People v. Maldonado

• Citation: 59 A.D.2d 692,398 N.Y.S.2d 682
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert MALDONADO, Defendant-Appellant.
• Decision Date: 27 October 1977
• Court: New York Supreme Court — Appellate Division

Page 682

398 N.Y.S.2d 682

59 A.D.2d 692

The PEOPLE of the State of New York, Respondent, v. Robert MALDONADO, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 27, 1977.

T. Geller, New York City, for respondent.

A. L. Litter, New York City, for defendant-appellant.

Before KUPFERMAN, J. P., and EVANS, CAPOZZOLI and MARKEWICH, JJ.

MEMORANDUM DECISION.

Judgment of conviction, Supreme Court, Bronx County, rendered March 10, 1976, unanimously reversed, on the law, and the indictment dismissed. The information relied on by the police to justify the arrest and search of defendant-appellant was derived from observation by a police officer through binoculars at 9:30 p. m., after dark, of activity on the side of a car opposite that faced by the observer, at a distance said to have been 500 feet, of the passage of pieces of tin foil from the driver to defendant in return for pieces of green paper. The suppression court, expressing doubt as to the possibility of such observation, took a view himself in an endeavor to reconstruct the scene testified to. Assuming the observation to have been as testified, it did not justify the arrest. The standards laid down in People v. Lebron, 48 A.D.2d 800, 369 N.Y.S.2d 440 and People v. Corrado, 22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526 have not been met. Speaking of police knowledge as a basis for transmuting suspicion into probable cause, the Corrado court observed (page 313, 292 N.Y.S.2d page 651, 239 N.E.2d page 529):

"This knowledge, it is claimed, justified the officer in drawing the inference that appellants probably had contraband in their possession.

The argument is defective because the envelopes could have contained any number of noncontraband items. This is in sharp contrast to the translucent glassine envelope which has come to be accepted as the telltale sign of heroin. Still, even in the case of the glassine envelope it has never been held that the mere passing of such an envelope establishes probable cause. We conclude, therefore, that the testimony concerning the use of these common envelopes for marijuana does not raise the level of inference from suspicion to probable cause."

We know of no case in which it has been held that tin foil packages are "accepted as the telltale sign of" contraband. There is, therefore, no basis here for the inference that the observed traffic in tin foil assuming that it was indeed observed amounted to traffic in the forbidden substance.

...