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Search and Seizure

The Second Department in People v O'Hare, 73 AD3d 813 reviewed the basis for stopping and automobile and probable cause for arrest.

In O'Hare a police officer stopped the defendant's vehicle upon seeing an air freshened hanging from the rearview mirror. A forensic safety engineer testified for the defense at the suppression hearing that the air freshened was a dashboard level held by a string one tenth of one inch wide and was not an obstruction of the defendants view as prohibited by the New York State Traffic Law.

Because the court incorrectly assessed the evidence in finding the prosecution had shown reasonable suspicion that the defendant had committed a traffic violation new findings of fact may be mace on appeal. The stop of the defendants vehicle was unlawful.

There was no other basis for the stop and the resulting observation of an apparent seat belt law violation the license check erroneously indicated that e defendant's license was suspended and the eventual vehicle search that revealed weapons.

Due to the unlawful stop the Judgment was reversed and suppression was granted.

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