Marijuana Found During Routine Traffic Stop in New York
In People v. Kalin, 12 NY3d 225, 906 NE2d 381, 878 NYS2d 653 (2009), the defendant was stopped in what the arresting officer believed to be a routine traffic stop for a faulty exhaust.
In the course of the traffic stop, the defendant was found to be in possession of what the officer believed, based on his training and experience, to be nine bags of heroin together with a bag of marijuana and a marijuana pipe.
At arraignment, the defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree (Penal Law 220.03) and allocuted to possession of heroin.
On appeal, the defendant argued that he was prosecuted by a criminal complaint and not an information in that the charges of possession were not made out by nonhearsay allegations, nor confirmed by a laboratory report that the substance which was recovered was in fact heroin, but, instead were only based upon the officer's personal observations and training and experience.
The Kalin court specifically rejected this argument and held that nonhearsay allegations as to the identity of drugs are made out without any further independent corroboration when the drugs are found in the possession of the defendant and the accusatory instrument provides that the drugs are identified based on the officer's training and experience.
Significantly in overruling previously embraced judicial approaches concerning the jurisdictional sufficiency of the accusatory instrument that had theretofore required independent corroboration, the Court noted:
"The core concerns were . . . satisfied in this case. Defendant was on notice that:
(1) he was charged with possessing heroin and marijuana discovered in the car in which he was a backseat passenger at approximately 10:50 p.m. on January 21, 2006 at the corner of Cypress and Myrtle Avenues in Queens;
(2) the heroin was contained in nine separate plastic bags in the center console of the vehicle;
(3) the marijuana was found in a 'plastic zip lock bag' inside the center console and a 'marijuana pipe containing a quantity of marijuana' was found in the glove compartment.
Based on these details, defendant could prepare a defense . . . These facts were also specific enough to allow defendant to invoke the protection of double jeopardy in the event that he was acquitted of these charges but later subject to further prosecution. And, accepting the officer's statements as true, the assertions were enough to inform the defendant that the substances seized were heroin and marijuana . . .
"Defendant claims that the officer's allegations present an inadequate foundation for identification of the drugs because the officer did not describe what the substances looked like, nor did he attach a laboratory report indicating that the substances had been tested and found to be heroin and marijuana. We have already rejected the notion that a laboratory report is necessary to set forth a prima facie case and we unanimously adhere to that holding today. And, as detailed previously, the officer in this case presented more in the accusatory instrument than merely stating that he used his experience and training as the foundation in drawing the conclusion that he had discovered illegal drugs. He asserted that he also relied on the packaging of the substance that he determined to be heroin and that the recovery of a marijuana pipe further supported his belief that he had found marijuana.
"In our view, the pleading standards of the Criminal Procedure Law would be extended beyond what the Legislature intended if we were to require the recitation of a mandatory catechism in an information that otherwise adequately identifies the particular drug, alleges that the accused possessed that illegal substance, states the officer's familiarity with and training regarding the identification of the drug, provides some information as to why the officer concluded that the substance was a particular type of illegal drug, and supplies sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy. To the extent Jahron S. suggests otherwise, we are modifying that portion of the holding.
"Requiring police officers to supply a few additional words describing the appearance of the substance seized would necessitate the adoption of a formulaic recitation. An information charging possession of cocaine, for example, could state that the substance was 'white in color' and 'powdery,' or 'off-white' and 'rock-like' in appearance, whereas a charge of marijuana possession could be supported by a statement that the substance was 'green and leafy.' While it may be . . . safer practice for law enforcement to routinely use these descriptive phrases, unlike our dissenting colleagues, we would not hold that the absence of such phraseology rendered the information in this case jurisdictionally deficient." (Kalin at 230-232.)