In People v. Ramos, 122 AD3d 462, 997 NYS2d 24 [1st Dept 2014], an officer stopped the defendant's vehicle after seeing the driver smoke what appeared to be a marijuana cigarette.
After stopping the vehicle, the cigarette could not be located, but the officer testified that he smelled an odor of marijuana. However, the defendant did not appear to be impaired and, while glassine envelopes were found, they were empty.
Under these circumstances, the Court held that there was no probable cause to search the trunk of the vehicle.
The Ramos court distinguished two earlier cases--People v. Mena (87 AD3d 946, 930 NYS2d 7 [1st Dept 2011], lv denied 18 NY3d 860, 962 NE2d 293, 938 NYS2d 868 ) and People v. Valette (88 AD3d 461, 931 NYS2d 6 [1st Dept 2011], lv denied 18 NY3d 887, 963 NE2d 134, 939 NYS2d 757)--where trunk searches were upheld based largely on the officers having detected an odor of marijuana.
In both Mena and Valette, the defendants had admitted to smoking marijuana, thus upping the probable cause ante.
In Romeo, the defendant was initially stopped for a traffic infraction, and thereafter ordered out of the vehicle when he could not produce identification, at which point a pat down revealed a baggie of marijuana on the defendant's person.
Despite the actual presence of this contraband, the Court held that a search of the trunk of the vehicle was not permissible under the automobile exception.