79 A.D.2d 929 | N.Y. App. Div. | 1981
Lead Opinion
Judgment, Supreme Court, Bronx County, rendered February 28, 1979, convicting defendant of criminal sale of a controlled substance, third degree, and which judgment resentenced him nunc pro tunc on March 12, 1980 to a term of three to nine years, reversed, on the law and the facts, the motion to suppress granted, and the indictment dismissed. An undercover policeman, equipped with a hidden transmitter, entered a social club and, for $50, purchased cocaine from a man in the front room. He left the club and radioed his backup team. Because the transmission was garbled, they understood only that he had made a buy. The sergeant in charge ordered the team to enter the club and secure it so that no one could leave. He then went down the street to meet the undercover who described the seller: a bearded black male, 30 years old, medium build, wearing a tan cap, brown leather jacket, glasses, white sneakers, dungarees, and a large silver bracelet. The sergeant entered the club, found six or eight persons in the front room, but none of them fit the description. They were released. In the back room were 20 to 35 people shooting craps. (The defendant claims he was the banker of the game and thus handled all of the wagered money.) The players were made to walk in single file past the sergeant. The defendant was held because he “fit the description a hundred percent”. But, belying certainty, the sergeant also held three or four others because they “partially fit the description”. He had all of them frisked for weapons. Then, obviously to pinpoint the drug seller among the suspects, the sergeant asked which of them had any money. When the defendant and another acknowledged they had, the sergeant said, “Let me have .it”. The defendant handed over $101, included in which were the marked $50 the undercover had used in the purchase. The defendant was told he was under arrest and the others were released. The defendant was taken by police car to the station where the undercover looked at him through a one-way mirror. He said that “he thought it was him, but he was not sure”. The sergeant said “If you are not a hundred percent sure it’s him, then I’m going to.release him”. Again, the undercover responded that “he could not be a hundred percent sure at that time”. While the process to release the defendant was going on, a cap
Dissenting Opinion
dissents in a memorandum as follows: The statement of facts by the majority is fairly presented. However, I disagree with the majority’s conclusion, both on the issue of suppression of the money which defendant handed over to the police, and on the issue of the Wade motion. “In evaluating the police action we must consider whether or not it was justified in its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible (People v Cantor, 36 NY2d 106, 111). We bear in mind that any inquiry into the propriety of police conduct must weigh the interference it entails against the precipitating and attending conditions. By this approach various intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence. The minimal intrusion of approaching to request information is permissible when there is some objective credible reason for that interference not necessarily indicative of criminality (People v De Bour ***). The next degree, the common-law right to inquire, is activated by a,founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary