People v. Cameron

• Decision Date: 15 February 1973
• Parties: The PEOPLE of the State of New York v. Charles CAMERON, a/k/a Thomas Scott and Edward James McCoy, Defendants.
• Court: New York Supreme Court

Page 773

342 N.Y.S.2d 773

73 Misc.2d 790

The PEOPLE of the State of New York v. Charles CAMERON, a/k/a Thomas Scott and Edward James McCoy,

Defendants.

Supreme Court, New York County, Part 47.

Feb. 15, 1973.

[73 Misc.2d 791] Frank S. Hogan, Dist. Atty., New York County by Clifford Fishman, Asst. Dist. Atty., of counsel, for the People.

H. Richard Uviller, New York City, for defendant Cameron.

Lawrence K. Feitell, New York City, for defendant McCoy.

OPINION

IRVING LANG, Judge.

Defendants were arrested on October 29, 1971 and charged with possession of 10,952 bags of heroin. Subsequently indicted for Criminal Possession of a Dangerous Drug in the First Degree, the defendants move to suppress the physical evidence and statements attributed to them on constitutional grounds. ¹

On the hearing on the motion, Ptl. Louis Anemone and Ptl. Donald Sherwood testified for the People. Ptl. Joseph Failla, Ptl. Gerald Flaherty and Ptl. Edward Bentley were called as witnesses by the defense. Charles Cameron also testified in his own behalf.

A principal issue to be resolved on this motion is one of credibility. The hearing produced some minor contradictions between the officers' testimony and for the most part, there was a direct conflict between the police testimony and the testimony of defendant Cameron.

In resolving such contradictions and conflicts, I have taken consideration of the witnesses' demeanor, candor, experience and intelligence. Furthermore, in regard to the officers' testimony I have considered the fact that detailed notes relating to the events in this case were written in their memorandum books, a commendable, indeed essential practice, too often ignored by police in many cases.

I make these findings of fact:

On October 28, 1971, Patrolmen Louis Anemone, Joseph Failla and Edward Bentley were on anti-crime patrol, in plain clothes and in an unmarked car, in the vicinity of Bennett Avenue in the Washington Heights section of Manhattan. At approximately 12:30 a.m. to approximately 2:00 a.m. they saw a trio of late model Cadillacs, two with out of state license plates, double parked in front of 179 Bennett Avenue, a 10 story apartment house. At about 2:00 a.m. they saw three men leave the building and drive away, respectively. The next day, before beginning their tour of duty, the officers were given a 'condition slip' that there was a report of 'sex and drugs' in apartment 4D at 179 Bennett Avenue. The slip was anonymous and contained no further specifics.

At about 12:45 a.m. on October 29, 1971, the officers saw two Cadillacs again double parked in front of the building. Shortly thereafter, the third Cadillac reappeared. Stationing themselves about 100 feet north of the building, at about 1:30 a.m. they observed defendants Cameron and McCoy exit the building. McCoy, who was recognized from the night before, was carrying a black satchel. He handed the satchel to Cameron and then both got into the car with the New Jersey plates. McCoy was the driver. The defendant's car proceeded south until the intersection of Bennett Avenue and 181st Street where they stopped and made a right turn. At this intersection a radio car, occupied by Ptl. Flaherty and Sherwood was stationed. When the unmarked car reached the intersection it stopped alongside the radio car and a conversation ensued. Thereafter, the radio car, with red lights blinking, pursued defendants' car until it reached Haven Avenue and 181st Street and beeped its horn for defendants to pull over. Ptl. Flaherty motioned to McCoy to come back to the radio car and he did so. Cameron remained in the Cadillac. Ptl. Flaherty noted in his memorandum book that he stopped a 'suspicious car.'

Momentarily the unmarked car appeared and pulled up in front of the Cadillac. All three officers left their car. Ptl. Failla and Anemone walked toward Cameron who was sitting in his car. Ptl. Bentley stationed himself on the sidewalk at the rear of the Cadillac. Ptl. Anemone identified himself and asked Cameron 'if he would please remove the bag from the car, we would like to have a look in it.' Cameron replied, 'it is not my bag, I won't touch it.' The bag, at the time was on the floor by the front seat. Anemone and Failla then walked toward McCoy and the radio car. Cameron without being asked left his car and followed them. Anemone told McCoy that Cameron said the bag wasn't his and that 'we would like a look.' McCoy replied the bag belonged to the man who owned the car. The car registration was made out to one Joanna Edwards. By this time, the defendants and the officers had walked back to the Cadillac. Anemone, addressing both of them, asked 'if it does not belong to you, you don't mind if I have a look in it, do you?' Cameron shrugged. McCoy answered 'Go ahead.'

At this time the officers and the defendants were standing in sort of a semicircle.

Ptl. Anemone removed the satchel and unzippered it. Upon discovering its contents he let off a scream--'Holy Cow'--in response to which McCoy said 'You're acting like a kid, you think you really got something there.'

Defendants were told they were under arrest and advised of their rights. Ptl. Bentley then got into the rear seat of the radio car with the defendants and as they were taken to the station house Cameron said 'You don't have shit, this is illegal search and seizure.' Bentley replied, 'Well, we will see.'

Later, Cameron inquired of Ptl. Anemone about the grade felony he would be charged with and requested the officer contact his lawyer or family.

The People argue that the search and seizure of the bag containing the heroin is sustainable under one or more of the following theories: (1) That the search and seizure was incident to a lawful arrest; (2) That the defendants abandoned the satchel; (3) That the defendants consented to the search and seizure.

Probable Cause to Arrest

The general rule is that all warrantless searches are per se unreasonable under the Fourth Amendment, subject to a few specifically established exceptions (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576) one of which is a search incident to a lawful arrest (People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685). An arrest is lawful when it is based on probable cause--facts and circumstances such as to warrant a man of prudence and caution in believing that a crime has been or is being committed in his presence (CPL §§ 140.10, 140.25, Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879). In determining if a police officer has sufficient probable cause in a given situation, many factors must be considered: the officer's experience, training and expertise; his intelligence and his street knowledge; the circumstances of the time and place--the area, its population, the time of day of the events. 'In dealing with probable cause . . . we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men . . . act.' (Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879). As it applies to police, the standard is that which would be probable cause to a reasonable, cautious, prudent police officer. (People v. Valentine, 17 N.Y.2d 128, 269 N.Y.S.2d 111, 216 N.E.2d 321)

Here Officers Anemone, Failla and Bentley observed three Cadillacs double parked in front of 179 Bennett Avenue on October 28, 1971 while on routine patrol. They saw three men leave the building, get into the cars and depart. There was no suggestion of criminal activity. When the officers were given the 'condition slip' with a report of sex and drugs in Apartment 4D at 179 Bennett Avenue, they may have mentally connected it to their observations the night before. Certainly the officers could and did make further observation at that address. But the observations on October 29 in and of itself were also innocent. The fact that the officers saw the two defendants carrying a bag out of the building and get into a late model car with out-of-state plates did not give rise to an inference of criminal activity. (Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; United States v. Nicholas, 448 F.2d 622 (8th Cir., 1971)) Officer Anemone testified that these observations made him suspicious. Of course, just like anyone else, a police officer is entitled to have a hunch. A suspicious nature is a commendable trait in a police officer. Having such suspicions, the officers were entitled to investigate and explore them in a lawful manner, including the stopping of the defendants to inquire further.

While the reasons behind the officers' decision to contact the radio car and have the officers in that car make the initial stop of the defendants, are unknown to this Court, it may be assumed that it was part of some plan to investigate the defendants' activity. Such assumption is buttressed by the entries in Officer Flaherty's memorandum book that they stopped a 'suspicious car.'

Although the Court does not condone the indiscriminate stopping and interrogation of citizens at the whim of the police, the police do have a right to detain, make inquiry, and investigate persons upon justifiable suspicion. Police have the duties of crime prevention and detection as well as apprehension. Police officers may approach a suspect, observe him and his possessions, ask for identification and an explanation of his conduct at the time. (CPL § 140.50(1); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32; People v. Rosemond, 26 N.Y.2d 101, 308 N.Y.S.2d 836, 257 N.E.2d 23.)

The stopping of the defendants, by itself, does not constitute an arrest. (Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; People v. Estrialgo, 19 A.D.2d...