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
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.
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.
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.
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.
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
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
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
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".
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.
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
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
In a case bearing significant factual similarities to the
instant case the Appellate Division, Second Department in People v Morgan
(10 AD3d 369) held:
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
NY2d 594, 602  ; People v Davis
, 235 AD2d 941, 942-943 )".
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
, [175 AD2d 364, 365 (1991), lv denied
78 NY2d 1076 (1991)];
People v Martin
[169 AD2d 1006, 1007 (1991)]; People v
, 43 AD2d 260, 261-262 , affd
36 NY2d 971 )"
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.
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,
) 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.
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
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
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
18 USCA § 981, et seq.).
The claim is dismissed. The Clerk
shall enter judgment in accord with this decision.