People v. Shaw

• Decision Date: 06 May 1993
• Citation: 193 A.D.2d 390,596 N.Y.S.2d 832
• Parties: The PEOPLE of the State of New York, Appellant, v. Edward SHAW, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 832

596 N.Y.S.2d 832

193 A.D.2d 390

The PEOPLE of the State of New York, Appellant, v. Edward SHAW, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

May 6, 1993.

Before CARRO, J.P., and WALLACH, ASCH, KASSAL and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Michael Corriero, J.), entered April 6, 1992, which granted defendant's motion to suppress physical evidence seized in connection with his arrest, reversed, on the law, the motion to suppress denied, and the case remanded for further proceedings on the indictment.

The arresting officer, Gary Black, a five-year veteran of the Port Authority Police with over 100 drug-related arrests, observed defendant at midday engaging in four separate transactions over a 10-minute period, at a location known for illegal drug activity, across Eighth Avenue from the bus terminal entrance. In the course of that surveillance, defendant was observed reaching into a crumpled white paper bag and delivering objects extracted therefrom to other persons in exchange for U.S. currency. Each transaction took about thirty seconds, and the participants were described by Officer Black as furtive and nervous. As Black, accompanied by other officers, attempted to approach one of the buyers to investigate further, the buyer fled the scene, a circumstance escalating Black's reasonable suspicion of criminal activity to the level of probable cause necessary to justify an arrest. ("Probable cause generally requires a reasonable belief on the part of the police that a particular individual or individuals have committed a crime or are about to do so. There must be more than a mere suspicion." People v. Esposito, 37 N.Y.2d 156, 160, 371 N.Y.S.2d 681, 332 N.E.2d 863.) Defendant was arrested, and his bag was found to contain 32 vials of crack cocaine.

Properly analyzed, the cases cited in the dissent either are clearly distinguishable, or support the legitimacy of the police action here. For example, in People v. Wilson, 175 A.D.2d 15, 571 N.Y.S.2d 487, lv. denied 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069, we rejected the People's similar theory only because it had never been raised in the lower court. But in doing so, we cited (175 A.D.2d at 17, 571 N.Y.S.2d 487) the three factors determining probable cause for arrest which the Court of Appeals had pronounced in People v. McRay, 51 N.Y.2d 594, 435 N.Y.S.2d 679, 416 N.E.2d 1015, viz., observation of telltale signs of drug activity, high incidence of narcotic trafficking in the area, and the training and experience of the police officer. Each of those factors was proven here. Concededly, the "telltale sign" of drug activity in McRay was the passing of a glassine envelope. But the jurisprudence in this Fourth Amendment area has moved beyond such niceties as distinctions based on the color or degree of capacity of the envelope (see, e.g., People v. Small, 144 Misc.2d 560, 562, 544 N.Y.S.2d 714). As the McRay court noted (51 N.Y.2d at 604, 435 N.Y.S.2d 679, 416 N.E.2d 1015, with emphasis added):

To begin with the most obvious, if money is passed in exchange for the envelope, probable cause almost surely would exist [citations omitted]. Exchange of currency negates all but the most implausible explanations for the transaction, and thus conveys more than sufficient indicia of a drug sale to warrant an arrest. Similarly, additional evidence of furtive or evasive behavior on the part of the participants suffices to establish probable cause [citations omitted]. Such evidence, suggesting consciousness of guilt, has traditionally been considered some proof of a crime [citations omitted].

Beyond these situations, if the exchange occurs in an area rampant with narcotics activity, and is proven by competent evidence such as testimony of a qualified observer, an inference of probable cause may properly be drawn.

We reject the notion that the activities observed by Officer Black constituted innocuous behavior susceptible to innocent interpretation (cf., People v. DeBour, 40 N.Y.2d 210, 216, 386 N.Y.S.2d 375, 352 N.E.2d 562). In fact, we find it a daunting challenge to offer any explanation, even implausible, which might innocently account for the actions observed.

Matter of Kevin W., 188 A.D.2d 301, 590 N.Y.S.2d 486 stands merely for the proposition that observation of purported drug transactions in a drug-prone neighborhood, absent some additional element of evidence, may be insufficient to sustain an arrest and detention. But here, with several indicia already giving rise to reasonable suspicion that defendant was in the act of committing a crime, there was the additional element of flight of one of the parties to a transaction, and flight is "an important factor in determining probable cause" to arrest (People v. Howard, 50 N.Y.2d 583, 592, 430 N.Y.S.2d 578, 408 N.E.2d 908, cert. denied 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484).

In People v. Matienzo, 184 A.D.2d 296, 585 N.Y.S.2d 204, affd. 81 N.Y.2d 778, 593 N.Y.S.2d 785, 609 N.E.2d 138, our finding of probable cause was based upon an arresting officer's receipt by radio transmission of his fellow officer's observation of a single suspected sale of contraband. (The Court of Appeals, affirming the establishment of probable cause on an alternate ground, specifically declined to reach our rationale for finding probable cause.) The circumstances of the case now before us, involving an experienced officer's direct observation of four separate transactions over a short period of time, in an area known for illicit drug activity, together with the flight of a buyer, are even more compelling in support of probable cause. It is this combination of circumstances, susceptible to no innocent interpretation, which raises this case to a level of probable cause that justified defendant's arrest (see, People v. Quarles, 187 A.D.2d 200, 593 N.Y.S.2d 635), clearly transcending mere reasonable suspicion which would warrant only further inquiry. There is nothing in the DeBour trilogy, supra, which requires a rung-by-rung escalation of police conduct when the situation, as here, clearly warrants otherwise.

The test for probable cause to arrest requires simply a belief, prudently arrived at by the arresting officer, that a crime has been committed by this defendant (see, Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134). The combination of elements here amply established probable cause for a lawful arrest. The motion to suppress should have been denied.

All concur except CARRO, J.P., who dissents in a memorandum as follows:

CARRO, Justice Presiding (dissenting).

Evidence was given at the suppression hearing that the arresting officer observed defendant on four occasions over a ten-minute period remove a white paper bag from his jacket pocket, from which he extracted something that he then handed over to four successive persons in exchange for cash, and that defendant was thereupon arrested without any inquiry having been made of him by the officer. The observed conduct, while providing reasonable suspicion sufficient to justify a stop and inquiry, and pursuit of the defendant if he had fled, did not provide probable cause for defendant's arrest (cf., People v. Leung, 68 N.Y.2d 734, 506 N.Y.S.2d 320, 497 N.E.2d 687; see, People v. Wilson, 175 A.D.2d 15, 571 N.Y.S.2d 487, lv. denied 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069; Matter of Kevin W., 188 A.D.2d 301...