|from epodunk, Dewitt Park|
Little Ithaca, NY is no more than a blip on the map but things do happen here as evidenced by a recently published Ithaca City Court decision. This particular case involved pot smoking in one of our beautiful little downtown parks. You see marijuana is ubiquitous to Ithaca as well as those who like to partake. Yes New York State now does have "medical" marijuana but we are a world away from the medical use of marijuana in California or even New Jersey. But that is a story all it's own for another day. The police here still view pot in a criminal way and not a casual one. You know where people just relax and breathe deep amidst the joys of nature.
The Ithaca, NY Mix of Pot, People, and Public Parks
When you mix up pot with people in a public place you can see how things can go abit awry. The case is called People v. Brukner, see the full legal decision here:
Mr. Brukner was merely hanging out with a bunch of his friends in Dewitt Park on a lovely July night. Oh the Ithaca weather in July is delicious. The summer time is truly the time to enjoy all that the Finger Lakes have to offer. It is a welcome respite after enduring another harsh and brutal winter. The cold in Ithaca is not just a temperature thing it's a severely depressing one with tones of grey and night ocean blue.
Dewitt Park is Gorgeous Especially in July
For those unfamiliar with downtown Ithaca, Dewitt is a very small park located right in the center of town. It is surrounded by churches, large buildings, and is mere steps from our County courthouse and District Attorney's office. Dewitt park is a people park. What makes it great is it's close proximity to coffee, food, restaurants, and more importantly public bathrooms. Maybe it's not the best place to hang out and smoke weed but it is a lovely little park to sit, lie about, and stroll.
Laws Violated: Public Parks After Dark, and the Unlawful Possession of Marijuana
As law would have it no-one is allowed in this centrally located, and beautiful little park after 10:00pm. It turns out most young people are night owls, and 10:00pm is not as late as the rest of think it is.
Mr. Brukner had the church's permission to be on the church/park grounds that evening as the properties overlap. The police approached and smelled what they stated was "burnt" marijuana. Now in New York State having a lit/burning marijuana joint/blunt in public view is against the law. It is an elevated criminal offense (a crime) to even the mere possession of a small amount of marijuana (a violation).
But the police did not see a burning, smoking, lit anything? Merely they smelled the fragrant odor of burnt weed violating their nostrils.
In New York the Drivers of Cars are Not Pedestrians
If Mr. Brukner was stopped while driving a car the mere smell of burnt marijuana would be enough for the police to search him and his car but what about on the street or in this case a public park?
In this instance, Mr. Brukner was a mere pedestrian. Mr. Brukner was not driving a car, he was merely hanging out in a park with the permission of the church. Remember that a walker (not a zombie) has more rights or at the very least elevated rights to that of a driver.
What began as a casual encounter of police inquiry soon turned confrontational. Quite bluntly (pardon the pun) Brukner was asserting his right to be free from interference with his space and place, and now the police were searching for the burnt marijuana they smelled.
What began with the smell of burnt marijuana, and a potential charge for unlawful possession of marijuana and being in a park after hours or perhaps nothing led to much more. After Brukner and the police had words, things elevated and in the end Brukner was arrested for:
This was based on some marijuana in a small tin found close to Brukner.
The Brukner Case was a Victory of Sorts
Burner's case was decided in his favor, with all charges against him stemming from the burnt odor of marijuana being dismissed.
First, people have a right to be left alone. Let me repeat that people have a RIGHT to be left alone!
Second, police have to have more than the smell of burnt marijuana to violate this right.
Third, the court's decision was tight and to the point
In short: the mere odor of marijuana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred, and consequently does not authorize law enforcement to forcibly stop, frisk, or search the individual.A victory for the common man or at least the Ithaca man who smells of burnt marijuana.
If you have questions about a marijuana charge in New York, call us at 607-229-5184
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BY NEWMAN & CYR
Copyright 2016. Educational Use Only.
If you are charged with a crime, we strongly urge you to consult with a local, licensed criminal defense attorney to lessen the possible negative outcomes of a charge --including the potential loss of your freedom.