New York State Court of Claims

New York State Court of Claims

PARISI v. THE STATE OF NEW YORK, #2006-015-542, Claim No. 108864


Passenger in vehicle stopped by State Police for expired inspection sticker sought return of $34,200 claimed to be his inheritance seized from the vehicle without a warrant but based on detection of odor of marijuana and voluntary surrender of drug paraphernalia. Court found no constitutional violation of unlawful search and seizure therefore no damages awarded for constitutional tort. Claimant may seek to recover money in Federal District Court pursuant to Civil Asset Forfeiture Return Act.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
The Proskin Law Firm, P.C.By: Marc D. Greenwald, Esquire
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 17, 2006
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The claim herein arises from an alleged illegal search of a vehicle in which the claimant was a passenger and the subsequent seizure of certain of his personal property. The events at issue occurred following a stop of the vehicle by the New York State Police near mile marker 84 of I-87 (Northway) in the Town of Schroon, New York.
At the trial of this matter held on September 26, 2005 the claimant took the stand and testified that on January 27, 2004 he and a friend (James Baccari) were traveling on I-87 on their way from Schenectady to visit a friend in Saranac Lake
. Claimant was in the front passenger seat of a Ford Ranger pickup truck owned by Christopher Schuffert and being operated at the time by James Baccari. Claimant testified that he and Mr. Baccari were driving Mr. Schuffert's vehicle because Baccari's own vehicle was in the shop and the claimant's automobile was in poor condition.
As they traveled north on I-87 the pickup truck in which the claimant was a passenger was pulled over by a New York State Trooper. Both vehicles parked on the side of the highway and a State Trooper identified by the claimant as Trooper James West approached the pickup truck and informed James Baccari that the truck's motor vehicle inspection sticker had expired. Mr. Baccari exited the vehicle at the trooper's request and walked to the back of the pickup truck where he and the officer engaged in a brief conversation. The trooper then returned to the vehicle and spoke to the claimant inquiring "where I was going and what I was doing".
After approximately 15 minutes a canine unit attached to the border patrol arrived at the location and was inserted inside the cab of the Ford Ranger. The dog then exited the vehicle cab and entered the rear or bed of the truck. According to the claimant after the dog exited the bed one of the officers indicated that the dog had signaled a positive response to a Rubbermaid box. A bag containing marijuana residue was found inside the box. Claimant testified that the bag was not his and that he did not know to whom it belonged.
Shortly thereafter Trooper West and the border patrol officer began searching the cab of the Ford Ranger. Claimant testified that he noticed that the border patrol officer was searching the back- seat area where he discovered what claimant described as a "box that held an inner tube" in which the claimant had placed $34,200 in cash. Claimant also testified that $2,400 was taken from his pocket when it was discovered during a search prior to claimant entering one of the trooper vehicles. The claimant had asked to be placed in the trooper vehicle so that he could get warm and it was explained by one of the two troopers at the scene that State Police procedures require that each individual placed in a trooper vehicle be searched. Claimant was provided a receipt for both the cash taken from the inner tube box and as well as that found on his person. None of the money has been returned to the claimant. Claimant confirmed that he was charged with possession of marijuana, a violation.
On cross-examination claimant testified that on the morning of January 27, 2004 he awoke at approximately 10:00 a.m. after which he packed clothing for his trip and counted his money. Claimant testified to his belief that he counted a total amount of $34,200 in cash. Upon further questioning, however, claimant stated that although he counted the money before departing his home he could not recall the total amount. He testified that he kept the cash above a ceiling in his mother's home where he was residing at the time. According to the claimant he inherited the money from or through his father and took the cash with him that morning "because I was fighting with my girlfriend".
Claimant acknowledged his testimony on direct in which he stated that the trooper informed Mr. Baccari that his vehicle was being stopped because its inspection sticker had expired. Following the stop Mr. Baccari was outside the Ford Ranger speaking to Trooper West as the claimant was seated in the vehicle's passenger seat. He acknowledged that he heard Mr. Baccari indicate to Trooper West that marijuana was present in the car. In fact, he testified that Mr. Baccari had provided the trooper with a marijuana pipe which was stored in the door panel of the truck. There was also a glass marijuana pipe in the truck's glove compartment which the claimant discovered when he opened the glove compartment to secure the vehicle's registration.
Claimant was ultimately transported to a nearby State Police barracks where the funds were seized and he was provided with a receipt for $29,890 in U.S. currency. The claimant confirmed that he had testified at an earlier deposition that Mr. Baccari possessed marijuana which he gave to the State Police. He also confirmed that he is currently awaiting sentencing in relation to a guilty plea entered in Federal Court upon a charge of sale of ecstasy.
On redirect examination the claimant indicated that to the best of his recollection the tube box in which he had stored the cash contained "$32,000 and something". He had an additional $2,400 in his pocket.
Claimant's counsel next called Trooper James D. West. Trooper West testified that he is stationed at the State Police High Peaks barracks located in the town of North Hudson. He recalled that on January 27, 2004 he stopped a Ford Ranger pickup truck because its motor vehicle inspection sticker had expired. After pulling the vehicle to the side of the highway the officer exited his vehicle and approached the pickup truck and its two occupants. He requested the vehicle operator's license as well as the vehicle registration documents. He then informed the vehicle operator, Mr. Baccari, that the vehicle was being stopped because it was uninspected. As he continued to question the occupants Trooper West detected "a strong odor of marijuana emanating from the vehicle". He then asked the operator to step out of the vehicle and informed him that he could smell marijuana coming from the vehicle. According to the officer the operator, Mr. Baccari, acknowledged that he had marijuana in the vehicle. The officer and Mr. Baccari walked back to the driver's side of the truck cab and Mr. Baccari pointed toward the center console and stated "there's a bag of marijuana and a pipe there". Officer West reached into the vehicle, retrieved a bag and confirmed that it contained marijuana. He and another trooper who had appeared at the scene separated the vehicle occupants and a border patrol canine unit was called. With respect to the location where the drugs were actually found, the officer clarified "I don't recall exactly where the items were".
The witness testified that the discovery of illegal drugs in the truck caused him to search the remainder of the vehicle incident to a lawful arrest. In searching the vehicle Trooper West discovered additional marijuana "tucked right beside - right next to where Parisi was sitting in the seat". He described the marijuana as being located between the claimant's body and the center of the seat. While Mr. Baccari admitted ownership of the glass pipe and bag of marijuana he pointed out to Trooper West the trooper testified that Mr. Baccari stated that the marijuana and a glass pipe found near the claimant's seat belonged to Mr. Parisi. The officer testified that he informed both individuals that they would be placed under arrest for unlawful possession of marijuana.
When the border patrol canine dog reached the scene Trooper West advised the border patrol agent that he had found drugs in the vehicle and asked that his canine perform a "walk around" of the vehicle. The dog immediately alerted on the bed of the pickup truck in which a large black hockey bag containing what the trooper described as marijuana residue was found. The canine then alerted on the truck passenger compartment and, after entering the vehicle, alerted on a small cardboard box located behind the front passenger seat. According to the witness the dog also alerted on the pipe and bag of marijuana located next to Mr. Parisi. Apparently the officer did not witness the entire search but was notified by the border patrol officer that several items had been found within the truck cab including a cardboard box containing an unknown amount of U.S. currency. Mr. Parisi acknowledged to Officer West that the money in the box was his. The officer then contacted his supervisor Michael Bingel and was advised that he should secure both the vehicle and property, including claimant's currency, and transport them to the State Police facility in Westport, New York.
After arriving in Westport the money was taken from the vehicle and counted by Trooper West, Investigator Ken Olsen and Senior Investigator Michael Bingel. Although Trooper West could not recall the exact amount of currency contained within the box he testified that the individual counts performed by all three men arrived at the same amount. Mr. Parisi and Mr. Baccari were later released after being charged with unlawful possession of marijuana, a violation.
On cross-examination the witness testified that after the initial stop he walked towards the vehicle being operated by Mr. Baccari who rolled down his window upon the officer's approach. It was at that juncture that the Officer detected the odor of marijuana he testified to previously on direct examination. According to Trooper West he identified the odor of marijuana as a result of training received at the State Police Academy which includes the burning of marijuana to familiarize candidates with its distinctive odor. The trooper estimated that he has participated in approximately 150-200 arrests involving the odor of marijuana during vehicle traffic stops similar to the one at issue here.
The witness testified that he transported James Baccari from the scene of the stop to the State Police barracks in Westport and that Mr. Parisi was transported to that location by Trooper Joshua Kresge. The cardboard box found in the truck's passenger compartment as well as cash found during Trooper West's search of Mr. Parisi was transported to Westport in the rear seat of the witness's State Police vehicle. Once at the Westport barracks the money was counted independently by Trooper West, Investigator Olsen and Senior Investigator Bingel. Exhibit B was identified as a State Police Receipt and Release of Property form a copy of which was provided to the claimant prior to his release. The receipt indicates the amount of $29,890 which the witness testified included both the currency found in the cardboard box as well as that taken from Mr. Parisi's pocket.
With regard to the discovery of the cardboard box containing currency Trooper West testified that he was seated in his vehicle which was parked behind the pickup truck when he was informed by Senior Agent Scott Abar of the border patrol that the canine had alerted on the box. The box was removed from the vehicle and placed in the backseat of Trooper West's patrol car and subsequently transported to the Westport barracks. Exhibit H was identified as a New York State Police Vehicle Search Report relative to the stop and search of the pickup truck in which the claimant was a passenger. The report, signed by the witness and dated January 27, 2004, relates the reason the vehicle was stopped and that the vehicle and both occupants were searched based upon probable cause. Trooper West next identified Exhibit I as a Confiscated Currency Tally Sheet completed during the count of monies taken from the cardboard box and claimant's person. According to the witness the currency was wrapped in several independent bundles for each of which a separate tally sheet was prepared. Exhibit I reflects the total amount of $10,100 in various denominations and is signed by the witness, Investigator Olsen and Senior Investigator Bingel. The Exhibit was received without objection.
On redirect examination the witness reviewed Exhibit 2, which is dated January 27, 2004. The witness confirmed that page 2 of the Exhibit reflects that "one plastic bag containing approximately one gram of marijuana" was seized from James Baccari and that "one glass marijuana smoking device containing marijuana residue" was seized from Anthony Parisi. Although normal procedure would be to include a reference to marijuana seized from an individual, the description of property seized from the claimant makes no such reference. Nor does the property description refer to currency having been seized from the claimant. Trooper West was unable to explain the failure to refer to the seized currency in Exhibit 2 but explained that the currency was referenced in his narrative.
Re-cross-examination consisted of a reading of the narrative referred to by the witness on his redirect which references "a box containing various denominations of U.S. currency, totaling $29,890". Trooper West also clarified that page 2 of Exhibit 2 does, in fact, relate that the one gram of marijuana was seized from the claimant.
Upon the conclusion of claimant's direct case the defendant moved to dismiss the claim for failure to establish a prima facie case. The Court reserved on the motion which is now denied.
The defendant first recalled Trooper James West to the stand. Trooper West testified that after stopping the vehicle in which claimant was a passenger he inquired of both Mr. Baccari and Mr. Parisi where they were going and the nature of their trip. Both indicated that they were going to see a friend attending college in Saranac Lake but did not provide the officer with the name of the individual or his address. The witness stated that he found no luggage or extra clothing in the vehicle and that when he inquired where their luggage was the claimant and Mr. Baccari indicated that they "planned on sleeping in the clothes that they had on their backs".
On cross-examination Trooper West testified that he asked both Mr. Baccari and the claimant where they were going and that although both responded that they were traveling to Saranac Lake, New York to see a friend at college they were unable to identify the college by name. When asked how long they intended to stay in Saranac Lake one individual, either Mr. Baccari or the claimant, indicated a stay of one night while the other related that they intended a three-night stay. The witness related his view that the inability to identify the college they were traveling to and the absence of clothing for a one or three night overnight stay constituted inconsistencies which raised his suspicions.
The defendant next called Michael Bingel who testified that he has been employed by the New York State Police for approximately 27 years and has held the rank of senior investigator since March 2001. Senior Investigator Bingel testified that on January 27, 2004 he was on duty at the Westport barracks of the New York State Police when he received a phone call from Trooper James West. Trooper West explained that he had stopped a vehicle containing two occupants and that a border patrol canine unit called to the scene had registered alerts on marijuana contained within the vehicle and a duffel bag containing marijuana. He further related that a large amount of currency divided into bundles wrapped in rubber bands was found which, in addition to the other information provided, "certainly fits the profile and is characteristic of someone who is going to obtain narcotics, or is about to make a transaction". Investigator Bingel instructed Trooper West to secure the vehicle occupants and transport the individuals, vehicle and currency to the Westport station.
At the State Police barracks in Westport the witness interviewed both Mr. Baccari and Mr. Parisi. Baccari stated that the two were traveling to see a friend and that he was unaware that the money was in the vehicle. Mr. Parisi admitted that the money was his but would not reveal the source of the money or the destination to which he and Mr. Baccari were traveling. The currency seized from the vehicle was brought to Investigator Bingel's office and later counted by Trooper West, Investigator Ken Olsen and himself. The witness identified Exhibit I as one of the tally sheets completed during the currency count and confirmed that the claimant was provided a receipt prior to his release from custody. The currency was then transported to the State Police offices in Raybrook where a second, confirmatory count was conducted.
On cross-examination Investigator Bingel testified that during their telephone conversation Trooper West indicated that "a small amount of marijuana was found in the vehicle".
Senior Investigator Bingel interviewed Mr. Parisi subsequent to his arrival at the Westport barracks. According to the witness Mr. Parisi acknowledged ownership of the currency found in the vehicle but refused to discuss how he had come to possess it. Although the claimant stated that he and Mr. Baccari were traveling to Saranac Lake he was unable to state "where he was going, an exact location, even a street or an apartment house". According to the witness Mr. Parisi requested to speak to his attorney during an interview conducted by Investigator Olsen. Investigator Bingel subsequently spoke to claimant's attorney who inquired as to the basis for any seizure of the claimant's currency. In response Investigator Bingel explained that the currency was being seized as part of an ongoing investigation based on the fact that marijuana was discovered in the vehicle and the canine had alerted to the cardboard box containing the money. The claimant was provided a receipt for the currency found in the vehicle, charged with a violation of unlawful possession of marijuana and released later that evening. The currency itself was retained at the witness's direction based on his determination that the circumstances, including the fact that the canine had hit on the box containing the currency, justified the conclusion that the monies were going to be used to procure narcotics.
In a case bearing significant factual similarities to the instant case the Appellate Division, Second Department in People v Morgan (10 AD3d 369) held:
The initial stop of the defendant's car based on a parking violation was valid (see e.g. People v Wilcox, 295 AD2d 914 [2002]). The police officer who stopped the car detected the strong odor of marijuana emanating from the defendant's car, observed the remains of marijuana cigarettes in the ashtray, and heard an admission made by the defendant's passenger that the occupants had been smoking and drinking. Under the facts of this case, the officer had probable cause to arrest the defendant either for the class B misdemeanor of criminal possession of marijuana in the fifth degree (see Penal Law §§ 221.10, 240.00[1]; CPL 140.10[1]; see generally People v McNamara, 78 NY2d 626 [1991]; People v Harris, 193 AD2d 757 [1993]), or for the "petty offense" of unlawful possession of marijuana (CPL 1.20[39]; see Penal Law § 221.05; CPL 140.10[2]; 150.75[2] [citations omitted]).

The same circumstances that furnished the probable cause to arrest the defendant also provided the officer with probable cause to believe that the car might contain more marijuana. Thus, the officer acquired the right to conduct a warrantless search of the entire car, including the trunk [citations omitted].

Similarly, in People v Pierre (8 AD3d 904, 905) the Appellate Division, Third Department determined that "[w]here a police officer makes an appropriate traffic stop, he or she may properly search the vehicle and its occupants when there is probable cause to believe that a crime has been or is being committed therein (see People v McRay, 51 NY2d 594, 602 [1980] ; People v Davis, 235 AD2d 941, 942-943 [1997])". The Court in Pierre went on to state "[s]uch probable cause may be found to exist upon the detection of the odor of marihuana [citations omitted] but the record must adequately demonstrate the officer's training and experience in the recognition of the odor or other factors which give reasonable cause to believe that the odor detected is, in fact, marihuana (see, People v Guido, [175 AD2d 364, 365 (1991), lv denied 78 NY2d 1076 (1991)]; People v Martin, [169 AD2d 1006, 1007 (1991)]; People v Chestnut, 43 AD2d 260, 261-262 [1974], affd 36 NY2d 971 [1975])" (id.).
Claimant has not demonstrated at trial that Trooper West's initial stop of the vehicle for an expired inspection sticker was unlawful nor has claimant called into question the trooper's testimony that he detected the odor of marijuana in the vehicle at the time of the stop. Moreover, prior to the search at issue herein the driver of the vehicle voluntarily surrendered to the trooper a glass pipe used to smoke marijuana and pointed out the presence of at least a small amount of marijuana in the vehicle (see T P 42, lines 11-14, P 43, lines 3-19). These facts provided the trooper with probable cause to believe the car might contain additional marijuana. As a result the officer was authorized to conduct a warrantless search of the entire car.
Trooper West testified regarding both his training in the recognition of the odor of marijuana (T P 88, line 16, P 89, line 7) and his experience in making 150-200 arrests involving marijuana in his six and one-half years as a trooper prior to the instant stop. (T P 89, lines 8-21). The officer's detection of a strong odor of marijuana coming from the vehicle provided Officer West with probable cause to search the vehicle (People v Martin, 169 AD2d 1006, supra) and the vehicle's occupants (People v Turchio, 244 AD2d 366). This is especially so where the officer's informed opinion concerning the odor of marijuana is "based upon his training and extensive experience" (People v Remy, 7 Misc 3d 1002 (A), 2005 WL 736623 [N.Y. Co. Ct.]).
The Court is satisfied that probable cause existed for the warrantless search of the vehicle and that the seizure of the significant sum of currency found in the box behind the claimant's seat and on the claimant's person were both legal and authorized under the circumstances. Although the testimony of both the claimant and Trooper West were less than entirely credible it appears from the proof at trial that the Border Patrol K-9 alerted on the box containing claimant's currency. This fact, in combination with the marijuana and paraphernalia found in the vehicle and the claimant's unwillingness or inability to provide a fuller description of his and Mr. Baccari's ultimate destination, provided an underlying factual basis for the belief that the $30,000 found in a box behind the claimant's seat was to be used as part of a drug transaction. As to the currency taken from claimant's person, the claimant himself testified that the money was discovered during a routine pat-down prior to his entering Trooper West's vehicle, at his own request, to get warm.
Since the search and seizure were both legally appropriate under the circumstances it cannot be said that claimant's right under the New York State Constitution to be secure against unreasonable searches and seizures
was violated. Without such a violation claimant has no legal right to damages allegedly arising from the seizure. Claimant may continue to seek the return of the seized property in the Federal District Court pursuant to the Civil Asset Forfeiture Reform Act ("CAFRA") (Pub. L 106-185, 1214 Stat. 202 (2000); see also 18 USCA § 981, et seq.).
The claim is dismissed. The Clerk shall enter judgment in accord with this decision.

February 17, 2006
Saratoga Springs, New York

Judge of the Court of Claims

[1].Claimant first testified that his friend Christian lived in Schroon Lake but upon questioning by his attorney changed the location to Saranac Lake.
[2].See McKinney's Const. Art 1 § 12.