two

black males – possibly armed with handguns – and a large quantity

of cocaine. At approximately 9:30 p.m., while parked in a U-turn
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on the New York State Thruway south of the City of Albany, Denise

saw a vehicle matching the description given in the BOLO pass by

in a northbound direction. As Denise continued to observe this

vehicle in his rear view mirror, he noted that the vehicle

changed lanes without signaling. After radioing for backup,

Denise initiated a traffic stop of the suspect vehicle.

Denise and responding State Trooper John Knoetgen

approached the vehicle and instructed the occupants to roll down

their respective windows; as the driver and defendant (the frontseat passenger) complied, Denise and Knoetgen each noticed the

odor of burnt marihuana emanating from the vehicle. Both the

driver and defendant were asked to step out of the vehicle, and

the driver indicated that he and defendant had smoked marihuana

prior to the traffic stop. An initial pat down of defendant's

waistband area by Denise did not reveal any weapons, and a

subsequent search of the vehicle by Denise and Knoetgen did not

produce any weapons or drugs, leading the troopers to suspect

that defendant and/or the driver might be carrying marihuana on

their persons. Knoetgen then conducted a second pat down/search

of defendant – to which defendant consented – and felt a hard

object near the top of one of defendant's legs. Knoetgen mouthed

the word "gun" to another trooper who had arrived on the scene

and asked defendant if the object in question was a weapon. When

defendant failed to respond, Knoetgen reached in and retrieved

this object, which turned out to be a hard, rectangular-shaped

item wrapped in what he described as a bodega-style bag. 

Defendant thereafter was arrested and, upon questioning at the

State Police barracks, admitted that the object seized by

Knoetgen was cocaine.

Defendant subsequently was charged in a single-count

indictment with criminal possession of a controlled substance in

the first degree. Following the denial of his motion to

suppress, among other things, the cocaine seized during the

traffic stop, defendant pleaded guilty to criminal possession of

a controlled substance in the third degree – in satisfaction of

both the underlying indictment and other pending charges – and,

in accordance with the plea agreement, was sentenced to seven

years in prison followed by two years of postrelease supervision. 

Defendant now appeals, contending that Supreme Court erred in
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denying his motion to suppress.1

We affirm. Vehicle and Traffic Law § 1163 requires the

operator of a motor vehicle to "giv[e] an appropriate signal"

when "mov[ing] right or left upon a roadway" (Vehicle and Traffic

Law § 1163 [a]) and, more to the point, expressly mandates that

such signals "shall be used to indicate an intention to . . .

change lanes" (Vehicle and Traffic Law § 1163 [d]; see People v

Rice, 44 AD3d 247, 250-253 [2007], lv denied 9 NY3d 992 [2007]). 

In this regard, law enforcement personnel "may validly stop a

vehicle based on probable cause that the driver committed a

traffic violation, regardless of the [detaining] officer's

underlying motivation or desire to conduct another investigation"

(People v Weishaupt, 118 AD3d 1100, 1102 [2014]; see People v

Cuffie, 109 AD3d 1200, 1201 [2013], lv denied 22 NY3d 1087

[2014]; People v Ross, 106 AD3d 1194, 1195 [2013], lv denied 22

NY3d 1090 [2014]). "[P]robable cause exists for a traffic stop

[when] an officer observes a defendant committing a traffic

violation" (People v Portelli, 116 AD3d 1163, 1164 [2014]). 

Here, given Denise's testimony that he observed the vehicle in

which defendant was riding change lanes without signaling, his

subsequent stop of the vehicle was entirely lawful (see People v

Horge, 80 AD3d 1074, 1074 [2011]; People v Cheatham, 54 AD3d 297,

298 [2008], lvs denied 11 NY3d 854, 899 [2008]; People v Eure, 46

AD3d 386, 386 [2007], lv denied 10 NY3d 810 [2008]).

As for the propriety of the subsequent pat down and/or

search of defendant, "it is well established that [t]he odor of

marihuana emanating from a vehicle, when detected by an officer

qualified by training and experience to recognize it, is

sufficient to constitute probable cause to search a vehicle and

its occupants" (People v Cuffie, 109 AD3d at 1201 [internal

quotation marks and citations omitted]; see People v Black, 59

1 Supreme Court's denial of the suppression motion survives

defendant's guilty plea (see CPL 710.70 [2]; People v Dozier, 115

AD3d 1001, 1001 [2014]; People v Ross, 106 AD3d 1194, 1195

[2013], lv denied 22 NY3d 1090 [2014]; compare People v

Rodriguez, 118 AD3d 1182, 1182-1183 [2014], lv denied ___ NY3d

___ [Sept. 29, 2014]).
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AD3d 1050, 1051 [2009], lv denied 12 NY3d 851 [2009]; People v

Badger, 52 AD3d 231, 232 [2008], lv denied 10 NY3d 955 [2008];

People v Pierre, 8 AD3d 904, 905 [2004], lv denied 3 NY3d 710

[2004]; People v Chestnut, 43 AD2d 260, 261-262 [1974], affd 36

NY2d 971 [1975]; see also People v Acevedo, 118 AD3d 1103, 1106

[2014]; People v Horge, 80 AD3d at 1074). Here, both Denise and

Knoetgen testified that they smelled burnt marihuana emanating

from defendant's clothing and the vehicle in which he was riding. 

Even accepting that Denise's experience in detecting this

distinctive odor was not sufficiently developed at the

suppression hearing, we are satisfied that Knoetgen, as a drug

recognition expert and a K-9 drug detection officer, possessed

the requisite training and experience to do so. Further, and as

noted previously, Knoetgen testified that the driver of the

vehicle admitted that he and defendant had smoked marihuana prior

to being pulled over for the underlying traffic violation (see

People v Cuffie, 109 AD3d at 1201; People v Contant, 90 AD3d 779,

780 [2011], lv denied 18 NY3d 956 [2012]). As the circumstances

presented and the observations made by the troopers provided

probable cause for Knoetgen's pat down/search of defendant, we

discern no basis upon which to suppress the drugs subsequently

seized from defendant's pant leg. In light of this conclusion,

we need not consider whether the BOLO alert provided an

alternative and independent basis upon which to stop the suspect

vehicle and search its occupants. Defendant's remaining

contentions, to the extent not specifically addressed, have been

examined and found to be lacking in merit.

Peters, P.J., Stein, Garry and Clark, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court