People v. Russell
| Decision Date | 13 June 1974 |
| Citation | 34 N.Y.2d 261,313 N.E.2d 732,357 N.Y.S.2d 415 |
| Parties | , 313 N.E.2d 732 The PEOPLE of the State of New York, Respondent, v. Raymond Roy RUSSELL, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Douglas P. Rutnik, Public Defender (Joseph M. Brennan, Albany, of counsel), for appellant.
Ralph W. Smith, Jr., Dist. Atty. (Peter L. Rupert, Albany, of counsel), for respondent.
The defendant appeals, by leave of an Associate Judge of this court, from an order of the County Court of Albany County which affirmed a judgment of the Police Court of the City of Albany convicting him of criminal possession of a dangerous drug.
We are presented with basic issues which address themselves to (1) whether the evidence can be construed to show that defendant was in possession, actual or constructive, of the narcotics used as evidence in support of a misdemeanor conviction for a violation of section 220.05 of the Penal Law, Consol.Laws, c. 1030 1 and (2) whether there was probable cause for the arrest in the first instance. We answer both questions in the negative.
In assessing these issues we note that the evidence reveals that the arresting officers had received information from a confidential source that defendant was in a certain area and that he was dealing in drugs. The officers drove to the area and saw the defendant standing at the driver's side of another's automobile talking with two occupants. Just prior to the departure of this car, defendant was seen to make a motion with his right arm and hand which, according to the arresting officers, was empty at all times they had him under surveillance. Following the departure of the car one of the officers began questioning defendant while the other began examining the general area, in the course of which he found a manila envelope about three feet from the curb in an area under where the car had been parked. The envelope contained heroin whereupon defendant was arrested and charged with criminal possession of a dangerous drug. The arrest was made without a warrant and it is conceded, as indeed it must be, that the arrest may be sustained only if the officers, or either of them, had reasonable grounds for believing that an offense was being committed in their presence (former Code Crim.Proc., § 177, Consol.Laws, c. 442).
The entire activity to which the officers testified and upon which the validity of the arrest must depend, is limited. Despite the officers' observations of defendant, they did not see him have anything in his hand at any time. Neither did they, of course, see him drop an object during any of their surveillance. They merely observed him conversing with two persons who departed in their car neither furtively nor in haste. The subsequent discovery of the envelope is susceptible of a number of possibilities which, of course, lead to neither ownership in nor possession by the defendant. Since he was suspected of dealing in narcotics, the observed acts might seem not inconsistent with a culpable narcotics transaction, but they were also susceptible of various innocent activities or transactions. As stated by then Judge Breitel in People v. Brown, 24 N.Y.2d 421, 423, 301 N.Y.S.2d 18, 19, 248 N.E.2d 867, 868 '(t)he behavior, at most 'equivocal and suspicious', was not supplemented by any additional behavior raising 'the level of inference from suspicion to probable cause" (see People v. Corrado, 22 N.Y.2d 308, 311, 313, 292 N.Y.S.2d 648, 650, 239 N.E.2d 526, 527). In order to raise this to the status of probable cause, more need be shown. (Cf. People v. Cohen, 23 N.Y.2d 674, 295 N.Y.S.2d 927, 243 N.E.2d 146; 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, 269 N.Y.S.2d 111, 216 N.E.2d 321; People v. White, 16 N.Y.2d 270, 266 N.Y.S.2d 100, 213 N.E.2d 438.) Evident it is that the pattern described is neither uniquely nor generally associated with criminal conduct, and in its absence we may not say that probable cause exists. To put it another way, if the same sketchy pattern as herein described occurs just as frequently or even more than frequently in innocent transactions,...
To continue reading
Request your trial
-
State v. Forde
...State v. Brunori, 22 Conn. App. 431, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990), and People v. Russell, 34 N.Y.2d 261, 357 N.Y.S.2d 415, 313 N.E.2d 732 (1974). We agree with the state's assertion that the defendant's reliance on these cases is misplaced because these case......
-
People v. Gonzalez
...A.D.2d 389, 395, 442 N.Y.S.2d 316; see also, People v. Davis, 36 N.Y.2d 280, 367 N.Y.S.2d 256, 326 N.E.2d 818; People v. Russell, 34 N.Y.2d 261, 357 N.Y.S.2d 415, 313 N.E.2d 732). While it is argued that the search may be sustained on the basis of the fact that the encounter took place in a......
-
People v. De Bour
...N.Y.2d 280, 367 N.Y.S.2d 256, 326 N.E.2d 818; People v. Oden, 36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188; People v. Russell, 34 N.Y.2d 261, 357 N.Y.S.2d 415, 313 N.E.2d 732; People v. Corrado, 22 N.Y.2d 308, 292 N.Y.S.2d 648, 239 N.E.2d 526). It is equally true that innocuous behavior ......
-
People v. Ocasio
...36 NY2d 280 [367 N.Y.S.2d 256, 326 N.E.2d 818]; People v Oden, 36 NY2d 382 [368 N.Y.S.2d 508, 329 N.E.2d 188]; People v Russell, 34 NY2d 261 [357 N.Y.S.2d 415, 313 N.E.2d 732]; People v Corrado, 22 NY2d 308 [292 N.Y.S.2d 648, 239 N.E.2d 526] ). It is equally true that innocuous behavior alo......