People v. Jones

• Citation: 232 N.Y.S.2d 18
• Parties: PEOPLE v. James JONES.
• Decision Date: 03 August 1962
• Court: New York Court of General Sessions

Page 18

232 N.Y.S.2d 18

PEOPLE v. James JONES.

Court of General Sessions, New York County.

Aug. 3, 1962.

J. William Jarshower, New York City, for defendant.

Frank S. Hogan, Dist. Atty., by Edward M. Davidowitz, Asst. Dist. Atty., for the People.

MITCHELL D. SCHWEITZER, Judge.

This is a motion to suppress the evidence seized in this case on an alleged illegal search and seizure. Since the facts and circumstances of the case pose unique questions of constitutional law it is important to analyze them in some detail.

The defendant claims that he was standing in a bar and grill at No. 2338 Eighth Avenue on February 27, 1962, when the arresting officer approached and asked to search him. The defendant refused, but the officer, nevertheless arrested the defendant for disorderly conduct, subsequently searched him and found the narcotics which form the basis for the instant indictment. The disorderly conduct charge was dismissed.

The defendant asserts that the dismissal of the disorderly conduct charge conclusively establishes the illegality of the arrest (People v. Dreares, 15 A.D.2d 204, 221 N.Y.S.2d 819, aff'd 11 N.Y.2d 906, 228 N.Y.S.2d 467, 182 N.E.2d 812). There can be no question that if an arrest is illegal, a search incidental to that arrest will also be illegal and render inadmissible any evidence so seized (Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 [1957]; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 [1959]).

However, the People contend that the arrest for the possession of narcotics was lawful despite the fact that the disorderly conduct charge was dismissed. The People's affidavit indicates that the arresting officer was on patrol on February 28, 1962, in the vicinity of No. 2338 Eighth Avenue when he was contacted by an informant whom he knew to be a drug addict . From prior experience he believed the informant to be reliable. The informant asked the officer if he wanted information about a drug seller from whom the informant had purchased narcotics. The officer answered in the affirmative and the informant then went into a bar at No. 2338 Eighth Avenue, stood behind the defendant and indicated by a prearranged signal to the officer that the defendant was the person from whom he had purchased narcotics.

The officer left, and later returned to the location in plainclothes and stationed himself in the doorway of a store across the street. During a period of twenty minutes observation, he saw four or five people whom he knew to be drug addicts approach the defendant. Each of these persons handed money to the defendant and each received something in exchange. The officer then approached the defendant and asked him what he was doing. A sharp exchange of words ensued and the officer arrested the defendant for disorderly conduct. At the precinct, the defendant was searched and twenty-two decks of heroin of a felonious weight were found on his person.

Section 177 of the Code of Criminal Procedure provides that a peace officer, may, without a warrant arrest a person 'when he has reasonable cause for believing that a felony has been committed, and that the person arrested has committed it, though it should afterward appear that no felony has been committed, or, if committed, that the person arrested did not commit it.'

In this case the officer had information from an informant he believed reliable that the defendant was trafficking in narcotic drugs. His observations of known addicts approaching the defendant handing him money and receiving something in exchange, manifestly tended to corroborate the informant's statements. Clearly there was more than 'mere suspicion,' and probable cause does not require that degree of evidence necessary to convict (Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 [1949]). It would appear therefore, that if the officer is to be believed, he had reasonable grounds to believe that the defendant was committing the felonies of selling narcotic drugs and possession of narcotic drugs with intent to sell in violation of Penal Law Sections 1751(1) and (2). There would then be no doubt as to the reasonableness of the officer's conduct if he had initially arrested the defendant for the narcotics charge and searched him incidentally thereto (Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 [1959]). However, the case has been complicated by the ill-conceived thinking and obvious subterfuge of the officer in first illegally arresting ...