Pubdate: Sun, 24 Nov 2002
Source: Watertown Daily Times (NY)
Copyright: 2002 Watertown Daily Times
Contact:  http://www.wdt.net
Details: http://www.mapinc.org/media/792
Author: James R. Donnelly, Staff Writer
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)

JUDGE DROPS MARIJUANA CHARGES, SAYS AGENT HAD NO CAUSE TO SEARCH CAR

Canton, NY--Charges against two Syracuse area men who were found with 55 
pounds of marijuana in their car have been dismissed in St. Lawrence Court.

U.S. Border Patrol agent Gilbert Gonzales, Massena, had no reason to stop 
or search the blue Cadillac that contained the drug and he coerced its 
occupants into opening the vehicle's trunk, County Judge Eugene L. Nicandri 
ruled.  As a result, he dismissed charges against Robert R. Grosso, 30, 
North Syracuse, and Matthew P. Desimone, 28, Brewerton.

The two men were indicted June 13 on charges of first-degree criminal 
possession of marijuana after a duffel bag containing the marijuana was 
found in the trunk of their car during a Dec. 11 traffic stop on Route 37 
in the town of Waddington.  Both pleaded innocent during arraignment June 
24 in County Court.

Judge Nicandri dismissed the charges after a brief suppression hearing at 
which Mr. Gonzales was the only witness.

Mr. Gonzales testified he was parked in Waddington observing traffic on 
Route 37 about 12:20 p. m. Dec. 11 and decided to stop the Cadillac used by 
the two men after one pointed in his direction and then failed to make eye 
contact as they passed by.

After topping the men, Mr. Gonzales testified, he quickly found both men 
were U.S. citizens who had not crossed the border.  Both said they were en 
route to Syracuse from the Akwesasne Mohawk Casino in Hogansburg.

The agent testified he learned the car was owned by a Syracuse woman and 
contained 22 pine tree air fresheners, both facts which he considered 
suspicious.

Judge Nicandri ruled that simply pointing at the parked Border Patrol agent 
was "innocuous behavior unrelated to any hint of criminal activity.  Nor 
does it suggest that the occupants were illegal aliens."  As a result he 
ruled the initial stop was improper.

Mr. Gonzales testified that he took both men's driver's licenses while 
questioning them and was still holding the licenses when he asked to look 
in the car's trunk.  He said they voluntarily opened the trunk, where he 
found the duffel bag full of Marijuana.

Holding the licenses while asking permission to search the car was "subtle 
coercion," Judge Nicandri ruled.  As a result he concluded the search was 
not truly voluntary.

While Mr. Gonzales has been involved in more than 35 drug cases since Sept. 
11, 2001, District Attorney Jerome H. Richards said he does not feel 
dismissal of charges against the two men will affect other cases.

"Each case rests on its own particular facts," Mr. Richards said. "The two 
cases that were dismissed, the facts just didn't support a lawful basis for 
the search."

Mr. Richards said he would not second guess Mr. Gonzales.

"It is an instantaneous, on demand reaction, where an officer has to make a 
decision immediately."  He successfully interdicted many, many pounds of 
marijuana. They don't get it back and now we know they are moving drugs, so 
they will be watched," Mr. Richards said.

Because the traffic stop and search were ruled improper, Mr. Richards 
cannot seek new charges against the two Syracuse area men.  He will, 
however, seek a new indictment against a Buffalo area man whose drug 
indictment was dismissed in an unrelated case.

Judge Nicandri dismissed a first degree criminal possession of marijuana 
charge against Korey D. White, 24, Collins, after reviewing the minutes of 
the grand jury that indicted him Oct, 1.

Mr. White was charged, along with Franklin C. White Jr., 33, and Leanne R. 
White, 18, both of Irving, with possessing 13.5 pounds of marijuana that 
was found in a locked suitcase in the trunk of their car after an April 3 
traffic stop in the village of Massena.  Franklin White told investigators 
the suitcase and marijuana were his, the judge found.  Korey White did not 
provide a statement and one of the witnesses who testified before the grand 
jury tied him to the drug, the judge.

Merely being in the presence of cocaine, heroin or most other drugs is 
sufficient to support a "constructive possession" charge.  But that concept 
does not apply to marijuana possession under state law, Judge Nicandri said.

"There is no legally sufficient evidence from which the grand jury could 
reasonably conclude that Korey White exercised dominion or control over the 
marijuana located in the vehicle," the judge wrote.

Franklin White recently pleaded guilty in Erie County Court to an unrelated 
marijuana possession charge, Mr. Richards said.  The guilty plea satisfied 
the St. Lawrence County charge and will result in a three-to-six-year 
prison term.  The case against Leanne White is still pending in St. 
Lawrence County Court.
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