People v. Graham

• Decision Date: 02 May 1995
• Citation: 626 N.Y.S.2d 95,211 A.D.2d 55
• Parties: The PEOPLE of the State of New York, Respondent, v. David GRAHAM, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 95

626 N.Y.S.2d 95

211 A.D.2d 55

The PEOPLE of the State of New York, Respondent, v. David GRAHAM, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

May 2, 1995.

A. Hirsch, of counsel (Winston McIntosh, on the brief, Philip L. Weinstein), for defendant-appellant.

Karen J. Jason, of counsel (Sylvia Wertheimer, Jonathan J. Faust, Joel L. Rubinstein, with her on the brief, Robert M. Morgenthau, District Attorney of New York County), for respondent.

Before SULLIVAN, J.P., and ROSENBERGER, KUPFERMAN, ASCH and MAZZARELLI, JJ.

SULLIVAN, Justice Presiding.

This appeal presents the issue of whether the observation by an experienced police officer, in a "drug prone" location, of five separate transactions in each of which defendant exchanged money for a small object he removed from a brown paper bag and thereafter placed the bag on the ground next to a fence about ten feet away, gives rise to probable cause.

The following facts were testified to at the suppression hearing, at which the People presented the only witness. On April 23, 1992, shortly before 2 p.m., Police Officers Smith and McDonald, uniformed and on foot patrol in the Lincoln Projects, stationed themselves in the lobby of a building directly across the street from 2101 Madison Avenue, a playground and a drug-infested area. Smith, a police officer for over five and one-half years and assigned to patrolling the Lincoln Projects for over four years, had personally made 50 narcotics-related arrests involving crack cocaine in the area around 2101 Madison Avenue and had assisted in over 100 more such arrests. On that particular day, bright, sunny and providing Officer Smith with a clear, unobstructed view of the area between the two buildings, the playground was littered with empty crack vials.

At about 1:55 p.m., Smith, using binoculars, observed a man approach defendant, who was sitting on a bench in the playground area in front of 2101 Madison Avenue. Defendant got up and the two men met between the bench and a fence. The man handed money to defendant, who reached into a brown paper bag he was holding, took out a small object and handed it to the man who, at that point, walked off. Defendant then took the brown paper bag, placed it on the ground next to a fence about ten feet away and sat back down on the bench.

A few minutes later, at approximately 1:59 p.m., Smith observed two other men approach defendant, who got up and retrieved the brown paper bag. The first man handed money to defendant, who reached into the bag, removed something from the bag and, while concealing the object in his cupped hand, handed it to the first man, who left. Defendant engaged in the same transaction with the second man, at the conclusion of which he again placed the brown paper bag on the ground near the fence before returning to the bench. Approximately two minutes later, at 2:01 p.m., two women approached defendant, who got up from the bench and retrieved the brown paper bag. The first woman handed money to defendant, who then reached into the bag, removed a small object and handed it to her; she then walked off. The second woman engaged in the same transaction with defendant, who once again placed the bag on the ground next to the fence and returned to the bench where he had been sitting.

Although Smith could, through the binoculars, observe money being exchanged in each of these transactions, he could not see what was being taken out of the brown bag and given in return. Asked to explain why, Smith, who believed that the objects were less than an inch in length, stated: "A vial is very small. It was kind of cupped. It was a fast transaction".

After observing the fifth transaction, Smith and McDonald left their observation post and walked across to where defendant was seated. McDonald approached defendant while Smith walked over to the bag, picked it up and, looking inside, saw six vials of what he knew from experience was crack cocaine. At Smith's direction, McDonald then arrested defendant.

Finding the testifying police officer credible and "an experienced officer trained in narcotics investigation in evaluating his observation", the hearing court found that Officer Smith had good reason to believe, given that the "stash" was kept not on defendant's person but was "secrete[d] ... within reasonably close distance", that what he saw was not an "innocent transaction". Accordingly, the court, citing People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015, denied suppression.

Preliminarily, we note that while the People contest defendant's standing to challenge the search of the bag, they did not raise the issue either in their papers opposing suppression or at the hearing itself. Thus, the issue is not preserved for appellate review as a matter of law. (People v. Stith, 69 N.Y.2d 313, 320, 514 N.Y.S.2d 201, 506 N.E.2d 911.)

The thrust of defendant's argument on appeal is that Officer Smith's observations of defendant as he exchanged unidentified objects for money in a drug-infested area, in the absence of other significant factors, are insufficient to establish probable cause. The standard for probable cause justifying a search or seizure is not the same as that required to establish guilt. "Probable cause does not require proof to a mathematical certainty, or proof beyond a reasonable doubt." (People v. Mercado, 68 N.Y.2d 874, 877, 508 N.Y.S.2d 419, 501 N.E.2d 27, cert. denied 479 U.S. 1095, 107 S.Ct. 1313, 94 L.Ed.2d 166.) Probable cause is defined as the body of information available to a police officer "which would lead 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. McRay, supra, 51 N.Y.2d, at 602, 435 N.Y.S.2d 679, 416 N.E.2d 1015.) Since the Fourth Amendment's commands are "practical and not abstract", they must be interpreted "in a commonsense and realistic fashion." (United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.)

Clearly, if Officer Smith had observed vials, glassine envelopes, tinfoil packets or any other type of package commonly associated with a drug transaction, probable cause would have existed. (See, e.g., People v. McRay, supra, 51 N.Y.2d, at 606, 435 N.Y.S.2d 679, 416 N.E.2d 1015 [glassine envelopes]; Matter of James P., 194 A.D.2d 467, 599 N.Y.S.2d 259, lv. denied 82 N.Y.2d 659, 605 N.Y.S.2d 5, 625 N.E.2d 590 [vial]; People v. Balas, 104 A.D.2d 1039, 1040, 480 N.Y.S.2d 951 [tinfoil packet].) But the observation of a drug package is not a sine qua non for the existence of probable cause in a drug sale. (See, e.g., People v. Shaw, 193 A.D.2d 390, 596 N.Y.S.2d 832 ["objects" extracted from a bag and exchanged for money], lv. denied 82 N.Y.2d 853, 606 N.Y.S.2d 605, 627 N.E.2d 527; People v. Owens, 155 A.D.2d 696, 697, 548 N.Y.S.2d 263 ["object[s]" were passed through a missing windowpane in the front door of an apartment building in exchange for money]; People v. Bittner, 97 A.D.2d 33, 37, 468 N.Y.S.2d 508 [unidentified object exchanged].)

In a probable cause analysis, the emphasis should not be narrowly focused on a recognizable drug package or any other single factor, but on an evaluation of the totality of circumstances, which takes into account the "realities of everyday life unfolding before a trained officer who has to confront, on a daily basis, similar incidents" (People v Cabot, 88 A.D.2d 556, 557, 450 N.Y.S.2d 489). ¹

As this court noted in People v. Shaw, supra, 193 A.D.2d, at 391, 596 N.Y.S.2d 832, the jurisprudence in this area "has moved beyond such niceties as distinctions based on the color or degree of opacity of the envelope" to the point where the visual identification of the object exchanged for money is merely one element in the totality of circumstances to be considered in any probable cause assessment. Since street-level drug sales typically involve small, easily concealable packages, utilization of a totality of the circumstances analysis is both reasonable and necessary. Street sellers of narcotics should not enjoy an immunity from arrest or search merely because they are able to conceal their wares during the exchange; concealment is itself a common characteristic of illegal conduct.

In People v. McRay, supra, 51 N.Y.2d, at 604, 435 N.Y.S.2d 679, 416 N.E.2d 1015, the Court of Appeals identified certain factors which, when combined with the passing of a glassine envelope, may give rise to a finding of probable cause. The court initially pointed to the exchange of money, noting, "To begin with the most obvious, if money is passed in exchange for the envelope, probable cause almost surely would exist [citations omitted]. Exchange of currency negates all but the most implausible explanations for the transaction, and thus conveys more than sufficient indicia of a drug sale to warrant an arrest" (51 N.Y.2d, at 604, 435 N.Y.S.2d 679, 416 N.E.2d 1015). The court also noted that "additional evidence of furtive or evasive behavior on the part of the participants suffices to establish probable cause [citations omitted]. ...