WAYNE E. BENNETT
SUPERINTENDENT

NEW YORK STATE POLICE
TROOP T HEADQUARTERS
P.O. BOX 189
ALBANY, N. Y. 12201-0189

August 3, 2004

LETTER OF CENSURE
Trooper James D. Leeder
New York State Police
Troop T
Tarrytown, New York
Dear Trooper Leeder:
On Friday, July 30, 2004, at 2:00 p.m., you met with me in my office to conduct an
Informal Inquiry into the allegations that you failed to review case facts to adequately prepare for
your court appearance, which resulted in inaccurate and contradictory testimony being given and the
dismissal of felony drug charges.
As defined in the elements ofRule 3.2 of the New York State Police Manual, you
were contacted and queried as to whether or not you desired to have this matter adjudicated at the
Troop level. You indicated you were amenable to such a proceeding and submitted your
memorandum wherein you waived any right to appeal from my final determination.
Prior to the imposition of any penalties, I requested you relate any details you felt
were pertinent to the incident. You admitted you did not adequately prepare for the Suppression
Hearing and did not file an Arrest Summary Report with the Westchester DA's office.
I advised you that your actions were in violation of Regulations 8A2 and 8A9(5) of
the New York State Police Manual, and it was my determination that you would be penalized
through this Letter of Censure. Upon your receipt of this letter, this matter will be considered closed.
Sincerely,

Major George P. Beach, II
Troop Commander, Troop T
~copies to:
Deputy Superintendent Joseph F. Loszynski - Internal Affairs Bureau
Captain Evelyn P. Mallard, Zone Commander, Zone One

Genl. 7

NEW YORK STATE POLICE

MEMORANDUM
Troop_.I_Station,_~H,__,_,,e,,,ae,dcsacsu,.,,a,,_r.s,teee,rc,Se.__
Date___,J"'u"-'-ly,_,,c..c3,,,0><,,w2,.,0,,,0"'4:,___ _ _ __

To:

Major George P. Beach II, Troop Commander, Troop T

From:

Trooper JAMES D. LEEDER, SP Tarrytowry'..P.:(_

Subject:

PERSONNEL COMPLAINT - DCN: 2003-0109

I hereby consent to have the above captioned
investigation adjudicated by the Troop Commander under the
provisions of Article 3, Disciplinary Action of the New York
State Police Manual.
I waive the following:
(1)

The right to have this matter disposed of by the
Superintendent or by a formal hearing.

(2)

Any right to appeal from the Troop Commander's
adjudication which may be a determination of
unfounded or, upon a finding of guilty, the
imposition of:
i.

a letter of censure, and/or

ii.

an intra-troop transfer with my consent,
and/or

iii.

a fine to be expressed in the loss of no
more than five (5) vacation days to be
worked by the Member with no additional
compensation or overtime, and/or

iv.

a period of probation not exceeding 90 days
which probation must be for a definite
period of time) and must include conditions
of probation which, if violated, could
subject me without the right of a further
inquiry or a hearing, to the imposition of
any one or more of the penalties that can be
imposed by the Troop Commander, and/or an
intra-troop transfer, without my consent.

Genl. 7

NEW YORK STATE POLICE
HEW YORt, STATE POLICE
INTERNAL AFFAIRS BUREAU - - - - - HEAOOUARTERS

zoo~AUG' 17

p 8: oqMEMORANDUM
Troop _I_Station_---"H-=-e=a=d=g=acu=a=r--=-te=r'-"s'----- - -Date_ _ _ _ _ _A_u_g__u~s~t _3~,_2_0~0_4
_ _ __

To:

Deputy Superintendent Joseph F. Loszynski - Internal Affairs Bureau

From:

Major George P. Beach, II Troop Commander, Troop T

Subject:

INFORMAL INQUIRY - DISCIPLINARY ACTION:
TROOPER JAMES D . LEEDER
EOD: OCTOBER 28, 1996
DIVISION COMPLAINT FILE NUMBER:
20030109

~~~

Reference is made to the Level Four personnel investigation conducted
by Inspector ARTHUR J. HAWKER, which was initiated when then Investigator
LEEDER and Trooper HAROLD M . EDWARDS arrested a complainant for felony
cocaine possession . The case was then adopted by Investigator NOEL J. NELSON.
The subsequent investigation revealed that the members failed to review the case
facts or adequately prepare for their court appearances, which resulted in
inaccurate and contradictory testimony being given. This resulted in the dismi ssal
of felony drug c harges against the defendants.
On July 30, 2004, at 2:00 p.m ., I met with Trooper LEEDER in my
office at Troop T Headquarters to conduct an Informal Inquiry . As defined in the
elements of Rule 3.2 of the New York State Police Manual , Trooper LEEDER was
contacted and asked whether or not he desired to have this matter adjudicated at
the Troop level. He then submitted his memorandum (copy enclosed) stating his
preference for an Informal Inquiry and waiving any right to appeal from my final
determination.
Prior to the imposition of penalties, I requested Trooper LEEDER relate
any details he felt were pertinent to the incident. He admitted he did not
adequately prepare for the Suppression Hearing and did not file an Arrest Summary
Report with the W estchester DA's office.
His actions were in violation of Regulations 8A2 and 8A9(5) of the
New York State Police M anual, and it was my determination that he would be
penalized through a Letter of Censure (copy enclosed) . Upon his receipt of his
letter, this matter will be co nsidered closed.
Enclosures

~ -- - - - - EDWARDS, HAROLD M TROOPER
✓ LEEDER, JAMES D INVESTIGATOR

NELSON, NOEL N INVESTIGATOR

'

TYPE: Personnel
CASE# 20030109
FIND ING : Founded
Complainant:
Lester Adler

ctmplaint ofPersonnel Investigation 20030109
Type:

Sub Type

Personnel

Incident Date/Time

Status: C

Mode Rec. Fax

10/1/2002

3/26/2003 Level Inv.

Report Due

T

Troop:

D

4

Commissioned Officer Assigned Yes

CTV:

K6002 • C/WHITE PLAINS

Report Location

Personnel

8/28/2003

Synopsis:
Westchester County Court Judge Adler dismissed seizure of CPCS 1st evidence against defendants a n d - who were arrested by Troopers Leeder and Edwards on 7/3/01. In his decision, the Judge
char'act'erized testimony given by Division members as "contradictory, incredible and unconvincing."
IAB South to investigate

Classification:

jSubjects:

INTERNAL ADMINISTRATIVE MATIERS

(

Rank

Last Name

CCC 1: INCOM

Rank

Last Name

Last Name

10/1/1984

DOE:

First Name NOEL
Troop T
/..ocatlon TARRYTOWN
CCC 2: INCOM
CCC 3: DISOD

Ml N

I
First Name Lester

Last Name Adler

Rank

Address

Ml D

INVESTIGATOR

NELSON

CCC I: JMPEV

Shield

DOE: 10/28/1996

First Name JAMES
Troop M
Location DETF-NYC
CCC 2: DISOD
CCC 3: DICDV
Rank

1017/1991

Ml M

INVESTIGATOR

LEEDER

CCC 1: INCOM

!Complainants:

DOE:

TROOPER

First Name HAROLD
Troop T
Location NEW ROCHELLE
CCC 2: DISOD
CCC 3: DICDV

EDWARDS

SP Employee □

SexM

Westcl"iester Co Court

Home Phone

City White Plains

State

TZS

Ml

DOE

NY

Zip

10601

Worl<Phone

!Administrative Personnel:

ID
Last

LOSZVNSKI

Thursday, August 14, 2008
u:-:z:::i.:=:

!"

_; :

'!'" 'lf1C=w:Snr=:i

First

RECEIVING MEMBER
JOSEPH

Ml

TZS H132

F

Date/Time: 2/13/2003

re:::, ...

9:00AM

Page 1 of2
bJ::Z

:::::n::rr:-r::n::r::::mzt

f llilP

ID
Last

BEACH II

First
ID

Last

HAWKER

First
ID

Last

HAWKER

First
ID

Last

HAWKER

First
ID

Last

HAWKER

Thursday, August 14, 2008

First

MEMBER AT TROOP NOTIFIED
GEORGE

Ml

p

Date/Time: 2/18/2003

MEMBER WHO NOTIFIED TROOP
ARTHUR

Ml

J

MEMBER AT DIV NOTIFIED
ARTHUR

Ml

J

INVESTIGATOR
ARTHUR

10:00AM

TZS H132

Date/Time: 2/18/2003

10:00AM

TZS H132
Date/Time: 2/13/2003

9:00AM

TZS H132

Ml

J

REVIEWER
ARTHUR

TZS T011

Date/Time: 4/29/2003
TZS H132

Ml

J

Date/Time: 4/29/2003

Page 2 of 2

Genl. 7

NEW YORK STATE POLIC1

MEMORANDUM
Troop_Statlon · Headquarters

Date______A..,.p__r__
il __2__
9.._,2=0__0__
3

To:

Deputy Superintendent Harry J. Corbitt

From:

Staff Inspector Arthur J. Hawker

Subject:

COMPLAINT AGAINST PERSONNEL· DCN 2003-109
INVESTIGATOR NOEL N.J. NELSON, EOD 10/0.1/84
INVESTIGATOR JAMES D. LEEDER, EOD 10/28/96
TROOPER HAROLD M. EDWARDS, EOD 10/07/91

q;#

.
Reference is made to the attached Gen 30 investigation report of writer
dated 4/29/03, concerning the above captioned matter.
·
On July 3, 2001, Trooper JAMES D. LEEDER assisted by Trooper
HAROLD M. EDWARDS, both ofTroop T, arrested
age 22 and
age 25 of Massachusetts for A-II felony cocaine possession (CPCS
2 nd degree) following a traffic stop. The associated BCI case was thereafter adopted by
Investigator NOEL N.J. NELSON. On 2/13/03, following a Suppression Hearing in which
testimony was taken in Westchester County Court on five separate dates between
October and December 2002, Judge LESTER B. ADLER ruled that the evidence in the
case was improperly obtained, characterizing the testimony of the above members as
"contradictory, incredible and unconvincing" .
·
Investigation into this case has shown that the three members involved in
this matter individually and collectively bear the responsibility for the dismissal of the
charges against and Further, the Judge's original contention that Trooper LE~DER
never disclosed the odor of marijuana as the Probable Cause for the vehicle search prior
to the Suppression Hearing was inaccurate. Also, his implied conspiracy between
Troopers LEEDER and EDWARDS for not having their respective remote microphones on
was. not substantiated. The Judge's suspicion that the reason for the V&T stop,
failure to signal a lane ch,ange, was not video recorded was actually due to
his misunderstanding of how the car video system operates.
The. Westchester Cou()ty District Attorney's office has also taken some of
1

the responsibility for the manner in which they attempted to prepare for Grand Jury
and the Suppression
uing in this matter, . Those factors aside however, it has
been found that the involved members initially failed to accurately document the facts
surrounding the arrest and when court was scheduled, they failed to adequately review
and prepare for their appearances which resulted in inaccurate and conflicting
testimony. This lack of diligence permitted the defense attorneys to attack their
credibility and led to the dismissal of the case. With respect to each individual member,
the following is found:
Investigator NOEL N.J. NELSON
Reg 8A2 Failure to comply with Rules, Regulations and Instructions

Field Man 32Q2b(6) - record the details about how the offense or incident occurred/
include sufficient, factual information to relate a complete sequence of events .... that
in pr~paring the Gen 84 Investigation Report in this case on or about 7 /03/01,
Investigator NELSON failed to accurately record details of the seizure of evidence by
reporting that T - 1 - handed Trooper LEEDER marijuana and that it was Trooper
LEEDER who found the cocaine in the headliner. He did not include in the report that
both Troopers had based their actions in large part based upon an odor of unsmoked
marijuana which they claim to have smelled in the car, that being the Probable Cause
for the search, instead indicating that the drugs were found as the result of an
impound/inventory search.
Field Manual 3689b Suppression Hearings - the manner by which all of the evidence
against the defendant was obtained is also important and this must be fully explained to
the District Attorney - that between October and December 2002, Investigator
NELSON. as the case agent, failed to accurately report to the Westchester County DA
the full facts of the basis for the search in this case, erroneously believing it to be an
impound/inventory seizure versus a Probable Cause seizure as testified to by the
Troopers. This resulted in contradictory testimony being given by Division members to
the detriment of the case.
Field Manual 36C2e Grand Jury - shortly before appearing, review your notes, reports
and records to ensure that the events are fresh in your mind - that in April 2002
Investigator NELSON testified at the Grand Jury. At that time he was in possession of
the knowledge of Troopers LEEDER and EDWARDS' claims of having p~rportedly
smelled a marijuana odor in the defendants' car but failed to convey that information to
the assigned Assistant District Attorney.
Reg 8A9(5) A member may be determined to be incompetent and subject to disciplinary
action in accord with the Rules of the Division if in the performance of official duties
the Member exhibits failure to assume responsibility or to exercise diligence in the
performance of official duties - that in preparing his investigative report in July 2001
Investigator NELSON prepared an inaccurate report (by omission and by citing incorrect
2

facts) which served as the basis of information to the District Attorney. While giving
testimony in the Octob
December 2002 Suppression HE
g, Investigator NELSON
ga.y.e testimony which was deemed not credible by the presiding Judge because he
based that testimony on· memory and his inaccurate report, primarily his being under the
~ belief that the drugs were seized during an impound/inventory of the vehicle. As the
case agent, he further failed to ensure that Trooper LEEDER had filed ·a DA's Arrest
Summary which would have provided the DA with an accurate description of how the
narcotics evidence in this matter was seized. His failure to exercise diligence and
responsibility in reviewing this case and preparing for testimony was an integral part in
the dismissal of A-II felony charges against the defendants.
Trooper JAMES D. LEEDER
Reg 8A2 Failure to comply with Rules, Regulations and Instructions

Field Manual 3689b Suppression Hearings - the manner by which all of the evidence
against the defendant was obtained is also important and this must be fully explained to
the Di$trict At_
t orney - that in July 2001, as the arresting officer, Trooper LEEDER
failed to file with the Westchester DA a DA's Arrest Summary Report which would
have provided the DA with a clear account of how the narcotits evidence 1n this case
was seized
Field Manual 36C2e Grand Jury - ·shortly before appearing, review your notes, reports
and records to ensure that the events are fresh in your mind - that in April 2002,
Trooper LEEDER inaccurately testified at the Westchester County Grand Jury that .the
defendant had (voluntarily) handed him the marijuana in his possession when
in fact Trooper LEEDER, as shown on video tape, actually reached into pocket and pulled the marijuana out. Trooper LEEDER admittedly testified from memory
on this occasion and did not review any notes, reports or associated video tapes.
Reg 8A9(5) A member may be determined to be incompetent and subject to disciplinary
action in accord with the Rules of the Division if in the performance of official duties ·
the Member exhibits failure to assume responsibility or to exercise diligence in the

performance of official duties - that Trooper LEEDEWs .failure to complete a D~'s
Arrest Summary, his failure to adequately prepare for Grand Jury, and his failure to
adequately prepare for the Suppression Hearing resulted in his giving inaccurate
testimo·n y as well as testimony ·which conflicted with other Division members. His
failure to exercise diligence and responsibility in reviewing this case and preparing for
testimony was an integral part in the dismissal of A-II felony charges against the
defendants.
Trooper HAROLD M. EDWARDS

_
Reg 8A9(5) A member may be determined to be incompetent and subject to disciplinary
action in accord with the Rules of the Division if in the perfor.i:nance of official duties
the Member exhibits failure to assume responsibility or to exerci_se diligence in the
performance of official duties - that in giving testimony at the Suppression Hearing
3

between October and DP.~P.mber 2002, Trooper EDWARDS inaccurately testified that
the two defend ants we
and cuffed only after a large qua
r of glassine envelopes
we..re found in the trunk of their rental car. This assertion was refuted by the video tape
from his patrol car as well as that of Trooper LEEDER' s which showed that the
• defendants were restrained before a search of the car was undertaken. His failure to
exercise diligence and responsibility in reviewing this case and preparing for testimony
was an integral part in the dismissal of A-II felony charges against the defendants.

Investigator NELSON, Troopers LEEDER & EDWARDS
Reg 8A8{2) A member shall not act in a manner tending to bring discredit upon the
Division - ·by their failure to properly document accurate details from the inception of
this case, by failure to fully apprise the District Attorney of the facts of the narcotics
seizure, by failing to adequately review the case and detect the conflicts of fact and by
failing to properly prepare for testimony in this case, the above members were
responsible for the dismissal of the felony narcotics charges.
1s in mgs are a
matter of public recor an were reporte rn
e es c es er - Rockland County
Journal News, the account therein being an embarrassment to the Division.

Appropriate administrative action is recommended.

4

'

GENL. 30 REV. 12/93

•

NEW YORK STATE POLICE
COVER PAGE

TITLE OF CASE

REPORTING TROOP

Investigator Noel N.J. Nelson
EOD 10/01 /84, SP Tarrytown
Investigator James D. Leeder
EOD 10/28/96, SP NYC DETF

MANAGING TROOP

H

H

DATE OF REPORT

06/24/03

DATE OCCURRED

TZS

CTV CODE

7 /03/01 to
12/16/02

T111

K6002

INVESTIGATIVE PERIOD

TYPED BY

02/18/03 to 06/24/03

ajh

REPORT OF

SHIELD

lnsp. Arthur J. Hawker

3610

CHARACTER OF CASE - !CC CODE)

STATION

CASE#

COMPLAINT AGAINST PERSONNEL
(PCT0100)

IAB South

2003-109

Trooper Harold M. Edwards
EOD 10/07 /91, SP New Rochelle

STATUS OF CASE

I

I CA

(

I

C/EC

(x l

C/INV

I )

C/UNF

REFERENCE:

Report of Complaint Against Personnel DCN 2002-109, 2/18/03

ENCLOSURES:

To Division Headquarters and Troop T
1.
2.
3.
4.

Memorandum of Inspector Arthur J. Hawker, dated 02/18/03
Gen 84 Report of Investigator Noel Nelson, dated 07/03/01
Decision & Order of Judge Lester Adler, dated 02/13/03
Related news article, Journal News, dated 02/14/03

5. Amended Decision & Order of Judge Adler, dated 02/13/03
6.

Statement of Trooper Harold M. Edwards, dated 03/24/03

7.

Patrol car video tape from Trooper Edwards' car, dated 07/03/01

8.

Statement of Investigator Noel Nelson, dated 03/25/03

9. Statement of Investigator James D. Leeder, dated 03/26/03
10. Patrol car video tape from Trooper Leeder's car, dated 07/03/01
11. Statement of Investigator James D. Leeder, dated 06/04/03

DISTRIBUTION:

11

I DHQ

FOR TROOP/DIV\SIOOON HEADQUARTERS USE ONLY

I 1 l TROOP

I I OTHER,

I I OPEN

APPROVED:

DESTROY IN 19,_ _ _ _ _ __

PERMANENT RETENTION

lROOP:
INITIALS

DHQ

INITIALS

Synopsis:

On July 3, 2001, Trooper JAMES D. LEEDER, EOD 10/28/96, assisted by Trooper
HAROLD M. EDWARDS, EOD 10/07/91, both of SP New Rochelle, Troop T, arrested
age 22 and
age 25 of Massachusetts for A-Il
nd
felony cocaine possession (CPCS 2 degree) following a traffic stop. The associated BCI case
was thereafter adopted by Investigator NOEL N.J. NELSON, .EOD 10/01/84, SP Tarrytown. On
2/13/03, following a Suppression Hearing in which testimony was taken in Westchester County
Court on five separate dates between October and December 2002, Judge LESTER B. ADLER
ruled that the evidence in the case was improperly obtained, characterizing the collective
testimony of the above members as "contradictory, incredible and unconvincing". Investigation
has revealed that in first documenting the arrest and in subsequent testimony during this hearing
as well as Grand Jury prior to that, the referenced members failed to review the case facts or
adequately prepare for their court appearances which resulted in inaccurate and contradictory
testimony being given, resulting in the dismissal of felony drug charges against the two
defendants. The matter is Founded with administrative action recommended.

Details:
At Westchester County DA's Office, White Plains, New York

On 2/18/03 writer met with Westchester County District Attorney's staff members
THOMAS LUZIO, Chief of Narcotics Bureau, KENNETH C. CITARELLA, Deputy Bureau
Chief: and FRANK LUIS, Assistant District Attorney regarding the 2/13/03 ruling of Judge
LESTER ADLER, dismissing the narcotics evidence in the
case and his
critical characterization of the testimony given by Troopers LEEDER and EDWARDS, as well as
that of Investigator NELSON. After acknowledging that their office bore a certain degree of
responsibility for the outcome of the case due to internal miscues which left insufficient
preparation time, Chief LUZIO expressed his opinion that the Troop T members had done an
inadequate job of preparing the associated case report as well as failing to review the facts and
prepare for their respective court appearances. Member was assigned to investigate under the title
ofDCN 2003-109. A copy of a memorandum of writer prepared 02/18/03 outlining the meeting is
attached as Enclosure #1
1.

At IAB South.New Windsor, New York

2.
On 2/19/03 reviewed the Gen. 84 Investigation Report, SP Hawthorne 01-354, filed by
Investigator NOEL N.J. NELSON in association with the arrests of
and
The report narrative states that
was stopped by Trooper
LEEDER for failing to signal and initial inquiry by that member determined that the car was a
rental vehicle; that n e i t h e r - nor his passenger- were listed on the agreement as
authorized drivers. Subsequent to the arrival of Trooper EDWARDS, the occupants were advised
that the car was being impounded and was asked by LEEDER if he possessed anything
on his person that he shouldn't have, to which he replied affirmatively and gave the Trooper two

I

"

small boxes containing marijuana. After having 1111111111111 exit the car, according to the report,
Trooper LEEDER conducted a search of the v ~ found approximately 10,000 glassine
bags of the type used to package narcotics in the trunk. Trooper EDWARDS, utilizing his
Division K-9, then located a marijuana cigarette in the glovebox and a continued search by
LEEDER disclosed approximately 3.4 oz cocaine in the vehicle' s headliner. Lastly, the console of
the auto yielded an additional 3 smalJ boxes of marijuana. A copy of the Gen 84 and attachments
is made Enclosure #2

3.
On 2/19/03 a review of Judge ADLER's 2/ 13/03 ruling was made in which he cited the
following reasons as the basis for suppressing the evidence:
Trooper LEEDER
a.

the Trooper provided testimony that upon stopping the car, he detected the
odor of "fresh" marijuana, however there is no reference to this observation in his
conversations with Trooper EDWARDS which were captured on the patrol car
video/audio system

a.

the rental company was never called regarding the possession of the car by
a n d - even though their suspected unauthorized use was the reason
for the impound

a.

the court questioned at which point Trooper LEEDER actually did call
Trooper BOWARDS, implying that he had him "standing by" before the stop

a.

Trooper LEEDER gave "mistaken" testimony to the Grand Jury that had removed the marijuana from a pocket and handed it to him when the patrol car
video showed that LEEDER reached into the pocket and took the marijuana out.
Judge ADLER further noted that LEEDER had the opportunity to correct this
testimony by viewing the tape prior to the suppression hearing but did not do so

a.

Trooper LEEDER testified that the defendants were handcuffed to Trooper
EDWARDS' patrol car after the glassine bags were found in the trunk of the rental
car. The video from EDWARDS' car shows that they we already handcuffed before
the trunk search was commenced

a.

Trooper LEEDER's remote microphone was not turned on nor was Trooper
EDWARDS'

Trooper EDWARDS

2

a.

Trooper EDWARDS testified that after he approached the car and spoke to
- h e too smelled "fresh" marijuana. When he returned to LEEDER's car to
discuss the answers that the occupants had provided to his questions, he only
"signaled" Trooper LEEDER by touching his finger to his nose that he too had
smelled the marijuana and did not verbalize this observation

a.

Trooper EDWARDS' K-9 alerted to the glove box where the marijuana
cigarette was found but it was uncertain whether the dog detected that item or two
pieces of pastry that were also within

a.

Trooper EDWARDS also testified as to when the defendants were handcuffed
which was contradicted by the video tapes

a.

Trooper EDWARDS explained the absence of audio on his unit by stating that
"unbeknownst to him", the microphone frequently breaks down

Investigator NELSON

a.

Investigator NELSON testified that he was unable to recall how he obtained
the information which made up the narrative portion of his report

a.

Investigator NELSON gave testimony that he recalled Trooper LEEDER
mentioning the marijuana odor to him back in 2001 and that his reading of the report
had refreshed his memory on the subject even though there is no reference to the odor
in his report

a.

Investigator NELSON testified that the absence in the report of any reference
to the marijuana odor (which provided the Probable Cause for the search) was "moot
and insignificant''

Judge ADLER' s order indicates that he did not believe there was any lane change
violation committed by AQUIAR and that Trooper LEEDER' s stop of the vehicle was
based "not on probable cause, but rather on the subjective intentions of the police officer''.
The Judge further summarized his opinion stating that "A review of all the evidence
presented at the hearing reveals that the officers' testimony was either contradicted by
other, more credible evidence, or was incredible of belief simply because it was untrue,
physically impossible, contrary to experience or self-contradictory." A copy of Judge
ADLER's Decision & Order dated 2/13/03 is attached as Enclosure #3. A copy of a
related newspaper article from the Westchester - Rockland County area Journal News
dated 2/14/03 is attached as Enclosure #4.

4.
On 3/06/03, member received from the Westchester County DA's Office a copy of Judge
ADLER's amended Order and Decision. The only amendment to this document was on page 5

3

•

where the second paragraph was now deleted in its entirety. The original Order and Decision had
stated that Troopers LEEDER and Investigator NELSON bad never mentioned the marijuana
odor (from the
vehicle) during their Grand Jury testimony, however Trooper
LEEDER had in fact testified to that obseJVation. A copy of the amended Order and Decision is
attached as Enclosure #5.
5.
On 3/20/02 member contacted Zone Commander, Captain EVELYN MALLARD
regarding malfunction/repair logs for Zone One's video equipment in July, 2001. Captain
MALLARD advised that the records from that period had been purged.

6.
On 3/24/03 interviewed Trooper HAROLD M. EDWARDS, BOD 10/07/91, SP
Tarrytown, who is also the Zone 1 K-9 handler; he was represented by PBA Delegate Trooper
KEI1H FORTE. Trooper EDWARDS related that on 7/03/01 he was working a C-1 tour and
responded to milepost 8 on I-95 northbound from the SP New Rochelle station in response to a
calJ for assistance from Trooper JAMES LEEDER. He stated that upon his arrival within 2 or 3
minutes of being contacted, he was briefed by Trooper LEEDER that the occupants of the
stopped car claimed they were coming from Brooklyn, that the rented car was overdue and by a
gesture of finger to nose, Trooper LEEDER indicated that he had smelled "something" in the car.
Trooper EDWARDS thereafter approached the car by himself and spoke with the occupants,
detecting the odor of marijuana in the car which he characterized as "8 or 9" on a scale of 10,
with ten being the strongest. He stated that he then returned to where Trooper LEEDER was and
informed him that although he had been raised in Brooklyn, he had never heard of the
neighborhood where the subjects & - c l a i m e d they were coming from. He
also stated that he told Trooper LEEDER that he smelled marijuana in the car, although he later
in the statement said he did not verbalize his notice of the marijuana odor to LEEDER, he
indicated his obseJVation by touching his finger to his nose. Trooper EDWARDS, citing limited
recollection of exactly what occurred next, did recall that the driver was out of the vehicle
standing next to him at the rear of the rental car while Trooper LEEDER conducted a search of
that vehicle. He stated that it was not until after the glassine bags were found in the trunk of the
rental car that he handcuffed one or both defendants and secured them to the front of his Troop
car. Trooper EDWARDS indicated that he had testified to this in court and still believed that to
be the order of events. He then recounted how K-9 "Bernie" was used to search the car and
detected the marijuana cigarette in the glovebo~ stating that contrary to the court's question as to
whether the dog had detected the marijuana or the sticky buns therein, that the dog's "hit" was on
the drugs because it was not trained to react to food and had never been fed pastry. Trooper
EDWARDS also stated that after the dog was used, he was summoned to the car's interior and
asked to smell it by Trooper LEEDER. He stated that he did so and detected an odor he
associated with cocaine which was a "4" on a scale of ten in intensity. He could not accow1t for
why the K-9 had not "hit" on the cocaine which was found in the headliner of the car except to
say that he believed the dog was reacting to the stronger odor of the marijuana. Trooper
EDWARDS stated that with respect to his patrol car video system, he had tested it at the
beginning of his tour and believed the remote microphone was working properly at that time. He
further stated that the unit had been giving him some problems at that time (2001) and he had told
a Sergeant about it, but did not recall whom, adding that at that time, documenting of
malfunctions was not yet required. Trooper EDWARDS stated that after the arrest, he and
4

'

Trooper LEEDER returned to SP Tarrytown with the prisoners and turned the matter over to
Investigator NOEL NELSON. He acknowledged that Investigator NELSON did not interview
him as to what he had done at the scene, nor did he direct him to make any written notes or
documentation about how the arrest occurred. When ·asked as to the Probable Cause for the
search of the vehicle in this case, whether it was the marijuana odor or an impound/inventory,
Trooper EDWARDS stated that he didn't know. With respect to his preparation for court,
Trooper EDWARDS stated that he had made no personal records, he never reviewed the Gen 84
prepared by Investigator NELSON and had only seen the video about two months prior to the
Suppression Hearing. The statement taken from Trooper EDWARDS is attached as Enclosure
#6, a copy of the video tape from Trooper EDWARDS' patrol car is attached as Enclosure #7.
7.
On 3/25/03 interviewed Investigator NOEL N.J. NELSON, EOD 10/01/84, SP
Tarrytown, who was represented by NYSPIA delegate Investigator JULES RENNA Investigator
NELSON related that on 7/03/01 he was at ~ o w n when he was advised by Trooper
LEEDER of the felony drug arrest involving and - H e stated that Troopers
LEEDER and EDWARDS brought the defendants to the station along with the rental car and he
obtained to story of the arrest from the them but made no written notes, nor did he require them
to make any; that he eventually prepared the Gen 84 Investigation Report on or about 7/03/01
based on what had been related to him. Investigator NELSON acknowledged that all through the
court proceedings and up until the time he read Judge ADLER's Order & Decision, he was under
the belief that the basis for the search in which the drugs were found was an inventory search
based on the rental car's being impounded because neither driver was an authorized operator. He
stated that this is why, when he testified at the Suppression Hearing, he characterized the
marijuana odor alluded to by the Troopers as "moot and insignificant", because in his mind the
drugs were found as a result of the car inventory. With respect to his preparation for the Grand
Jury and the Suppression Hearing, Investigator NELSON admitted that he never compared the
video tapes against his re ort nor was he iven his Grand Ju testimon to review.

. Investigator NELSON did accept responsibility for the ultimate
outcome of the case as he was the case agent assigned. The statement taken from Investigator
NELSON is attached as Enclosure #8.
8.
On 3/26/03 interviewed .Investigator JAMES .D. LEEDER, EOD 10/28/96,
. , who was represented by Troop NYC NYSPIA delegate Investigator JOHN O'KEEFE.
Investigator LEEDER, who on 7/03/01 was a Trooper assigned to SP New Rochelle, related that
on that date he observed a vehicle with Massachusetts registration fail to signal a lane change,
also noting that the passenger did not appear to be wearing his seat~stopping the car he
obtained identification from the driver and the passenger-noting at that time
that the car was a rental for which neither subject was listed as an authorized driver. He also
discerned that was in fact wearing his seatbelt, simultaneously detecting an odor of
"fresh" (unsmoked) marijuana, the strength of which he placed at "3" on a scale of 10
(EDWARDS had pJaced the odor at "8 or 9" on the 10 scale). Investigator LEEDER stated that
his car's video system was equipped with a remote microphone which he believes he had tested at
the start of his shift less than an hour before the stop, but he couldn't be sure. He also
5

l __ -

acknowledged that after initially speaking to and - h e returned to his patrol
car and narrated to the in-car recorder that the passenger was wearing his restraint, but that he did
not mention the purported marijuana smell because he wasn't certain of it. After summoning
Trooper EDWARDS via radio, Investigator LEDDER states that he explained to that member the
problem with the rental agreement and then gave him a non-verbal gesture that he smelled
"something'' in the vehicle by touching his finger to his nose.

Investigator
LEEDER continued that Trooper EDWARDS then spoke with the car's occupants, returned back
to him, and reported that the subjects claimed to be coming from an area in Brooklyn he'd never
heard of. At the same time Trooper EDWARDS made a nodding gesture indicating that he too
had smelled "something". Investigator LEEDER next related that he had exit the
vehicle and he asked him if he "had anything on him" to which indicated he possessed
marijuana, a small amount of which was secured. The passenger, - w a s then also briefly
searched after he was asked to vacate the car and both he and the driver were handcuffed to
Trooper EDWARDS' patrol car. Investigator LEEDER stated that he was unsure at which point
the defendants were handcuffed and stated that was not under arrest, but was being
"detained for investigation". He was under the belief that the defendants were not handcuffed until
after he found the box with drug packaging materials in the car's trunk (video tapes showed this
to be inaccurate as the defendants were handcuffed by Trooper EDWARDS as Investigator
LEEDER began his search of the car). Investigator LEEDER then recounted how the K-9 was
used to search the car and "hit" on the marijuana cigarette in the glovebox but did not detect the 3
½ ounces of cocaine in the headliner, although both he and Trooper EDWARDS were able
afterward to discern that odor themselves. Investigator LEEDER continued that after the
defendants and their vehicle were secured, they were taken to SP Tarrytown where the case was
turned over to Investigator NOEL NELSON. He stated that he went over the facts of the case
with Investigator NELSON, including his initial notice of the marijuana odor in the car. He stated
that he related to the Investigator that the Probable Cause to search the car was going to be the
marijuana odor, but that it changed w h e n - admitted to possessing the marijuana that was
on his person. He stated that it was about this time in reviewing the video tape with the
Investigator that he realized his remote microphone had not been working during the car stop.
Investigator LEEDER also stated that he made no notes or reports with respect to this case, nor
was he asked to do so by Investigator NELSON. He further indicated that although it is the
protocol in Westchester County for an arresting officer to complete a DA's Arrest Summary
report which would include the probable cause for a search, none was done by him in this case
due to an apparent oversight. Asked about the manner in which he prepared for his Grand Jury
testimony in April 2002, Investigator LEEDER conceded that he had not read the associated Gen
84 or reviewed the video tape, that his preparation with the Assistant DA was done strictly from
memory. He claims that it was not until after giving his testimony that he noted the Gen 84
contained no reference to his or Trooper EDWARDS' detecting the odor of marijuana in the car
after it was stopped, and he brought this to the attention of the Assistant DA and later on
Investigator NELSON. Investigator LEEDER further stated that upon reviewing the tape prior to
6

_J

the Suppression Hearing but after Grand Jury, he realized that he had given inaccurate testimony
to that body when he'd stated that had produced marijuana from his pocket as the tape
showed that he (LEEDER) had reached into the pocket and removed it. He also mistakenly
testified in Grand Jury about a Felony Hearing in the case which never took place, that this was
done out of confusion. Investigator LEEDER further acknowledged that in the Suppression
Hearing he did testify that the defendants were handcuffed after he found the heroin bags in the
trunk of their car, a fact he believed to be true (until after being shown the video tape).
Investigator LEEDER's
statement is attached as Enclosure #9, a copy of the video tape from Trooper LEEDER's patrol
car is attached as Enclosure #10.
At City of White Plains, New York
9.

On 4/25/03 while at the Westchester County District Attorney's office conducting a

vulnerability assessment of narcotics arrests on 1-95 by State Police members, JAB Lieutenant
LISA D. GALBRAITH interviewed Narcotics Bureau Chief THOMAS LUZIO concerning their
policy on rental car impounds. Chief LUZIO stated that their office policy was that if an
authorized operator was not present in the vehicle, it was proper to impound the car and conduct
an inventory search. It was further stated that any contraband found during the inventory was
viable evidence against the vehicle's occupants.
At City of New Rochelle, New York

10.
On 5/28/03 member traveled to the New York State Thruway toll plaza on 1-95 within the
City of New Rochelle. It was observed that the toll area, located at milepost 6.9, is for
northbound traffic only. The toll barrier consists of 13 lanes, the four westernmost of which are
dedicated EZ Pass only lanes and the easterwnost of which is a wide load lane. A concrete jersey
barrier divides northbound and southbound traffic, however there is an unsigned gap in that
barrier approximately 500' north of the tolls on the west side of the highway which is where
Investigator LEEDER states he was situated when he first observed the
vehicle (the next nearest U turn is several miles north of the tolls and there is no median in this
area). With respect to pavement markings, it was noted that there are only two dash lines for
vehicles which have passed through the tolls, followed by a wide unmarked area. At
approximately milepost 7.1, the plaza constricts traffic and three lanes of traffic are formed on the
highway proper, each separated by dash white lines. This would be about .2 mile north of the
break in the jersey barrier where Investigator LEEDER had been monitoring traffic. The site of
the stop o f - a n d - was located on the right shoulder ofl-95 at milepost 8.2 near
the Weaver Street overpass, about 1.3 miles from where Investigator LEEDER first observed the
car. These locations and distances are consistent with the statement given by Investigator
LEEDER on 3/26/03.
At IAB South, New Windsor, New York
11.
7

On 6/04/03 member contacted Investigator NOEL NELSON, SP Tarrytown, as to

•

whether he had retained a copy of the car rental agreement associated with this case. Investigator
NELSON replied that he did not have a copy and to his knowledge the file had been sealed after
the charges were dismissed.
12.
On 6/04/03 member re-interviewed Investigator JAMES D. LEEDER in the presence of
NYSPIA delegate Investigator JOHN O'KEEFE regarding his specific location and observations
when he first noted the
vehicle. Investigator LEEDER stated that on 7/03/01
(at about 2:00 PM) he was stationary at the break in the jersey barrier just north of the New
Rochelle tolls obsetving traffic. He obsetved the car later determined to be driven by pass by him in the left (westernmost) lane so that it was 100 to 150 feet away from him. As the
vehicle continued north in moderate traffic where the lanes were set apart by dash pavement
markings, he observed move from the left to the middle lane without signaling, so he
pulled into traffic and began to follow it. At this point, he states, he observed that there were two
occupants in the car, races unknown, and it appeared that the passenger was not wearing a
seatbelt shoulder harness. Based on the failure to signal lane change and seatbelt violation, he
decided to stop the car and did so, with pulling to the right shoulder at about milepost
8.2.
With respect to the vehicle rental agreement, Investigator LEEDER stated that he did not
recall the name of the company involved other than it was not one of the national chains such as
Hertz or Avis (as per the Gen. 21 Impound form it was South Coastal Rental of Dartmouth,
Mass.). He stated that the car had been rented to a female but he did not recall the nam~ and
never learned the relationship, if any, of that person to o r - f u r t h e r adding that
he did not call that person or the rental company but believes that Investigator NOEL NELSON
may have done the latter, but only to advise the company where their vehicle was.
Regarding the Westchester County DA's view of impounding rental cars in the absence of
an authorized driver listed on the rental documents, Investigator LEEDER stated that although he
had never specifically discussed the issue with anyone from the DA's office, he was not aware of
any conflict which, in 2001, would have viewed such practice as an improper seizure. The
statement taken from Investigator LEEDER is attached as Enclosure #11.
13 .
On 6/23/03 member contacted Captain EVELYN MALLARD in an effort to ascertain if
the sealed case file contained a copy of the car rental agreement associated with this case. Captain
MALLARD checked with Troop K and was advised that the file did not contain a copy of the
rental document.

Conclusion:
Investigation into this case has shown that the three members involved in this matter
individually and collectively bear the responsibility for the dismissal of the A-II felon of CPCS 2pd
degree charges against
and
Further, the Judge's original contention that Trooper
LEEDER never disclosed the odor of marijuana as the Probable Cause for the vehicle search prior
8

~

to the Suppression Hearing was inaccurate. Also, his implied conspiracy between Troopers
LEEDER and EDWARDS for not having their respective remote microphones on was not
substantiated. The Judge's suspicion that the reason for the V&T stop, 111111111111 failure to signal
a lane change, was not video recorded was actually due to his m i s u n ~ of how the car
video system operates.
The Westchester County District Attorney's office has also taken some of the
responsibility for the manner in which they attempted to prepare for Grand Jury and the
Suppression Hearing in this matter,
- · Those factors as1 e owever, 1t as een oun t at t e mvo ve mem ers
~ c u r a t e l y document the facts surrounding the arrest and when court was
scheduled, they failed to adequately review and prepare for their appearances which resulted in
inaccurate and conflicting testimony. This lack of diligence permitted the defense attorneys to
attack their credibility and led to the dismissal of the case. With respect to each individual member,
the following is found:
Investigator NOEL N.J. NELSON

Reg 8A2 Failure to comply with Rules, Regulations and Instructions
Field Man 32Q2b{6) - record the details about how the offense or incident occurred; include
sufficient, factual information to relate a complete sequence of events . . . . that in preparing the
Gen 84 Investigation Report in this case on or about 7/03/01, Investigator NELSON failed to
accurately record details of the seizure of evidence by reporting that T-1 . . . . handed
Trooper LEEDER marijuana and that it was Trooper LEEDER who found theeocame in the
headliner. He did not include in the report that both Troopers had based their actions in large part
based upon an odor of unsmoked marijuana which they claim to have smelled in the car, that being
the Probable Cause for the search, instead indicating that the drugs were found as the result of an
impound/inventory search.
Field Manual 36B9b Suppression Hearings - the manner by which all of the evidence against the
defendant was obtained is also important and this must be fully explained to the District Attorney
- that between October and December 2002, Investigator NELSON as the case agent, failed to
accurately report to the Westchester County DA the full facts of the basis for the search in this
case, erroneously believing it to be an impound/mventory seizure versus a Probable Cause seizure
as testified to by the Troopers. This resulted in contradictory testimony being given by Division
members to the detriment of the case.
Field Manual 36C2e Grand Jury - shortly before appearing, review your notes, reports and
records to ensure that the events are fresh in your mind - that in April 2002 Investigator
NELSON testified at the Grand Jury. At that time he was in possession of the knowledge of
Troopers LEEDER and EDWARDS' claims of having purportedly smelled a marijuana odor in the
defendants' car but failed to convey that information to the assigned Assistant District Attorney.

Reg 8A9(5) A member may be determined to be incompetent and subject to disciplinary action in
9

accord with the Rules of the Division if in the performance of official duties the Member exhibits
failure to assume responsibility or to exercise diligence in the performance of official duties - that
in preparing his investigative report in July 200 I Investigator NELSON prepared an inaccurate
report (by omission and by citing incorrect facts) which served as the basis of info1mation to the
District Attorney. While giving testimony in the October - December 2002 Suppression Hearing,
Investigator NELSON gave testimony which was deemed not credible by the presiding Judge
because he based that testimony on memory and his inaccurate report, primarily his being under the
belief that the drugs were seized during an impound/inventory of the vehicle. As the case agent, he
further failed to ensure that Trooper LEEDER had filed a DA's Arrest Summary which would
have provided the DA with an accurate description of how the narcotics evidence in this matter
was seized. His failure to exercise diligence and responsibility in reviewing this case and preparing
for testimony was an integral part in the dismissal of A-II felony charges against the defendants.

Trooper JAMES D. LEEDER
Reg 8A2 Failure to comply with Rules, Regulations and Instructions

Field Manual 36B9b Suppression Hearings - the manner by which all of the evidence against the
defendant was obtained is also important and this must be fully explained to the District Attorney
- that in July 2001, as the arresting officer, Trooper LEEDER failed to file with the Westchester
DA a DA's Arrest Summary Report which would have provided the DA with a clear account of
how the narcotics evidence in this case was seized

Field Mam,al 36C2e Grand Jwy - shortly before appearing, review your notes, reports and
records to ensure that the events are fresh in your mind - that in April 2002, Trooper LEEDER
inaccurately testified at the Westchester County Grand Jury that the defendant had
(voluntarily) handed him the marijuana in his possession when in fact Trooper LEEDER, as shown
on video tape, actually reached into pocket and pulled the marijuana out. Trooper
LEEDER admittedly testified from memory on this occasion and did not review any notes, reports
or assbciated video tapes.
Reg 8A9(5) A member may be determined to be incompetent and subject to disciplinary action in
accord with the Rules of the Division if in the performance of official duties the Member exhibits
failure to assume responsibility or to exercise diligence in the performance of official duties - that
Trooper LEEDER's failure to complete a DA's Arrest Summary, his failure to adequately prepare
for Grand Jury, and his failure to adequately prepare for the Suppression Hearing resulted in his
giving inaccurate testimony as well as testimony which conflicted with other Division members.
His failure to exercise diligence and responsibility in reviewing this case and preparing for
testimony was an integral part in the dismissal of A-II felony charges against the defendants.

Trooper HAROLD M. EDWARDS
Reg 8A9(5) A member may be determined to be incompetent and subject to disciplinary action in
accord with the Rules of the Division if in the performance of official duties the Member exhibits
failure to assume responsibility or to exercise diligence in the performance of official duties - that

in giving testimony at the Suppression Hearing between October and December 2002, Trooper
EDWARDS inaccurately testified that the two defendants were handcuffed only after a large
quantity of glassine envelopes were found in the trunk of their rental car. This assertion was
refuted by the video tape from his patrol car as well as that of Trooper LEEDER' s which showed
that the defendants were restrained before a search of the car was undertaken. His failure to
exercise diligence and responsibility in reviewing this case and preparing for testimony was an
integral part in the dismissal of A-II felony charges against the defendants.
Investigator NELSON, Troopers LEEDER & EDWARDS

Reg 8A8(2) A member shall not act in a manner tending to bring discredit upon the Division - by
their failure to properly document accurate details from the inception of this case, by failure to fully
apprise the District Attorney of the facts of the narcotics seizure, by failing to adequately review
the case and detect the conflicts of fact and by failing to properly prepare for testimony in this case,
the above members were responsible for the dismissal of the felony narcotics charges.

. His findings are a matter of
public record and were reported in the Westchester - Rockland County Journal News, the account
therein being an embarrassment to the Division.

Appropriate administrative action is recommended.

11

Genl. 7

NEW YORK STATE POLICE
MEMORANDUM
Troop_ Station
Date

Headquarters

February 18, 2003

To:

Deputy Superintendent Harry J. Corbitt

From:

Staff Inspector Arthur J. Hawker

Subject:

WESTCHESTER COUNTY COURT RULING
PEOPLE
TROOPERJAMESLEEDER,TROOPT
TROOPER HAROLD EDWARDS, TROOP T

vs._&_

Earlier this date writer met with Westchester County DA's (WCDA) staff
members THOMAS G. LUZIO, Narcotics Bureau Chief, KENNETH C. CITARELLA,
Deputy Bureau Chief and ADA FRANK LUIS regarding the above captioned matter.
Chief LUZIA stated tha~ there would be no appeal of Judge ADLER's ruling
because the judge had deemed the witnesses as not being credible and therefore there is,
in essence, no grounds on which to base an appeal as there would have been if the ruling
were based on a point of law which could be argued.

Chief LUZIO pointed out that despite the judge's ruling to the contrary, .their
office still contends there was a valid V &T stop made, and in hindsight all Trooper
LEEDER had to do was impound the car over the issue of it being an overdue rental with

1

ENCLOSURE ttj_

occupants not listed on the lease agreement. A subsequent inventory search would have
yielded the drugs, but since the defense successfully argued that no VTL violation had
occurred and the witnesses were not seen as credible due to instances cited by the court.in
it's ruling, the theory of "inevitable discovery" could not be applied. He also made the
following points:

2

Submitted for your review and information.

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ANO ENTERED

COUNTV COURT: STATE OF NEW YORK~.
COUNTY OF WESTCHESTER

.

ON

·' .

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· W.ESTCHESTER .
COUNTY CLERK

. :; ;.- '.\., ·x .

THE PEOPLE OF THE STATE OF NEW Yp~K. ,.

·· ~SION&ORDER

-against-

and ROLANDO·sARROS, Index No.: 01-01085-01
~-. · ' :
· 01-01085-02

Respond~nt.

·-----------------X
ADLER, J.
In separate Decisions and Orders dated June 10, 2002 (Defendant
- a n d June 18, 2002 (Defendant

pre-trial hearings were ordered

on the issue of the legality of the stop of the motor vehicle in which the Defendants

were driving, the admissibility of certain items of recovered tangible evidence, as well as

a statement allegedly made to law enforcement by Defendant- These hearings
were commenced before.this Court on qctober 29, 2002,_continued on November..13,
2002, December 2. 2002, December 3, 2002 and concluded on December 16, 2002.

I.

EXAMINATION OF PROSECUTION WITNESSES

The t~stimony presented by the People was that on July 3, 2001 , Trooper James
Leeder was on routine motor patrol. While in a stationary position near the toll plaza on
Route 95 in_the City of New Rochelle, New York,

he observed a 1995 Camry occupied

by·two male HispaniC$ exit the toll barriers. This vehtcle move from the far left toward
the middle lane of the toll pJaza without signahng. This movement was deemed by
.

..,_

Leeder to be a violation of the Vehicle & Traffic Law. Leeder also testified that he .

ENCLOSURE

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...,elievecr the passen9er in the vehicle WclSJlC!' Ylearing a se~t belt. As 8 result of

th~ two observations. Leeder activated '.~-~f:~~rg~'
ncy ligh~
a~d p~ll~d the ~ehicle
.
.
'

over to the shoulder.

~

:

.•

...

•'

.,

Subseq1:1ent to the stop, Leeder ap~roa·9hec1 t~e driver's side of the vehicle and.
requested that the driver,
registration. -

. . ,;p~uce a license and the vehicle

complied and produ~i~·jass~chuset's license and a renta_l .

agreem~nt for the vehicle. Whife speaking with Defendant-Leader daims to
have srnel~ an odor of '1resh" marihuana emanating from insfde of the vehicle. An

exami11ation of the
rental agreement indicated that the vehicle was
due back the·..prior
..
.
day and that neither of the Defendants were named authorized operators .
Leeder was subsequentfy joined at the scene by Trooper Edwards, who had

responded pursuant to Leoo:er-s request for backup. Leeder had contacted Edwards

.
after he detected the. _odor of marl,-,uana. Leeder assumed correctlY. that Edwards
would have a canine t~veling with him. WtiHe Leeder waited in hfs patrol vehicle for
information from headquarters regarding a check for warrants, Edwards approached the

passenger side of ~e Defendants' vehicle and had a brief conversation with Defendant

Barros.. Edwards then signaled to Leeder by a "finger-to.nose" ges.ture to indicate that
he had smelled an odor of marihuana.
Based on ~e rental agreement and the odor of marlhuana, the Defend~nts were
ordered out of their vehicle. At tt,11s point Defendant-was advised that, due to the

problems with the rental agreement. ·he would be detained. In response to questioning ·
.......

1t.ater in

Leeder's testimony he admitted that he h~d-been mistaken about tqe alleged ~eatbelt

violation.

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. /eeder, .Defendant- Indicated

•

tha~ te ;had contraban~ in the_pocket of his

shorts. Leeder then reached in and retrieve:d·two small boxes of marlhuana.

/

Defendant- was also removed from th·e vehicle _and sea~ed, but no contraband
..

.

.

..

was found on his person. The Troopers ~en ~egan;an extensfve search of the vehicle.
•, .. ! .· . ..

That le~d.to the discovery of approxlma.t:e1~

.

.

~,o;p;oo empty glassine envelopes i_n the

trunk of the vehlcre, a marihuana ("blunt°) cigarette and two sticky buns .!n ihe glove
compartment2, approxirr\ately four ounces of cocaine in the headliner, and three ciear
plastic boxes containing marihuana in the c.enter console area.
Leeder also testified that he did not contact the re~tal company to confirm that

the Defendants were not authorized to operate the vehicle until he returned.to the
barracks. However, had this infor:tnation been learned at the scene, th~ vehicle would
have be~m impounded and an inventory search would ·have been performed.

FINDINGS OF FACT

II.

The hearings in thls matter were conducted over a period of several days and
Induded extensive cross-examination.of the three Prosecution witnesses (Leeder,

Edwards and Nelson) by defense counsel. The Defendants offered into evidence
videotapes of the Incident made by cameras that had qeen installed In both Troopers'
.

.

{Leeder and Edwards) vehjoles.3 The Court finds these videotapes to be the most
credible evidence received et the hearing. Based on the entire evidence, it is the

2

. "I..

The !'blurrt cigarette· and the ustlcky bum.• were found using Edwards' canine •Bem1e.· While
Edwards testlffed th~ the canine was certlfled In the tracl(lng of various narcoCic drugs, he also testified
. that the 17-month-old dog had approXimately ten false PQSiUves in the past. Edwards was also unable to
$tat& whether lhe alert given by the dog with respect to the glove co.mpartment was a restJJt of the
marfhuana contained in the "bulr cigarette or whether he was attracted 10 the --sticky buns.•
3oefendants' Exhibit A.

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Ing of this Court that neither Oefend~n~
:

nor-Defendant
.

committed a

.

traffic violation. The Court further finds that
.. .th~re.
.
. was.
. no. odor of marfhuana..
.It was established at the hearing ~

;th~ cameras installed in the patrol ve~lcfes

will begin to record eltfier when a Trooper man'ualfy engages-a button or automatically
.
. .. . . .
.

upon th~ actiVation of the emetgency.lights.:. Jry f!,e

present case~ the videotaping (whlch

includes an audio taping of any conversations that occurred inside of the patrol v.ehicle)
was activated automatically rather than vofltionaJly by ~e Troopem. Consequently,
under the facts of this ca&e, neither Leeder nor Edwards could have prevented the
~ctivation of the video cameras installecf in their vehicles.

In striking contrast, the body microphones that both Leeder and Edwards were
wearing on July 3, 2002 could only be activated manually. However, for reasons this
Court finds to be unconvincing. neither microphone was operational at the time of this
.

.

incid~nt and. therefore, any conversations alleged to have taken place outside of the

vehicle were..not preserved."
While both officers testified that they smelled an odor of marihuana emanatinij
from Inside the vehicle, the eyidence p,resented at the hearing Incontrovertibly reflects
that there was 110 reference In the ,eport prepared by lnvestigatqr Nelson5 in connection.
with this arrest regarding the alleged odor. When cross-examined regarding.the
absence of any such reference. Nelson testified that he could not recall the

. Wllh respect to the malfUr,ctionlng microphones, Leeder testified that he was unawate of the fact
that his miecophone was not working until he viewed 1he videotape. Edwards testified that, for reasons ·
unbeknownst to him, his body microphone frequ~y breaks down. .

'This watr the only police report prepared .in connection with this arrest. Neither Leeder nor
£dws~s prepared report.

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tc':'mstances under which the info.nnatiori contained in the report was provided to him
because it happened··a long time ago.· Nonetheiless, he insisted that he·was still
capable of remembering Leeder's mentioning df the:marlhuana odor. Nelson
attempted to explain this significant omissipn

In his report by statlrig that he deemed the

information to be "moot" and "inslgnificant,")tls inconceivable to the Court how an 18year veteran of law enforcement, now an Investigator, would deem the alleged pr:obable
cause for the search of the vehicle as "moot" and "insignificant." Equally perplexing is
the Investigator's ability to refresh his recollection with a document which lacks any
reference whatsoever to this alleged odor.
It was also conceded during the People's case that neither Nelson nor Leeder
ever mentioned the marihuana odor in their Grand Jury testimony. Indeed, neither one
ever told the District Attorneys· Office about the supposed odor until a year after the
incident..
In addition to the lack of any reference to the alleged odor in the report or the
officefs Grand Jury testimony, there is absolutely no mention of an odor of marihuana
during Leeder's radio transmission to headquarters. Nor is there· any mention of an·
odor of marihuana during Leeder and Edwards' discussions that took place in leader's
patrol vehicle which were captured on the audio segment of the vi~eotape. Edwards
unsuccessfully attempted to account for this glaring omission by testifying that Leeder
had con:imunicated this information to him, not verbally, but by touching his nose with
his right index finger.

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Leeder afso testified that he radioed;~<fWards
for assistance ~fter he smelled the
.· ,,
odor of mannuana. However. this call for

Js~~nce ·arso is not reflected on the audio
r.

• .

•

segment of the videotape from Leeder's vehicle,:6
Leeder testifi~d. and ihe videotape

~fte.c,ts, that Leeder search~ Defendant

- a n d removed something from his fro.nl ~t(which Leeder testified were two
.
.

clear plastic boxes containing marihuana). However. this was not always Leader's
version of the events. Leeder admitted on ~s--examination that at the Grand Jury
presentation he testified that Defendant- had removed the _marfhuana from his

own pocket and handed It to Leeder. ft was not until after revie'lt'ing the videotape, ·

subsequent t9 his Grand Jury testimony, that his testimony conformed to What was
depicted on the tape. Although Leeder testified that he advised the District Attorney's
Office of this uinfstake" during his preparation for the felony hearing, it was stipulated by
the People on the record. that no felony .hearing had ever taken
place In this case.
.
.
The testimony of the two officers that the Defendants_ were handcuffed to the
front bumper of Edwards' vehicle o,nly after Leeder discovered a box containing

glassine envelopes in the trunk of the vehicle is directly contradicted ~y the-videotape.
The videotape reflects that.less than a minute after the search _of the vehicle
commenced, while Leederwas still searching the passeng~rcompartmentand had not
even reached the trunk of the vehicle, Edwards returned to the vehicle unaccompanied

by the Defendants. Clearly, the Defendants were handcuffed ~ the bumper of Edwards ·

·'

'Tors leaves the Impression that the call f'or as$istan~ was made prior to the actlvation of lhe ·
emergency lights which fr'litiated the videotaping. This would $Ugg8St that the ca1J may h_
ave been made ·
prior to the ~top of the vehicle. and prior to the alleged detection of an odor of marn;.iuena.
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/ ~ e (hardly a de min/mus intrusion) prl°:r to the discovery of the glassine envelo~es,
directly contradicting both Leeder and Edwards' testimony.
.

✓'

Ill.

·

.

CONCLUSIONS OF LAW
It is well-settled in the State of New York. that a stop of a motor vehicle Is a

. seiz:ure implicating constitutional limitations. (People v. Spencer, 84 N.Y.2d 749;
People v: May, 8,1 N.Y.2d 725; People v. lngle;:36 N.Y.2d 413]. Such a stop is legal
"only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or·
when there exists at least a reasonable suspicion that the driver or occupants of the
vehicle have committed, are committing, or are about to commit a crime. [People v.
Spencer, 84 N.Y.2d 749; People y. Ingle. 36 N.Y.:?d 413]. A stop based on probable
cause that the driver of a vehicle has violated the Vehicle & Tr~ffic Law is reasonable,
and the primary motivation of the pollce officer for stopping the vehicle is not relevant to
a Fourth Amendment analysis. [People

y_ Robinson, 97 N. Y.2d 341; People v. Moore,

277 A.D.2d 254; People .v Hammond, 737 N.Y.S.2d 733]. However. such probable
cause must be supported by credible facts which establish reasonable cause to
believe that a person has violated a law. [People v. Robinson, 97 N. Y.2d 341): Clearly~ .
the facts herein do not meet this standard.
The issue as to the credibility of a witness and the weight to be afforded the
· evidence presented is a question to be determined by the trier of fact [People v.
Prochilo, 41 N.Y.2d 759; People y. O'Keefe, 276 A.0.2d 647; People v. Campbell, 269
A.D.2d 461). "In evaluating testimony we should not discard common sense and

......

common knowledge .... Toe _rule is that testimony which is incredible of belief because

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,rs manifestly untrue, physically impossible, contrary to experience, or selfcontradictory, is to be disregarded as being Without evidenliary value," even though it is
not contradicted by other testimony or evidence Introduced in the case.'" (Loughlin

y,

City of New York, 186 A.D.2d 176 citing People y. Garafolo. 44 A.D.2d 85).
insufficient reason was prvvided during
hearing to account for the
.. the
.

.

simultaneous malfunctloning of both Troop~is' microphones on the
. day in question.
The Court is disturbed by the fact there was no "malfunctioning" of the video cameras
that were activated automatically, but that the microphones, which could only be
activated manually, were coincidentally inoperable that day.
In addition, no credible explanation was provided for the lack of any reference to
an odor of marihuana in the police report or during the officers' Grand Jury testimony.
The People contend that thls odor of marihuana forms the basis for the legality of the
search. Common sense dictates that all important and relevant information, especially
the alleged probable cause for the search of the vehicle, would be contained In the sole

report
prepared
in connection with the arrest. It Is Inconceivable that an .18-year
.
.
veteran of law enforcement would deem the alleged basis for the search of the vehicle
irrelevant and unworthy of note in his report. Equally unbelievable was Nelson's ·
testimony that while the report made absolutely no reference to the odor of marihuana,
by reading it he was able to refresh his memory that Leeder had told him about the
odor. ·
There are nurnerous times when the videotape contradicts the testimony of

.....

either Leeder, Edwards, or both. The videotape is devoid of any mention of an odor of
marihuana, and the Court is unconvinced by the officers' transparent attempts to

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,.;count for this omission. The videotape also-doe$ not reflect the tacit "finger-to-nose•
I

,

:

gestum of Edwards that Leeder testifled occurred after Edwards spoke with Defendant
.

-

.

Also m(sslng from the videotape ~ --leeder's call for a~sistance to Edwards,

which leads the Court to the conclusion that the radio call may have been made prior to
the stop and the alleged detection of the 6.~9r"of m~rthuana. Both Leeder and

Edwards' testil'T\ony that the Defendants' w~re not handcuf!ed to the bumper of .
Edwards' patrol vehicle until after Leeder found the gtassine envelopes in the trunk of
the Defendants· vehicle is also contradicted by the videotape.

· There Is also the troubling Issue of the contradicting testimony given by Leeder
at the Grand Jury proceeding and the suppression hearing concerning the sequence of

events during the search of Defendant- pants pocke~. Subsequent to giving
sworn testimony to the Grand Jury, Leeder had the opportunity to review the videotape
so that at the suppression hearing his testimony confonned to what was depicted ·on

the tape as having actually transpired. No acceptable expfanation was provided at the
hearing to account for the alteratiQn of Leeder's testimony on this issue.

As stated above. in evaluatjng testimony common_sense and common
knowtedge should not be discarded. In making such a determination, testimony which
has all appearances of having been patently tailored to nullify ~stltutional objections

..

should not be credited. (People v. Garafolo, 44 ~- □.2d 86}. A review of all the ~vldence

presented at the hearing reveals that the officers' testimony was either contradicted by
other, more credible evid.ence, or was incredible of befief because it was manifestly
untrue, physicaHy lmposslble, contrary to·experience. or self-oontradictory. (See

eeorue

v. Stroman, 83 A.D.2d 370}.

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The Court finds Leader's testimony that.tie observed an illegal _lane change
incredible, and instead finds that the primary and only reason for the stop of the vehicle
.

..

-

was based not on probable cause, but rather on th~ subjective intentions of the pollce
officer. In adopting the Supreme Court's holding in Whren v. United States. 517 U.S.
606 as of a matter of stale law. the Court of Appeals_ stated ln its decision-that it has
always been the position of the Court that the primary motiVation of an officer is not a
factor in determining the validity of a traffic slop which is based on a traffic violation.
[People v. Robinson. 97 N.Y.2d 341]. However. nothing in the Robinson decision
dispensed with the threshold requirement that a traffic infraction indeed be observed.

The Court. as the trier of fact. has not been convinced that one occurred in this case.
At a suppression hearing. the People bear the initial burden of showing the
legality of the police conduct.in the first Instance. [People v. Dodt, 61 N.Y.2d 408;
People v. Destefano. ·38 N.Y.2d 640], and the People have failed to meet that burden

in the present case. Since the Defendants' vehicle was stopped illegally, any evidence
seized from it or from the Defendants' person, and any statements made to police
following the stop, must be suppressed.

Toe People argue that, even assuming any Impropriety surrounding the search.
the evidence seized is admissible pursuant to the Inevitable discovery doctrine: 7 This
e>ccepllon to the exclusionary rule may be applied where the prosecution has met their
burden in proving that the Hlegal act was not a "sine qua non of the discovery of the

7

1n support of this argument the People cite to the Court of Appeals' decision In People y,
Turriago, 90 N.Y.2d 77. However. the facts presented in that case are distinguishable frorn ll)ose rn the
case at bar. In TurTiago, there was a valid stop of the vehicle. In contrast to the stop in the present case.

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JJerwise tainted evidence.'' IPeople y. Fltzpabick, 32 N.Y.2d 499]. It has been ·
.
'
~aracterized as a •safety valve •.. to be used when the constitutional vio_lation is of a
technical dimension." [People v. Sciacca. 45 N.Y.2d 122]. In the present case. the stop·

of the vehicle was an Indispensable requi~ite to the search. Had it not.been for the
unlawful stop of the Defendanta'·vehicle, they would have proceeded through the toll

praza and would have continued their travel on lnters~te 95. Therefore. the inevitable
discovery doctrine is inapplicable in the present case.

As stated ·above, the Court holds that the lnltlal stop of the vehicle was not

supported by probable cause and, thus, all tangible and intangfble e~dence, including
cocaine, marihuana, glassine envelopes and statements seized as a result thereof
con~titute the unattenuated byproduct of the illegal seizure arid must be suppressed.

(Wong sun v. United States, 371 U.S. 471).

.
This constitutes the opinion, Decision and O ~ f this Court.
'

~

Dated: White Plains. New York
· February 1o, 2003

• L STER B. ADLER

H

County Court Judge
HON. JEANINE PIRRO
District Attorney, Wes~hester county
. 111 Or. Martin Luther King, Jr. Boulevard
White Plains, New York.10601
BY: Frank Luis, Esq. .
Assistant District Attorney

ARONWALD & PYKElT

. , ' Attorneys for Defendant 111111111111111
81 Main Street, Suite 4 ~
White Plains. New York 10601

11

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Page 1 of2

Judge tosses evidence in drui! case

~b~om:n~t~ewsa

. 1l\i\~1t:,1~~,t,,:,'\'.\W~'ll«.~u.iP11=

Judge tosses evidence in drug case
By JONATHAN BANDLER
THE JOURNAL NEWS
· · (Original publication: February 14, 2003)

Felony drug charges against two Massachusetts men arrested along Interstate 95 may be dropped now
that a judge has ruled that drugs seized from their rental car cannot be used as evidence because state
police had no basis for searching the car.
Westchester County Judge Lester Adler suppressed the evidence after hearing from the troopers and
reviewing tapes of the July 3, 2001, traffic stop in New Rochelle.111111111111111 and. . . .
were arrested after troopers found the drugs in the car - b~rday""tliar"'i1:re was
no evidence that the driver bad committed a traffic violation, and he didn't believe the troopers' account
that an odor of marijuana led to the search.
Adler adjourned the case until March 6 so the Westchester District Attorney's Office can decide whether
to appeal his decision.
William Aronwald,-lawyer, said the defendants were the victims of racial profiling and the
charges should be dismissed.
.
"This case was part of a systematic pattern in which New York State police routinely will pull over cars
with out-of-state license plates driven by young Hispanic or black men," Aronwald said. "You can't
justify a search based on what•s found in the search.... They had no basis to stop that vehicle."
A spokeswoman for the state police, Sgt. Neely Jennings, said she could not comment on the case
because officials had not yet reviewed the judge's ruling.
·
Trooper James Leeder said he pulled over the 1995 Camry north of the New Rochelle toll plaza after
observing- switch lanes without signaling. He said the rental agreement did not list either man as
an authorizeddrtver and that the car smel~ed of marijuana. When Trooper Harold Edwards arrived with
a drug-sniffing dog, the car was searched and the troopers found 4 ounces of cocaine, three plastic boxes
containing marijuana, a marijuana cigarette and 10,000 empty glassine envelopes commonly used for
·packaging drugs. Two other. packages of marijuana were found i n - pocket.
The only police report from the incident was filed by Investigator Noel Nelson and made no mention of
an odor of marijuana. Nelson testified at the hearing late last year that he recalled Leeder mentioning the
smell of marijuana, but that he might have left that detail out of his report. Neither Nelson nor Leeder
mentioned the odor of marijuana when they testified before a grand jury.

"It is inconceivable to the Court how an 18-year veteran oflaw enforcement, now an Investigator, would
deem the alleged probable cause for the search of the vehicle as 'moot' and 'ihsignificant',11 Adler wrote
in his decision.
Adler was able to view and hear most of the traffic stop thanks to the patrol .car's surveillance tape that
began when Leeder activated his emergency lights. The judge found that Leeder never mentioned the

. .

ENCLOSURE#"o/

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2/14/03

Judge tosses evidence in drug case

Page 2 of2

odof of marijuana when he radioed Edwards to respond to the scene, and that the two never discussed
.. that issue when they sat in Leeder's car.
Aronwald a n d - lawyer, Lawrence Hochheiser, argued that everything stemming from the traffic
stop should be suppressed because the driver had no obligation to signal in the toll plaza. Leeder
testified that the car was further north, but his radio ~all before the stop indicated he observed no
signaling as the car pulled out of the tollbooth.
·
"The Court finds Leeder's testimony -that he observed an illegal lane change incredible, and instead finds
that the primary and only reason for the stop of the vehicle was based not on probable cause, but rather ·
on the subjective intentions of the police officer," Adler wrote.
Send e-mail to Jon

http://www.nyjoumalnews.com/print_newsroom/02l 403/b04wl 4drugcasewpkab.html

2/14/03

,,;:

FILED
AND ENTERED

ON il-/:'¾~00~

COUNTY COURT: STATE OF·NEW YORK
COUNTY OF WESTCHESTER

..--------

wesTCHESrER
COUNTY CLERK

----------X

THE PEOPLE OF THE STATE OF NEW YORK
AMEN.OED
DECISION & ORDER

-against-

Index No.: 01-01085-01
01-01 085;.02

and

Respondent

--------··-----------X
ADLER. J.
In separate Decisions and Orders dated June 10, 2002 (Defendant
- a n d June 18 1 2002 (Defendant

pre-trial hearings were ordered

on the issue of the legality of the stop of the motor vehicle in which the Defendants
were driving, the admissibility of certain items of recovered tangible evidence. as well as
a statement allegedly made to law enforcement by Defendant- These hearings

were commenced before this Court on October 29, 2002, continued on November 13,
2002, December 2, 2002, December 3, 2002 and concluded on December 16, 2002.

I.

EXAMINATION OF PROSECUTION WITNESSES
The testimony presented by the People was that on July 3, 2001, Trooper James

Leeder was on routine motor patrol. While In a stationary position near the toll plaza on
Route 95 in the City of New Rochelle, New York, he observed a 1995 Camry occupied

by two male Hispanics exit the toll barriers. This•vehicle move from the far left. toward
the middle lane of the toll plaza without signaling. This movement was deemed by
Leeder to be a violation of the Vehicle & Traffic Law. Leeder also testified that he

ENCLOSURE #S'
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...

1

·believed" the passenger in the vehicle was not wearing a seat belt. As a result of
these two observations, Leeder activated his emergency lights and pulled the vehicle

over to the shoulder.
Subsequent to the stop, Leeder approached the driver's side of the vehicle and

, produce a license and the vehicle

requested that the driver,
registration. -

complied and produced a Massachuset's license ~nd a rental

agreement for the vehicle. While speaking with Defendant-Leader claims to

have smelled an odor of "fresh" marihuana emanating from inside of the vehicle. An
examination of the rental agreemer:it indicated that the vehicle was due back the prior

day and that neither of the Defendants were named authorized operators
Leeder was subsequently joined at the scene by Trooper Edwards, who had
responded pursuant to Leeder1s request for backup. Leeder had contacted Edwards
after he detected the odor of marihuana. Leeder assumed correctly that Edwards

would have a canine traveling with him. While Leeder waited in his patrol vehicle for
information from headquarters regarding a check for warrants, Edwards approached the
passenger side of the Defendants' vehicle and had a brief conversation with Defendant
Edwards then signaled t() Leeder by a •finger-to-nose" gesture to indicate that

-

he had smelled an odor of marihuana.
Based on the rental agreement and th~ odor of marihuana, the Defendants were
ordered out of their vehicle. At this point Defendant-was advised that; due

to the

problems with the rental agreement, he would be detained. In response to questioning

1Later

in Leader's testimony he admilled that he had been mistaken about the alleged seatbelt

violation.

2

-·

by Leeder,

Defendant-indicated that he had contraband in the pocket of his

shorts. Leeder then reached in and retrieved two small boxes of marihuana.
Defendant-was also removed f,:om the vehicle and searched, but no contraband

was found on his person. The Troopers then began an extensive search of the vehicle.
That lead to the discovery of approximately 10,000 empty glassine envelopes in the
trunk of the vehicle, a marihuana ("blunt") cigarette and two sticky bun~ in the glove

compartment2, approximately four ounces of co.caine in the headliner, and three clear
plastic boxes containing marihuana in the center console area.
Leeder also testified that he did not contact the rental company to confirm that
tlie Defendants were not authorized to operate the vehicle until he returned to the
barracks. However. had this information been learned at the scene, the vehicle would
have been Impounded and an inventory search would have been performed.

II.

FINDINGS OF FACT

The hearings in this matter were conducted over a period of several days and
Included extensive cross-examination of the three Prosecution witnesses (Leeder,
Edwards and Nelson) by defense counsel. The Defendants offered Jnto evidence
videotapes of the incident made by cameras that had been installed in both Troopers'
(Leeder and Edwards) vehicles. 3 The Court finds these videotapes to be the most
credible evidence received at the hearing. Based. on the entire evidence, It is the

1The "blunt cigarette" and

the "sticky buns• were found using Edwards' canine "Bernie." While

Edwards testified that the canine was certlfil;!d in the tracking of various narcotic drugs, he also testified

that the 17-month--old dog had approximately ten false positives in the pest Edwards was also unable to
state whether the alert given by the dog with respect to the glove compartment was a result of the
marihuana contained In the "blunt" cigarette or whether he was attracted to the "sticky buns."
'oefenc,tants' Exhibit A.

3

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finding of this Court that neither Defendant- nor Defendant- committed a
traffic violation. The Court further finds that there was no odor of marihuana.
It was established at the hearing that the c~meras installed in the patrol vehicles

wlll begin to record either when a Trooper manually engages a button or automatically
upon the activation of the emergency lights. In the present case, the videotaping (which
inclu9es an audio taping of any conversations that occurred inside of the patr~I vehlcle)

was activated automatically rather than volitionally by the Troopers. Consequently,
under the facts of this case, neither Leeder nor Edwards could have prevented the

activation of the video cameras Installed In their vehicles.
In striking contrast, the body microphones that both Leeder and Edwards were
wearing on July 3, 2002 could only be activated manually. However, for reasons this
Court finds to be unconvincing, neither microphone was operational at the time of this

incident and, therefore, any conversations a11eged to have taken place outside of tlie
vehicle were not preserved."
While both officers testified that they smelled an odor of marihuana emanating
from inside the vehicle, the evidence presented at the hearing incontr~vertlbly reflects

that there was no reference in the report prepared by Investigator Nelson5 iri connection

with this arrest regarding the alleged odor. When cross-examined regarding the
absence of any such reference, Nelson testified that he could not recall the

'With respect to ·the ma!funciioriing microphones, Leeder testified that he was uri~wara of the fact
that his microphone was not working until he viewed the videotape. Edwards testified that, for reasons
unbeknownst to him. his body microphone frequently breaks down.

sThis was the only police report prepared In connection With this arrest. Neither Leeder nor ·
Eclwards prepared a report. ·

4

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circumstances under which the information contained in the report was provided to him
because it happened "a long time ago_" Nonetheless, he insisted that he was still
capable of remembering Leeder's mentioning of the marihuana odor. Nelson
attempted to explain this significant omission in his report by stating that he deemed the
information to be "moot" and "insignificant." II is inconceivable to the Court how an 18year veteran of law enforcement, now an Investigator, would deem the alleged probable
cause for the search of the vehicle as "moot" and "insignificant." Equally perplexing is
the Investigator's ability to refresh his recollection with a document which lacks any
reference whatsoever to this alleged odor.
In addition to the lack of any reference to the alleged odor in the report, there is
absolutely no mention of an odor of marihuana during Leeder's radio transmission to
headquarters. Nor is there any mention of an odor of rnarihuana during Leeder and
Edwards' discussions that took place in Leeder"s patrol vehicle which were captured on
the audio segment of the videotape. Edwards unsuccessfully attempted to account for
this glaring ·omission by testifying that Leeder had communicated this information to
him,

not verbally, but by touching his nose with his right index finger.
Leeder also testified that he radioed Edwards for assistance after he smelled the

odor of marihuana. However, this call for assistance also is not reflected on the audio
segment of the videotape from Leeder's vehicle. 6

6rhis leaves the impression that _the call for assistance was made prior to the .ictivation of the
emergency lights which Initiated the videotaping_ This would suggest that the call may have been made
prior to the stop of the .vehicle, and prior to the alleged detection of an odor of marihuana_

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Leeder testified, and the videotape reflects, that Leeder searched Defendant
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and removed something from his front pocket (which Leeder testified were two

clear plastic boxes containing marthuana). However, this was not always Leeder's
version of the events. Leeder admitted on cross-examination that at the Grand Jury
presentation he testified that Defendant- had removed the marihLJana from his
own pocket and handed It to Leeder. It was not until after-reviewing th_e videotape,
subsequent to his Grand Jury testimony, that his testimony conformed to what was
depicted on the tape. Although Leeder testified that he advised the District Attorney's
Office of this "mistake" during his preparation for the felony hearing, it was stipulated by
the People on the record that no felony hearing had ever taken place in this case.
The testimony of the two officers that the Defendants were handcuffed to the
front bumper of Edwards' vehicle only after Leeder discovered a box containing
glassine envelopes in the trunk of the vehicle is directly c_oritradicted by the videotape.
The videotape reflects that less than a minute after the se~r~h of the vehicle

commenced, while Leeder was stUI searching the passenger compartment and had not
even reached the trunk of the vehicle, Edwards returned to the vehicle unaccompanied
by the Defendants. Clearly, the Defendant~ were handcuffed to the bumper of Edwards

vehicle (hardly a de minimus intrusion) prior to the discovery of the glassine envelopes,
directly contradicting both Leeder and Edwards' testimony.

Ill.

CONCLUSIONS OF LAW

It is well•settled ln the State of New York that a stop of a motor vehicle Is a
seizure implicating constltutlonal limitations. (People y, Spencer, 84 N.Y.2d 749;

People v. May. 81 N.Y.2d 725; P~ople v. Ingle, 36 N.Y.2d 413]. Such a stop is legal
6

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"only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or
when there exists at least a reasonable suspicion that the driver or occupants of the
vehicle have committed, are committing, or are about to commit a crime. [People v.
Spencer, 84 N.Y.2d 749; People v. Ingle, 36 N.Y.2d 413]. A stop based on probable
cause that the driver of a vehicle has violated the Vehicle & Traffic Law is reasonable,
and the primary motivation of the police officer for stopping the vehicle is not relevant to
a Fourth Amendment analysis. (People v. Robinson. 97 N.Y.2d 341; People v. Moore,
277 A.D.2d 254; People .v Hammond, 737 N.Y.S.2cJ 733]. However; such probable
cause must be supported by credible facts which establish reasonable cause to
believe that a person has violated a law. [People v. Robinson, 97 N.Y.2d 341]. Clearly,
the facts herein do not meet this standard.
The issue as to the credibility of a witness and the weight to be afforded the
evide_nce presented is a question to be determined by the trier of fact [People v.
Prochilo, 41 N.Y.2d 759; People v_ O'Keefe, 276 A.D.2d 647: People v. Campbell, 269
A.D.2d 461]. "In evaluating testimony we should not discard common sense and
common knowledge .... 'The rule is that testimony which is incredible of belief because
it is manifestly untrue, physically impossible, contrary to experience, or selfcontradictory, is to be disregarded as being without evidentiary value, even though it is
not contradicted by other testimony or evidence introduced in the case."' [Loughlin v.
City of New York. 186 A.D.2d 176 citing People v. Garafola, 44 A.D.2d 85]lnsufficient reason was provided during the hearing to account for the
simultaneous malfunctioning of both Troopers' microphones on the day in question.
The Court is disturbed by the fact there was no "malfunctioning" of the video cameras
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that were activated automatically, but that the microphones, which courd only be
activated manually, were coincidentally inoperable t~at day.

In addition, no credible explanation was provided for the lack of any reference to
an odor of marihuana In the police report. The People contend that this odor of .
marihuana forms the basis for the l~gality of the search. Common sense dictates that

all important and relevant Information, especially the alleged proba~le cause for the
search of the vehicle, would be contained'in the sole report prepared in connection with

the arrest. It is Inconceivable that an 18-year veteran of law enforcement would deem

tht:J alleged basis fl,r the search of the vehicle irrelevant and unworthy of note in his
report. Equally unbelievable was Nelson's testimony that while the report made

absolutely no reference to the odor of marihuana, by reading it he was able to refresh
his memory that Leeder had told him about the odor.

There are numerous times when the videotape contradicts the testimony of
either Leederj Edwards, or both. The videotape is devoid of any mention of an odor of

m~rihuana, and the Court is unconvinced by the officers' transparent attempts to
account for this omission. The videotape also does not reflect the tacit "finger-to-nose"
gesture of Edwards that Leeder testified occurred after Edwards spoke with Defendant
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Also missing from the videotape is Leader's call for assistance to Edwards,

which lea.ds the Court to the conclusion that the radio call may have been made prior to

the stop and the alleged detection of the odor of marihuana. Both Leeder and
. Edwards' testimony that the Defendants· were not t)andcuffed to the bumper of

.Edwards' patrol vehicle until after Leeder found the glassine envelopes in the trunk of.
the Defendants' vehicle is also contradicted by the videotape.
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There is also the. troubling issue of the contradicting testimony given by Leeder
at the Grand Jury proceeding and the suppression hearing concerning the sequence of
events during the search of Defendant Aquiar's pants pockets. Subsequent to giving
sworn testimony to the Grand Jury, Leeder had the opportunity to review the videotape
so that at the suppression hearing his testimony conformed to what was depicted on
the tape as having actually transpired. No acceptable explanation was provided at the
hearing to account for the alteration of Leader's testimony on this issue.
As stated above, in evaluating testimony common sense and common
knowledge should not be discarded. In making such a determination, testimony which
has all appearances of having been patently tailored to nullify constitutional objections
should not be credited. [People v.· Garafola, 44 A.D.2d 86]. A review of all the evidence
presented at the hearing reveals that th.e officers' testimony was either contradicted by ·
other, more credible evidence, or was incredible of belief because it was manifestly
untrue, physically impossible, contrary to experience, or self.contradictory. [See People
v. Stroman, 83 AD.2d 370].
The Court finds Leeder's testimony that he observed an illegal lane change
incredible, and instead finds that the primary and only reason for the stop of the vehicle
was based not on probable cause, but rather on the subjective intentions of the police
officer. In adopting the Supreme Court's holding in Whren v. United States, 517 U.S.
806 as of a matter of state law, the Court of Appeals stated in its decision that it has
always been the position of the Court that the primary motivation of an officer is not a
factor in determining the validity of a traffic stop which Is based on a traffic violation.
[People v. Robinson, 97 N.Y.2d 341]. However, nothing in the Robinson decision

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-·- .- - - - - - - - .

dispensed with the threshold requirement that a traffic infraction indeed be observed.
The Court, as the trier of fact, has not been convinced that one occurred in this case.
At a suppression hearing, the People bear the initial burden of showing the
legality of the police conduct in the first instance. [People v. Dodi, 61 N.Y.2d 408;
People v. Destefano, 38 N.Y.2d 640], and the People have failed to meet that burden
in the present case. Since the Defendants' vehicle was stopped lllegally, any evidence
seized from it or from the Defendants' person, and any statements made to police
following the stop, must be suppressed.
The People argue that, even assuming any impropriety surrounding the search,
the evidence seized is admissible pursuant to the inevitable discovery doctrine. 7 This
exception to the exclusionary rule may be applied where the prosecution has met their
burden in proving that the illegal act was not a "sine qua non of the discovery of the
otherwise tainted evidence: [People v. Fitzpatrick. 32 N.Y.2d 499]. It has been
characterized as a "safety valve ... to be used when the constitutional violation is of a .

technical dimension." [People v. Sciacca, 45 N.Y.2d 122J. In the present case, the stop
of the vehicle was an indispensable requisite to the search. Had it not been for the
unlawful stop of the Defendants· vehicle, they would have proceeded through the toll
plaza and would have continued their travel on Interstate 95. Therefore, the inevitable
discovery doctrine is inapplicable in the present case.

7

1n support of this argument the People cite to the Court of Appeals' decision in People v.
Turriago, 90 N.Y.2d 77. However, the facts presented In that case are distinguishable from those .in the
c.ise at bar. In Turria'?o. there was a valid stop of the vehicle, in contrast to the stop in the present case.

10

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As stated above, the Court holds that the initial stop of the vehicle was not
supported by probable cause and, thus, all tangible and Intangible evidence, Including
cocaine, marihuana, glassine envelopes ~nd statemen~ seized as a result thereof
constitute the unattenuated byproduct of the illegal seizure and must be $Uppressed.

[Wong Sun v. United States, 371 U.S. 471].
This constitutes the opinion, qecision and Order of this Court.
Dated: White Plains, New York
February 13, 2003

HON. L STER 8 . ADLER
County Court Judge

HON. JEANINE PIRRO
District Attorney, Westchester County
111 Or. Martin Luther'King, Jr. Boulevard
White Plains, New York 10601 ·

BY: Frank Luis, Esq.
Assistant District Attorney
ARONWALD & PYKETT
Attorneys for Defendant

81 Main Street, Suite 45
White Plains, New York 10601
By: William I. Aronwald, Esq.
LAWRENCE HOCHHEISER, ESQ.
. Attorney for Defendant

270 Madison Avenue,
New York, New York ·10016

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STATE OF NEW YORK
COUNTY OF ORANGE
TOWN OF NEW WINDSOR

MARCH 24, 2003

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Statement taken from Trooper HAROLD M. EDWARDS at the Internal Affairs Bureau South Region Office,
Stewart Airport, New Windsor, New York on March 24, 2003, by Staff Inspector ARTHUR J. HAWKER. We are
commencing at 10:18 a.m.
The letter "Q" denotes questions asked by Inspector HAWKER.
The letter "A" denotes answers provided by Trooper EDWARDS.

Q.

For the record, please state your full name, rank, date of entry and your current assignment?

A.

My name is HAROLD, middle "M" as in Melvin, last name EDWARDS, E-D-W-A-R-D-S, my date of
entry is October 7rh of 1991, my cUirent rank is Trooper and l'.m assigned to Troop "T", SP New Rochelle.

Q.

Trooper EDWARDS you were advised on March 141h of this year by myself through the Division E-mail
the matter being investigated and that I would be taking a statement at this time. You are not the target of
any known criminal investigation. The purpose of this investigation is to inquire into your activities as a
member of the State Police. Specifically it has been alleged that in connection with the July 3, 2001 arrest
of 111111111111111 and 111111111111111 that you gave testimony in subsequent
W e s ~ a r i n g s ~ o t credible by the presiding judge. This
interrogation is being conducted pursuant to Article 16 of the agreement between the State of New York
and your certified employee representative organization and the Regulations of the New York State Police
including Regulations 8A3 and 8Al5. You have the right to contact and consult with an attorney and/or
wuon delegate before being interrogated and to have an attorney and/or delegate present during the
interrogation. This agreement and our Regulations require you cooperate and answer truthfully questions
relating to the investigation. A refusal to answer or failure to answer truth.fully may result in disciplinary
action which could result in your separation from service. Are you represented at this ti.me, and if so by
whom?

A.

I am represented by Trooper KEITH FORTE of the New York State PBA.

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. As stated, I am Inspector ARTHUR HAWK.ER and have been designated by the Superintendent to conduct
this interrogation. The record will reflect that present during the interrogation in the room at this time are
myself, Trooper EDWARDS and his delegate, Trooper KEITH FORTE. This interrogation is being
recorded mechanically by tape recorder. Do you understand this?

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A.

Yes I do.

Q.

Having been advised of the above, are you now ready to proceed with this interrogation?

A.

Yes.

Q.

For the record also, I will make reference to court testimony, this pertains to your testimony in any of four
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dates of the suppression hearings that were conducted in Westchester Cotmty Court between October 29
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and December 16 of 2002. I also make reference to JAMES LEEDER as Trooper LEEDER in that that
was his rank at the time this case was being adjudicated. Are you ready to proceed?

A.

Yes.

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Q.

Trooper EDWARDS, you indicated your current assignment is in Zone 1 of Troop "T"?

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A.

That's correct.

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ENCLOSURE #t;

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Q.

And you are also a K-9 handler?

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A.

Yes.

Q.

How long have you been a dog handler?

A.

Since May 10 th, 1999.

Q.

And the current dog that you have now, how long have you had him for?

A.

Since that date, May 10

Q.

And specifically, what is the dog trained to detect?

A.

Are you talking about the specific narcotics or?

Q.

Yes.

A

Okay, marijuana, hashish, cocaine, crack-cocaine, heroine, ecstasy and crystal meth.

Q.

In terms of your evaluation of this dog, is he considered an effective dog as far as his ability to detect
drugs?

A.

Yes.

Q.

In the operations of the K-9 Unit, is there a certain percentage, do you keep any track of how many times
he's failed to detect or how many times he's hit positive on drugs?

A.

Yes we keep training records.

Q.

Are you able to indicate that off the top off your head?

A.

I couldn't tell you off the top of my head what his percentage is.

Q.

But in terms of Division standards, he performs at an acceptable level?

A.

Yes.

Q.

On July 3"', 2001, do you recall what your tour of duty was?

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A.

I believe I was working a C-1 Tour of Duty.

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Q.

And do you recall the vehicle you were operating?

A.

Yes. It was plate I "T" as in Tom, 23.

Q.

And the PRIN is?

A.

7724.

Q.

Was that vehicle back in July of 2001, equipped with a video unit?"

A.

Yes it was.

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1999.

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Did there come a time on that day when you assisted Trooper LEEDER with a car stop on I-95?

A.

Yes.

Q.

And would you describe how that came about, were you called on the phone, were you called on the radio,
were you with him, how did it start out?

A.

He contacted me via the Thruway radio.

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Q.

And when he contacted you on the radio, do you recall specifically what he requested or told you?

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A.

I believe he asked me just to patrol to his location.

Q.

Do you recall what the location was?

A.

In the area of milepost 8 north on 95.

Q.

He gave you no specifics at that point as to why he waoted assistaoce?

A.

No.

Q.

Did he know you were nearby?

A.

Yes.

Q.

How would he have known that?

A.

Prior to him going on the road, I was at the station.

Q.

So you saw him earlier that day?

A.

Yes.

Q.

Do you know what shift he was working?

A.

I don't recall.

Q.

So when he saw you at the station, was it hours before, minutes before, if you recall?

A.

I don't remember.

Q.

Where were you when he called you?

A.

I was at the station.

Q.

At?

A.

SP New Rochelle.

Q.

And in terms of mile markers from mile post 8, New Rochelle was located at?

A.

7.2.

Q.

So you were Jess than a mile away?

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A.

Correct.

Q.

When he called you on the radio, was there any mention of it being a drug stop or anything like that?

A.

No.

Q.

Were you able to respond immediately?

A.

Yes.

Q.

So it took you approximately how Jong to get there?

A.

Two, three minutes tops.

Q.

Do you recall what tinie of day this was?

A.

Not off the top ofmy head, no.

Q.

Was itrelatively early in your shift, late in your shift?

A.

Relatively early in the shift.

Q.

And do you recall what the volume of traffic was on I-95 on that date?

A.

The specific .... no I don't recall.

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Q.

When you got there, just if you would to your recollection, what occurred, you pulled up, what did you see?

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A.

As I pulled up, I saw Trooper LEEDER's vehicle and a vehicle in front of him pulled over. I then exited
my vehicle and walked to the passenger side of Trooper LEEDER's vehicle, and then it was at that tinie I
saw there was two occupants in the vehicle that he had stopped.

Q.

Trooper LEEDER's vehicle, do you know what his, I guess on the Thruway, you go by the prin rather than
the plate number?

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A.

Yes.

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Q.

What is his designation, if you remember?

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A.

His radio number was 7 68.

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Q.

So you go up along 768 and you have a conversation with Trooper LEEDER?

A.

Yes.

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Q.

Did you actually get in the car or you were just talking through window?

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A.

Just talking through the window.

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Q.

What did he tell you that he had at that point?

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A.

He was explaining that he had the vehicle stopped and the operator, neither one of the passengers were on
the rental agreement. As he's doing that, he touches his nose, which is an indication to me that, that there's
some sort of odor emanating from the vehicle. After that he goes on to say. that the vehicle was also
overdue on the rental agreement and that the occupants said they were coming somewhere from Brooklyn.

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After stating that, I walked up to the passenger side of the vehicle and had a brief conversation with the
occupants. They had said they were coming from Brooklyn but it wasn't a place in Brooklyn that I
recognized because I grew up in Brooklyn. After that, I returned to Trooper LEEDER's vehicle and
informed him that I had noticed the odor of marijuana.

Q.

Going back to when you first speak to Trooper LEEDER, did he tell you what he had them stopped for to
begin with?

A.

I don't remember ifhe did or didn't.

Q.

So you spoke with both occupants?

A.

I was just having just a general conversation with them, you know asking where they were coming from.

Q.

And they give you a story they're coming from Brooklyn but you're not familiar with whatever
neighborhood in Brooklyn they said they were coming from?

A.

That's correct.

Q.

While you're speaking with them, do you recall which side of the vehicle you were on, were you talking
with the driver, the passenger?

A.

I was on the passenger side, I was just making general conversation with both of them.

Q.

And did you see any drugs at that point?

A.

No I didn't.

Q,

But you said you did smell drugs?

A.

I smelled, yes, the odor of marijuana.

Q.

Okay, describe what you smelled in terms of odor of marijuana?

A.

Its ...

Q.

Was it burned marijuana, was it plant marijuana, was it dried marijuana?

A.

Both, well, burnt, I shouldn't say burnt, I should say fresh marijuana that hasn't been smoked yet.

Q.

Okay but you had the opportunity in your training and your police experience to smell green marijuana
plants?

A.

Yes.

Q.

And you've also had the opportunity to smell the dried product?

A.

Yes.

Q.

Prior to it being smoked?

A.

Yes.

Q.

Just so I'm clear on what we're talking about when you say fresh marijuana.

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The dried, ready to be smoked.

Q.

Okay. We have a request for a time out here. 10:30 a.m.
We're returning, it's 10:31 a.m

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Q.

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In terms of inteusity, if you had to put it on a scale of one to ten, this odor of the dried marijuana, what
would you say it was?

A.

It was a strong odor, I would have to put it in the eight or nine category.

Q.

So it was fairly significant to you?

A.

Yes.

Q.

After speaking with the occupants, what did you do?

A.

I returned to Trooper LEEDER's vehicle and informed him that I did smell marijuana.

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Q.

And you told him that you smelled the marijuana?

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A.

Yes.

Q.

So at that point, what occurred?

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A.

At that point, Trooper LEEDER exited his vehicle and asked the driver to step out the vehicle.

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Q.

Just before you got to that point where you get the driver out of the vehicle, was there discussion as to okay
what are we going to do here, what do we have, you know did you have like a, put a little game plan
together, anything like that?

A.

I don't remember.

Q.

Going back to LEEDER, when you first come up to the car, and he's telling you, you know that these guys
claim that they're coming from Brooklyn and what not, you say he gave you a signal that he smelled
something?

A.

Yes.

Q.

And specifically what was that signal?

A.

He touched his nose.

Q.

With?

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A.

His finger.

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Q.

And that signified to you that ...

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That there was some sort of odor in the vehicle.

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Q.

Is there any reason he wouldn't verbalize, hey HAL, or whatever he would refer to you as, you know
smelled marijuana in the vehicle?

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. I couldn't tell you why he did it.

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But his touching his nose with his finger, that was a signal to you that there was marijuana in the vehicle, or
that he smelled it?

A.

Not necessarily marijuana but he smelled something.

Q.

Request for time out at 10:33 a.m.
We're back on the record at 10:35 a.m.

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Yes.

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Q.

Please indicate what occurred there.

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A.

Trooper LEEDER had asked the driver to exit the vehicle and I was standing off to the right. They had a
conversation that I wasn't in close proximity to so I don't know exactly what was said. And the!f during the
conversation Trooper LEEDER had gotten marijuana off the driver.

Q.

Just to back up, Trooper LEEDER goes up to the driver side and has a conversation with the driver?

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A.

No, no. He has him exit the vehicle.

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Q.

Okay and where does he go?

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A.

They're at the rear of the vehicle.

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Q.

Rear of the?

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A.

Rear center.

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Q.

Rear of the defendant's vehicle?

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Correcl

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Q.

And at that point, did you observe Trooper LEEDER secure evidence from the person of the defendant?

A.

Yes.

Q.

That would be. . . . the driver?

Okay, you're up to
the point where you indicated Trooper LEEDER approached the vehicle toward the driver?

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Yes.

Q.

How did that happen, if you recall.

A.

Like I said earlier, I didn't, I wasn't privy to their conversation but I did see Trooper LEEDER take some
marijuana out of his pocket.

Q.

Out o~pocket?

A.

Yes.

Q.

Do you recall which pocket?

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A.

I don't.

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Q.

LEE.DER reached in and took the ma~ijuana?

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A.

Yes.

Q.

Do you recall was the marijuana packaged or loose?

A.

I believe it was packaged.

Q.

Do you recall how?

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A.

No.

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30

Q.

At any point prior to that, did he frisk him or pat him down or was it just, went right to the pocket?

31

A.

I don't recall.

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35

Q.

Prior to this search, had Trooper LEEDER expressed to you any concern that he thought the driver or the
passenger was armed with a weapon?

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40

A.

I don't remember him saying that.

Q.

Was there any suspicion that the driver or passenger were, either occupant was associated with a violent
crime?

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A.

No.

43

Q.

And at this point the driver has had the marijuana taken from him, what happened with the passenger, did
you take the passenger out of the car?
·

A.

No. When Trooper LEEDER was finished with the driver, he came and stood on the side near me, then
when Trooper LEEDER then approached the passenger side and asked the passenger to exit the vehicle.

Q.

And did Trooper LEEDER search the passenger?

A.

I don't remember.

Q.

After the passenger is out of the car, what happened then?

A.

They both stood in the area near me and then Trooper LEEDER began to search the vehicle.

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When you say they stood near you, where exactly were you located?

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A.

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I was to the right of Trooper LEEDER's vehicle in between the defendant's vehicle and Trooper
LEEDER's vehicle and they were standing against the cement wall.

Q.

Were they handcuffed at this point?

A.

No not at this time.

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Q.

So you're just standing more or less like guarding these two people?

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A.

Correct.

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Q.

And what was Trooper LEEDER doing at that point?

A.

He was searching their vehicle.

Q.

Did there come a point when they were handcuffed?

A.

Yes they did.

Q.

And at what point was that, do you know?

A.

After Trooper LEEDER located a box in the trunk that contained thousands of glassine envelopes, which
are commonly used to package various narcotics, that's when they were placed in cuffs.

Q.

When they were placed in handcuffs, you did that yourself?

A.

I believe I handcuffed one of them, I'm not sure if I handcuffed both of them

Q.

Okay, would you have cuffed them together or separately?

A.

Separately.

Q.

Was there a point where they were handcuffed to the front bumper of your vehicle?

A.

Yes.

Q.

Well they would have been handcuffed either by yourself or yourself and Trooper LEEDER, correct?

42
43

A.

Correct.

44

Q.

Do you recall ...

A.

I don't remember.

Q.

... the mechanics of that?

A.

No I don't.

Q.

Okay but your recollection is that they were handcuffed to the bumper after these glassine bags were found?

A.

Yes.

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, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - -

I

Q.

After the bags are found, and these two defendants are handcuffed to the front bumper of your car, what did
yon do?

A.

It was at that point that Trooper LEEDER asked me to get "Bernie" to search the vehicle, because he

2
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thought that at that point there might be some drugs hidden in the vehicle. I then took "Bernie" out of my
vehicle and began the search, the defendants' vehicle.

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6

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9

Q.

If I could just stop you right there for a second. Prior to the dog conducting the search, was the car
searched by yourself and/or Trooper LEEDER?

A.

I don't remember.

Q.

Do you recall giving testimony in court that the defendants were not handcuffed to the troop car until after
the glassine envelopes were found?

A.

Yes.

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19

Q.

Was that testimony accurate?

20

A.

Yes.

22

Q.

23
24
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27

The reason I ask that question is apparently according to the court decision, it cited review of the video
tapes found that the defendants were handcuffed prior to the bags being found.

A.

That's not what happened. If you review the tapes, you can see that Trooper LEEDER found the envelopes
and then they were handcuffed.

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29
30

Q.

Let me just put the tape on hold for a second. It's 10:46 a.m.
We're returning to the record at 10:51 a.m.

31
32
33
34
35

Q.

Trooper EDWARDS, just so I understand your testimony here correctly, is your recollection that you were
guarding these two individuals alongside the road while Trooper LEEDER searches the vehicle?

A.

Yes.

36

Q.

37
38
39
40
41
42
43

And that in the search of the vehicle, he locates in the trunk a box of approximately thousands of glassine
envelopes and at that point you handcuffed, or you and/or LEEDER handcuffed the two guys to ihe front of
your vehicle?

A.

That's correct.

Q.

That's the way this thing happened?

44

A.

Yes.

45
46

Q.

And a\ that point the dog commenced its search?

Q.

Tape pauses - We're back on the record at 10:55 a.m.

Q.

Trooper EDWARDS let me just re-ask the last question which hasn't been answered yet. So it's your
recollection that at the point where the passenger and driver are out of the car, you're standing with them to
the rear of their car alongside Trooper LEEDER's vehicle while he's conducting a search of their car, is that

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correct?
A.

Yes.

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Q.

And at some point during his search of the car he locates glassine envelopes in the trunk in a box, correct?

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4

A.

Yes.

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6

Q.

And at that point they are handcuffed to the front of your vehicle?

8

A.

Correct.

9
10

Q.

Okay, up to that point have ~ey been handcuffed yet?

A.

No.

Q.

So the actual mechanics of them being affixed to the front of your vehicle would have been done by
yourself or yourself and Trooper LEEDER?

17

A.

Yes.

18
19

Q.

20
21
22

Do you recall specifically whether you handcuffed them both yourself or whether Trooper LEEDER came
back and assisted you?

A.

I don't recall.

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24

Q.

And the next step in this process was to have the dog search?

A.

Yes.

Q.

Prior to the dog being used, did you and Trooper LEEDER search the vehicle?

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31

A.

I'm not a hundred percent sure, I don't recall.

32

Q.

Whose decision was it to use the dog, was that yours or did Trooper LEEDER request it?

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A.

I believe Trooper LEEDER requested it.

Q.

·In temis of the protocol that you use in using the dog to search a vehicle for narcotics, is it preferable to

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have the dog search the vehicle or sniff the vehicle before police do it?

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A.

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41

Q.

It really doesn't, doesn't matter. And there's no set guidelines that the dog bas to search first.

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A.

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48

Q.

And just to get to the search of this vehicle, what was the basis for the search?

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51

A.

That Trooper LEEDER had recovered marijuana from the driver and just I guess he was ~ g to either
confirm or negate that there was any more in the vehicle.

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Q.

So the basis of the search or the probable cause was the marijuana odor?

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55

A.

Yes.

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4
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6

Q.

So at that point it wasn' t primarily an inventory search because the vehicle was going to be impounded for
the rental problems?

A.

It might have been, I don't remember if that was the case.

Q.

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A.

Q.

So your K-9 "Bernie" does a search of the vehicle?

A.

Correct

Q.

And did the dog find any drugs in the car?

A.

Yes, he alerted to the glove box area and then I tried to have him search further but he kept going back to
the glove box because his main objective when he searches is to find his toy, or be rewarded for finding
something and he kept going back there, so I rewarded him by giving him his pouch and then I put him back
in the vehicle.

26

Q.

The dog alerted on the glove box, was there anything in it?

27
28

A.

Yes there was a rolled "blunt" marijuana cigarette.

30
31
32
33

Q.

And did the dog find any other drugs in the vehicle?

A.

.No, he kept going back to the glove box area.

34
35

Q.

So as far as you, as the dog's handler could tell, that was the only place he showed what you would call an
alert?

A.

Yes.

Q.

And when you opened the glove box, was it unlocked?

A.

Yes it was.

43

Q.

And this marijuana "blunt" was in there?

44
45

A.

Yes.

Q.

The court also mentioned that there was a couple of pastries in there that there was some, I don't want to
say confusion, but I know the defense raised au issue, possibly during the suppression hearing whether the
dog was smelling the pastries or the marijuana cigarette?

A.

Yes that was brought up.

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on

Were you able to discern based
your experience as a K-9 handler, would those pastries have had any .
effect on the dog sniffing for ·drugs?

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2

A.

Personally I can say it wouldn't because I don't feed him any hwnan food or anything like that and I've
searched nllIIlerous cars where there is actually food in there and he doesn't, he doesn't bother it, but during
the trial I wasn't, I didn't get the opportunity to express the fact that I know he was alerting to the odor of
the marijuana not the pastries.

Q.

During the dog's search of the car he was on the front seats as well as the back seat, correct?

A.

Yes.

Q.

And at some point, we'll get into it, but there was cocaine found in the head liner?

A.

Yes.

Q.

And how far from the cocaine was the dog when he was standing on the back seat, or from where the
cocaine was actually found?

A.

About two and a half feet maybe.

Q.

As the dog's handler, can you offer any like expert opinion as to why the dog didn't alert on the cocaine
being that close to it?

A.

It wasn't introduced to him. The dog, he'll search where you want him to search but in this case I didn't
have him search up near the head liner and that could be one reason for the alert, and also that the marijuana
is much more of an overwhelming odor than cocaine and he's going to alert to that first.

Q.

I notice in the tape when you walked around the vehicle, I couldn't see what occurred in the vehicle, but you
would like tap with your knuckles on different parts of the vehicle, is that telling the dog to cover these

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A.

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Right, what you want to do is as you're searching you want to search low and high and as he's going in
between he'll hopefully bring his nose up and if there is something between the low and high, he'll alert to
that, but inside the vehicle it's a little bit harder because you've got the dog in there and you're trying to get
in there and point him in the right direction.

Q.

So to put it kind of simply, if you had tapped on the head liner, would the dog have like covered that area
with his sniffing?

A.

Yes.

Q.

Other than the marijuana cigarette in the glove box, did you personally find any of the drugs?

A.

I was the one who covered the cocaine that was in the head liner.

Q.

And the cocaine in the head liner, was that, just describe where in the head liner it was in relation to the
vehicle interior.

A.

This vehicle, it had a sunroof and if you would be sitting on the back seat, and pull the head liner down, it
was shoved up all the way forward towards the sunroof.

Q.

So it would be toward the back part of the frame of the sunroof?

52

A.

Correct.

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55

Q.

Did you, the cocaine that was recovered, it was what weight, do you remember?

areas?

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.43

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A.

I believe it was over three ounces.

Q.

And do you recall how it was packaged?

A.

In a clear plastic bag.

7
8

Q.

Like a baggie?

9

A.

Yes.

Q.

When you were in the back seat there, how did you discover that cocaine?

A.

After I had put "Bernie" back in my vehicle, Trooper LEEDER, he was still searching the vehicle and then
he called me back to the vehicle and he says, "HAROLD, what do you smell ?" and I stuck my head in the
car and I said, "I smell marijuana", he goes "no, smell up here near the sunroof'. At that point I took a deep
breath when I was up near the sunroof, I said "I smell something that I equate to cocaine" and that's when I
entered the rear of the vehicle and looked up underneath the head liner.

Q.

And that's when you found the bags of, was it one bag or ... ?

21
22

A.

One bag.

23

Q.

And again, you talk about the odor that you associate with cocaine, was it fairly significant odor?

24
25

A.

The second time when I focused in a particular area, it wasn't an overwhelming smell, but it was a decent
smell,. a decent odor I should say.

28
29

Q.

Go back to our scale of one to ten, ten being the strongest ?

30
31

A.

I would put it in a four category. It wasn't that overwhelming but when you concentrate it, you could pick
up the odor.

Q.

But Trooper LEEDER had detected that first?

A.

Yes.

Q.

Now at this point, where are the two defendants while you are recovering the cocaine?

A.

They're still attached to the bumper.

Q.

And for how long did they remain attached to the bumper, do you recall?

A.

I don't recall.

45
46

Q.

Were they eventually removed from the front bumper of your vehicle?

47

A.

Yes.

Q.

And where did they go from there?

A.

They went into the rear seat of Trooper LEEDER's vehicle.

Q.

During the course of this stop, was your patrol car video system used?

A.

Yes.

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Q.

Was your remote microphone turned on?

A.

I believe it was, I, after reviewing the tape, I know it wasn't operational though.

Q.

Prior to beginning your shift, had you tested your remote mic?

A.

yes

Q.

And how did you do that?

A.

When you turn the system on, you turn the mic on and then there's a little red light that says "mic", its on
the screen of the video camera.

Q.

And that's for the remote mic?

A.

Correct.

Q.

And that was working when you started?

A.

Yes.

Q.

Did you testify in court that the re.mote mic that you have frequently breaks down for reasons unknown to
you?

A.

Yes.

Q.

And prior to July 3'• of 2001, how long had that been occurring for?

A.

That's on ongoing thing with the microphones that they, they have a tendency to break or not work
properly.

Q.

Had you documented this particular microphone as being malfunctioning?

A.

I'm sure I told one of the Sergeants, in terms of documenting in writing, I'm not sure.

Q.

What is the procedure in Zone One if you have a microphone that's not working, are you required to do a
memo or make a blotter entry so that the Sergeant is aware ofit, or is it just a verbal?

A.

Now it requires a blotter entry.

Q.

Okay, back in 2001?

A.

I don't think it did require a blotter entry.

Q.

Just to go back to the evidence in this case, do you recall what evidence was found and in what order, I
know you testified it started out with the marijuana that was on the driver, correct?
'

A.

Correct.

Q.

And if you would just take me through it, what was found and where was it found?

A.

The next was the "blunt" marij~ cigarette that the dog found.

Q.

Well, considering the glassine envelopes.

15

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•
1 •

2

A.

Okay the glassine envelopes, actually, the marijuana from the defendant, the driver, then the glassine
envelopes, the "blunt" marijuana cigarette, the cocaine in the head liner and then I believe Trooper
LEEDER found some more marijuana tucked in between the seats.

Q.

In terms of weight, was the marijuana significant, to your recollection or would it have just been UPM type
weight?

A.

I believe it would have been just UPM type weight.

Q.

With respect to this case, when the defendants were transported back to the station, it was SP Hawthorne? ·

A.

No they went to Tarrytown Barracks.

Q.

Did you return to Tarrytown also?

A.

Yes.

Q.

Did you have any interaction with Investigator NOEL NELSON?

A.

No, I processed the defendants,

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25

Q.

You didn't discuss the case with Investigator NELSON at all?

A.

No.

26
27

Q.

Did he ever ask you to make any written record of your actions or what you found, that sort of thing?

A.

No.

Q.

Did you ever make any written record like a deposition or a memo to him describing how you found the
cocaine or where you found it, anything like that?

33
34
35

A.

No.

36

Q.

And you weren't asked to do that?

A.

No.

Q.

Would you have completed any records, like a use of the K-9 form?

A.

Yes, we have, it's an internal, I believe its an internal form, a General 85B that I faxed to Sergeant
TIMOTHY FISCHER.

Q.

I'm just going to fast forward the tape here. It's 11:13 a.m We'll switch to Side B.
We're returning to the record, it's I I: 13 a.m continuing on Side B.

Q.

With respect to your contact with the Westchester County DA's office, Trooper EDWARDS, how much
preparation did you undergo with the DA prior to giving testimony in the suppression hearing?

A.

Froni the time of the stop to the suppression hearing, there were several DA's involved in the case, it kept
getting pushed off to another one, pushed off to another one, then I believe it was in September of 2002 is
the first time that I actually met with ADA FRANK LUIS in regards to this case.

Q.

You 'did not testify in Grand Jury on this case, correct?

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A.

That's correct.

3
4

Q.

Do you recall how many times you testified at the suppression hearing that you know took that extended
period between October and December?

A.

It was two days.

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6
7

8
9

Q.

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11

12

A.

13
14

Q.

Prior to your giving testimony, did you have an opportunity to review Investigator NBLSON's report, the
Gener.al 84 report?

A.

I didn't review it at all prior to the suppression hearing.

20
21
22

Q.

Prior to testifying in the suppression hearing, did you have an opportunity to review the video from Trooper
LEEDER's car?

23

A.

It was, yes, it was just a fast forwarded quite a bit, it wasn't the whole entire tape.

24
25

Q.

And do you recall with respect to when you testified, how much time went between when you prepared with
the DA to the time you actually gave testimony?

28
29

A.

I'm sorry, I didn't understand the question.

30

Q.

Well, you met with ADA LUIS you believe in September of '02?

32
33

A.

Correct.

34

Q.

The first testimony given in the suppression hearing was October 29th of '02. Do you recall when you
would have reviewed the video tape, would it have been at that September meeting?

A.

I believe it was prior to the start in October because I was the last one to testify at the suppression hearing.

Q.

Okay, so again to go back to the question, can you recall in terms of time, days or weeks, how much time
went by from when you last saw the video to the time when you gave your actual testimony?

A.

At least a month and a half, no, actually longer than that, closer to two months.

Q.

Did Trooper LEEDER ever indicate to you that he had received information from one of the New York City
narcotic units to be on the lookout for-vehicle?

A.

No.

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Q.
A.

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Q.

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A.

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Q.

Do you know what the disposition of the charges were in the case?

3
4

A.

Yes, it was a .... the evidence was suppressed.

5
6

Q.

And did that result in the dismissal of the charges?

7
8

A.

Yes.

Q.

Did you ever read Judge ADLER's decision in this case?

12
13

A.

Yes.

14
15
16

Q.
A.

17
18

Q.

-

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10

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19

D o you know why the District Attorney wouldn't appeal this case?

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21

A.

No.

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23
24

Q.

I'm just going to pause the tape at this time, it's
We're r~turning to the record at 11:26 a.m.

25

Q.

For the record, Trooper EDWARDS has j ust reviewed the video tape from Trooper LEEDER's vehicle
from the point of2:18 p.m. on July 3rd to 2:20 p.m. same date which depicts the search of the vehicle, or
part of the search of the vehicle by himself and Trooper LEEDER including the trunk area. Again, Trooper
EDWARDS, in court you had testified that the defendants, let me just pause here for a second 11:27 a.m.
We're back on at 11 :28 a.m. Trooper EDWARDS, you had testified in court that the defendants were not
handcuffed to the troop car until after the glassine envelopes were found and that was your recollection
again here this morning. Is that correct?

33

A.

Yes that's what I said.

34
35

Q.

And having had the opportunity now to review the video tape, is that still your recollection?

A.

After reviewing the tape, you can clearly see that they were handcuffed prior to the glassine envelopes being
found.

Q.

Request for a time out at 11 :28 a.m.
Back on the record, its 11 :29 a.m.

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32

1l:18 a.m.

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Q.

Trooper EDWARDS, so having reviewed the tape here this morning, does that change your recollection of

events?
A.

Yes.

Q·.

Because clearly the defendants, they were handcuffed or they were certainly had nobody standing next to
them while you and Trooper EDWARDS, as depicted in the tape are searching the vehicle, correct?

A.

That's correct.

Q.

So its your recollection that they were either handcuffed standing along the road or they were handcuffed to
the vehicle?

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A.

Correct.

3

Q.

So when I ask you if your testimony that you gave in court was accurate, what would your answer be now?

A.

To the best ... , (speaking to delegate) I've got a question.

Q.

Request for a time out at 11:30 a.m.
We're back on at 11:32 a.m.

Q.

Trooper EDWARDS, I'll repeat the last question. When you testified in court that the defendants were not
handcuffed to the troop car bumper until after the glassine envelopes were found was your testimony
accurate when you testified?

14
15

A.

To the best of my knowledge, yes.

16
17

Q.

But now having seen the tape, you realize it was not accurate?

18

A.

Correct.

Q.

22
23
24
25
26

Trooper EDWARDS I have no further questions, I'm just going to pause the tape at 11:32 a.m I just want
to go over my notes and then we'll return. We are returning to the record at 11 :42 a.m. I just have a few
more questions, Trooper EDWARDS.

Q.

Ultimately as the result of these arrests, was any loose marijuana found in the vehicle? I mean loose in that
it was not packaged in some way.
·

27

A.

I don't remember.

Q.

Was the source of the odor of fresh marijuana which you indicated was fairly strong, was that ever
determined?

A.

I don't understand . . . . the source?

Q.

Right, the source of the odor, was that ever dete1mined by yourself or any other member that you 're aware
ofl

A.

No, the only thing I can say is there was marijuana recovered from the glove box as well as Trooper
LEEDER eventually finding some secreted between the seats.

Q.

·1 don't know ifwe brought that out before, the marijuana that was between the seats, that was packaged in

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some fonn, box, bag?

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A.

I believe so yes.

Q.

Do you recall specifically?

A.

No.

Q.

And die marijuana that was taken from the pants o f - t h e driver, was that also packaged in some
form?

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A.

I believe it was.

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Q.

Do you recall the type of packaging?

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1 •

A.

No.

Q.

One other question with respect to your preparation by the District Attorney, when you were prepped was it
one time or more than one time?

A.

It was two or three times but they were very short, didn't really get into specifics as to what was going to be

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asked

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Q.

When these preparations were undertaken, were you the only member of the State Police present, or were
Trooper LEEDER and/or Investigator NELSON also present?

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A.

When I went, Trooper LEEDER was there.

Q.

So you both got prepped at the same time?

A

For the most part, yes.

Q.

In the course of preparing, did the DA indicate he had any concerns about the search or the basis for the
search, anything of that nature?

A.

No, actually he said he thought it was a good stop.

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Q.

Trooper EDWARDS, I have no further questions for you, is there anything you wish to add?

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A.

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Q.

I have no further questions, is there anything else you 'Nish to add?

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A.

No.

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·· Q.

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At this time, Trooper EDWARDS, I'm going to give you an order n.ot to discuss your testimony that you
gave here today with Investigator NOEL NELSON or Investigator JAMES LEEDER until their statements
have been concluded on March 26th of this year, do you understand that order?

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A.

Ido.

Q.

I have no further questions, this statement will be concluded at 11:45 a.m. Thank you

A.

You're welcome

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•
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I have read this statement consisting of 21 pages and it is true to the best of my knowledge. I have placed
my initials on the bottom of each page and next to each correction and I signed it below.

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Signed before me this

day of

, 2003.

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WITNESS

HAROLD M. EDWARDS

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I have read this statement consisting of 2 1 pages and it is true to the best of my knowledge. I have placed
my initials on the bottom of each page and next to each correction and I signed it below.
Signed before me this

Lf day of

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.I
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STATE OF NEW YORK
COUNTY OF ORANGE
TOWN OF NEW WINDSOR

MARCH 25, 2003

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Statement taken from Investigator NOEL N.J. NELSON at the Internal Affairs Bureau South
Region Office, Stewart Airport, New Windsor, New York on March 25, 2003 by Inspector
ARTHUR J. HAWKER commencing at 10:22 a.m.

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The letter "Q" denotes questions asked by Inspector HAWKER.
The letter "A" denotes answers provided by Investigator NELSON.

Q.

For the record, Investigator, please state your name, date of entry and current assignment.

A.

Investigator NOEL N.J. NELSON, date of entry 10/1/84. I'm an Investigator at SP
Tarrytown BCI.

Q.

Do you-know your date of rank offhand?

A.

12/20/90.

Q.

Investigator NELSON, you were advised on March 13 th of this year by myself through
the Division E-mail system of the matter being investigated and that I would be taking a
statement at this time. You are not the target of any lmown criminal investig~tion. The
purpose of this investigation is to inquire into your activities as a member of the State
Police. Specifically it has been alleged that in connection with the July 3, 2001 arrest of
~ and
you gave testimony in
Westchester Couniy'court1iearings w 1c
as not credible by the presiding
judge.

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This interrogation is being conducted pursuant to .Article 16 of the agreement between the
State of New York and your certified representative organization and the Regulations of
the New York State Police including Regulations 8A3 and 8Al5. You have the right to
contact and consult with an attorney and/or union delegate before being interrogated and
to have an attorney and/or delegate present during the interrogation. This agreement and
our Regulations require you cooperate and answer truthfully questions relating to the
investigation. A refusal to answer or failure to answer truthfully may result in
disciplinary action which could result in your separation from service. Are you
represented at this time and if so, by whom?

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A.

Yes I am, by my union rep, Investigator JULES RENNA.

Q.

As you know I am Inspector ARTHUR HAWK.ER and I have been designated by the
Superintendent to conduct this interrogation. Present during this interrogation in addition
to hwestigator NELSON is his delegate, Investigator RENNA, myself and Lieutenant
LISA GALBRAITH of the Internal Affairs Bureau. This interrogation is being recorded

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mechanically by tape recorder, do you understand this?

A

Yes I do.

Q.

Having been advised of the above, are you now ready to proceed with this interrogation?

A

Yes I am.

Q.

I'm just going to stop the tape at 10:25 a.m.
We'll be resuming at still 10:25 a.m.

Q.

For the record, I'm going to be referring to court hearings and I will note that the hearings
that are going to be referred to on five separate dates between October 291n 2002 and
December 161\ 2002. I will also be referring to now Investigator JAMES LEEDER as
Trooper LEEDER in that during the time of the arrest that was his rank. Investigator
NELSON, other than Troop "T" have you had any other BCI assignments?

A.

Ah, yes I have, I've been assigned to Troop "F" BCI, I've been assigned to Troop "F"
Narco and I believe that's the extent of it.

Q.

In your current assignment, do you know what your average case load is?

A.

Usually about 220 cases a year.

Q.

And out of that 220, do you have any idea how many are felony controlled substance
cases?

A.

I would say a significant amount is, its considered road arrests, yes, percentage wise I'd
say maybe, maybe 50 % at least.

Q.

And these are all cases adopted from the uniform force?

A.

Usually.

Q.

Wi~h respect to t h e - and-

A.

As I recall, I was contacted by Investigator at the time Trooper LEEDER and advised that
he had made an arrest involving cocaine onI-95. I believe I might have instructed him to
respond in fact I did instruct him to respond to SP Tarrytown with the arrestees and the
evidence, which he did.

Q.

Do you recall how he contacted you?

A.

More than likely, the radio, Thruway radio.

Q.

Were you at Tarrytown at the time?

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arrest, how did you become involved in that?

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A.

I believe I was.

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Q.

Were you at the station when the defendants were brought in?

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A.

I believe I was.

Q.

And did Trooper HAROLD EDWARDS also respond to the station, do you recall?

A.

I think he did.

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Q.

If you would, j ust speak up a little bit please?

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A.

Sure, I believe he did also.

Q.

And who actually briefed you as far as what had occurred out on the highway?

A.

Trooper LEEDER provided most of the infonnation and I might have had a conversation
with HAROLD briefly, I don't recall if I did specifically, but I know JTh1 LEEDER
provided most of the information.

Q.

And did you speak personally to either defendant?

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A

Yes I did.

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Q.

And what was ... with respect to Defendant-do you recall what the· sum and
substance of that?

A.

I spoke to both defendants about their involvement with the cocaine and the marijuana
and I know one defendant had mentioned to me that, that would be ahh . .. . .

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Q.

I'm just going to, for the record, Investigator NELSON has in front of him, identify the
document you 're looking at ?

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A.

This is refening to my General 84 report, Mr.1111111111111 had advised me that he wished to
you know invoke his constitutional rights ancT"'iiot"iiiae any statements. So he did not.
Mr. - I ' m sorry did you ask me about ...

Q.

That was my next question.

A.

Okay. Mr. I spoke with briefly also and basically stated to me all he knew
about was ilie'inarijuana found in the vehicle and that he had no knowledge of the cocaine
and that he wished to speak to his lawyer. At which time my questioning ceased of both
defendants.

Q.

Did you physically process or weigh any of the evidence?

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A.

No I did not.

Q.

Did you look at the evidence to see .... .

A.

I'm sony, I did process, I processed the evidence in tenns of sealing it in the evidence
bags and putting it away in the evidence locker, but I did not weigh it.

Q.

Did you have either Trooper EDWARDS or Trooper LEEDER prepare a memorandum or
deposition or any written account of what had transpired?

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A.

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No memorandum was prepared, but what the procedure normally is, is the Trooper will
go into the computer and reports and he will start the report and I will go in and finish it
basically.
·

Q.

Is that what happened in this case?

A.

I can't specifically remember if it is, but that is normally the procedure.

Q.

So independent of the General 84 report, you didn't instruct them to make any written
record?

A.

No I did not.

Q.

When the Troopers briefed you, in particular Trooper LEEDER, did you make any
written notes?

A.

No I did not.

Q.

Did Trooper LEEDER ever tell you that he had received information from a New York
City drug unit or another police source to be on the lookout f o r - vehicle?

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A.

No he did not.

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Q.

With respect to the General 84 report, who actually wrote it?

A.

I completed the report.

Q.

Okay, with respect to paragraph one in the text, the record will reflect Investigator
NELSON's just reviewing that momentarily, did you write that in its entirety, paragraph
one?

A.

Yes I did.

Q.

Do you recall when you actually wrote the report?

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A.

Sometime shortly thereafter, the specific date would be probably sometime, I would say, I
would say sometime a couple days or the next day after the third of July, the day of the
arrest

Q,

And·for the record, what is the report dated?

A.

7/3/01.

Q,

Just to go back to what you described as the standard procedure, and this is a Zone
procedure, with the Troopers beginning the report?

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A.

That is correct, just so as to have things fresh in their minds, I try to have them do it the
same day as the arrest and put the facts of the case in the computer.

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Q,

Have you ever given any instruction to Troopers as to how to complete that; what I'm
asking is what information specifically you want in that?

A.

I tell the Troopers on a 'regular basis that the report has to contain all the relevant facts of
the case.

Q.

In cases where a search is involved, whether it's a vehicle or person, would the probable
cause for the search be a relevant fact?

A.

Yes.

Q.

In this particular case as the member in charge of the case, to you what was the lawful
basis of the probable cause of the search?

A.

In this instance, the Trooper stopped a couple of individuals who did not possess or did
not have any possessory interest in the vehicle, specifically a rental vehicle that neither
occupant in this case, defendant, were entitled to and the vehicle was impounded based
on that and subsequent to that impound, drugs, specifically the cocaine and the marijuana
was discovered and statements were made to the Trooper relative to certain possession of
that illegal drug.

Q,

So as we sit here today, your belief is that the vehicle was impounded and then the drugs
found?

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A.

That is correct.

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Q.

Did you ever see the car in this case?

A.

Yes I did.

Q,

Were you ever in the car in this case?

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A.

Yes I was.

Q.

And when and where did that take place?

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A.

The car was towed to SP Tarrytown where it was secured.

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Q.

And this would have been on July 3'd of '01?

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A.

That is correct.

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Q.

And were you in the car on July 3'd of '01?

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A.

I went out to look at the car, correct.

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Q.

But did you physically sit in it or go through it?

A.

I went in the car and I looked at the location that the drugs were found, which would, yes
I sat in it.

Q.

Was there any discemable odors in the car on that date?

A.

I can't recall.

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Q.

Nothing that was significant at any rate?

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A.

I've been in so many cars associated with so many different arrests, I couldn't say at this
particular point that this particular car smelled of marijuana or anything else, so you
know, I would be tossing together a couple of different thoughts there.

Q.

Regarding this case, Investigator NELSON, did you review the video tape from Trooper
LEEDER's patrol car on July 3""?

A.

I looked at portions of the tape, correct.

Q. .

On the date of the arrest?

A.

Yes I did.

Q.

When you say you looked at portions of it .... explain

A.

I recall the tape being rather lengthy, so I while I did not have an opportunity to view the
entire thing on the date of the arrest, I did see where when the drugs were found, I recall
seeing the dog put into the car and a few other instances.

Q.

So in tenns of time on July 3'd, 2001, would you have viewed the tape while the
defendants were still at the station or like a couple of hours later, do you remember?

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A.

I believe the defendants were still present at the station.

Q.

So having had the opportunity to view that tape, do you believe the search o f and the vehicle, they were lawful in your opinion?

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A.

I believe it was, yes.

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Q.

And that was based on what reason?

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A

Well, based on the reason they had no possessozy interest in the vehicle, they certainly
had no right, no standing to, I lost words, no standing to deny any access to the vehicle.

Q.

And when you talk about possessory interest, is that based on the fact that neither
defendant was liste<l on the rental agreement?

A.

That is correct.

Q.

Was there also an issue about the car being overdue?

A

As I recall, I don't have a copy of the rental agreement but I think the vehicle might have
been overdu~.

Q.

Did Trooper LEEDER ever tell you prior to the preparation of your report that he smelled
the odor of marijuana, particularly fresh marijuana in the vehicle?

A.

As I recall, and this is based on the uniqueness of the case and that I have never had a
case before where the drugs were found in the ceiling of a vehicle, a roof of the vehicle.
In speaking to JIM LEEDER about the case, and reviewing the circumstances thereof, I
do recall JIM mentioning something to me with respect to that.

Q.

Does your General 84 report that you have in front of you there, which you vvrote, does
that mention in anyway LEEDER's claim that he smelled marijuana in the vehicle?

A.

No it does not.

Q.

The report as its written states that Trooper LEEDER advised the occupants of the car
that it would be impounde<l because nejther of them were authorized to possess or drive
it. He then had them exit the vehicle, or at least the driver at that point. Are you aware
that Trooper LEEDER testified that the car would have been impounded if he had been
able to determine at the scene that from the rental company that they were in violation of
the agreement?

A.

No I'm not.

Q.

Are you aware that Trooper LEEDER's testimony based the probable cause for the search

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of the vehicle and the <;iriver he detected in the car?

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solely on the odor of marijuana which he claims

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A.

I had heard that.

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Q.

vVhen you heard it, at what point?

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A.

I heard that afterwards, after the testimony in this hearing, on the hearing we had in
county court.

Q.

After the Judge's decision came out?

A.

Correct.

Q.

At what point would this case have been reported to the Westchester County D.A. and by
whom, if you would just for the record explain the procedure that exists down there in
your Zone?

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Q.

I'm just going to pause the tape here at 10:41 a.m.
We're returning at 10:41 a.m., would you like me to repeat the question?

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A.

If you could please.

Q.

;}.t what point was this case •reported to the Westchester County D.A. and by whom, if
you would explain the procedure that exists in that county?

A.

The D.A. 's usually are made aware of an anest upon arraignment or sometimes shortly
thereof, report is prepared shortly after that and forwarded to the District Attorney's
office. · ·

Q.

In terms of time, generally; I know cases may vary, but there's not an ADA at the

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arraignment necessarily is there?

A.

Not necessarily. Because we very rarely get a judge to come out at night, defendants
usually arraigned in the morning, and there usually is a District Attorney present at the
arraignment.

Q.

In this particular case, did you attend the arraigmnent?

A.

No, I did not.

Q.

As far as the conveyance of the arrest report or any other documents to the D.A., how
does that occur?

A.

The report, after its completion is forwarded by myself.

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------

----------------------

Q.

And do you do that personally or send it through the mail, or relay?

A.

Usually it's a combination of aU of the above basically, it usually goes through the relay
or I deliver it personally.

Q.

In this particular case, do you recall when the first contact was with the D.A.'s office with
regard to these arrests?

A.

No, I don't.

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Q.

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In this particular case, how was the District Attorney to know that the odor of marijuana
was the basis for the car search if it was not in your report?

A.

D.A. crime sunnnary is normally prepared by the Trooper. For whatever reason its
missing in this case.

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Q.

The crime summary report?

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A.

That is correct.

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Q.

Describe what that is, I'm not familiar.

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A.

Its basically a snnnnary of all the events, the defendant's name, the evidence possessed
and a brief synopsis of what took place.

Q.

Do you customarily get a copy of that?

A.

Yes I do.

Q.

Bnt you didn't get a copy in this case?

A.

I did not have a copy, I do not have a copy.

Q.

Do you know if the District Attorney did?

A.

According to him, he did not.

Q.

And whose responsibility would that have been to .....

A.

That would be the Trooper's responsibility to provide the D .A.' s crime report and get it
over to the court, it usually' goes with the accusatory.

Q.

So, it's the Trooper's responsibility to fill that out?

A.

That is correct.

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Q.

And would you say as the case agent its your responsibility to make sure that that was
done?

A.

I advise the Troopers as I do in every arrest, "make sure you do a crime report", you
know, I had every reason to believe that it was done.

Q.

Do the Troopers routinely give you a copy of what they've sent?

A.

I ask for a copy, yes I do.

Q.

At what point in this case did you realize that none had been prepared?

A.

I believe after it went to the first hearing, which is the Grand Jury, I believe.

Q.

When was Grand Jury held do you recall?

A.

I don't recall.

Q.

In proximity to the arrests ?

A.

It varies greatly in Westchester, I don't recall when this one went to Grand Jury.

Q.

You testified in Grand Jury?

A.

I believe I did.

Q.

Do you have any idea when you testified?

A.

I have no, I don't remember, I have no recollection of when that was.

Q.

Do you know at what point in this case that the District Attorney was advised that the
odor of marijuana was the probable cause for the search of the vehicle?

A.

I do not !mow, it was, I would assume at some point, I'm not even going to assume, I
don't know.

Q.

And in addition to Grand Jury testimony, you also gave testimony at a suppression
hearing in this case?

A.

Yes I did.

Q.

Did you testify on more than one occasion, given that it occurred over five separate days? .

A.

I believe I testified on two separate dates.

Q.

Do you know what those dates were?

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A.

No, I don't recall.

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Q.

How much preparation for this testimony were you able to do with the District Attorney
that was assigned?

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A.

This was a very unusual case from the start. One, ADA MIKE BORELLI was assigned
to the case, I believe he was the first one and I believe there were about two or three
ADA's that prepped or were assigned to this case. I can recall MIKE BQRELLI advising
me that this case was going to a suppression hearing and shortly thereafter I heard that he
was leaving the office, at which point the case was reassigned to someone else. ADA
BORELLI did not leave the office and I was contacted by, I believe, ADA FRANK LUIS
who eventually prosecuted the case or was the DA assigned to the suppression hearing
and he had mentioned to me that he would need some enhancement of the video done
which I had done for him with respect to the suppression hearing. I met with MIKE
BORELLI, I met with FRANK LUIS on different occasions; they advised me that its
coming up for a hearing but they were busy with other, you know, cases at the time so we
really never, we never really prepped in the traditional sense of this case and I met with
FRANK LUIS probably, I dropped the tapes off for him on a particular day and we talked ~..\- ~ ~
about the case briefly, and I mean briefly. He said to me that DiCK Lr\PO~ and I will ~'""~ ?_
review the tapes, I really don't need you here and I was never given any minutes to be
reviewed, I you know, to say the least this was the most unusual situation you know, and
when the hearing actually happened, I really wasn't even expecting it to go to hearing on
that particular day but it happened and I wasn't expecting it to go because it had been put

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ne er brough n) 1
p to me wit resp t to I erence m testimony, 1t I respect
to a difference in probable cause or anything, so I had no reason to believe there was any
issues between myself and TIM's testimony or with respect to the probable cause in this
situation.

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Q.

With respect to - you mentioned they wanted the videos enhanced. What specifically did
they want enhanced on the videos?

A.

There was some noise, background noise, supposedly there was some conversation in the
vehicle betv,.reen the defendants and the background noise was kind of overshadowing
their conversation, so some enhancement was attempted in bringing out that conversation.

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Q.

To see if they were like admitting between themselves?

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Right, so it still wasn't terribly clear after· the enhancement, there was definitely some

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conversation going on between the defendants.

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Q.

So to kind of recap what you related, you never reviewed the tape or the tapes with the
DA prior to giving the testimony?

A.

No we never sat down together to review the tapes to point out anything that he might
have had an interest in, and I never reviewed any minutes from the Grand Jury testimony
at any particular point. I believe the Troopers were even prepped separately from myself,
if they were prepped, and basically we had no idea what page we were on because
everything was done separately.

Q.

And you may have touched on this Investigator NELSON, but I'll ask, with respect to
any issues as far as the search itself, if the DA saw any problems with the search or any
conflicts, that was never brought to your attention?

A.

That is correct, I never had a conversation with either ADA BORELLI or LUIS that there
was a conflict between my testimony and JIM's testimony

Q.

Did you do any preparation for testimony independent of the DA?

A.

I read my report over, I went over whatever notes I had and I was under the impression
that this was how things were going to go. I was never provided with the minutes to the
case or you know, not with my minutes, not with JIM's minutes, so I had no idea there
was a difference in testimony.

Q.

So given that you made no notes other than the report, basically all you had to refer to
was the report and the tapes?

A.

That is correct.

Q.

Did you eve~, independent of the DA, did you ever sit and review, in particular, Trooper
LEEDER's videotape and compare it with the first paragraph in the report?

A.

I believe the videotape had some pockets in the audio where there really was no audio
and so I rely basically on what I'm told by the Trooper as the ultimate, that we'll have to
articulate what occurred, so as I recall I spoke with JIM about you know, what happened
and that's what I went on.

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Q.

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Did you in any way assist Trooper LEEDER and/or Trooper EDWARDS in preparing for
their testimony?

A.

No, no, not at all.

Q.

When you testified at the suppression hearing, did you testify that you could not recall

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how you got the information that you used to write your report because it occurred so
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A.

I believe I did and that's with respect to whether it was placed on the computer or
whether JIM gave me an independent note, I don't have any such notes, it could be that
he dictated and I typed ... there is no set standard; it's you know, it's busy and we try to
get the reports done in the most efficient way while maintaining some degree of accuracy,
well, considerable degree of accuracy.

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Q.

Did you testify that your reading of the report prior to the hearing refreshed your memory
that LEEDER had told you about the marijuana odor?

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A.

No. What I testified to at the hearing was the fact that I spoke with JIM and due to the
circumstances, the different nuances of the case, I recall that I had some sort of
conversation with JIM with respect to the odor of marijuana and I never testified that
after reading my report, obviously its not in the report, I wouldn't have testified to that,
but basically after speaking with JIM and due to the difference, the nuances of the case,
specifically drugs found in the ceiling and there was some recollection on my part of JTh1
mentioning marijuana too.

Q.

I believe that's what the court kind of seized on was that there was testimony either
probably before or it might have been after you, that the basis for the search was
marijuana. There was no mention of the odor of marijuana in the report and therefore the
court questioned how you could refresh your memory by reading the report if there was
nothing there that contained it. So just so I understand it, are you like saying that the
court took your testimony out of context to an extent?

A.

I think they totally took my testimony out of context. I clarified the point on the stand, I
remember clarifying the point on the stand

Q.

Did you testify that the absence in the report of any reference to the marijuana odor was
"moot and insignificant"?

A.

I testified that that issue of the marijuana was moot and insignificant being that it was not
the basis for the arrest, or at that point, no, it was not the probable cause for getting into
the vehicle. The vehicle was gotten into by virtue of the inventory subsequent to these
gentlemen not having any possessory interest in the vehicle. I testified that I believed that
at point that the marijuana smell was moot and insignificant because we had, at that point,
one of the defendants saying "I had marijuana". Subsequent to the inventory they located
marijuana in the vehicle and I believe, or you know, on his person or in the vehicle and
they told me to clarify that point.

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Q.

Just so I can clarify it.

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Right.

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Q.

When you testified that it was "moot and insignificant", is it accurate to say that your

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frame of testimony was that you're operating that the basis for the search was an impound
versus what somebody else had testified to was the odor of the marijuana.

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A.

If I may clarify, the point came up and it was the very beginning of the hearing and I
thought that, obviously, not having any knowledge that JIM would testify that you know,
his probable cause was the marijuana, and I at that point, at the beginning of the hearing
saying "listen, I believe that the smell of the marijuana at that point was moot and
insignificant because evidence had already been fmmd based on inventory, and it was not
the marijuana smell itself that got them into the vehicle", so I thought that was moot and
insignificant, not that the fact that the smell of the marijuana got them into the vehicle
and that was moot and insignificant. It was something else that was taken out of context,
you know. Am I making myself clear ? I don't know.

Q.

I believe I understand what you're trying to say or what you are saying, its just we have
this conflict and I just want to be clear that I understand it that you are under the belief
that this was an impound and inventory type search whereas Trooper LEEDER actually
testified that the basis for the search was the odor of marijuana.

A.

Correct.

Q.

And a review of the videotape from Trooper LEEDER's vehicle kind of clearly shows
that there was an actual search process before there was a type of an inventory process. Is
that your understanding, if you've reviewed the tape?

A.

Well, in looking at the tape a search and an inventory, it's a thin line, a gray line if you
will. I mean the fact that he's searching the vehicle is in fact, or an inventorying vehicle
is in fact a search to determine what is in the vehicle. Whether it be personal valuable
property or additional contraband, so at that point he was searching the vehicle based on
the fact that these gentlemen were not on the rental agreement and the contraband was
located.

Q.

I understand what you're saying, but that's in conflict with testimony that was given. He
never testified, his testimony was ...

A.

And as I understood it, afterwards, that he testified something totally different.

Q.

That's the point I'm trying to make is that you were testifying under this one frame of
mind ...

A.

Absolutely, based on the rental agreement, inventory and he had testified that there was
you know, he testified what he testified to was located due to marijuana.

Q.

Right, and so obviously not everybody was on the same page.

A.

Exact!y. Exact!y.

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Q.

Approximately how many felony drug cases have you adopted from Trooper LEEDER
say in the last two years, if you're able to give an accurate estimate?

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A.

Can we have a pause on that, Inspector ?

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Q.

Request for a pause here at 11 :01 a.m.
We're returning to the record at 11:01 a.m. still.

Q.

I'll re-ask that last question. With respect to the date of July 3r d of '01, ~p to that point,
can you approximate how many felony drug cases you may have adopted from Trooper
LEEDER?

A.

I would say less than twenty.

Q.

And to yow.- recollection, were any of those cases dismissed because the evidence was
suppressed?

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A.

No.

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Q.

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Q.

What was the disposition of the criminal charges a g a i n s t - a n d - in this
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A.

I believe the evidence was suppressed and I would imagine the case was dismissed.

Q.

You have indicated I believe, you have read Judge ADLER's decision in this case?

A.

I have read through it.

Q.

Do you know why the DA won't appeal this case? Have you ever discussed it with him?

A.

No, no I don't.

Q.

Investigator NELSON, I have no further questions. I'm j ust going to pause the tape here
at 11 :03 a.m. so i can confer with Lieutenant GALBRAITH and we'll return to the
record. We're returning to the record at 11:07 a.m. Investigator NELSON, I have no
further questions, is there anything you wish to add to this statement?

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Q.

All that being said, still how do we reconcile the fact that you as a case agent can write a
report and give testimony under the belief that the search that led to the seizure of the
crucia1 evidence in this case came about in one manner while the Trooper who was out,
made the car stop, is under the apparent belief and gave testimony based on that belief
that the search was based on an entirely different basis of law?

A

Well, what I consider to be the probable cause in the case was the rental agreement and
the fact that these gentleman had no possessory interest in the vehicle. And normally all
the circumstances, or most of the circumstances of the case, I try to put as much in the
report as possible, but all the circumstances are not necessarily put into a written report
with respect to everything that happened. It might have just been that I overlooked and
its obvious that I overlooked the conversation with respect to the odor of marijuana if its
not in the report, I think that's something that I would have put in the repo1t, but I'll take
the blame for that, whether I overlooked it or I just did not consider it to be the focal
point . . . and I don't put everything in the report because a Trooper can articulate what
happened in court as far as all the circumstances are concerned. I think . . . I don't know
what JIM, I recall hearing that JIM didn't have the report at the time of the Grand Jury
testimony and he focused on one aspect of the case and did not mention this aspect of the
case, you know, that's as best as I can explain it. I just think it was just, you know,
miscommunication.

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Q.

Investigator NELSON, I have no further questions, is there anything you wish to add?

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A.

That's it. I really have nothing else.

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•
2

Q.

At this time, I'm going to give you an order not to discuss your testimony in this case
with Trooper EDWARDS or Investigator LEEDER until after Investigator LEEDER's
statement is taken tomorrow, which is March 26 th ; after that time you are free to discuss
it. Do you have anything you wish to add?

A.

No I don't.

Q.

This statement will be concluded at 11: 12 a.m. Thank you.

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I have read this statement consisting of 17 pages and it is true to the best of my
knowledge. I have placed my initials on the bottom of each page and next to each correction and
I signed it below.
Signed before me this :2.5 day of

N?R \ L-

,

2003.

~9@~~,,'S ~v(;blJ'l
. S<Z.. l~--.r

~

SS

NOEL NJ. NELSON

-JiN.c:-,ue; -z....

17

;

1

STATE OF NEW YORK
2
COUNTY OF ORANGE
3 · TOWN OF NEW WINDSOR
March 26, 2003
4
Statement taken from Investigator JAMES E. LEEDER at the Internal
5
Affairs Bureau South Regional Office, Stewart Airport, New Windsor, New York,
6
7 on March 26, 2003, by Inspector ARTHUR J. HAWKER commencing at 11 :03
AM.
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The
letter "Q" denotes questions asked by Inspector HAWKER.
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•.

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The letter "A" denotes answers provided by Investigator LEEDER.

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Q.

Please state your full name, rank, date of entry and current
assignment.

A.

Investigator JAMES LEEDER, shield number is 334, I am an
Investigator currently assigned to the DETF in New York City, EOD is

10/28/96.

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Q.

Investigator LEEDER, you were advised by myself through the Division
e-mail system of the matter being investigated and that I would be
taking a statement at this time. You are not the target of any known
criminal investigation. The purpose of this investigation is to inquire
into the activities as a member of the State Police. Specifically, it has
been alleged that in connection with the July 3, 2001 arrest of
and . . . . . . . . . . . . that you gave
es 1mony m es c es er C o u ~ d e e m e d as not
credible by the presiding judge. This interrogation is being conducted
pursuant to Article 16 of the Agreement between the State of New York
and your certified employe.e representative organization and the
Regulations of the New York State Police including 8A3 and BA 15. You
have the right to contact and consult with an attorney and/or union
delegate before being interrogated and to have an attorney/or delegate
present during the interrogation. This Agreement and our Regulations
require you cooperate and answer truthfully questions relating to the .
investigation. A refusal to answer or failure to truthfully may result in
disciplinary action which could result in your separation from service.
Are you represented at this time, and if so, by whom?

A

Investigator O'KEEFE is representing me. A delegate representative.

Q.

As stated, I ani Inspector ARTHUR HAWKER and have been
designated by the Superintendent to conduct this interrogation.
Present in the room · besides myself are Investigator LEEDER, are
Delegate O'KEEFE and Lt. LISA D. GALBRAITH of the IAB South

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1

ENCLOSURE 1tq

1

Regional Office. This interrogation is being recorded mechanically by
tape recorder. Do you understand this?

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A.

Yes I do sir.

Q.

Having been advised of all of the above, are you now ready to proceed
with this interrogation?

A.

Yes I am.

Q.

For the purpose of this statement, references to your testimony at the
Suppression Hearing that was involved, will include any and all of the
five dates testimony was given between October 29, 2002, and
December 16, 2002.
Investigator LEEDER, what was you date of
rank in the BCI?

A.

August 30, 2001.

Q.

And on July 3, 2001, where were you assigned?

A.

I was assigned out of the State Police Barracks, New Rochelle?

Q.

And for how long had you been assigned up to that point at the New
Rochelle Barracks?

A.

Five or six ah about five months approximately.

Q.

And prior to that assignment?

A

I was in Tarrytown.

Q.

In your uniform career, had you served any other places other than
Tarrytown or New Rochelle?

A.

Ah yes, I started in SP Palisades in Troop F.

Q.

With respect to July 3 of '01, what was your duty tour that day if you
recall?

A.

I believe I was on a modified C-1.

Q.

And on that date there came a time when you stopped a vehicle that
was operated by a
of the State of
Massachusetts?

A.

Yes.

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Q,

Do you recall the approximate time and location?

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A.

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Ah probably was around two o'clock, I don't, approximately two o'clock,
it was right around mile marker 8.2, 8.3 Northbound.

Q.

And if you would, describe what took place, that is where the car was
when you first saw it?
·

A.

Okay I was parked north of the toll booths on 1-95 in the center median·
area. I observed this Toyota as it passed me so it was north of my
location. It was in the left-hand lane. I looked at the vehicle, it then
moved to the middle lane without signaling. At that point I exited the
median area and .proceeded after the vehicle. As I approached behind
the rear of the vehicle I could see what looked like the passenger not
wearing his seat belt, because the driver seat belt you could see the
strap coming down from the door frame across his chest, but on the
passenger side you could not see a strap coming down. At that point I
activated the overhead lights and stopped the vehicle around mile
marker 8.2, 8:3 area.

Q.

Once you had the car stopped do you recall what the volume of traffic
was you know characterizing it as light, moderate or heavy?

A.

Moderate. For 1-95 not bad, but moderate.

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Q.

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Had you received any police intelligence to be on the lookout for that
particular vehicle?

A.

No.

Q.

As you indicated this was simply a stop based on the failed to signal
violation and what you believed to be the seat belt violation on the
passenger?
·

A.

That's correct.

Q.

What was your interaction with the driver, once you had the car
stopped?

A.

I initially approached on the driver's side of the vehicle, requested
license and registration for the vehicle, while the driver was obtaining
those documents I could smell and odor of fresh marijuana coming
from the vehicle. So at that time I had him exit the vehicle, which he
handed me his documents first, at that time I noticed that it was a
rental agreement also and I had him exit the vehicle. At the rear of the

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.vehicle I started to look at the rental agreement and saw it was not in
his name, I believe it was in the name of the female, I don't recall the
name. I then asked who he was traveling with and I then approached
the passenger side of the vehicle to obtain, to see if he, I mean I knew
it as a male, but possibly men have female names so I needed· to verify
if this could be him. As I'm speaking to him I request identification from
him. Again, I can smell that smell of fresh marijuana. Once I had his ID
I returned to the rear of the vehicle, told Mr. . . . . he could go
ahead and have a seat back in the Toyota andi'Tli"eri""'eturned to my
patrol vehicle.

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Q.

Okay at that point, was there a question about the vehicle being
overdue on the rental also in addition to the occupants not being
named on it?

A.

Yes, I don't recall exactly if I noticed it while I was in the rear of the
vehicle or while I was sitting in my, but at some point I did notice the
fact that the car, the rental car was due back the day before. I believe it
was while I was in the rear of his vehicle I noticed that.

Q.

While you were at the scene of the stop, did you take any action to
contact the rental company to see if it was, you know they wanted any
action taken, anything like that?
·

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A

No, not at that time no.

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Q.

Your patrol car is video equipped on that day?

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A.

Yes it was.

Q.

And, excuse me, on that day were you also equipped with a . remote
microphone?

A

Yes, it was not operating, but there was one.

Q.

Had you checked the mike for opera ability prior to going on patrol?

A.

I believe so, but I don't recall one hundred percent, I believe I did
though.

Q.

Was it your usual practice to check it?

A.

Yes, that's why J want to say that I really don't recall specifically doing
it, but it was my usual, so I believe I did.

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Q.

What would be your usual routine on the times when you would check
it for opera ability, the remote mike?

A.

If you turn it on you will see the red light will indicate on the mike, also
a little m will appear in the display window letting you know that it is
working.

Q.

And that red light would also indicate the battery strength? .

A.

That's correct.

Q.

Same light?

A.

On the pack itself the light is, yes.

Q.

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At what point did you, you mentioned it wasn't working that day, the
microphone?

A.

Yes.

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Q.

Al what point did you notice that?

A.

I don't know if ii was in the beginning of the shift, or at some point,
possibly I think ii was when I went to give the tape to Investigator
NELSON. I think we just put ii in, when we hit play real, like we didn't
sit and watch the whole thing, but I just wanted to make sure it
recorded. There was no sound, I believe that was point when I noticed
there was no sound.

Q.

At some point after the stop, you contacted Trooper HAROLD
EDWARDS?

A.

Correct.

Q.

Did, and how did you do that?

A.

After I had Mr. AQUIAR sit back in his vehicle, I then returned to the
patrol vehicle and I immediately contacted Trooper EDWARDS on the
radio.

Q.

Did you know he was in the area?

A.

Yes.

Q.

And how would you know that?

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A.

Ah I think we had just finished lunch, eating together. So I knew he
was still at the station.

Q.

How long did it take Trooper EDWARDS to arrive at your location,
approximately?

A.

Maybe five minutes, maybe less. Around five minutes I'd say.

Q.

Okay you indicated you smelled fresh marijuana in -

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A.

Yes sir.

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Q.

And you also testified to that in court?

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car?

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· Yes, Grand Jury and the Suppression too.

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A.

o:

When you say fresh marijuana are you talking about the green
marijuana plant smell or the dried products you know, but not smoked?

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A.

When I refer to fresh marijuana I mean not smoked yet, not burned.

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Q.

Okay, but dried versus green vegetation?

A.

Not really a difference between the fresh that I can distinguish between
like a, I mean it's eitt;ier burnt or fresh is the way I associate it.

Q.

Say on a scale of one to ten, with ten being a strong, the strongest
smell, how would you describe the odor that you detected in the
vehicle?

A.

Maybe like a three, it wasn't a real heavy, but it was just a faint fresh
smell there.

Q.

Was any fresh marijuana found in that car that wasn't boxed or
bagged?

A.

Yes, there was a marijuana cigarette, or if you want, they refer to it as
in the glove box in.the area where was seated.

Q.

Any other, what might be termed, loose marijuana?

A.

Just the three small containers were found, if you were sitting in "the
passenger seat it would be stuffed between the side of the seat and
the center console. There was three small boxes there.

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Q.

I mean any loose unpackaged, unbagged, un boxed other than the
cigarette?

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A.

No.

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Q.

Prior to we'll just pause at 11: 15, back on the record still 11 : 15. Prior to
calling Trooper EDWARDS in your estimation how much time did you
spend speaking to - while·he was seated in the car?

A.

While he was seated in the vehicle? Maybe 15 seconds, not long at all.
I'm sorry, actually upon, are you saying the approach and everything?
The entire time?

Q.

Well actual time spent at the window when you initially encountered
him?

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A.

All right.

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Q.

You ask him for his stuff.

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A.

Right, I was thinking more after he had given it to me. Um maybe 30,
45 seconds, around a minute maybe a little less. Somewhere in that
area.

Q.

And how about the passenger spend speaking with him?

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A.

I'd say approximately 30 seconds or so.

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Q.

When you were speaking to the passenger i - . . was the same
odor of marijuana discemable on his side oft~

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A.

Yes sir.

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Q.

Was it any stronger or any weaker?

A.

A little bit stronger because the driver's window was open, so he had to
open the door fully so he had a little bit more a breeze coming through
so y_
ou can a little bit more, a little stronger on the passenger side.

Q.

So eventually you have them both back in the car correct?

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A.

Yes sir.

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How much time did you

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Okay and then you call Trooper EDWARDS?

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A.

Yes, well actually on the initial, I never removed the passenger. I only
spoke to him. So at one point the driver is returned to the vehicle, yes
sir.

Q.

And then you called in a license check?

A.

After requesting Trooper EDWARDS to come to the scene, I then
conduct license checks.

Q.

Do you recall doing any narration to your patrol car video after you got
back in the car with the documentation?

A.

Yes, well I know there was, I don't recall if it was at that point, but I
know I had spoken to it, so I'm not sure exactly because I have a habit
of when I stop a car explain why I'm stopping it and upon returning I
think I did say something about the events, I may have done it at that
point yes.

Q.

Do you recall that narration including a. reference to passenger's seat
belt?

A.

Oh yes I do sir, now I do, yes. I indicated at that point it appeared that
he was not wearing it, but it turned out that it was just an adjustable,
and it was just seated very low so in fact he was wearing his seat belt.

Q.

In that narration, also did you make any mention to your recollection of
discerning this odor of marijuana in the vehicle?

A.

No sir, I did not.

Q.

Is there any reason why you wouldn't mention that?

A.

It just wasn't a very strong odor. I wanted, when I'm certain one
hundred percent of something I will say it on the tape, but until I've
confirmed it, no I won't say that.

Q.

When Trooper EDWARDS arrived what occurred at that point?

-

A.

Q.

At that point I explained to Trooper EDWARDS about the rental
agreement that there was some problem with the documentation. I also
. indicated to him, non-verbally that I detected an odor of marijuana in
the car.
And how did you indicate this non-verbally?

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A.

From working with HAROLD, excuse me, Trooper EDWARDS over
the years, I would touch my nose because it became a habit like if
you're at the side of the car you don't want to say, "hey HAROLD I
smell weed in the car'' and the next thing you know they're off and
running so we'd use nonverbal and in this case I just touched my nose
indicating I smelled something in the vehicle.

Q.

In reviewing the video tape which has captured your conversation with
Trooper EDWARD~, was it your recollection, was he sitting in the car
with you?

A.

No he was standing out, I think I just put the passenger window down
to my recollection.

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Q.

So you never at all made any verbalization to EDWARDS regarding
the marijuana odor?

A. ·

At one point during the search of the vehicle I said, you know, I said to
Trooper EDWARDS, I said, I called him back, I said "what do you smell
in here ?", and this was when I was getting close to the cocaine, it's
like "oh I smell the weed", "no not that, I just want you to smell this" so
initially no, later on we .. ... .

Q.

Yes, well get to that, but I mean prior to Trooper EDWARDS ·first
approaching the stopped vehicle?

A.

No I did not.

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And on that line, after you have this conversation with Trooper
EDWARDS what action did he take?

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A.

He went up and went to speak to them and confirm what I indicated I
smelled.

Q.

So do you recall specifically who Trooper EDWARDS spoke with?

A.

I believe he spoke to both of them but from the passenger side I
believe it was, but I think he engaged them both, but I'm not one
hundred percent sure. I know it was from the passenger side. I'm not
sure if he spoke to both of them or just one of them.

Q.

And then what happens, he comes back to your car?

A.

Comes back to my car, gives me a rundown, tells me that the driver,
that's right he did definitely speak to the driver, he said the driver
appeared very nervous. Trooper EDWARDS was also born and raised
in Brooklyn and he stated that these two individuals are claiming
they're coming from Brooklyn but an area he's never heard of and also
gave me you know gave me a nod indicating "I smell it too".

Q.

All right, again did he verbalize to you anything about the odor of
marijuana?

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A.

No.

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Q.

So, how did you determine that he had made this observation?

A.

Just from his gesture, from working, I know, I can read, I know what
he's saying.

Q.

What gesture was it?

A.

He just gave me the ... (nods), and I said "ok".

Q.

Just the?

A.

A nod.

Q.

Just a nod in the affirmative?

A.

Yes.

Q.

Okay so what was your game plan at that point?

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A.

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So that's pretty much the plan, get them out on the issue of the rental?

A.

Then when we have them in control we can further discuss what we're
..... the observations.

Q.

Okay so what's your next step?

A.

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,

Q.

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approach the vehicle.

!1!911!

I go and approach Mr.
I ask him to exit the vehicle, as soon
as he's to the rear of t e ve 1c e I ask him if he has anything on him.
He indicates, anything on him he shouldn't have. He indicates that he
did and he taps his pocket, his front right pocket and says that he has
· marijuana, I don't know if he said marijuana, weed or what the term
was, but he indicating that ther.e was marijuana in that pocket.

Q.

And what happens to Mr. -

A.

All right' at that point, I felt the objects he was talking about, I removed
them, I secured them in my pocket. I continued a search of his
pockets, patted down him and I had him step to the rear with Trooper
EDWARDS.

Q.

As it shows in the video tape from your car, AQUAIR is summoned to
the back of the vehicle. As soon as he gets there, you -lift up his shirt
and began feeling his clothing with your hand and you reach in and
remove something from his right front pocket. Is that an accurate
recollection on your part?

A.

Well before I did anything, I asked him if he had anything on him, and
he indicated yes.

Q.

All right, unfortunately there is no video to go with that so, I'm just
relating what the video, I meant no audio to .. ... .

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at that point?

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A.

Actually, tum it up very loud, you can actually hear me say it. You have
to have it very loud, but you can actually over the traffic, you can hear
it faintly.

Q.

So the basis for the search o f - at this point is what?

A.

His oral admission of the possession of marijuana.

Q.

Anything else?

A.

Based on the smell of the marijuana and not on the rental agreement, I
have him out of the vehicle, and I say to him you know "is there
anything on you ~ou shouldn't have?" and at that point he says "yes, I
have marijuana".

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a.

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Q.

And as indicated you removed something from you recall exactly what it was?

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A.

Yeah it was two small plastic boxes, like they're not, just you know,
closed lid, not like sealed containers or anything of marijuana.

Q.

See through plastic?

A.

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pockets. Do

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Yes. Actually I believe the bottoms were red, but the tops were see
through. I'm not sure about the red but I know the tops were see
through. ·

Q.

And just in terms of weight, what are we talking like, UPM? ·

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A.

Yes sir.

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And a_t that p o i n t - is moved to the rear?

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A.

I had him step off to the re~r. or the side with Trooper EDWARDS.

Q.

And what did you· do next?

A.

At that point I approached the passenger, asked him to, opened the
door, asked him to step outside and I asked him t_h e same question,
"do you have anything on you you shouldn't have?". He indicated_"no".
I still did a feel of all his pockets and checked his waistband, did not
reach into his pocket~. I didn't feel anything that needed to be taken '
out at that point and also had him then step to the rear with Trooper
EDWARDS.

Q.

With respect to the _passenger, you say you just patted him down?

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Yes sir.

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And what happens to him?

after you have this interaction with
:
.

A.

I had him also step to the rear with Trooper EDWARDS.

Q.

And what's your next action?

A.

At that point I begin doing a search of the vehicle. I started in the front
passenger area I believe. Went around the vehicle and located in the
trunk was a brown cardboard box, inside of that were several smaller
cardboard boxes, inside the smaller cardboard boxes there .was the
glassine envelopes, there're referred -to as, commonly used to wrap
heroin for decks of heroin for street.
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Q.

Before you began your search, you moved, so now 111111111111 and
are more or less being watched by Troope~DS?
There is somebody watching them?

A.

Yes sir.

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Q.

Do they just remain standing there?

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A.

At some point they are handcuffed I believe to Trooper EDWARDS'
push bumper there, I don't recall exactly when, I know it happened
prior to the K-9 coming out, at some point, I don't know exactly when, I
believe it was after the envelopes had come, I'm not one hundred
percent sure on that.

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Q.

So they wind up handcuffed to EDWARDS' vehicle?

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A.

Yes.

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Q.

Trooper EDWARDS?

A.

Yes sir.

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And i s - under arrest at that point?

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A.

point.

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Q.

But he is handcuffed to the front of the Troop car?

A.

Actually I believe no, at this point we had missed I'm sorry, the
packaging of narcotics.

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Q.

So you ......

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A.

At some point, he's definitely being detained for the investigation. At
some point, I don't know exactly when the cuffs were put on him, I
believe it was after I found the packaging for the heroin, so at that
point, that's a misdemeanor at that point, now the passenger is under
arrest at that point.

Q.

So you believe he was handcuffed after you find these bags in the
trunk?

A.

Yes sir.

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No sir, he's j(Jst being, he's no, he's not under arrest at this ·

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Q.

So you conduct a search of the car whether they're handcuffed or not?
You conducted your search .....

A.

When I began my search they were not handcuffed. By the end.of the
search, yes they were. At what point exactly, that I'm not sure.

Q.

And what was the basis for the search of the car?

A.

Initially the basis was going to be the fact of the smell of the marijuana
and also during the course of .the investigation into the rental
agreement. Prior to any search being done I had marijuana recovered
from the driver ~nd also I left out a statement by earlier,
when I removed . . . . . I also asked him if there wa"s""a'ii'ying else
in the vehicle, tie"incl'icafed yes, there was more marijuana in the
vehicle, so· the initial rea·son for the search was going to be based on
the smell of weed, but essentially the search, at the point, is based on
· the marijuana recovered from the driver and also an oral admission
from the passenger that's there more marijuana in the vehicle.

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Q.

And -

A.

After having him removed from the vehicle. At some point at the end of
the tape you can hear me actually say to him, "now I found the
marijuana you were talking about", because I couldn't find it til the end
the ones he was talking about.

Q.

So other than the marijuana that you initially took off the driver
- t h e next piece of e'-:'idence that's disc·overed is these plastic
~ a s s i n e bags in the trunk?
··

A.

Yes sir, that's correct.

Q.

As you indicated you searched the car, you searched, can you just
describe how you searched the vehicle?

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A.

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I believe I started in the front passenger area, worked my way around
to the driver's side, to the rear seats and then the trunk. I believe, I'm
not one hundred percent on that order.

Q.

Do you recall searching under the hood also? . .

A.

Oh at some point, yes I did.

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Q.

Trooper EDWARDS is a dog handler, correct?

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A.

Yes he is.

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made that statement to you?

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Q.

Did he have on, July 3, 2001, did he have his dog with him?

A.

Yes Bernie was there.

Q.

Was the dog used to search the car?

A.

Yes he was.

Q.

At what. point?

A.

After finding the glassine envelopes in the trunk of the vehicle I
continued my search without finding anything, which led me to believe
maybe there was a hidden compartment in this vehicle. So at that point
I asked Trooper EDWARDS to utilize his K-9 and conduct a search of
the vehicle.

Q.

As you indicated there was a marijuana odor when you first stopped
the car that you discerned?

A.

Yes. ·

Q.

Is there any reason that the dog wasn't used before you began your
search?

A.

No at that point, I, we both confirmed what we smelled at that point and
I'm fairly confident that I would find what I was looking for, I was until
the glassine envelopes threw me off as far as I was not expecting to
have heroin smelling marijuana, the next thing I have is a large amount
of heroin wrappers.

Q.

So is it kind of accurate to say that you'd had expected to find the
drugs yourself without the aid of the dog?

A.

Yes sir.

Q.

And describe how the dog searched the car if you remember? You
know, just what course he took in it or around it.

A.

I believe, I'm not real certain, but I can, I'm not one ~undred percent
sure on his pattern, but I believe he did the outside first and then
moved to the, I believe the front passenger area, no it may have been
the rear and then he jumped over the, I'm really not sure on that sir.

Q.

Did the dog find anything in his search of the car that you recall?

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A.

Yes sir he had found the marijuana cigarette in the glove box.

Q.

Was there anything else in the glove box?

A.

Ah anything at all or drug wise?

Q.

Anything else?

A.

Oh yeah there was the two of the sticky buns, I think they were called.

Q.

Like pastries?

A.

Yes some type of sweets.

Q.

Now during the course of the dog's search do you recall him standing
on the front seats?

A.

The, I'm sorry, the dog sir?

Q.

Yeah

A.

Yes sir.

Q.

And was the dog standing on the back seat of the car also?

A.

Yes sir.

Q.

After the dog was done searching he never detected the cocaine that
was eventually found?

A.

I, I couldn't testify, I don't know, I don't think a dog can distinguish a
smell of coke and marijuana, he just knows the odor, but I'm not a K-9
so I wouldn't be able to distinguish. He reacted in a positive manner
HAROLD or Trooper EDWARDS, informed me. To what he was
reacting, I don't know.

Q.

From what you remember with your conversation with Trooper
EDWARDS, did the dog react in a positive manner towards the glove
box or another part of the car?

A.

Yeah in that front passenger area, yes sir.

Q.

But that's not where the coke was found, correct?

A.

No it was in the ceiling above that area sir.

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Q.

Now after the dog has searched the car, he's put away?

A.

Yes sir.

Q.

And you go back and search the car again?

A.

Yes sir.

Q.

And at that point you testified in the Suppression Hearing that you
were able to detect an odor that you associated with cocaine?

A.

That's correct.

Q.

And if you would just describe this odor if you can?

A.

It's ah, very acid, acidity smell like an acetone type.

Q.

Chemical type smell?

A.

Yeah it's a chemical acid, it's very hard, once you smell it you know
it's, very a chemical acid type smell I guess you could describe itas.

Q.

And again to use a scale of one to ten, with ten being the strongest,
how would you describe the odor of the cocaine and or the acetone
smell?

A.

Well what it was sir is, while I was searching the vehicle, I was thinking
hidden compartment just based on the large number of glassine
envelopes in his car so I started checking the vehicle, because initially
I didn't smell any odor of cocaine at all. I believe I was kneeling on the
. fror:it seat and I started hitting the ceiling to see if maybe there was a
false hidden area, false compartment in that area, and as I liit on the
sun roof, right around the sun roof area, the wind came out and that's
when I detected it. When I detected it was fairly strong I'd say maybe a
four or five.

Q.

Did Trooper EDWARDS smell this cocaine odor also at some point?

A.

At some point yeah. Initially I called him up, l'm like "what do you
smell.?" He's like "it smells like weed". I said, "no, no, not that". I said
"put your nose up here a little bit higher" and then I struck the ceiling
again causing the air to come out of that area and then he said "I smell
coke".

Q.

All right so you more or less brought his attention to it versus him ... ?

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A.

Correct. I had him, I didn't tell him what I smelled. I said, "what do you
smell ?", and I said "what do you smell?" He said "marijuana" and I
said "not that". I said "put your nose a little higher up" and I struck the
ceiling again which would force the air to come out and that's when he
said "I smell coke" and I said "yeah so do I".

Q.

In subsequent conversations with Trooper EDWARDS did you ever
discuss how or why the dog may have missed this cocaine?

A.

Um yes I discussed it with him on a number of occasions. I know that
a K-9, if something is in the ceiling, I had an instance where it was a
different stop where I used Bernie and Trooper EDWARDS, where the
dog reacted to the area, it was on the floor, it was a big van, it was on
the floor area he ·was scratching so I looked very hard in this . area,
there was still nothing. I continued my search and in the roof liner of
this van was I think two pounds of marijuana, right under the area
where he was indicating. That's when Trooper EDWARDS informed·
me that sometimes if a K-9 smells something in the ceiling area .
sometimes they will react to the area right underneath it. You know, the
wind blows. around and also he explained to me that you know that's .
one explanation. The other thing is you know Bernie is kind of a
younger dog, tie's a puppy, he got a smell of marijuana because it is a
stronger smell and it's a game to him finding drugs, at that point he's
done what he's suppose to, he's found the stuff, he wants his reward
so that's also another explanation.

Q.

And how much cocaine was recovered from this vehicle?

A.

It was approximately three and half ounces of cocaine.

Q.

And that ultimately resulted in a charge against of Possession Second?

A.

Yes sir.

Q.

Do you know off the top ~f your head, was that an A or a B Felony?

A.

That's A~2 Felony sir.

Q.

And in addition to this cocaine was any other evide.nce ~eized?

A.

Yes sir. I· had described it earlier there was these three small plastic
boxes. Again, not sealed, like air sealed or anything, right on the side
of the passenger seat. If you were seated here, it would be wedged
kind of between the center console and the side of the cushion.

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Q.

And who found that? ·

A.

I believe I found those. The marijuana cigarette, after he found, after
Bernie had indicated and found it, Trooper EDWARDS left that in the
vehicle, I secured that later. But I believe I found those items and I then
secured those items.

Q.

The tape shows that the defendants were eventually Mirandized about
20 minutes into the stop. Did either of them make any admissions as to
possession of the drugs or anything like that?

A.

No sir. Not to me, no.

Q.

And once the evidence had been extracted from the car, were the
prisoners transported so.mewhere?

A.

Yes sir, eventually they were brought back to State Police Barracks. in
Tarrytown.

Q.

Did Trooper EDWARDS go to Tarrytown with you?

A.

Yes he did.

Q.

And did a BCI member eventually adopt a case?

A.

Yes.

Q.

Okay and who was that?

A.

Investigator NOEL NELSON.

Q.

Was Investigator at the station when you got there or did he have to be
called?

A.

No he was already there handling a case for Trooper BOZIER I believe
it was.

Q.

Did Investigator NELSON ask you how the arrest came about?

A.

Yes, we went over the facts.

Q.

And those facts would be pretty substantially what we just talked about
here?

A.

Yes sir, exactly.

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Q.

Did you ever tell Investigator NELSON about the odor of marijuana?

A.

Yes sir.

Q.

And that that was the basis of your search?

A.

That was, yes sir, I indicated that was why I got them out, the initial
reason was going to be to search the car, but then I recovered the
items. Yes sir, that's how I explained it.

Q.

Do you know if Trooper EDWARDS had any conversation with
Investigator NELSON about the arrest at least in your presence?

A.

Not that I, not that I'm aware, not that I can recall.

Q.

Well when you returned to the barracks, what was Trooper
EDWARDS' role as far as what he did?

A.

I believe, the way we usually work, we've made a few arrests together,
is whoever's arrest it is will handle the papeiwork end of it, the
assisting officer will go do the fingerprints, take the photos, just
basically process the prisoner , do the search of the prisoners. That's
what Trooper EDWARDS was doing.

Q.

In this case, who w eighed the evidence? ,,

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A.

I believe I d,id.

Q.

Did you also seal it?

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A.

No sir. I did a field test and weighed it and turned it over to lnve~tigator
NOEL NELSON who I believe he sealed it.

Q.

Were the prisoners interviewed by Investigator NELSON do you know?

A.

Yes sir.

Q.

Did either of them give a statement to him?

A.

I believe Mr. . . . . . indicated that he knew about the marijuana, but
that was it, ancl"'T"cfo'n"believe Mr. gave any statement at all.

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Q.

Do you know if Investigator NELSON ever saw the rental car?

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A.

I would imagine, I would have to say, I'm trying to think how long it
stayed at Tarrytown before he had it removed, so I don't recall, I would

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say yes, but I really don't recall for sure. Oh wait a minute, no I'm sorry
sir, he took photos of it, yes he did. Yes there was photos taken, that's
correct.

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Q.

This was the same day, July 3, 2001?

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A.

I don't know if it was the same day or the following day, that I don't
know sir.

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Q.

Do you know if the Investigator was ever in the car, inside the car?

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A.

No I don't , I don't know, I don't that I was there when the pictures were
taken. I believe it was him and Trooper EDWARDS had taken the
photos so I don't know if he was in the vehicle or not.

Q.

With regard to the Genl. 84 Investigation Report that was prepared in
this case, did you write the. report or any part of it?

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-A.

No sir.

Q.

Did you make any written notes or any form of documentation as to the
actions that you took that resulted in and

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A.

Just the informations for the court, sir.

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Q.

Did Investigator NELSON ask you to make any written notes .o r any
written accounts of, you know, more or less step-by-step what, how the
arrests came about?

A.

No sir, not that I can recall.

Q.

You worked in Westchester Gounty as a Trooper for approximately
how long prior to this arrest?

A.

Ah I'm trying to think. I got out there I believe it was February of '99 I
got out there I believe so that would be July 2001 so two and half, two
half and a years I guess that would be. Let me see if my math's right
here. So it would be February '99 I got out there to February of 2000,
yeah, approximately two and half years.

. Q.

Two and half years . So you were familiar with the practice as far as
interaction with the DA's Office by the time you made this arrest?

"

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A.

Yes sir.

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Q,

Is it the practice in Westchester County to complete a DA's arrest
report of some type or a case summary report?

A.

Yes sir. A Westchester DA summary.

Q.

All right and if you would just explain for the record what is on this
form? Not item by item necessarily, but what purpose it serves.

A.

Basically the form will indicate pretty much the who, what, where,
when, why and how you know, who was arrested, by whom, what was
the reason for the arrest, the stop leading to .the arrest if it was a V& T,
what was recovered, who was involved and a small narrative section at
the end.

Q.

Does this report customarily also include probably cause as a reason
for a search, if it results in an arrest?

A.

I don't know if there's ·an actual section itself for probable cause of if it's
something you include in the narrative, but I can't recall if there's an
actual section for probable cause, but it's something you would include
in the narrative.

Q.

All right, so even if it doesn't have like a check off box, it would be the
standard practice if .the search resulted in an arrest that you would
indicate ....

A.

Indicate, yes sir.

Q.

...... indicate the probable cause?

A.

Yes sir.

Q.

And whose responsibility is it to complete this report?

A.

The arresting officer sir.

Q.

In this case did you complete a DA's report?

A.

I thought I did, but there is none to be found so I would have to say no,
which is very strange because I was very, always, always did those.

Q.

Do you have any specific recollection of doing one or .... ?

A.

No sir. It's been a long time, no sir.

23

Q.

All right we're returning to the record on Side B of the tape, it had just
run out. The time is 11 :50 AM. Investigator LEEDER, at any time after
the Genl. 84 Investigation Report was written by Investigator NELSON
did you have an opportunity to read it?

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A.

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8
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Yes sir. The first time I read it was actually after Grand Jury testimony
when I was presented that to read it.

Q.

Do you recall when it was that you gave Grand Jury testimony in this
case?

A.

If I can look, I can tell you exactly.

Q.

If you would please.

A.

Oh wait a minute, maybe I cannot. I thought it was on here. Nope, the
date is not on here. Usually they have the date on there.

Q.

The record will reflect that Investigator LEEDER is looking at a
transcript of his Grand Jury testimony in this case.

A.

It is not on there. If I had to I would say April 2002, around that, it's a
guess, but I believe it was around that time.

Q.

Spring of 2002?

27

A.

I believe so. I know it was a little ways after the arrest so.

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30

Q.

Now when you say you read the 84 after Grand Jury, do you mean
after you testified in the Grand Jury?

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A.

Yes sir.

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Q.

When you read the report did you notice that it contained no mention of
your detecting of the odor of marijuana?

A.

Yes I did.

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41

Q.

And also absent from it was any mention of Trooper EDWARDS'
detecting of the marijuana odor?

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A.

Yes sir.

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44

Q.

And yet the odor of the marijuana in this case was the probable cause
for the search correct?

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A.

No sir, I would not agree with that. I would say it was something that
was part of the investigation being conducted but ultimately the
recovery of physical marijuana and an oral admissiofl · from the
passenger in the car led to the search. Was the smell of marijuana the
prime reason for the investigation, yes sir, I would agree with that.

Q.

When you first get, or the second time you g e t ~ out of the car
and you search him, isn't the basis for the searc , e awful basis, the
smell of marijuana in the car which entitled you to search him in the
vehicle?

A.

That was the reason I was going to, but he orally admitted , before I
had a chance to, he orally admitted to having .it, so at that point, his
admission of having marijuana in his pocket which led to the search
and recovery of the marijuana in his pocket.

Q.

Did you bring this lack of mention of odor to Investigator NELSON'S
attention, that it wasn't in the report?

A.

Yes, that, actually that day I mentioned it to the ADA immediately when
I read it I said "there's something missing here". I mentioned that to the
ADA and the next time I spoke to the Investigator, I don't know if it was
that day or just when I ran into him and I had indicated to him at some
point that there was something missing in the report.

Q.

And who was the ADA whose attention you brought that to?

A

I believe it was ADA KENNEDY I believe who is the one who put in to
the Grand Jury. I believed it, there's, they bounced around this case
with so many different ADA's I'm not sure who I told what to, but
whoever presented it to the Grand Jury is the one I told it to.

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0

When you testified in the Grand Jury is it correct that you testified that
took the marijuana contained in those two plastic bo_xe.s from
p
et and handed it to you?

Q.

IIP!!!

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A.

Yes itis.

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39

Q.

.... when you asked if he•had anything?

A.

Sorry sir.. Yes that is correct. That's how I recalled it.

Q.

Did you testify to the same set of facts at the Suppression Hearing?

A.

No sir: After reviewing the tape, at Grand Jury I testified to the fact that
he indicated that he had marijuana in his front right pocket and then

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\

1

gave it to me, but after reviewing the tape I then testified to what I saw
in the tape which was indicating that he had marijuana in his
front right pocket, but I removea it.

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a.

All right, when you say, so that the testi~ony in the Grand Jury was not
accurate?

A.

Oh it was accurate to my recollection at that time sir, but later when
upon watching the tape I learned no it was not accurate to what had
happened .

a.

Did you, so your recollection here today -is that when you testified at
the Suppression Hearing that you gave the same testimony that
took the drugs from his pocket?

A.

I'm sorry sir could you .....

Q.

Yeah, let me repeat it. When you testified at the Suppression Hearing
was your testimony t h a t ~ took the drugs from his pocket and
gave·them to you or that you reac ed in and took therr1?
·

A.

At the Suppression Hearing I removed, I testified to the fact that I
removed the drugs from his pocket.

a.

How much preparation did you d.o for the Grand Jury?

A.

Not much at all sir. The ADA had me come up before it, we reviewed it,
just went over the case, I told him how I remembered it, and he said
"okay, we're ready" and we went in.

Q.

At this time you were assigned to the BCI in Troop NYC?

A.

Yes sir.

a.

Do you recall specifically what you did to prepare for it?

A.

I just went up a little bit earlier than I was scheduled to go in Grand
Jury, sat down with the ADA who asked me some questions, and I
answered . questions as to how I remembered the. arrest happen.ing.
The ADA was satisfied with that so "okay we're ready to go in".

Q.

Prior to giving Grand Jury testimony did you read the 84?

A.

No sir.

a.

Did you review the video tape from the patrol car?

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No sir.

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Q.

So you went pretty much by memory?

A.

Yes .sir. I prepped with the ADA from memory and he seemed to be
satisfied with that and we proceeded in.

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Q.

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With respect to the Suppression Hearing did you testify on more than
one day?

A.

Yes sir.

Q.

Do you recall how many days out of the five days testimony was
taken?

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A

I don't recall if it was two or three, but it was definitely at least two sir.

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2122
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Q.

And with respect to that Suppression Hearing how much preparation
were you able to do?

A.

Quite a bit more sir.

Q.

Did your preparation include review of the 84?

A.

Yes sir.

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Q.

Did it include a review of the video tape?

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A.

Yes it did.

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Q.

A.
Q.

During the Suppression Hearing did you give testimony about
apprising the District Attorney of an error in your Grand Jury testimony
that you noticed while you were preparing for a Felony Hearing in the
arrest?

A.

Yes I did sir. .

Q.

Was that accurate testimony?

A.

No it was not.

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Q.

If you would just explain what happened ?

A.

Ah upon prepping with the ADA, I, being that the case had been so
long ago I could not recall if it was a Felony Hearing or the Grand Jury
I had, that I gave testimony to first and then afterwards read the 84 and
said "there are mistakes here". The ADA didn't indicate to me which it
was and we went into Grand Jury and I went with the fact that I thought
it was a Felony Hearing. Defense quickly pointed out that there was
none and thc;it this must have happened at the Grand Jury.

Q.

During the Suppression Hearing did you testify that . . . . . and
were handcuffed to Trooper EDWARDS' p a t r ~ after
youTounct fhe box of what was referred to as glassine envelopes in
the trunk of the car?

A.

Yes sir, I believe that's correct.

Q.

Was that testimony accurate?

A.

Yes sir, I think, yes sir.

Q.

As we sit here today do you believe that was accurate?

A.

Yes sir.

Q.

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Would it surprise you to learn, and I can show you the video tape to
clarify it, that that was not the case, that and were
handcuffed to Trooper EDWARDS' v e h i ~ n a s ~ a n to
search the front of the car?

A.

Yes that would surprise me sir.

39

Q.

Well, I can show you at the conclusion of the statement.

A.

I'm, I'm not arguing with ,you sir, it's just not how I remember it, yes it
would surprise me.

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Q.

. .

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What was the disposition of the . charges against . AQU IAR and

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A.

At this point sir?

Q.

Yes.

A.

Oh, they've been dropped sir.

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Do you know why they were dropped?

A.

Yes, rather, yes I do sir.

Q.

And what's.your understanding as to why they were dropped?

A.

The judge did not find myself or the other individuals in this credible in
the case.

Q.

Have you read Judge ADLER's decision in this matter?

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A.

Yes I have sir.

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. A.

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Q.

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A.

No I do not.

Q.

At this point I am just going to pause the tape, it's 12:01, I just need to
refer to .some notes. We're returning to the record at 12:04.
Investigator LEEDER, I have no further questions for you. Is there
anything you wish to add to this statement ?

A.

Can I just have a second to talk to the delegate?

Q.

Certainly, it's 12:04 and we'll pause the tape. We're returning to the
record, it's 12:08 PM. Investigator LEEDER, I have no further
questions is there anything you wish to add to this statem~nt?

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D o you know why the District Attorney's Office will not appeal this
decision?

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A.

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A.

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Q.

Okay I have no further questions.

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A.

Can I just have one minute 7

Q.

Sure pausing at 12:16. We're returning to the record at 12:18 PM.
Investigator LEEDER, I have no further questions, is there anything
further you wish to add to this statement?
·

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Q.

Anything else?

A.

No sir.

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Q.

I have no further questions. This statement will be con.eluded at 12:19
PM. Thank you.

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I have read this statement oonsisting of 33 pages and it is true to the best
of my knowledge. I have placed my initials on the bottom of each page and next
to each correction and I signed it below.
Signed before me this

r

'd-J'5'day qf April, 2003.

JAM

:LEEDER
0.

'---=-

W I T N E S S ~ ~·~ , - - - -

J

33

NYSP INTERr~AL AFFAIRS ·
STATE OF NEW YORK
COUNTY OF ORAN.GE
TOWN OF NEW WINDSOR

SOUTHREGIONOf FICE

2003 JUN 27 AM 11 : 47

JUNE4,2003

Statement taken from Investigator JAMES E. LEEDER at the Intemal Affairs Bureau South Region Office,
Stewart Airport New Windsor New York on June 4, 2003, by Inspector ARTHUR J. HAWKER, commencing at
11:49 a.m.
The letter "Q" denotes questions asked by Inspector HAWKER.
The letter "A" denotes answers provided by Investigator LEEDER
Q.

Please state for the record your full name, rank, date of entry and current assignment.

A.

One correction, it's JAMES D. LEEDER. not ''Ir' sir.

Q.

Okay.

A.

I'm an Investigator,

Q.

Investigator LEEDER, you were advised by myself through Divisioµ E-mail system of the matter being
investigated and that I would be taking a statement at this time. You are not the target of any known
criminal investigation. The purpose of this investigation, in particular this supplemental statement; is to
inquire into the activities of yourself as a member of the State Police. Specifically it has been alleged that
in connection with the July 3, 2001 arrest of
and
that
you gave testimony in Westchester County Co
credi
y
p1
g J ge.

, my date of entcy is 10/28 of '96.

This interrogation is being conducted pursuant to Article I6 of the agreement between the State Of New
York and your certified employee representative organization and the Regulations of the New York State
Police including Regulations 8A3 and 8Al5. You have the right to contact and consult with an attorney
and/or union <;lelegate before being interrogated and to have ail attorney or delegate present during tlte
interrogation. This agreement and our Regulations require you cooperate and answer truthfully questions
relating to the investigation. A refusal to answer or failure to answer truthfully may result in discipliruuy
action which could result in your separation from service. Do you 1mderstand that?

A

Yes sir.

Q.

Are you represented at this time, and if so, by whom?

A.

By delegate representative JOHN O'KEEFE.

Q.

As stated, I am Inspector ARTHUR J. HAWKER and have been designated by the Superintendent to
conduct this interrogation. Present in the room besides myself are Investigator LEEDER and Investigator
JOHN O'KEEFE, the NYSPIA delegate. This statement is bein_g mechanically recorded by tape recorder,
do you understand that?
·
·

A.

Yes sir.

Q.

Having been informed of all this, are you ready to proceed?

A.

Yes sir.

Q.

Investigator LEEDER. going back to your July 200 I arrest of

and ROLANDO

1

ENCLOSURE ~II

llllllllllllwhere were you situated when you first saw the defendant's vehicle?
A.

I was situated on 1-95, there'.s.a small center median area which is just north of the toll booths from the
northbound side of I-95.

Q.

This would be the New Rochelle tolls?

A.

Yes sir.

Q.

And when you say just north of the toll booths, in tenns of distance, approximately how far north?

A.

Approximately less than a tenth of a. mile, I'm bad on judging distances, maybe a thousand feet, less than
a tenth of a mile.-

Q.

It;s still within sight of the tolls?

A.

Definitely within sight, very, not far north at all.

Q.

Would you consider it still in the toll plaza itself?

A.

Its just after the toll plaza .because where I was seated is actually where tl1e lanes oome all back together,
so I would not consider it part of the toll booth plaza, but right at the end of the toff booth plaza area.

Q.

And is this, to your ~llection, a .grass median or .a break in the jersey barrier, chained fence or how is it
made up?

A.

It's a break in the jersey barrier. it ·opens •up a wide area between the •north ·and southbound lanes,
concrete.

Q.

Where exactly was the defendant's car when you fin.1 observed it?

A.

I initially observed the defendant's car just as it was passing me in the northbound direction.

Q.

And do you recall wbat lane it was in when you first observed it?

A.

It was in the left hand lane.

Q.

The leftmost, how many lanes are there at this location where you saw the vehicle?

A.

The lanes are; rm not real sure because the lanes are,just coming from·the various tollbooth lanes, SO ·
they' re coming back together but he was in the left, fannost, so exactly how.many tltere are at that point,
that I don't recall.

Q.

So in terms of the width of the road, he is closest to you?

A.

That's correctsir.

Q.

Okay, and again in tenns of feet, how far would he bave been from where you were parked?

A.

I would have to say maybe a hundred, lwndred and fifty, approximately.

Q.

Coming out of the toll booths, to your recollection, are these lanes .marked - let me re-phrase that, are the
lanes set off by pavement markings each different lane?

2

A.

When you initially come out of the toll booths, no, they are not, but where I was situated is where the lane
markers come back. So where I was, yes, there are lane markings but as you initially come out of the toll
booths, no.

Q.

And what brought your attention to this vehicle as you're sitting there?

A.

Traffic was moderate, there wasn't that many cars out· there, nothing in particular; I-was just observing·
different cars, looking fur equipment violations, things of that nature. Nothing in particular drew my
attention, I just happened to look at it.

Q.

When it first went by you were you able to tell how many occupants were in it?

A.

No, I don't believe so, I don't think that was until I was actually behind the vehicle, I don't recall that, no.

Q.

Were you able to tell the race of the people?

A.

No sir.

Q.

And so you first observe .it, but that just the fact it's going by didn't bring in any particular attention to
you?

A.

No sir, not at that time, no.

Q.

At what point did you take an interest in the vehicle?

A.

I was just, actually there was, like I said, the traffic was moderate to ligbt, the vehicle went by, just
watched the vehicle going by and as it was north of my location is when it moved from the left lane to
middle and that's when it drew more attention.

Q.

And how far north of you was it?

A.

Approximately maybe five b11I1dred feet, again I'm bad with distance, but still within sight, you know
where you could tell what color the car was, dose enough, maybe five hundred feet.

Q.

And when the vehicle changed lanes, was there any violation observed?

A.

Yes sir, be moved from the left lane to the middle and he did not signal when he did sir.

Q.

And at the point where the Jane.change was 1nade, are the lanes marked by pavement markings?

A.

.Yes sir, at that point they're actually back to, I believe it's three Janes and all three lanes are clearly
marked.

Q.

And from that point, once you -0bserved that lane change without signal, what if anything did you do at
tliat point?

A.

At that point, I exited the median, I approached behind the vehicle, at tliat point I noticed there appeared
to be two occupants .in the vehicle and that it did not appear that the .passenger had his seatbelt on. At that
point I activated the overhead lights and tl1e car pulled over to the right, then tliat's ....

Q.

When you say pulled to tl1e right .... ?

A.

Pulled to the rigbt shoulder and stopped.

3

Q.

Just from the point where you put on your emergency lighting to the point where the vehicle actually
stopped, how much distance was covered?

A.

I'd say approximately two tenths of a mile maybe, a tenth mile. There was no real hesitation, but he
didn't like almost cause an accident going over or anything, just responded in a normal manner.

Q.

What I would like to-do at this point, I'm just going to-pause the tape, it's 1158 am. and have
Investigator LEEDER sketch out, based on his .recollection of the tolls,.just where he was, where he saw
the vehicle, etc. So we'U pause the tape at this time.

Q.

We're. returning. to the.record. at 12:02 p.m. Investigator LEEDER has made a sketch on a. pad.
Investigator, if you would indicate where your .patrol vehicle was on tlmt sketch and we'll start with the
letter " A".

A.

Sure, in the center median here, this would be "A'!.

Q.

And where you first observed the defendant's vehicle, if you would label that location "B".

A.

This area.

Q.

Alright InvestigatorLEEPER is indicating that's in the left most northbound lane. When you observed it
change lanes,.if you would indicate on the sketch how far north that point was by letter "C".

A.

Somewhere around there.

Q.

And the vehicle moved just into the middle lane?

A.

Yes.

Q.

And is that where it remained until you got behind it?

A.

That's correct sir.

Q.

A.

Q.

Okay, that should be sufficient. It you would, just put your initials and the date somewhere on that:piece of
.paper. Thank you. The next set of questions I just want to.ask you.pertain to the.rental agreement with.
the vehicle. In the, ori.ginal statement you gave it was established that the vehicle that and
were occupying was rented. Is that correct?

Yes sir.
And you indicated in that statement that neither .of those individuals were listed on the rental agreement

as a driver?
A.

'That's correct sir.

Q.

Do you have a copy of that rental agreement?

A.

In my possession, no.

Q.

Do you recall if a copy was made back in 2001, when this. for case file pmposes or. any other reason?

A

Yes sir. Actually I believe a.copy was made and they may even have the original, but I know for sure

there's a copy.
4

Q.

Do you know where _that would be at this point?

A.

It would have to be in tbe case folder whiclt probably would be in SP Hawthorne. I believe that is where

they're stored.
Q.

With respect to that rental agreement, do you recall the name of the co1lipany that was involved?

A.

No, but it was not a, was not a well known like Avis or Hertz, it was more of a smaller local, but I don't
recall the name of the company, no sir.

Q.

Do yoo recall the registration, the state of registration the vehicle had?

A.

Yes sir, it was Massachusetts.

Q.

I'm going to show you a copy of the General 21 Impound Report that was associated with that case and
that indicates the vehicle owner's name to be South Coastal Rental Incorporated, 100 Faunce Comer
Road. Dartmouth, Mass. Does that sound accurate?

A

To be honest with you sir, I don't recall at all. I mean if! wrote it, I would like to say its accurdte but I
don't recall it at all, but ifl wrote it I'm assuming its accurate but it doesn't ring a bell at all to me.

Q.

And did you complete this General 21?

A.

Yes sir.

Q.

So you would have either gotten that top part of the infonnation from the rental agreement or you would
have run the data on it, is that safe to assume?

A.

Yes sir.

Q.

Do you recall whose name the rental agreement was actually in?

A.

No il was a female though, J do not recall her name now.

Q.

Do you know what that person's relationship was to e i t h e r - o r -

A.

No, I don't.

Q.

Or if tltere was a relationship?

A

I don' t believe there was, but I really don't recall. It wasn't anything. nothing was stated like "it's my
sister, my mother", nothing like that I don't even know if one was, they gave a relation, I don' t know.

Q.

Did you ever have any contact with a person whose name appeared on tile rental agreement, whomever it

was?
A

No sir.

Q.

Why was Utat?

A

That would be more on the investigative end I would imagine but nothing was asked of me to do anything
like that.

Q.

I'm just looking to differentiate whether that was something you felt Investigator NELSON would do on
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his own or whether you tried and were unsuccessful.

A.

I didn't even try, no sir.

Q.

Did you have any reason_to contact the rental company itself?

A.

Just to let them know where the vehicle was going to be and how they could go about retrieving it.

Q.

And when you made tbat contac~ did you.
ve .
an discussion with the rental C6mpany representative as
to whether or not people, like in this case
who was driving lbe car, whether be was authorized
to drive it even if he wasn't on the agreemen

Actually 1 don't believe 1 made the call myself. l want to say Investigator NOEL NELSON did, but 1
learned that they were not autJ1orized to drive it, that was established but [ did not make the call myself.
Q.

Do you know from conversing with Investigator NELSON after this call, whetller it would have been the

wish of the rental company to have the car taken away f r o m - had there been no criminal arrest?
A.

Yes, yes that was their wis~ is my understanding.

Q.

And with respect to the Westchester D.A. 's office, their policy, if it' s an actual policy or just a practice in
2001, do you know what their outlook was on •individuals operating rental ·vehicles but not listed as
authorized drivers 1

A.

I never really .sat and discussed .their .policy or anything. Myself .and other people have towed off and
secured vehicles for people not on rental agreements before and there's been no complaint from the D.A. 's
office saying «we don't want you to do tliat'' or anything of that nature, so I've never actually sat with an
ADA and gone over their policy, but when we've done it in the past, there's been no problem, no stated
problem, so . ....

Q.

Well alovg that line, did you have any cases in your experience while working in Westchester County
where tbe only reason that you impounded a vehicle was beca~e the person operating was not an

authorized driver?

A.

Yes sir, I have secured vehicles for companies.

Q.

And did you have any cases where you impounded the vehicle for that reason and as a result of the
impound/inventory searcl1, contraband was found for which you arrested somebody?

A.

I don't believe so sir, not in Westchester. Years ago I had it in Rockland, but I don't believe in
Westchester, I'm IWt sure without going over, reviewing.

Q.

l'mjust seeking to establish if the Westchester D.A. back in iOOl, if that scenario was presented, whether
they deemed that a valid search...

A.

Ah, yes sir ...

Q.

... a vfllid seizure.

A.

Q.

· ...myself, I don' t believe I have but I know of others who have and I don't believe there has been a
problem with it.
Investigator LEEDER, I have no further questions, is there anything you wish to add to this statement?

6

A.

I can just have a quick moment with my delegate?

Q.

Certainly, we'll pause the tape at 12:llp.m.
We're returning to the record, ifs 12:12 p.m.

Q.

investigator LJ;lEDER., I indicated I have .no further questions, is lhere anything you wish to add to this
statement?

A.

No sir.

Q.

That being the case, we'll conclude at 12: 12 p.m.

1 have read tlris statement consisting of 7 pages and it is true to the best of my knowledge. I have placed my
initials on the bottom of each page 1µ1d n~xt to each correction and I signed it below.
Signed b~fore me this ;;J{ day of

J JNS

, 2003.

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