51 N.Y.2d 594, People v. McRay
| Date | 18 December 1980 |
| Docket Number | . |
| Citation | 435 N.Y.S.2d 679,51 N.Y.2d 594 |
| Parties | People v. McRay |
| Court | New York Court of Appeals Court of Appeals |
Page 594
[435 N.Y.S.2d 680] Robert M. Morgenthau, Dist. Atty. (Robert M. Pitler and Susan Corkery, New York City, of counsel), for the People.
Howard W. Muchnick, New York City, for McRay.
Joseph Calluori, New York City, for Charles J.
William E. Hellerstein, New York City, for Charles J. and Hester.
Elaine T. Stogel, New York City, for Hester.
OPINION OF THE COURT
COOKE, Chief Judge.
These three appeals involve variations of the common glassine envelope scenario.
They are the latest in the persistent line of those cases assaying the weight to be accorded the passing of glassine envelopes in determining whether probable cause was established for a narcotics arrest. In the present day culture, such evidence presents such a strong clue of criminality that little [435 N.Y.S.2d 681] more by way of relevant facts or circumstances is required in supplementation to justify the arrest. In each of these three matters, proof by a qualified observer that the exchange of the envelopes occurred in an area known for its high incidence of narcotic activity provided the requisite additive so that a finding of probable cause was permissible.
I
In People v. McRay, defendant was arrested by a Street Enforcement Unit of the New York City Police Department. The police team was headed by Sergeant Alvin Ingram, 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 arrests, Ingram completed Federal and local courses in illicit drug dealings and has testified before a congressional committee investigating drug abuse.
On August 10, 1977, the sergeant and his unit set up an undercover buy operation on West 127th Street in Manhattan. The area, according to Ingram's 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, Ingram 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. Ingram followed McRay 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. Sergeant Ingram 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, McRay 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. The Appellate Division, 74 A.D.2d 522, 425 N.Y.S.2d 978, finding a lack of probable cause for arrest, entered an order of reversal on the law. That order is now reversed.
II
In People v. Charles J., defendant was arrested by veteran Police Officer Lyman Gerrish and his partner, Officer Evans. On February 26, 1977, Gerrish 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 trafficking that it became a target of a special police campaign called "Operation Drug." Of the approximately 100 drug arrests made by Officer Gerrish, 30 or 40 had occurred at this same location. Gerrish 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 Gerrish saw defendant reach beneath his coat into his sweater pocket, withdraw a white glassine envelope and pass the envelope to the other individual. [435 N.Y.S.2d 682] 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, 73 A.D.2d 322, 425 N.Y.S.2d 978 affirmed. That order is now affirmed.
III
In People v. Hester, defendant was arrested by an officer also assigned to "Operation Drug", Ronald Bellistri. An experienced narcotics officer, Bellistri had made more than 100 drug-related arrests and had received formal law enforcement training in the narcotics field. On April 6, 1977, Bellistri and his partner stationed themselves in a vacant apartment overlooking West 115th Street near Seventh Avenue. Officer Bellistri had made numerous drug arrests on that block. Within a few minutes, the officers observed defendant and one Artis Jones 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. Jones 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. Artis Jones 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 possession of a controlled substance in the third degree. The Appellate Division, 71 A.D.2d 121, 421 N.Y.S.2d 569 concluding that there was no probable cause for an arrest, reversed on the law. That order is now in turn reversed.
IV
At the outset, it is important to emphasize that probable cause determinations, which involve questions of fact or mixed questions of law and fact, generally are beyond the review powers of this court (People v. Wharton, 46 N.Y.2d 924, 925, 415 N.Y.S.2d 204, 388 N.E.2d 341; People v. Clements, 37 N.Y.2d 675, 677-678, 376 N.Y.S.2d 480, 339 N.E.2d 170; People v. Oden, 36 N.Y.2d 382, 384-385, 368 N.Y.S.2d 508, 329 N.E.2d 188). Thus, where the facts are disputed, where credibility is at issue or where reasonable minds may differ as to the inference to be drawn from the established facts, this court, absent an error of law, will not disturb the findings of the Appellate Division and the suppression court (e. g., People v. Wharton, supra; People v. Oden, supra ). On the other hand, when an issue arises as to the standard by which probable cause is measured the minimum showing necessary to establish probable cause a question of law is presented for review (see, e. g., People v. Clements, supra, at pp. 677-678, 376 N.Y.S.2d 480, 339 N.E.2d 170). In these three cases, it is the minimum requirement for probable cause that is at issue. Two were reversed by the Appellate Division, on the law, essentially on the ground that the undisputed facts do not meet the threshold requirement for probable cause. In the third, the defendant seeks reversal of his conviction on the same basis. Thus, there is presented the issue of what constitutes the lowest level of proof required for probable cause in the glassine envelope situation.
We are not without guideposts, however, since prior decision, have established principles relevant to these appeals. This court has consistently recognized that a glassine envelope is a "telltale sign of heroin" (People v. Alexander, 37 N.Y.2d 202, 203, 371 N.Y.S.2d 876, 333 N.E.2d 157; People v. Corrado, 22 N.Y.2d 308, 313, 292 N.Y.S.2d 648, 239 N.E.2d 526). The cases also indicate that a high incidence of narcotic trafficking in a particular community is a relevant circumstance in assessing probable cause (e. g., People v. Oden, 36 N.Y.2d 382, 385, 368 N.Y.S.2d 508, 329 N.E.2d 188, supra; People v. Brown, 32 N.Y.2d 172, 174, 344 N.Y.2d 356, 297 N.E.2d 94). And, the police officer's experience and training in narcotics investigations are entitled to [435 N.Y.S.2d 683] weight in evaluating his or her observations (e. g., People v. Alexander, supra, at pp. 203-204, 371 N.Y.S.2d 876, 333 N.E.2d 157; see People v. Valentine, 17 N.Y.2d 128, 132, 271 N.Y.S.2d 299, 218 N.E.2d 335). 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...
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