People v. SchlaichPeople v. Schlaich
OPINION OF THE COURT
Hоusing Police Officer Paskewitz and her partner were working an overnight detail in October 1993, observing the neighborhood from a post atop a lоw-rise building (four or five stories) at East 119th Street and 1st Avenue in Manhattan. Officer Paskewitz had 60 to 70 narcotics-r elated arrests to her credit, and her teаm had already made 25 to 30 arrests involving narcotics transactions in this very neighborhood. Shortly after 1:00 a.m., she focused her attention, through binoculars, on defendant’s activities in front of an all-night bodega at the well-lit intersection. A number of people were entering and exiting the bodega. Defendant was drinking a beer and meandering back and forth around the street corner, all the while in Paskewitz’ view. At one point a man approаched defendant, engaged him in conversation for a few seconds, and then handed him some money, whereupon defendant reached into his left jacket pocket and handed an unidentified object to the man. Officer Paskewitz could not see the object because it was concealed in defendant’s fist. Five minutes later, defendant was approached by a woman who engaged him in conversation for a few sеconds; defendant then took some items from his left jacket pocket and handed them to her, in exchange for money. Shortly thereafter, dеfendant engaged in conversation with a man across the street. When this man approached and handed defendant some money, defendant again reached into his left jacket pocket and handed him some items.
Believing she had just witnessed three drug transactions, Officer Paskewitz dеcided to arrest defendant. With the aid of her back-up team on the ground, she apprehended him in the vicinity; he was still holding the beer. A search оf defendant’s person yielded a brown paper bag from his left front pants pocket, containing 12 black-topped vials later determined to contain crack cocaine. Further search at the police station yielded 16 dollars and change, as well as a quantity of powdered cocaine wrapped in aluminum foil, and another wrapped in a small pink zip-lock bag.
Defendant was indicted for criminal рossession of a controlled substance in the third and fifth degrees (possession with intent to sell). The People appeal from an order suppressing the seized evidence for lack of probable cause to search.
In the case at bar, the training and experience of Officer Paskewitz and the high-drug-crime nature of the area were amply proven. The suppression court granted the motion bеcause of the absence of a telltale physical sign that narcotics transactions had just taken place. The court ruled that the police observations gave them reasonable suspicion of criminal activity, and thus a right to stop and inquire (see, People v Cedeno,
In People v McRay (supra), the Court of Appeals put an end to the notion that exchanges of objects for money in such a setting had to be viewed as equally susceptible of innocent behavior. Citing the "virtual explosion in drug trafficking in our sociеty”, the Court held that "[wjhatever the validity of this conclusion in the past, time and experience have proven it no longer viable” (51 NY2d, supra, at 602-603). In the 16 years since McRay, the drug epidemic has only intensified. Whereas McRay broke new ground in recognizing the probability that the hand-to-hand exchange of small packages for money in a drug-prone neighborhood is no longer innocuous behavior susceptible to innocent interpretation, experience has taught us that the packaging of choice for illicit nаrcotics continues to evolve—from glassine envelopes to tinfoil packets (People v Balas,
The time has come to end our fixation with packаging. "[T]he jurisprudence in this Fourth Amendment area has moved beyond such niceties as distinctions based on the color or degree of opacity of the envelope” (People v Shaw, 193 AD2d, supra, at 391). "In a probable cause analysis, the emphasis should not be narrowly focused on a recognizable drug package or any other single factor, but on an evaluation of the totality of circumstances” (People v Graham,
The lesson of McRay and its progeny is that in order for society to keep pace with the war on illegal drugs, law enforcement must be as flexible and creative as the drug traffickers. The Court of Appeals issued that call to action 16 years ago, indicating that the "alarming pervasiveness of drugs in our society” necessitated not an "obliterating” of Fourth Amendment protections, but an increasing awareness of what constitutes the probable cause to believe that an illicit drug transaction is taking place (People v McRay, 51 NY2d, supra, at 603). The evolution of case law since 1980 now permits us to credit, as part of the totality of circumstances, the testimony of a trained and experienced police officer as to her observations of several hand-to-hand transactions (cf., People v Washington F.,
Accordingly, the order of Supreme Court, New York County (Ronald A. Zweibel, J.), entered May 24, 1994, which granted defendant’s motion to suppress physical evidence seized in connection with his arrest, should be reversed, on the law, the motion should be denied, and the case remanded for further proceedings on the indictment.
Order, Supreme Court, New York County, entered May 24, 1994, reversed, on the law, defendant’s motion to suppress denied, and the case remanded for further proceedings on the indictment.