People v. Garren

158 A.D.2d 614, 551 N.Y.S.2d 585, 1990 N.Y. App. Div. LEXIS 1993

Opinion

Contrary to the People’s contentions, the mere presence in an automobile of a vial in which no powdery substance or residue is discernible, does not, without further indicia of illegal narcotics-related activity, constitute probable cause to arrest the occupants and search their automobile (cf., People v Goggans, 155 AD2d 689; see also, People v McRay, 51 NY2d 594). Further, the hearing court’s finding that the arresting officer could not, under the circumstances presented, have reasonably mistaken an automobile heat cushion for a plastic bag containing a controlled substance, is supported by the record and will not be disturbed on appeal. Having had the advantage of hearing and seeing the witnesses first hand, the hearing court’s determination is to be accorded great weight on appeal (see, People v Prochilo, 41 NY2d 759; People v McEachin, 148 AD2d 551, 552), and it should be upheld unless it is clearly erroneous (see, People v Gordon, 150 AD2d 487; People v Armstead, 98 AD2d 726; see also, People v Matias, 137 AD2d 625, 626; People v Trulio, 135 AD2d 758, 759). Mollen, P. J., Brown, Kooper and Miller, JJ., concur.