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Appellate Court is wrong to change conviction

These three appeals involve variations of the common glassine envelope scenario. In the first case, defendant was arrested by a Street Enforcement Unit of the New York City Police Department. The police team was headed by the Sergeant, a 20-year veteran of the department who, prior to his street enforcement duties, had served as a narcotics officer for four and one-half years. In addition to actual involvement in 300 to 400 drug crime arrests, he completed Federal and local courses in illicit drug crime dealings and has testified before a congressional committee investigating drug abuse.

A Lawyer said that, the sergeant and his unit set up an undercover buy operation on West 127th Street in Manhattan. The area, according to his testimony, is a “high narcotic prone location” when measured by the number of narcotic arrests made, the number of citizen complaints received and his own observations of narcotics activity. While standing in front of a grocery store observing the undercover “buy” officer, he saw the defendant approach and stop a few feet away. Soon defendant was joined by another male, and the two engaged in a short conversation. Defendant then entered the grocery, his companion remaining outside and looking up and down the street. The sergeant followed the companion into the store and overheard him asking for a “number 3 bag”, which the store did not have. Settling for a “number 5 bag”, defendant left the store and rejoined his companion. The sergeant purchased a beer and returned to the street drinking it. Again positioning himself near the two men, Ingram heard the other male tell defendant “come on, come on around the corner.” The men started walking, with the officer following at a safe distance. Suddenly, the men stopped, the companion opened the grocery bag and his companion withdrew bundles of glassine envelopes from his pockets and placed them in the bag. The bundles, which appeared to contain “ten dollar bags” of heroin, were too large for the man’s hand to encircle. Defendant was arrested a short time later. Six separate bundles, containing 133 glassine envelopes of heroin, were found in the bag. After denial of his motion to suppress, defendant entered a guilty plea on heroin possession. The Appellate Division, finding a lack of probable cause for arrest, entered an order of reversal on the law.

In the second case, defendant was arrested by veteran Police Officer and his partner. On February 26, 1977, the Police Officer was positioned on the second floor of an abandoned building in the vicinity of West 128th Street and Eighth Avenue in Manhattan. This intersection was so well known for drug crime trafficking that it became a target of a special police campaign called “Operation Drug.” Of the approximately 100 drug arrests made by the partner of the veteran police, 30 or 40 had occurred at this same location. The police officer too had completed a law enforcement course in drug transactions.

From their vantage point in the abandoned building and utilizing binoculars, the policemen noticed defendant standing on the celebrated corner. A constantly changing crowd of people milled about, but defendant remained at the same location for approximately 45 minutes. During that time, seven or eight persons approached defendant, spoke with him and departed. Finally, upon the advance of an unidentified male, Officer saw defendant reach beneath his coat into his sweater pocket, withdraw a white glassine envelope and pass the envelope to the other individual. A New York Criminal Lawyer said that, Defendant was arrested, and found to be in possession of 19 packets of heroin. Following denial of his motion to suppress,
defendant was adjudicated a youthful offender. A divided Appellate Division, affirmed.

In the third case, a New York Drug Lawyer said that, defendant was arrested by an officer also assigned to “Operation Drug”,. An experienced narcotics officer had made more than 100 drug-related arrests and had received formal law enforcement training in the narcotics field. On April 6, 1977, he and his partner stationed themselves in a vacant apartment overlooking West 115th Street near Seventh Avenue. The said officer had made numerous drug crime arrests on that block. Within a few minutes, the officers observed defendant and one walking together on the south side of 115th Street. The two men stopped in front of a school yard, looking up and down the street. The other then passed a stack of whitish glassine envelopes to defendant, who placed them in his pocket while continuing his watch back and forth along the block. Two more similar exchanges were made. Defendant was then arrested with 31 glassine envelopes in his possession. The other person was also arrested in possession of a quantity of cocaine and $415. Defendant’s motion to suppress was denied and he entered a guilty plea to criminal law possession of a controlled substance in the third degree. The Appellate Division, concluding that there was no probable cause for an arrest, reversed on the law. That order is now in turn reversed.

The issue in this case is what constitutes the lowest level of proof required for probable cause in the glassine envelope situation.

The court said that they are not without guideposts, however, since prior decision, having established principles relevant to these appeals. This court has consistently recognized that a glassine envelope is a “telltale sign of heroin”. And, the police officer’s experience and training in narcotics investigations are entitled to weight in evaluating his or her observations. But, despite the fact that the glassine envelope is a “telltale sign of heroin”, we have never held that the mere passing of such an envelope establishes probable cause. Rather, “additional relevant behavior or circumstances” are necessary “to raise the level of inference from suspicion to probable cause”.

It is not logic alone which has dissuaded the courts from concluding that an exchange of a glassine envelope, the “telltale sign” of heroin possession, does not suffice to establish probable cause. Probable cause requires, not proof beyond a reasonable doubt or evidence sufficient to warrant a conviction, but merely information which would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed. Arguably, the street exchange of a glassine envelope alone would provide the requisite level of certainty.

Undoubtedly, the courts have been influenced by the maxim that a pattern of conduct which occurs “just as frequently in innocent transactions” as in criminal transactions “is too equivocal to form the basis for a warrantless arrest”. And obviously it was thought, at the time, that the exchange of a glassine envelope is as likely to signal innocent behavior as criminal conduct. Whatever the validity of this conclusion in the past, time and experience have proven it no longer viable.

The alarming pervasiveness of drugs in our society does not, of course, provide the occasion for obliterating the protections afforded by the Fourth Amendment and our State Constitution. But it does increase the awareness, and the probability, that the passing of a glassine envelope signals an illicit drug transaction and not some other, innocuous act. Indeed, given the infrequency of legitimate street encounters which involve glassine envelopes, the exchange itself would all but constitute per se probable cause. If in the past the glassine envelope was a “telltale sign of heroin”, it can now be deemed the hallmark of an illicit drug exchange.

It is against this background that this court should outline certain circumstances which, when combined with the exchange of a glassine envelope, may give rise to a finding of probable cause. To begin with the most obvious, if money is passed in exchange for the envelope, probable cause almost surely would exist. Exchange of currency negates all but the most implausible explanations for the transaction, and thus conveys more than sufficient indicia of a drug sale to warrant an arrest. Similarly, additional evidence of furtive or evasive behavior on the part of the participants suffices to establish probable cause. Such evidence, suggesting consciousness of guilt, has traditionally been considered some proof of a crime. Beyond these situations, if the exchange occurs in an area rampant with narcotics activity, and is proven by competent evidence such as testimony of a qualified observer, an inference of probable cause may properly be drawn. The character of the community known to the arresting officer provides the supplemental element the additional requisite assurance that the observer has witnessed an illicit dealing rather than an innocent encounter. In an area which has developed a reputation as a drug marketplace or the like, the possibility that a street exchange of a glassine envelope involves noncriminal behavior declines appreciably. Indeed, it is precisely in such a neighborhood that the exchange would be expected to most reliably establish a drug transaction. Quite simply, then, there is no sound basis for resisting as a matter of law the inference of probable cause that arises when as in these cases a trained and experienced officer observes the delivery of one or more glassine envelopes the “hallmark” of a drug transaction in an area notorious for narcotics activity. This is not to say that the inference of probable cause must be drawn in every case. Rather, we are merely establishing a minimum requirement. Once the minimum is satisfied, it is a question for those courts with fact-finding power principally the suppression court and the Appellate Divisions to find as a fact whether probable cause exists. As discussed, those factual determinations are normally beyond the review of this court.

Applying these principles to the three appeals here, it is concluded in each case that enough was shown to create a fact question as to probable cause. In the first case, a veteran narcotics officer witnessed the defendant actually receiving a number of bundles of glassine envelopes in a high narcotics area. In addition to the officer’s expertise, and the high incidence of narcotics in the area, it is significant that defendant made careful preparations to receive the packets, his companion looked furtively up and down the street, and a large number of glassine envelopes were exchanged. In these circumstances, the finder of fact could properly draw an inference of probable cause, and the Appellate Division erred in reversing on the law.
In the second case, an experienced officer saw seven or eight people approach defendant, and ultimately saw defendant pass a whitish glassine envelope. The locale was so rampant with drugs as to be one of the targets of a special police operation. Thus, not only did an experienced officer witness the passing of a glassine envelope in a high narcotics area, but he observed the defendant engage in other behavior consistent with that of a narcotics seller. The officer was also able to identify the envelope as containing a whitish substance. In such a situation, the factual conclusion of the suppression court, that probable cause existed, affirmed by the Appellate Division, satisfies the minimum requirement for probable cause and may not be overturned by this court.

Finally, in the third case, an experienced officer saw defendant receive three stacks of whitish glassine envelopes. In addition, defendant was looking up and down the street during the transaction. As in the first case, the sum of these circumstances makes out a fact question as to the existence of probable cause and the Appellate Division erred in reversing on the law.
Accordingly, in first and third case, the orders of the Appellate Division should be reversed, and the cases remitted to that court for a review of the facts. In the second case, the order of the Appellate Division should be affirmed.

If you charged with heroin possession or crack possession, seek representation of a New York Drug Attorney and New York Criminal Attorney in order to properly defend your case. Call us at Stephen Bilkis and Associates.

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