People v. Pacheco
| Decision Date | 27 April 1973 |
| Parties | The PEOPLE of the State of New York v. Louis PACHECO and Jose Collazo, Defendants. |
| Court | New York City Court |
Defendant Louis Pacheco was charged with the sale of dangerous drugs (Penal Law § 220.35), a felony. Defendant Jose Collazo is charged with possession of dangerous drugs in the sixth degree (Penal Law § 220.05), a misdemeanor. By stipulation of the assistant district attorney and both defense counsel the cases were consolidated solely for the purpose of the hearings on the felony and misdemeanor complaints held pursuant to sections 180.60 and 170.75 of the Criminal Procedure Law. It was further stipulated that the evidence presented at the joint hearing would constitute the sole evidence to be considered by the court in connection with the motion of defendant Collazo, to suppress the seized evidence, pursuant to section 710.60, subd. 4 of the CPL.
From the testimony adduced at the joint preliminary hearing, the Court finds the facts to be as follows: On January 19, 1973, approximately 7:30 P.M., Ptl. John Lamont was making observations from the roof of an eighteen story building across the street from 135 East 110th Street. For approximately one-half of an hour he saw one Louis Pacheco standing in front of the building at that address. These observations were made with the aid of 7 X 50 power binoculars. During this time defendant Collazo approached Pacheco and appeared to engage in conversation. Then Collazo handed Pacheco money in bill form the denominations of which the patrolman could not discern. Pacheco appeared to refuse the amount offered; whereupon, Collazo reached into his pocket and produced more money in bill form, which Pacheco then accepted.
Leaving Collazo standing on the sidewalk in the middle of the block, Pacheco entered 135 East 110th Street. He emerged from the building about two minutes later, went back to where Collazo stood, looked in both directions up and down the street, and placed his closed hand over Collazo's right hand in a manner as if he were handing him something. The officer could not actually see any object passed, but he believed it to be a 'small package'. Collazo put his right hand into his coat pocket and walked away.
Ptl. Lamont then communicated by walkie-talkie with a brother officer, who was also on narcotics patrol, giving a description of Collazo and stating that he believed Collazo had just purchased narcotics. He testified he had nine years' experience in the Narcotics Squad, had made over 600 arrest involving narcotics which had resulted in 50 to 60 percent convictions, and witnessed hundreds of similar transactions through binoculars. About fifteen seconds later, Ptl. Lamont observed a fellow officer apprehend Collazo. Ptl. Freimann, the arresting officer, recovered five tinfoil packages of what he believed to be a narcotic drug from Collazo's right hand coat pocket. Laboratory analysis showed that the packages recovered contained a white substance, a portion of which was cocaine, a morphine derivative.
It is undisputed that neither Patrolmen Freimann or Lamont questioned defendant Collazo prior to the searching of his person. At no time prior to the search was defendant advised that he was under arrest. Ptl. Freimann testified that prior to the time he stopped Collazo on the street, he was informed by Ptl. Lamont that 'a male Puerto Rican wearing a brown leather jacket with a light color fur on the collar had purchased what he believed to be drugs and was proceeding . . . eastbound on 110th Street across Lexington Avenue'. Based on that description he approached defendant Collazo in his radio motor patrol vehicle. When he pulled alongside Collazo he heard over the walkie-talkie, 'That's him on your left'; whereupon, Ptl. Freimann alighted from his vehicle, walked up to Collazo, reached into his pocket and recovered the drugs.
Testimony was further adduced during cross-examination by the attorney for Pacheco, that during the half hour in which Ptl. Lamont had Pacheco under observation prior to this incident, he witnessed two incidents between Pacheco and other males, substantially identical to that involving Collazo. Defendant Collazo's attorney did not object to the introduction of this testimony. Fifteen minutes after the arrest of Collazo, defendant Pacheco was taken into custody.
At the close of the hearing the court held that as to the defendant Pacheco, it had reasonable cause to believe he had committed a felony and accordingly ordered him to be held for the action of the grand jury. As to the defendant Collazo, the court denied the motion to dismiss the accusatory instrument, but reserved decision on the motion to suppress, to which this opinion is addressed.
There is no absolute rule or equation that provides with any mathematical certainty what constitutes probable cause in a given case, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Probable cause exists if the facts and circumstances known to the officer warrant a prudent man to believe that an offense has been committed, Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). 'Probable cause' has been further defined as:
'. . . the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers . . . 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, not legal technicians, act.' People v. Tolentino, 40 A.D.2d 596, 335 N.Y.S.2d 958 (1st Dept. 1972)
In People v. Brown, 24 N.Y.2d 421, 301 N.Y.S.2d 18, 248 N.E.2d 867 (1969), the Court of Appeals dealt with a case involving a Solitary suspected sale of narcotics. The observed activity on which the arrest was based was as follows: A high crime area, a suspected narcotic addict, a meeting, parting, return and movement of hands.
The Court in that case stated that 'Although the observed acts of the defendant and the suspected narcotic addict were not inconsistent with a culpable narcotics transaction, they were also susceptible of many innocent interpretations, even between persons with a narcotics background. The behavior, at most 'equivocal and suspicious', was not supplemented by any additional behavior raising . The Court went on to say 'Thus, for example only, there was no recurring pattern of conduct sufficient to negate inferences of innocent activity (cf. People v. Smith, 21 N.Y.2d 698, 287 N.Y.S.2d 425, 234 N.E.2d 460; People v. Valentine, 17 N.Y.2d 128, 132, 269 N.Y.S.2d 111, 114, 216 N.E.2d 321, 323), no overheard conversation between the suspects that might clarify the acts observed (cf. People v. Cohen, 23 N.Y.2d 674, 295 N.Y.S.2d 927, 243 N.E.2d 146), no flight at the approach of the officer (cf. People v. White, 16 N.Y.2d 270, 266 N.Y.S.2d 100, 213 N.E.2d 438), and no misstatements when questioned about observed activity (People v. Brady, 16 N.Y.2d 186, 264 N.Y.S.2d 361, 211 N.E.2d 815).' (People v. Brown, supra, at p. 423, 301 N.Y.S.2d at p. 20, 248 N.E.2d at p. 868)
The gravamen of the Court's decision in Brown was that although the police officer might be expert in detecting a pattern of conduct characteristic of a particular criminal activity, and while acknowledging the specialized expertise of trained law enforcement officials, the dictated pattern in that case was only a superficial pattern of such activity; it did not provide probable cause for arrest since 'the same sketchy pattern occurs just as frequently or even more frequently in innocent transactions.' (supra, p. 424, 301 N.Y.S.2d p. 20, 248 N.E.2d p. 869)
The observed activity in the instant case was similar in most respects to that of the Brown case. Here too we have a high crime area, a meeting, parting, return and movement of hands. However in addition to the aforesaid observations we have the alleged seller looking in both directions up and down the street before the handing over of what appeared to be a small package, and the observations of two substantially identical 'transactions' observed between defendant Pacheco and other males in the half hour preceding this incident. While this court is willing to concede that alone the observation of the sole transaction between the defendants might not provide the requisite probable cause for the arrest of Collazo, the issue presented is do the aforesaid additional...
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