People v. Alexander

• Decision Date: 19 June 1975
• Citation: 37 N.Y.2d 202,371 N.Y.S.2d 876,333 N.E.2d 157
• Parties: , 333 N.E.2d 157 The PEOPLE of the State New York, Respondent, v. Leon ALEXANDER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 876

371 N.Y.S.2d 876

37 N.Y.2d 202, 333 N.E.2d 157

The PEOPLE of the State New York, Respondent, v. Leon ALEXANDER, Appellant.

Court of Appeals of New York.

June 19, 1975.

Barry Bassis and William E. Hellerstein, New York City, for appellant.

Richard H. Kuh, Dist. Atty. (Kenneth P. Kolson and Lewis R. Friedman, New York City, of counsel), for respondent.

GABRIELLI, Judge.

The defendant seeks to have set aside his conviction, upon his plea of guilty, of the crime of attempted criminal possession of a dangerous drug. The Appellate Division has affirmed (44 A.D.2d 910, 355 N.Y.S.2d 1023) and the defendant contends, basically, that there was a lack of probable cause to authorize the seizure of a quantity of heroin.

While riding in the right rear passenger seat of a marked patrol car on West 116th Street in New york City, the arresting officer observed defendant leaning against the rear of a parked vehicle, holding a stack of glassine envelopes in his partially cupped hand, the open portion of which was facing the street. The record showed that this officer had previously made over 100 narcotics arrests, more than half of which involved glassine envelopes, and that he had received formal training in drug detection. Upon completion of a suppression hearing at which the arresting officer and the other two officers present in the car testified, the hearing Judge in an oral decision made a finding that 'he (the arresting officer) saw what looked like plastic envelopes--what they call glassine envelopes, in the manner in which he described it in this courtroom, and that seeing that at a moments notice, he ran out of the car, and as he got there--the defendant now realizing that there was a (uniformed) officer coming--attempted to get rid of it in any way he did, and he dropped it or threw it--anyway you want to describe the manner. And he (the officer) grabbed his (defendant's) hands. * * * I find that to be a proper search'.

In view of these affirmed findings of fact, there must be an affirmance. In addition to the officer's observation of 'a quantity' of glassine envelopes, a 'telltale sign of heroin' (People v. Corrado, 22 N.Y.2d 308, 313, 292 N.Y.S.2d 648--651, 239 N.E.2d 526, 529; see, also, United States v. Mont, 2 Cir., 306 F.2d 412, 414, cert. den. 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272; United States v. Moon, 2 Cir., 351 F.2d 464, 465, cert. den. 383 U.S. 929, 86 S.Ct. 936, 15 L.Ed.2d 848), it was found that the arresting officer was trained and experienced in narcotics police work (People v. Valentine, 17 N.Y.2d 128, 269 N.Y.S.2d 111, 216 N.E.2d 321) and, perhaps most important, that, prior to the arrest, the defendant dropped or threw the envelopes, thereby evincing a consciousness of guilt upon seeing the approaching uniformed formed officer (People v. Butterly, 25 N.Y.2d 159, 162--163, 303 N.Y.S.2d 57, 60--61, 250 N.E.2d 340, 342). In these circumstances, where more than one inference may be drawn from the facts, the question of probable cause is primarily one of fact (People v. Oden, 36 N.Y.2d 382 368 N.Y.S.2d 508, 329 N.E.2d 188), and this court has no power to review factual determinations, save the situation, not now before us, where upon any view of the facts, probable cause does not exist (People v. Leonti, 18 N.Y.2d 384, 390, 275 N.Y.S.2d 825, 830, 222 N.E.2d 591, 594 and the authorities cited therein; Cohen and Karger, Powers of the Court of Appeals (rev ed), § 198, p. 742).

The order of the Appellate Division should be affirmed.

COOKE, Judge (dissenting).

I dissent and vote to reverse. The facts are not in dispute. What is in question is whether some of those facts were improperly considered and employed by the court as the basis of its finding of probable cause.

Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that an offense has been committed (Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134; Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 93 L.Ed. 1879). It has been held that the question of probable cause is a mixed question of law and fact, the truth and existence of the facts and circumstances being a factual question and the determination that such facts and circumstances constitute probable cause being a question of law (Director Gen. v. Kastenbaum, 263 U.S. 25, 28, 44 S.Ct. 52, 68 L.Ed. 146; Worthington v. United States, 6 Cir., 166 F.2d 557, 564; Cooper v. United States, 57 App.D.C. 54, 16 F.2d 830, 831; 6 C.J.S. Arrest § 6, pp. 598--599; 75 Am.Jur.2d, Trial, § 360; cf. Stewart v. Sonneborn, 98 U.S. 187, 194, 25 L.Ed 116; Fagnan v. Knox, 66 N.Y. 525, 527; Besson v. Southard, 10 N.Y. 236, 240; McCormick v. Sisson, 7 Cow. 715, 717; 87 A.L.R.2d 183, 188--189; see People v. De Sisto, 27 Misc.2d 217, 241, 214 N.Y.S.2d 858, 886, revd. on other grounds Sub nom. People v. Lo Cicero, 17 A.D.2d 31, 230 N.Y.S.2d 384, mod. 14 N.Y.2d 374, 251 N.Y.S.2d 953, 200 N.E.2d 622).

Knowledge of those facts and circumstances which formed the basis of the belief that an offense has been committed must have rested within the officer's mind at the time he restrained defendant. The testimony of the arresting officer should be reviewed to determine the actual order in which the events occurred. On direct examination, Officer Best testified: 'I saw the defendant, Leon Alexander, leaning against un automobile, with his right hand cupped, with a quantity of glassine envelopes in that same hand. * * * He was to the curb side. * * * He had his back to me. * * * I got out of the automobile I asked the officers to stop immediately. I got out of the automobile. As I was getting out of the automobile the defendant glanced towards me. * * * As the defendant looked in my direction I called out a name and looked up towards the second story window, as if someone had called to me. When I did this, to my knowledge the defendant froze. The defendant froze and I was able to get up on the defendant and place both hands about his wrist. Prior to me getting to place both hands on his wrist, almost simultaneously the defendant dropped or intentionally dropped * * * a quantity of glassine envelopes to the...