New York State Court of Claims

New York State Court of Claims

WAGONER v. THE STATE OF NEW YORK, #2008-029-014, Claim No. 109368


Claim seeking damages for violation of claimant’s right to be free from unreasonable searches and seizures is dismissed after trial. Claimant did not prove that the officer lacked reasonable suspicion to conduct the search of her person and vehicle or that the search continued for an unconstitutionally long period of time.

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:
COBB & COBBBy: John Cobb, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 2, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for an allegedly unlawful search of her vehicle conducted on February 18, 2004 after she was pulled over by State Trooper John Key while driving westbound on Route 17 between Harriman and Goshen. Claimant testified she had been sick all day and asked her friend Megan Wilson, and Megan’s boyfriend Jermaine, to accompany her when she picked up her boyfriend, Richard Shaffrey, from his job at a bank in Harriman. On the way back from Harriman to Shaffrey’s house in Goshen, where claimant was living, claimant pulled onto Route 17 from Route 32, and saw a State Police car sitting near the Thruway toll booth. She testified she was “careful” as she drove west on Route 17, keeping to the speed limit, because she knew there was a police car behind her and that, at some point, the police car “flew up on my bumper and then pulled next to me.” [1] She stated the officer looked in her car, then pulled back behind her and did that “a couple of times before he pulled me over.”

Claimant estimated it was a distance of about five miles on Route 17 from the toll booth where she first saw the police car to where he pulled her over. She stated the officer came to her window and asked for her license and registration and then asked her to exit the car and brought her back to the front of his car. He asked her where she was going, who she was with and what were they doing. She told him she had been sick all day and was returning home from picking up her boyfriend at work. She asked him why he pulled her over and, according to claimant, he said “we’ll discuss that later.” At some point, the officer asked her if anyone had been smoking marijuana in the car, which she denied. After a few minutes, the officer asked the other occupants of the car to come outside and he proceeded to search the four of them, along with the vehicle and the trunk. Nothing illegal or improper was found, and the four were ultimately sent on their way without any sort of charges.

Claimant identified the point where she was pulled over as just past the State Police barracks past Exit 128 and she recalled that the police car had been following her from the time she passed the toll booth. She estimated she was standing outside her car for 45 minutes to an hour on that bitter cold and windy evening and she denied that the officer ever offered to let her, or anyone else, sit in his car while her car was being searched. She denied anyone had smoked marijuana, or anything else, in her car that day although she admitted they all smoked cigarettes, testifying that because she was sick and nauseous that day nobody even smoked a cigarette in the car.

Richard Shaffrey was in claimant’s front passenger seat when the car was pulled over after having been picked up from his job at the Goshen Savings Bank in Harriman. He testified that somewhere between Exits 129 and 130 claimant said there was a police car behind them. He looked and saw a marked State Police vehicle. Claimant was in the right lane of the two westbound lanes, and the police car moved into the left lane as if to pass claimant’s vehicle. The driver of the police car slowed and then, after “checking out” claimant’s vehicle, got back into the right lane behind claimant’s vehicle, then turned his emergency lights on and claimant pulled over. Shaffrey estimated it was about three to four miles from when he first saw the police car to when he activated the emergency lights. He stated that the car windows were up and nobody in the car was smoking. The officer asked claimant to step out of the car, after receiving her license and registration, and Shaffrey and the other passengers sat there for “a couple of minutes.” Then, the officer asked Shaffrey to get out of the car and patted him down. After doing the same with the other two passengers, the officer then searched claimant’s vehicle. Shaffrey estimated it was about 45 minutes from when he first saw the police car to when the incident was over. Although it was an estimate, he was positive it was not as short as one-half hour, nor was it as long as an hour.

Megan Charles testified she was in the rear seat of claimant’s vehicle with her boyfriend, now husband, Jermaine, when she heard claimant say “there’s a cop behind us.” Charles stated he was “messing with us . . . he would come up close behind then would back off.” She claimed the police car did this for about five to ten minutes, covering a few miles at highway speed. During this time, Charles testified, claimant was driving “perfectly fine.” At one point, the police car pulled alongside claimant then pulled back behind her and the trooper activated his emergency lights.

Charles stated, as did the other witnesses, that the officer first searched claimant, then the passengers, then the vehicle. Asked if anyone had been smoking marijuana in the car, she stated “of course not” and advised that she was pregnant at the time and would not have been in a car breathing marijuana smoke. She did not smell marijuana in the car or on any of the passengers. She denied that the officer offered to let her sit in his vehicle during the subject events, claiming she would have accepted such an offer, and estimated that the entire incident, from when they were pulled over until it was over, lasted 45 minutes to an hour.

The testimony of Trooper, now Investigator, John Key was somewhat at odds from that of claimant and her two passengers. He stated he first noticed claimant’s vehicle while he was on patrol on westbound Route 17 as he was coming down a hill in the left lane. He claimed that as he started to pass claimant’s vehicle, it drifted to the right over the fog line and then to the left into his lane. At that point, he pulled behind her and activated his lights. He denied ever following claimant, stating that he intended to pass her until her car drifted.

Key stated he approached claimant’s window, asked for her license and registration, and smelled marijuana coming from the car. When he initially approached, the car’s windows were up. He testified he was familiar with the smell of marijuana from his training in the police academy and in-service courses, and he allowed that the odor he perceived could have been there from someone smoking marijuana in the car earlier in the day.

Claimant gave Key her license and registration and he asked her to exit the vehicle. He testified he told her why he pulled her over and he questioned her about where she was coming from and where she was going. He stated he asked her if anyone had been smoking marijuana in the vehicle and she said no. He then interviewed the three passengers, one at a time, performed what he called “pat frisks” of the occupants, found nothing, and proceeded to search the vehicle and the trunk, again finding nothing. He testified he did not give claimant a ticket because she was not feeling well and told him she couldn’t afford a ticket, so he decided to “give her a break.” Although he did not call for any backup, another trooper arrived on the scene after about 10 minutes, after he had already searched the occupants but before he searched the vehicle. He estimated that the whole encounter took about 20 to 25 minutes.

State Trooper Peter Cirigliano testified that he was on patrol on westbound Route 17 on February 18, 2005 when he saw another patrol car on the shoulder with its lights on, behind a vehicle with three persons standing outside. He got out of his car and stayed with the three persons, one female and two male, until Trooper Key walked over with the claimant. Key told him he had smelled marijuana in the car and on one of the males, although Cirigliano could not recall detecting any odor of marijuana himself. Cirigliano stated that Key had patted down the occupants before he got there and searched the vehicle while he was there. He claimed that Key offered to let the female passenger sit in his patrol car because she was pregnant, but she declined. He stayed for the duration of the search, which he estimated was 10 minutes after he got there, and then everyone left.

The right to pursue a claim against the State of New York for damages arising from a violation of the right to be free from unreasonable searches and seizures as a “constitutional tort” has been clear since the decision in Brown v State of New York (89 NY2d 172 [1996]); see NY Const, art I, § 12). In determining such claims, courts look to the four-tiered test articulated in People v De Bour (40 NY2d 210), a classification that characterizes encounters initiated by police officers in their criminal law enforcement capacity based on the degree of police intrusion:
The first level is referred to as a request for information and that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The second level of encounter is the common-law right of inquiry which requires circumstances which will support a founded suspicion that criminal activity is afoot. A forcible stop and detention of a person is authorized only where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.
(Brown v State of New York, 12 Misc 3d 633 [Ct Cl 2006], affd 45 AD3d 15 [3d Dept 2007], lv denied 9 NY3d 815 [2007]; De Bour, supra, at 223).

Claimant contends, correctly, that she was subject to a Level 3 encounter, a forcible stop and detention that, in order to pass constitutional muster, must be based on a “reasonable suspicion” of criminal activity, something “less than probable cause” required to support an arrest (Travis v Village of Dobbs Ferry, 355 F Supp 2d 740 [S.D.N.Y. 2005]). Although claimant “does not challenge the initial search of the vehicle, conceding that the perceived smell of marijuana would create probable cause for the warrantless search of her vehicle,” [2] she contends that the search of her trunk was not authorized under applicable law, citing People v Blasich (73 NY2d 673 [1989]), and also that the search was impermissibly long under what she characterizes as the “excessive detention doctrine,” [3] citing People v Banks (85 NY2d 558, 562 [1995]).

Claimant does not challenge Key’s testimony that he smelled what he thought was marijuana, and she concedes that such provided Key with the reasonable suspicion required to justify the search of the vehicle (People v Morgan, 10 AD3d 369 [2d Dept 2004]; People v Chestnut, 43 AD2d 260 [3d Dept 1974], affd 36 NY2d 971 [1975]). Defendant points out that Key’s suspicion was articulated to claimant and to Officer Cirigliano at the scene and was thus not an after-the-fact attempt to justify the search after it had been challenged by claimant. Additionally, claimant did not challenge Key’s testimony as to the training and experience that provided him with the ability to identify the smell of marijuana. [4]

The contention is that, although the search of the passenger compartment was based on the required reasonable suspicion of criminal activity, once the search revealed no evidence supporting that suspicion, the search of the trunk was without legal justification. However, the testimony was that claimant’s vehicle, a Mazda MX-3, was a hatchback and the trunk area was accessible from the passenger compartment. Thus, the same reasonable suspicion that justified the search of the passenger compartment also provided a constitutional basis for the balance of the search. The issue of whether the search of an automobile trunk that is inaccessible from the passenger compartment may be justified based on an officer’s perceived smell of marijuana, after a search of the accessible portion of the vehicle is clean, is not before the court. Since the trunk area was accessible to the passengers in the vehicle, there is no logical or legal basis for distinguishing it from the rest of the passenger compartment for purposes of constitutional analysis. Nor is there anything in People v Blasich (73 NY2d 673 [1989]) – which addressed the spatial limitations applicable to a search incident to an arrest and the extent to which circumstances giving rise to probable cause for an arrest can also provide probable cause to search a vehicle, two questions distinct from the issue here – to the contrary. “[W]here there is a reasonable belief before the search begins that an automobile contains contraband or evidence of a crime, this constitutes probable cause and a search of the vehicle may lawfully proceed without a warrant” (People v Chestnut, 43 AD2d at 261).

Moreover, there is no basis for a conclusion that the circumstances of this case warrant the conclusion that claimant was detained for an unreasonably long period of time in violation of what claimant calls the “excessive detention doctrine”, citing the decision is People v Banks (85 NY2d 558, supra): “For a traffic stop to pass constitutional muster, the officer's action in stopping the vehicle must be justified at its inception and the seizure must be reasonably related in scope, including its length, to the circumstances which justified the detention in the first instance” (id. at 562). In Banks, the officer stopped the vehicle because the occupants were not wearing seatbelts, but once the officer’s license and stolen vehicle checks came back negative and there was no indication of illegal activity beyond the traffic violation, there was no justification for the defendant’s further detention and the subsequent search of the vehicle. The court held that although “the stop was justified in the instant case, the length and circumstances of the detention were not” (id.).

The crucial distinction between Banks and this case is that here the officer had a reasonable suspicion of criminal activity separate and apart from the traffic violation that led to the initial stop, thus providing the justification for the extended detention and vehicle search that was lacking in Banks. While claimant and her witnesses differed from the defense witnesses as to the length of the encounter, 45 minutes to an hour as opposed to 20 to 25 minutes, the court finds that the truth likely falls somewhere in between and that, even assuming the accuracy of claimant’s estimation, she was not detained for a constitutionally excessive period of time given all of the extant circumstances.

Accordingly, the court finds no basis for the conclusion that the search of claimant and her vehicle was “unreasonable” within the meaning of article I, § 12 of the NY Constitution and the applicable caselaw defining that term in this context. Claimant having failed in her burden of proof, the Clerk of the Court is directed to enter judgment of dismissal on the merits.

April 2, 2008
White Plains, New York

Judge of the Court of Claims

[1].Unless otherwise indicated, all quotations are from the court’s trial notes.
[2].Claimant’s Reply Memorandum of Law, p 1.
[3].Claimant’s Reply Memorandum of Law, p 2.
[4].See People v Hanson (5 Misc 3d 67 [Appellate Term, 2d Dept 2004]) in which a vehicle was stopped by a state trooper on Route 17 in Goshen because it drove over a white hazard line, the officer smelled marijuana, searched the driver and found marijuana, then searched the vehicle and found a box of pills. The court affirmed the suppression of the evidence, noting that while “[i]t is well settled that the smell of marijuana alone is sufficient to provide trained and experienced police officers in the area of narcotics probable cause to search a vehicle and its occupants . . . there was no testimony regarding [the arresting officers’] training or experience in identifying the smell of burnt marijuana” (id. at 69).