People v. Bittner

• Decision Date: 14 November 1983
• Citation: 468 N.Y.S.2d 508,97 A.D.2d 33
• Parties: The PEOPLE, etc., Appellant, v. Robert F. BITTNER, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 508

468 N.Y.S.2d 508

97 A.D.2d 33

The PEOPLE, etc., Appellant, v. Robert F. BITTNER, Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 14, 1983.

John J. Santucci, Dist. Atty., Kew Gardens (Jeanette Lifschitz and Richard G. Denzer, Kew Gardens, of counsel), for appellant.

Peter M. Wolf, Forest Hills, for respondent.

Before GIBBONS, J.P., and O'CONNOR, WEINSTEIN and BROWN, JJ.

WEINSTEIN, Justice.

Respondent and his wife ¹ were indicted for criminal possession of a controlled substance in the fifth degree emanating from an incident which occurred on or about January 31, 1981, when, acting in concert with another person, they allegedly knowingly and unlawfully possessed a quantity of Phencyclidine (i.e., angel dust) with intent to sell same. Following a hearing upon defendants' motion to suppress certain items of physical evidence seized from them at the time of their arrest and certain statements made by respondent to the police, the motion was, in all respects, granted. The validity of the order of suppression as to respondent is the subject of this appeal.

The sole witnesses to testify at the suppression hearing were two police officers summoned by the People. Officer Donahue had been a police officer for some nine years. After having received special training, he was assigned to the Narcotics Squad in June, 1980. In that capacity he undertook the task of apprehending drug violators. In the course of his duty, he and his partner, Officer Doyle, were seated in an unmarked vehicle in a notoriously drug-prone area on the evening of January 31, 1981. At approximately 8:15 P.M., the officers, with the aid of binoculars, observed a car with three occupants pull up to the curb approximately 100 feet away from their vantage point. Two of the occupants of the vehicle were respondent (the driver) and his wife. Shortly thereafter, three men approached the vehicle and engaged in a brief conversation with the occupants. An unidentified object was passed from respondent's hand to one of the three men, who then took the object, held it up to his nose with two hands and appeared to be smelling it. ² In exchange for the substance, the unknown man passed what appeared to be currency to respondent in the car. "A short period after", another car pulled up in front of respondent's vehicle, whereupon a male exited, approached respondent, who was still seated in his car, and engaged in an identical transaction. At that point, Officer Donahue summoned the backup unit and informed them that he was going to make an arrest.

After calling the backup unit, the officers drove their unmarked vehicle directly behind respondent's car. Officer Donahue exited, identified himself as a police officer and ordered respondent and his companions out of their vehicle. After searching respondent and finding an envelope of marijuana on his person, Officer Donahue handcuffed him and put him and his male companion in the rear seat of the police car. Officer Doyle had them exit the police car and conducted a more thorough search. Doyle removed a clear plastic bag of angel dust from respondent's coat pocket. One of the uniformed officers who had arrived upon the scene then discovered four tin foils of angel dust on the back seat of the police vehicle.

At the station house, $237 was recovered from respondent and his wife. This amount, along with the drugs seized, was vouchered and all defendants were apprised of their rights. After being apprised of his rights, respondent unequivocally expressed his willingness to answer questions without an attorney present. Respondent was then taken to Central Booking where he confessed that he had been selling angel dust, that he had sold "ten dimes of dust" that evening and that the balance of the $237 taken from him and his wife at the police station constituted his rent money. Respondent further stated that it was his male companion who had dropped the four dime bags of angel dust in the back seat of the police car.

Officer Donahue's positive in-court identification of respondent was based upon his observation of him on the street that evening for approximately 7 to 12 minutes from a distance of 100 feet. The scene of the crime was adequately illuminated by street lamps, as well as the lights of a nearby building.

Officer Doyle testified that he had observed an exchange between respondent, who was seated at the driver's side of his automobile, and an unidentified male who approached the vehicle. The latter sniffed the object, withdrew some money from his wallet and handed it to respondent.

After the hearing, the court concluded that there was no probable cause to arrest respondent inasmuch as the behavior observed by the officers was too equivocal to warrant an arrest. Accordingly, the motion to suppress the physical evidence recovered by the police, as well as the statements made by respondent, was granted in its entirety. We disagree and reverse the order under review insofar as appealed from, deny the suppression motion as to respondent, and remit the matter to the Supreme Court, Queens County, for further proceedings consistent herewith.

The issue involved in this case concerns the weight to be accorded the passing of an unknown substance, followed by a currency exchange after sniffing said substance, in determining whether probable cause was established for a narcotics arrest. An examination of the minimum showing necessary to establish the existence of probable cause is thus in order.

The evidence needed to establish probable cause to justify an arrest need not be of such degree as to constitute proof beyond a reasonable doubt (People v. Miner, 42 N.Y.2d 937, 938, 397 N.Y.S.2d 999, 366 N.E.2d 1353). Rather, probable cause exists if the facts and circumstances known to the arresting officer would warrant 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. Oden, 36 N.Y.2d 382, 384, 368 N.Y.S.2d 508, 329 N.E.2d 188; People v. Crosby, 91 A.D.2d 20, 26, 457 N.Y.S.2d 831, mot. for lv. to app. den. 59 N.Y.2d 765, 464 N.Y.S.2d 1028, 451 N.E.2d 507).

In the seminal case of People v. McRay, 51 N.Y.2d 594, 601, 435 N.Y.S.2d 679, 416 N.E.2d 1015, the Court of Appeals held that a glassine envelope, once considered to be merely a "telltale sign of heroin" (see People v. Alexander, 37 N.Y.2d 202, 204, 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), "can now be deemed the hallmark of an illicit drug exchange" due to the "alarming pervasiveness of drugs in our society" (People v. McRay, supra, 51 N.Y.2d pp. 603-604, 435 N.Y.S.2d 679, 416 N.E.2d 1015) and the infrequency of legitimate street encounters which involve glassine envelopes. Whereas the glassine envelope as a "telltale sign" required additional relevant behavior or circumstances to raise the level of inference from suspicion to probable cause, as a "hallmark", the exchange of a glassine envelope would all but constitute per se probable cause (People v. McRay, supra, p. 604, 435 N.Y.S.2d 679, 416 N.E.2d 1015). The court, nevertheless, outlined certain circumstances which, when combined with the exchange of the glassine envelope, may give rise to the finding of probable cause. The exchange of money, for instance, would almost surely evince the existence of probable cause. Additionally, evidence of furtive or evasive behavior on the part of the participants would suffice to establish probable cause. If the exchange occurs "in an area rampant with narcotics activity, and is proven by competent evidence", an inference of probable cause may be drawn. "The character of the community known to the arresting officer provides the supplemental element--the additional requisite assurance that the observer has witnessed an illicit dealing rather than an innocent encounter" (People v. McRay, supra, p. 604, 435 N.Y.S.2d 679, 416 N.E.2d 1015). The Court of Appeals concluded in McRay, supra, p. 605, 435 N.Y.S.2d 679, 416 N.E.2d 1015, that "there is no sound basis for resisting as a matter of law the inference of probable cause that arises when * * * a trained and experienced officer observes the delivery of one or more glassine envelopes--the 'hallmark' of a drug transaction --in an area notorious...