Defendant's application for an order suppressing physical evidence seized from the car he was driving as well as a statement the People attribute to him is granted.

Defendant is charged, by information, with criminal possession of marijuana in the fourth degree (see Penal Law §221.15). According to the accusatory documents, the amount of marijuana involved is 2.2 ounces, or 31.9 grams, and the incident giving rise to this prosecution is alleged to have occurred on October 9, 2009 at 12:05 a.m. Defendant also stands accused, by simplified traffic information, of driving above the posted speed limit (see Vehicle and Traffic Law §1180[d]). Pursuant to stipulation, the issues of whether any evidence should be suppressed as a result of an unlawful police intrusion, and whether a statement the People attribute to Defendant should, if not otherwise suppressible, be suppressed on account of coercion, improper promises, or a violation of the requirements of Miranda v. Arizona (384 US 436 [1966]), came on before me on August 13, 2010 for a pre-trial hearing. One witness, Nassau County Police Officer Daniel Dowsett, took the stand. He did so on the People's behalf.

Officer Dowsett testified that on "October 8th" at 11:57 p.m., he was on patrol in Valley Stream, with his partner in an unmarked car, when he saw a 2004 Nissan make a turn from Central Avenue eastbound onto Merrick Road "at a high rate of speed;" that he paced the Nissan; that it was traveling about 45 miles per hour; that he activated the emergency lights and "hit the siren;" that the driver, whom he identified as Defendant, pulled into a Shell gas station on Merrick Road; and that "we conducted a car stop at that time." He next testified that he approached the passenger's side of the Nissan; that he took out his flashlight and illuminated the inside of the Nissan; that there was a passenger in the car; that "I was observing the passenger as my partner was speaking to [Defendant];" that there was a "strong odor of marijuana coming from the vehicle;" that "after my partner recovered his identification, I asked the passenger to step out of the vehicle and to the back of the car;" that Defendant got out of the car as well; that "my partner began to search the vehicle;" and that both he and his partner conducted a search. When asked why he searched the car, Officer Dowsett testified that "I believed there was contraband in the vehicle. I believed there was marijuana in the car." He then testified that "[a]t first when I searched the vehicle I was able to observe in the back seat of the car a can;" that it was a can of engine cleaner; and that "I shook the can and it felt like it had no liquid in it. I was able to unscrew the bottom of the can and there was [sic] five bags of marijuana that was [sic] recovered from inside the can." He further testified that "a large bag of marijuana was [also] recovered from the Defendant's glove box;" that his partner found that bag of marijuana; that he (Officer Dowsett) was present when his partner did so; and that "actually the sequence was my partner recovered the marijuana first. When he recovered the marijuana from the glove box, I handcuffed the defendant. My partner handcuffed the - - - excuse me, I handcuffed the passenger and my partner handcuffed the defendant and that is when I went into the car and recovered the marijuana [*3]in the can. After that, the Defendant made a statement that it was his marijuana and that he had nothing to do with it, meaning the passenger had nothing to do with it." When asked to clarify exactly what Defendant said, Officer Dowsett testified that Defendant stated "[i]t's mine, he had nothing to do with it." He next testified that neither he nor his partner said anything to Defendant "prior to making the statement;" that neither of them threatened Defendant in any way; that he made no promises to Defendant; that his weapon was holstered; that four officers were there at the time; and that he thinks "they were getting ready to gather up the marijuana that was recovered and put it into our RMP." Finally he testified that after Defendant made the statement "[w]e placed him under arrest and brought him to the precinct."

On cross-examination, Officer Dowsett testified that he followed Defendant's car for approximately one quarter of a mile before pulling him over; that Defendant was not speeding at the time he made the left turn; that he (Officer Dowsett) had been trained in independent speed estimation at the Nassau County Police Academy 17 years earlier; that his partner was driving the unmarked police vehicle; that both he and his partner decided to pace the Nissan; that the speed limit at the location of the stop is 35 miles per hour; that they used overhead lights, the lights on the police vehicle's grill, and the siren to make the stop; that he and his partner had to travel 45 miles per hour to catch up to Defendant; and that they did not need to go faster than Defendant because they were already moving. Officer Dowsett next testified that when he approached the passenger side of Defendant's car, the passenger-side window was rolled down; that he did not say anything to the passenger; that the smell of marijuana was coming from inside Defendant's car; that the odor was not coming from the people in the car; that the smell he smelled was of "unburnt" marijuana; that he did not smell burning marijuana; and that the occupants were pulled out of the Defendant's vehicle "because I wanted to look inside the car." Asserting that he "didn't have to," Officer Dowsett acknowledged that neither he nor his partner asked for permission to search the car, and he next testified that neither Defendant nor his passenger was under arrest at the time of the search. He then testified that he believed the marijuana was packaged in zip lock bags, although shortly thereafter he testified "I don't remember it being in a zip lock bag. I remember it was a clear plastic bag." He next testified that he did not remember whether there were individual bags inside the bag; that a strong marijuana odor emanated from the bag; and that he was "sure" that the marijuana odor emanated from a "zip lock bag." He further testified that the "degreasor can" had "a few bags of it;" that Defendant was handcuffed after the marijuana was found because "I didn't want him to be a risk of running;" that neither Defendant nor his passenger gave permission to open the can; that Defendant was handcuffed but not under arrest when he made the statement; that Defendant had been handcuffed "five minutes or so" when he made the statement; and that no one read Defendant his rights before he made the statement. Officer Dowsett maintained that he could smell marijuana in the car, and on questioning by me, he testified that the speed [*4]limit was 35 miles per hour, and that he knew it because "its posted," although he could not say where.

On re-direct, Officer Dowsett testified that he has seen speed-limit signs posted on "these roads."

In his closing remarks, defense counsel urged that there is insufficient evidence to demonstrate that Defendant was speeding so as to justify stopping his car. He also challenged Officer Dowsett's credibility, asserting that he was "all over the place." He urged that his claim that he could smell marijuana that is not burning, and is inside a zip lock bag inside a glove compartment or inside a bag in a closed can is incredible, as is his claim that neither officer said anything to Defendant to induce him to make the statement the People attribute to him. He also urged that all evidence should be suppressed because police searched the car without consent and without probable cause.

The People argued that there is an adequate basis for pulling the car over, and that the smell of marijuana justified the search of the car under the automobile exception to the warrant requirement. Although they conceded that Defendant was not arrested until after the search of the car, they argued that because police "felt there could have been a crime in this case due to the smell of marijuana. . .[a]nything in the car can be searched." Making no mention of the fact that Defendant was in handcuffs, and not advised of his rights, they also urged that the statement was voluntary because not the product of any kind of coercion.

Although just barely, the People — who did not address the issue of the posted speed limit until re-direct examination — have come forward with enough to demonstrate that it is reasonably likely (see CPL 70.10[2]) that Defendant was driving faster than the posted speed limit so as to justify the stop of his car (see People v. Robinson, 97 NY2d 341,741 NYS2d 147 [2001]); and see People v. Berrios, 28 NY2d 361, 321 NYS2d 884 [1971]). But even if I were to believe that police officers could smell a relatively small amount of non-burning marijuana packed inside plastic bags — apparently zip lock ones, although Officer Dowsett's testimony in that regard was inconsistent — that were in turn contained in either the glove box or a closed can, I cannot accept the People's tacit argument that smell alone is enough to justify Defendant's arrest, let alone the search of his car.

While some courts have recognized that "plain smell" can serve as an analogue to "plain view" (see People v. Williams, 822 F.2d 1174fn. 105; see also Matter of Marrhonda G., 151 Misc 2d 149, 575 NYS2d 425 [New York County Family Court, 1991, Jurow, J.]), they have done so where circumstances such as warm weather and a sealed room indicate that something could be smelled, where the law enforcement officer making use of the sense of smell has a demonstrated familiarity with the smell of the substance in question, and where something other than smell — e.g., marijuana actually [*5]in plain view, large quantities of marijuana involved (see e.g. Unites States v. Pond, 523 F2d 210 [2d Cir., 1975]; United States v. Pagan, 395 FSupp 1052 [DCPR, 1975, Pequera, J.]; United Sates v. Turbyfill, 373 FSupp 1372 [WDMo, 1974, Becker, J.]) — contributes to the conclusion that probable cause exists. In this case, the People failed to come forward with a demonstration that Officer Dowsett was familiar with the smell of unburnt marijuana, and they present no circumstance other than smell to justify what occurred here. Indeed, it appears that the People assume both that smell alone justifies an exploratory search of every part of the Defendant's car and every container in it, and that because police discovered what they suspected was there, the intrusion was lawful. A search may not be justified by its fruits, however (see People v. Sobotker, 43 NY2d 559, 402 NYS2d 993 [1978]; People v. DeBour,40 NY2d 210, 386 NYS2d 375 [1995];and see Johnson v. United States, 333 US 10 [1948]), and the People's boot-strap reliance on the automobile exception to the warrant requirement is misplaced.

A search conducted pursuant to the automobile exception to the warrant requirement pertains after a person has been arrested, and is permissible only if there is probable cause for the arrest and probable cause, or a least a more than a reasonable suspicion, that the car contains either contraband or evidence of the crime for which the detainee has been arrested (see People v. Galak, 81 NY2d 463, 600 NYS2d 185 [1993]; People v. Torres, 74 NY2d 224, 544 NYS2d 796 [1989]; People v. Blaisich 73 NY2d 673, 543 NYS2d 40 [1989]; and see Arizona v. Gant, __ US __, 129 SCt 1710 [2009]; People v. Carvey, 89 NY2d 707, 657 NYS2d 879 [1997]; People v. Langen, 60 NY2d 170, 469 NYS2d 44 [1983]; People v. Belton, 55 NY2d 49, 447 NYS2d 873 [1982]). The People, through their witness, maintain that neither Defendant nor his passenger was arrested until after the police found evidence of the crime which, until they searched for and found the marijuana, they only "believed" had been committed. But even if Defendant and his passenger are deemed to have been arrested on account of the claimed speeding infraction, there is no question but that police were not looking for and would not have been able to find evidence of "speeding" by searching the car (see Arizona v. Gant, supra). Moreover, even if I were to conclude that Officer Dowsett smelled something, and even if I were to assume he is familiar with the smell, in the fall, late at night, of a small quantity of unburnt marijuana packaged in a plastic bag that is in turn inside a closed container, I conclude that what he smelled gave rise to no more than a reasonable suspicion that contraband was in the car. Since a search must be supported by more than that, the searches conducted here are unlawful, thus requiring suppression of their fruits. Those fruits include Defendant's statement, which, it is obvious, he would not have made absent the unlawful police discovery of the marijuana (see e.g. Wong v. United States, 371 US 471 [1963]; People v. Cantor, 36 NY2d 106, 365 NYS2d 509 [1975]). As noted above, Defendant's application is accordingly granted.

This constitutes the decision and order of the court.

So Ordered.