People v. Ortiz

Gibbons, J. P. (dissenting).

Simply stated, the issue which divides the court on this appeal is the existence of probable cause for the warrantless arrest of the defendant on the premises of a Brooklyn candy store on the evening of January 23, 1980, following the execution of a search warrant for those premises. A quantity of marked money was seized from the defendant’s person as the result of a search conducted incident to that arrest, and it was this money which provided a principal link between the defendant, a former correction officer and candidate for patrolman, with no prior criminal record, and the sale of narcotics for which he was ultimately convicted. In my view, the probable cause necessary to effectuate an arrest was lacking in this case, and the products of the resulting search must therefore be suppressed.

It is axiomatic that where, as here, an individual is arrested and searched without a warrant, it must at least appear more probable than not that a crime has been committed and that the person to be arrested was its perpetrator (People v Carrasquillo, 54 NY2d 248, 254). Thus, conduct which is equally consistent with guilt or innocence will not suffice to constitute probable cause (People v Carrasquillo, supra), and with particular relevance to the instant case, it has repeatedly been held that a person’s mere propinquity to others who are independently suspected of criminal activity is just such an ambiguous circumstance which will not support a warrantless arrest (see Ybarra v Illinois, 444 US 85; People v Costales, 39 NY2d 973; People v Martin, 32 NY2d 123; People v Smith, 21 NY2d 698; People v Williams, 79 AD2d 929, app dsmd 53 NY2d 866; see, also, People v Nieves, 36 NY2d 396). In Ybarra v Illinois (supra), for example, it was held, inter alia, that a customer’s mere presence on the premises of a tavern for which a search warrant had been issued based on probable cause to believe that the bartender had been selling narcotics was insufficient, standing alone, to support his search without a warrant (accord People v Nieves, supra), while in People v Martin (supra), it was further held that an individual’s mere presence at the scene of a narcotics transaction between others on a public street did not, without more, constitute probable cause for his warrant-less arrest. Somewhat similarly, the Appellate Division, First Department, has held in People v Williams (supra) that the defendant’s position as 1 of 4 or 5 persons in a given bar who fit the description of a recent seller of narcotics at that location could not suffice to support his search without a warrant (cf. People v Valo, 92 AD2d 1004, app dsmd 60 NY2d 588).

Applying the rationale of these cases tó the facts at bar, it is my belief that while the existence of a search warrant and knowledge that part of a narcotics transaction had recently been completed on the premises of the candy store undoubtedly provided the searching officers with probable cause to believe that a crime had been and was being committed on those premises by someone, there was, at the time of their entry, no reasonable basis for the further inference that the defendant, who was not the owner nor otherwise known to the officers, was engaged in that activity. Thus, he was merely 1 of 4 persons who were located in the general area behind the counter, and was not even the individual who was originally observed inside the room from which the contraband was ultimately recovered.^*

Given these thoroughly ambiguous circumstances vis-avis the nature of the crimes under investigation, we are left with only two additional bits of information which came to the detectives’ attention prior to the formal arrest and search of the defendant: (1) the defendant’s so-called “flight” into the back room when the officers first entered the premises, and (2) the eventual discovery of the contraband therein.

Of these two factors, clearly the second does not add materially to the quantum of incriminating data then at the officers’ disposal for, on one level, the discovery merely confirmed the accuracy of the information underlying the search warrant. Moreover, and more important, there is nothing in the record which would tend to connect defendant to any of the contraband (which was not, after all, discovered in plain view), for assuming, arguendo, that the testimony adduced at the hearing had tended to establish that the officers conducting the search had been apprised of the fact that the unknown supplier of the narcotics was expected to be found on the premises (which it emphatically did not), there still would have been no reasonable cause to believe that all of the persons present were so involved, nor any way for the officers to determine which among the three individuals with whom they were unfamiliar (i.e., the individuals other than Marrero) that supplier might have been (see People v Williams, supra). Finally, it is important to note that while three guns were ultimately recovered, there were four individuals who actually fled into the back room, so that there was no numerical equality between the number of occupants and the number of guns.

As for the evidence of flight, it is well established that flight alone is an ambiguous circumstance which will not support a finding of probable cause (see People v Howard, 50 NY2d 583; People v Chestnut, 91 AD2d 981; People v Eaddy, 78 AD2d 761), and while it is equally true that flight can be an important factor in determining probable cause when there are other indicia of criminal activity present (see People v Howard, supra, p 592), it is my belief that where, as here, the outward indicia of criminal activity are wholly unrelated to the defendant and the so-called “flight” results from the armed intervention of plainclothes policemen, under circumstances which are, perhaps, equally consistent with an attempted robbery, the “flight” retains its ambiguous character. Thus, in People v Valo (92 AD2d 1004, supra), it was flight plus the observation, inter alia, of suspicious conduct on the part of the defendant which combined to furnish probable cause for his pursuit and arrest, while in People v Sbraccia (92 AD2d 628), it was, inter alia, the defendant’s arrival in the company of two known drug sellers in a vehicle in which they were known to have gone with an unknown third person to New York City in order to purchase narcotics, which, when viewed in conjunction with the defendant’s flight, was found to constitute probable cause (see, also, Sibron v New York, 392 US 40; People v Kreichman, 37 NY2d 693; People v Dread, 49 AD2d 401, affd 41 NY2d 871). Indeed, while I fully agree with the substance of the majority’s citation to Sibron v New York (supra, pp 66-67) for the proposition that flight plus furtive conduct upon the part of a defendant at the approach of law enforcement officials “are strong indicia of mens rea, and when coupled with specific knowledge on the part of the [arresting] officer relating the suspect to the evidence of crime * * * are proper factors to be considered in the decision to make an arrest” in my view, the foregoing formulation is inapplicable in this case where there is no indication of any furtive conduct on the part of the defendant beyond “flight”, nor any direct nexus between the defendant and “evidence of [the] crime” for which he was ultimately arrested. Thus, the closing of the door behind them as they entered the back room has not been tied evidentially to the defendant, nor would the foregoing, standing alone, appear any more “furtive” than running around a corner. In short, it was, under the facts and circumstances of this case, part and parcel of the flight itself. Moreover, there is no indication of the defendant’s possession or concealment of any of the contraband which was ultimately recovered from the back room.

In conclusion, while it may be argued that the discovery of contraband heightened to a moral certainty the officers’ cause to believe that a crime was being committed by someone on the premises, in my view, the sum total of the information revealed by the arresting officer at the suppression hearing was insufficient to render it “more probable than not” that this defendant was involved in the underlying crime (see People v Carrasquillo, supra, p 254). Moreover, in the absence of any independent data tending to establish criminal activity on the part of this defendant, I cannot regard the existence of flight on his part as a sufficiently incriminating circumstance, either singly or in combination with the other delineated factors, to have warranted his arrest. Since the arrest was illegal, the evidence obtained as a result of the ensuing incidental search must naturally be suppressed, the conviction reversed, and the matter remitted for a new trial.

Niehoff and Boyers, JJ., concur with Brown, J.; Gibbons, J. P., dissents and votes to reverse the judgment appealed from, grant the motion to suppress, and order a new trial, in an opinion in which Bracken, J., concurs.

Judgment of the Supreme Court, Kings County, rendered July 10, 1981, affirmed.

* In short, the defendant’s presence was fully consistent with the explanation given at trial, to wit, that he was there to discuss the purchase of a used car from the owner of the store, Marrero.