People v. Roberts ( 1984 )

Judgment reversed, on the law and the facts, motion to suppress granted and matter remitted to Supreme Court, Erie County, for further proceedings under Superior Court information No. 3121. Memorandum: On this appeal defendant contends that the police lacked probable cause to arrest him and that the evidence obtained from the ensuing search of his person should be suppressed. We agree. Following the sale of cocaine to a police undercover agent, Joseph Maury was observed on February 17,1982, by drug enforcement agents entering a black 1976 Pontiac automobile driven by an unidentified male and registered to Maury’s brother. A further sale of cocaine by Maury was arranged by the undercover agent to take place at a Buffalo restaurant on March 17, 1982 after Maury procured the drugs from a “source of supply” at the airport. Following the conclusion of this sale, the preconceived plan of the police, in the event that the same automobile was involved, was to stop and seize the car, arrest the occupants thereof and charge them with conspiracy in connection with the sale and possession of a controlled substance. Joseph Mdury in fact arrived at the restaurant in the same black Pontiac driven by a male later identified as George Maury in which defendant was a passenger. After Joseph Maury left the car and made the sale to the undercover agent, he was arrested. The Pontiac, which had been observed by the police circling the area, was then stopped about 100 feet away and both occupants were ordered from the car by the police. In the search that followed, a quantity of cocaine was found on defendant’s person. When his suppression motion was denied, the defendant entered a plea of guilty.

At the suppression hearing, the police testified in a forthright manner that they intended to arrest any occupants of the car and in fact did arrest them when they were removed from the vehicle. The People concede that the arrest preceded the search. Contrary to the conclusions reached by the dissent, there is no factual basis in the record from which it could logically be concluded that the “supplier” would be found in the vehicle at the time the sale was to take place. In fact when Special Agent Mangor was specifically asked what information the undercover agent gave him preceding the arrests, he stated: “I was advised by the undercover officer Kaempf that she had been told by Joseph Glen Maury that he would arrive there at a specific time, at approximately seven o’clock, that he was waiting the arrival of the source of supply, who was to deliver the cocaine to him, and that he [Maury] would proceed directly from the airport to the Your Host Restaurant, where he would sell her the cocaine.” Defendant, who was not known to the police and had not previously been suspected of having any connection to Maury’s narcotics trade, was merely an occupant of Maury’s brother’s car. His presence in the vehicle was not sufficient to justify his arrest as a coconspirator with Maury (see People v Milerson, 51 NY2d 919). The police had no more than a reasonable suspicion that defendant was involved in the drug transaction taking place outside the restaurant and this suspicion could not be elevated to probable cause simply because defendant was a passenger in the car which circled while the transaction took place. The record is clear that defendant was arrested before the search which uncovered the cocaine (see People v Fripp, 85 AD2d 547, affd 58 NY2d 907). Furthermore, the “inevitable discovery” rule (see People v Fitzpatrick, 32 NY2d 499, 506-507, cert den 414 US 1033), upon which the People rely, is inappropriate (see People v Buffardi, 92 AD2d 899). The inevitable discovery exception allows the courts to receive evidence the police could have discovered by legal means notwithstanding the illegal search, but was not intended to serve as a means to validate the illegal search. Because the defendant was arrested without probable cause, the ensuing search was unlawful and the evidence must be suppressed.

All concur, except Hancock, Jr., J. P., who dissents and votes to affirm in the following memorandum.