People v. AlexanderPeople v. Alexander
OPINION OF THE COURT
The People appeal from a determination that the police acted improperly in arresting defendant after they observed him and a friend exit a car that was double-parked in front of a building with a known history of drug-related activity and arrests, enter the building, and emerge moments later, holding a small tinfoil paсket of a size and shape commonly used to package cocaine that defendant then secreted in his jacket pocket. In reviewing the hearing court’s ruling, we are called upon to answer the question of whether a tinfoil packet of a size and shape commonly associated with cocaine packaging may be deemed a "hallmark” rather than merely a "telltale sign” of criminal drug activity even in the absence of any observed drug sales or exchange of money. Under the totality of the circumstances presented at bar, we answer the question in the affirmative, and thus conclude that the police possessed probable cause to arrest defendant for illegal drug possession. Accordingly, we reverse.
The credible testimony at the suppression hearing established that on November 6, 1992, a plainclothes detective was assigned as part of a team of officers from the Manhattan North Tactical Narcotics Team to observe a building located at 476-82 West 165th Street that was known to the police to be a drug-prone location. The member of the backup team who actually arrested defendant testified that he had personally participated in upwards of 25 arrests at this address for possession or sale of drugs during the month preceding defendant’s arrest. Indeed, the reputation of this building as a beehive of retail drug trafficking was confirmed by the defense’s own witness, Matthew Deighan, who testified at the hearing that he
The undercover detective had been trained to recognize different types of drugs, including cocaine, marihuana and heroin, based on their appearance and packaging. He had personally participated in at least 300 "buy and bust operations” as the buying officer, and at least 500 such operations as the "ghost officer”. He and the arresting detective had worked together in the Washington Heights area, including the block where this arrest occurred, for between two and one-half and three years. The arresting detective also had been trained in the identification and packaging of drugs, had previous experience as a member of the Street Narcotics Enforcement Unit before joining the Manhattan North Tactical Narcotics Team and had made between 500 and 700 previous narcotics-related arrests.
At approximately 2:50 p.m., the undercover detective was leaning on his unmarked rental car, which was parked in front of the building, about 15 to 20 feet away from its front door, when he noticed a brown Plymouth station wagon that double-parked opposite the building under observation. The car was occupied by two men, defendant Michael Alexander and Matthew Deighan, and a woman, Jamie Callin. The undercover detective then saw defendant and Deighan exit the car and enter the building, while Callin remained behind in the passenger seat.
Very soon thereafter, the undercover detective saw defendant and Deighan emerging from the building. According to the undercover detective, the two men were inside the building for only a matter of "several minutes”. Deighan testified, more specifically, that they were inside "[mjaybe five minutes at best”. In any event, it is undisputed that the two men were in and out of the building rather quickly.
As Deighan and Alexander made their way back to the station wagon, they passed right by the undercover detective. The two men appeared to bе conversing, while Deighan was looking at and holding a tinfoil packet that he then placed inside his left jacket pocket. At the same time, defendant placed a tinfoil packet that he was holding in his right hand into his right jacket pocket. Although it was subsequently learned that Deighan’s packet was approximately three and one-half inches in size, and defendant’s packet was slightly larger, at the time the two men passed by him comparing what was obviously their recent drug purchases, the undercover could only see
After the two men reentered the double-parked station wagon and drove away from the building, the undercover detective went into his car and made a radio transmission to his backup field team that included a description of the car, the license plate number, and details concerning the physical attributes and clothing of the car’s occupants. The undercover detective also indicated that he observed the two men in possession of drugs that they had placed in their pockets. The arresting detective and other members of the field team stopped the car after following it for about 10 bloсks.
Once defendant Alexander, Deighan and the woman had exited the car and placed their hands on the roof, the arresting detective asked defendant if he had any drugs on his person. Defendant responded negatively and the arresting detective reached into his right chest jacket pocket and removеd the tinfoil packet. It is this contraband that was the subject of the suppression hearing.
The legal issue presented on this factual record, as framed by the hearing court, was whether a small tinfoil packet constitutes a "hallmark” of a drug transaction. The hearing court, construing the then-applicable New York sеarch and seizure
It is well settled that a finding of "[p]robable 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” (People v McRay,
In a case decided after the hearing court rendered its decision, this Court had occasion to consider "whether the observation by an experienced police officer, in a 'drug-prone’ location, of five separate transactions in each of which defendant exchanged money for a small object he removed from a brown paper bag and thereafter placed the bag on the ground next to a fence about 10 feet away, gives rise to probable cause” (People v Graham,
As Graham makes clear, in evaluating such encounters, a more important consideration than whether a particular type of drug packaging is labelled a ’’hallmark” (see, e.g., People v Bonilla,
Here, the totality of the circumstances indicates that there was probable cause to arrest defendant for possession of narcotics. An undercover detective, trained and experienced in narcotics trafficking, saw defendant and his friend enter a building which was sрecifically under observation because of its known association with drug activity. When they exited, each was seen holding a small tinfoil packet of the type which the undercover detective knew, based on his experience, usually contains illegal drugs. Here, the tinfoil packets were, even absent evidence of their being exchanged for money, under the totality of the circumstances, a ’’hallmark” of drug-related activity (see, People v Graham,
The police officer’s probable cause to believe that defendant possessed drugs was further strengthened by the fact that defendant and Deighan spent only a short period of time inside the building and were seen comparing their tinfoil packets before plаcing them in their jacket pockets. There are few, if any, reasonably innocent explanations for this conduct, and
The fact that the detective did not seе an exchange or transfer of the tinfoil packets did not diminish the probability that defendant was guilty of narcotics possession (see, People v Eldridge,
Probable cause is, of course, the requisite predicate for an arrest and incidental search. Because the undercover detective possessed probable cause to believe that defendant possessed an illegal drug, the hearing court erred in concluding that, upon these facts, the police were merely permitted to make inquiry of him and we therefore reverse and remand for further proсeedings.
Accordingly, the order of the Supreme Court, New York County (Patricia Anne Williams, J.), entered on or about September 15, 1993, granting defendant’s motion to suppress a1 tinfoil packet of cocaine found on his person, should be reversed, on the law and the facts, and the matter remanded for further proceedings on the indictment.
Order, Supreme Court, New York County, entered on or about September 15, 1993, which granted defendant’s motion to suppress, reversed, on the law and the facts, and the matter remanded for further proceedings on the indictment.
Notes
Defendant has not submitted a respondent’s brief on this, the People’s appeal. At the hearing he called Matthew Deighan as a witness on his behalf. While defendant proffers no challenge to the hearing court’s findings of facts, we note, in passing, that our independent review of the record reveals that they are fully supported. Deighan, a former police officer, who was apparently permitted to resign from the New York Police Department while on suspension from active duty in 1987 from problems clearly related to chemical dependency, offered a version of events that appears to conveniently admit that portion of the People’s case which was either incontrоvertible or harmless to the defense and to contradict that which needed to be denied. Deighan testified that the tinfoil packets were smaller than the police testimony indicated, and that he and defendant placed the drugs inside their pants before leaving the building, and only removed them and placed them in thеir jackets once they were inside the car and driving away from the scene of the purchase. The hearing court found this and other portions of Deighan’s testimony that contradicted that of the police to be unbelievable, a finding which, in light of the hearing court’s vivid description of the witness’s demeanor that might otherwise not have been revealed from the printed page, is amply warranted.