Legal Question in Criminal Law in New York

Yes it's worth challenging the search as being absent probable cause.

You're talking about People v. Rose, 67 A.D.3d 1447, 889 N.Y.S.2d 789, (4th Dept 2009), which was appealed out of Steuben County. In that case, the Fourth Department ruled that probable cause for a traffic infraction or reasonable suspicion of a crime were required for a vehicle stop. The court further ruled that the stop was based on an apparent mistake of law (rather than a mistake of fact) because what the officer observed and believed was an offense was, as a matter of law, not illegal.

There the court made an interpretation of the headlight dimming statute. The statute, VTL �� 375(3), provides that lights, �shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle....� The Appellate Division concluded "[t]he mere flashing of lights, alone, does not constitute a violation of the statute." It is important to note the words "mere" and "alone" here before jumping to conclusions. At pg. 1449, the court goes on to say:

"The People presented no testimony at the [suppression] hearing concerning the distance between defendant's vehicle and the oncoming vehicle, and there was no evidence that defendant's flashing of the high beams interfered in any way with the driver of the approaching vehicle. Indeed, because the officer mistakenly believed that flashing of the high beams for no particular reason was unlawful irrespective of the distance between vehicles, the officer did not concern himself with the distance of the approaching vehicle. Thus, the stop of defendant's vehicle was based on a mistake of law."

This means an officer (even the officer in Rose, if he had a do-over) could testify at the suppression hearing and, with the right factual details, convinced a court that what he saw was not "mere flashing of lights, alone" but operation of a "dazzling light" so as to "interfere[d] with the driver of the approaching vehicle." You see the problem? If a DA is on the ball and sees the issue, he will coach the officer to elicit as many facts as possible to support the "dazzling-interference" theory. Now, in your case, the officer, being honest, may be unable to testify to any facts that will support the interference idea, but it all turns on the details. Furthermore, what kind of a judge you have will matter very much as the factual interpretation is half the formula.

If your suppression motion is not so specific ("I was driving my car down the road and operated the vehicle in a completely lawful matter . . .") as to call the DA's attention to the issue, there is a greater likelihood that the officer, at the Ingle Hearing, may neglect to give sufficient details (if they exist at all) to support the legality of the stop.

[I am not getting into how they found the marijuana. There may be a search issue or even a Banks length of detention issue there.]

"Is it worth fighting this?" That is up to you and it may depend on many things. Firstly, you have a strong suppression issue here, but success is never assured--particularly since some judges will never (as in "ever") suppress a police stop and many appellate courts seem to find no fault in this. However, if you are charged with a crime (Criminal Possession of Mar.) then I would strongly urge you to obtain competent counsel and explore the issue fully with him before making any decision about a plea to any crime. Such a conviction can not only land you in jail or on probation, but can also result in your NY driving privileges being suspended and can block you from relieving federal student aid.

However, if you are charged with Unlawful Possession of Marijuana ("UPM") under Penal Law � 221.05, other factors may complicate your decision. UPM is a violation, not a crime, and cannot give you a criminal record. If you have no prior drug or marijuana convictions within the preceding three years, then you also face no jail time and the maximum fine is fixed by statute at $100 (plus surcharge and fees of an additional $120-$125). [If you have one such prior, the max fine goes up to $200; with two such priors 15 days of jail is also possible.] Given that you would not face any jail or any conviction on your record, and since the fine, etc., is limited, the question for some defendants becomes more about expense and hassle.

It is never a good idea to represent yourself, though on a first offense UPM, you can only do so much harm. Hiring an attorney, however, is *the* sensible route to defend the case, but this is not free and should set you back some hundreds of dollars. [Call around to find out what the going rate is locally. Many attorneys offer flat fees.] All considered, the impulse to fight a UPM is probably wisest. Taking the easy road is often not best in the long run.

Whatever you decide, Good Luck.