Judge Julio Rodriguez
Defendant, charged with unlawful possession of an imitation pistol, moved for suppression. Officer Ortiz testified he observed defendant walking with a foam cup which was allegedly the type used to hide alcohol. When Ortiz parked his car, defendant placed the cup on the street and continued walking. Ortiz asked what was in the cup and was told it was Hennessey and Pepsi, smelling the cup to confirm it contained alcohol. Ortiz checked and discovered defendant had an outstanding warrant, and arrested defendant, noticing an imitation pistol as he was handcuffing him. It was later discovered there were no outstanding warrants, but the court found Ortiz was justified in approaching and asking defendant about the cup. Also, the court stated there was probable cause to arrest defendant as there was cause to believe he committed offenses of consumption of alcohol on the street and littering. Yet, it stated prosecutors failed to meet their burden of going forward with evidence showing the warrant provided probable cause to arrest defendant. However, the court ruled there was probable cause to arrest regardless if Ortiz believed it was for the warrant or other offenses, concluding recovery of the pistol was subject to a search incident to a lawful arrest and suppression was denied.
