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New York Appellate Court Discusses Presence of Probable Cause in Drug Case


This is a petition by the People from an order of the Supreme Court, dated November 10, 1983, in which after a trial, and settled that branch of defendant’s motion to suppress evidence.

The Court ruled reversing the order, the portion of the omnibus motion which seeks to suppress the introduction of physical evidence is denied. The case was reverted to the Supreme Court for further proceedings.

The defendant was accused of one count of unlawful possession of controlled drugs in the fourth degree. Defendant moved, among other things, to overpower some physical proof on the ground that the seizure of the same was illegally made without any basis. After the trial, the division granted the motion to suppress evidence. Thus, the People now appeals from that order.

The matter on this plea is whether or not there was apparent cause to lawfully arrest the respondent. The arresting officers performed the arrest on the source of a radio bulletin, the hearing on the defendant’s motion to suppress the evidence of the People must verify the content of the information which was carried in that bulletin, and there is no assumption of its sufficiency to launch a possible cause. Therefore, the criminal court looked at what the obscured officer had detected and the information he carried to his backup team.

The obscured officer testified that he approached someone who asked him what he needed. The officer responded “four” and gave $20 of “prerecorded” money. That person then went to the doorway in a nearby alley where a second man rested out. The two men talked for no more than 10 seconds and they briefly touched hands, as if they were shaking hands. That someone resumed to the officer and gave him four foil packets which were later found to contain cocaine. The whole exchange took no more than a minute. The undercover officer then returned to his car and radioed the above facts to his backup team who steadfastly arrived. They found the defendant, who was wearing a black tee-shirt, and the other person who was standing at the front of the alley and arrested both of them.

It has long been established for probable cause to exist, the two elements must be present, to wit: (1) that there is probable cause to believe that a crime has been accomplished and (2) that the individual sought to be arrested accomplished the crime. In this instant case, the obvious exchange between the man with the black tee-shirt and that someone was adequate to establish, for possible cause purposes, that someone received the cocaine from that individual. And the second point was gratified by the prompt arrival of the backup team which found the individual in the black tee-shirt and that someone standing together.

WEINSTEIN, Justice, oppositions and votes to affirm the order pleased from, with the following document:

I take issue with the majority’s conclusion that the police had probable cause to capture defendant. In my view, the conclusion that someone had received narcotics from a second individual during their brief exchange, which lasted for not more than 10 seconds, is far from inevitable. The only description provided by the obscured officer of the second individual is that he was wearing a black tee-shirt. The said individual looked in a doorway for such a brief interval that the officer was unable to attain a second look at him. Also, the officer was unable to absolutely recognize defendant at the precinct as the individual who had leaned out of the doorway. In addition, neither an exchange of currency nor a known narcotics container was witnessed.

The backup officer who attested was unable to remember whether the obscured officer had transferred any information which might tend to implicate the individual in the black tee shirt in the drug sale other than the fact that he had spoken with someone. We are thus confronted with a situation wherein the sole officer in a position to make a purpose, under the totality of the situations, that an individual was involved in a drug transaction to an extent greater than merely having conversed with the known principal of the transaction, may have failed to make any such determination. It is thus irrational to assume that the backup officers could make a determination of probable cause to arrest where they had no articulate description of the individual seized and where said individual took no action in their presence which could lead them to believe that he was involved in the transaction.

The court also held that a reviewing court must be presented with facts rather than guarantees and summary statements that the police had arrived at a conclusion that sufficient cause existed will not do.

Accordingly, the court ordered to suppress physical evidence seized from defendant pursuant to this capture was properly made.

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