People v. Oden

• Decision Date: 03 April 1975
• Citation: 368 N.Y.S.2d 508,329 N.E.2d 188,36 N.Y.2d 382
• Parties: , 329 N.E.2d 188 The PEOPLE of the State of New York, Appellant, v. Katie ODEN, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 508

368 N.Y.S.2d 508

36 N.Y.2d 382, 329 N.E.2d 188

The PEOPLE of the State of New York, Appellant, v. Katie ODEN, Respondent.

Court of Appeals of New York.

April 3, 1975.

Richard H. Kuh, Dist. Atty. (Jonathan Lovett and Lewis R. Friedman, New York City, of counsel), for appellant.

Bertrand J. Kahn and William E. Hellerstein, New York City, for respondent.

COOKE, Judge.

The People appeal from an order of the Appellate Term which affirmed a Criminal Court order granting, after hearing, defendant's suppression motion regarding certain physical evidence, on the ground of lack of probable cause.

On October 5, 1973, Gervasi, a New York City patrolman assigned to the Special Narcotics Enforcement Unit, was in the vicinity of 118th Street and Seventh Avenue looking for a person arrested several months earlier while in possession of a sizable quantity of heroin. While using an 8 to 25 power by 30 millimeter lens telescope, he observed defendant and James Johnson, neither of whom he had seen before, engage in a brief conversation. Johnson then handed defendant a glassine envelope, about one and a half inches wide by two and a half inches long. There is no proof of the distance separating said officer and defendant or of the telescopic power employed.

Gervasi at first testified that '(t)he envelope appeared white. I couldn't ascertain what was inside the envelope.' Then came this interrogation:

'The Court: Were you able to ascertain that there was something inside the envelope?

'The Witness: I said that the envelope appeared white. I could not tell what was inside the envelope.

'The Court: You testified that it was a glassine envelope. * * *

'The Court: A glassine envelope is not white, isn't that correct?

'The Witness: That is correct, Your Honor. When you fold the glassine emvelope, sometimes it may appear to be white.'

The record also reveals this questioning:

'Q. Would you describe to the Court how she held it in her hand? A. After she had accepted the envelope, she took a quick look at it and closed her hand tight.

'Mr. Mendelsohn: I object. He is not in a position to testify, whether she closed her hand tight or not.

'The Court: Was her hand closed?

'The Witness: Her hand was closed.

'The Court: In what position?

'The Witness: A closed fist.'

The officer also testified that the general area of this occurrence was a known narcotics location.

Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that the offense has been committed (Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134; Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 93 L.Ed. 1879). The question of probable cause is a mixed question of law and fact: the truth and existence of the facts and circumstances bearing on the issue being a question of fact, and the determination of whether the facts and circumstances found to exist and to be true constitute probable cause being a question of law (Director Gen. v. Kastenbaum, 263 U.S. 25, 28, 44 S.Ct. 52, 68 L.Ed. 146; Worthington v. United States, 6 Cir., 166 F.2d 557, 564; Cooper v. United States, 57 App.D.C. 54, 16 F.2d 830, 831; 6 C.J.S. Arrest § 6, pp. 598--599; 75 Am.Jur.2d, Trial, § 360; cf. Stewart v. Sonneborn, 98 U.S. 187, 194, 25 L.Ed. 116; Fagnan v. Knox, 66 N.Y. 525, 527; Besson v. Southard, 10 N.Y. 236, 240; McCormick v. Sisson, 7 Cow. 715, 717, 87 A.L.R.2d 183, 188--189; see People v. De Sisto, 27 Misc.2d 217, 241, 214 N.Y.S.2d 858, revd. on other grounds sub nom. People v. Lo Cicero, 17 A.D.2d 31, 230 N.Y.S.2d 384, mod. 14 N.Y.2d 374, 251 N.Y.S.2d 953, 200 N.E.2d 622). If the facts and circumstances adduced as proof of probable cause are controverted so that conflicting evidence is to be weighed, if different persons might reasonably draw opposing inferences therefrom, or if the credibility of witnesses is to be passed upon, issues as to the existence or truth of those facts and circumstances are to be passed upon as a question of fact; however, when the facts and circumstances are undisputed, when only one inference can reasonably be drawn therefrom and when there is no problem as to credibility, or when certain facts and circumstances have been found to exist, the issue as to whether they amount to probable cause is a question of law (Fagnan v. Knox, supra, 66 N.Y. p. 527; Besson v. Southard, supra, 10 N.Y. p. 240; Richardson, Evidence (Prince--10th ed.), § 118).

The detailed opinion of the Criminal Court (see CPL 710.60, subd. 6) stated that 'there are no other circumstances or suspicious activity in this case (other than the mere passing of a glassine envelope) which provide the requisite probable cause.' It was also held: 'While on a stakeout for a known narcotics dealer, the police officer happened to notice the passing of a glassine envelope, the contents of which he could not see, between Johnson and the defendant, neither of whom he knew. This is, without more, simply insufficient to constitute probable cause. The fact that the neighborhood here might have a high crime rate is totally irrelevant'. Thus, it is clear that said court did not credit or accept the proof regarding the quick look or the ambiguous testimony concerning defendant's closing of her hand tightly or that the envelope appeared white--all part of the fact-finding process. Appellate Term, in affirming, rendered no opinion.

Concededly, the incidence of a high crime rate is a relevant circumstance to be considered in determining the existence of probable cause (see People v. Brown, 32 N.Y.2d 172, 174, 344 N.Y.S.2d 356, 357, 297 N.E.2d 94, 95; People v. Hunter, 30 N.Y.2d 774, 776, 333 N.Y.S.2d 761, 762, 284 N.E.2d 879; People v. Rivera, 14 N.Y.2d 441, 445, 252 N.Y.S.2d 458, 461, 201 N.E.2d 32, 34). However, the reviewing court will pay substantial deference to...