People v. Shaw

—Order, Supreme Court, New York County (Michael Corriere, 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 investígate 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 NY2d 156, 160.]) 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 AD2d 15, lv denied 78 NY2d 1015), we rejected the People’s similar theory only because it had never been raised in the lower court. But in doing so, we cited (supra, at 17) the three factors determining probable cause for arrest which the Court of Appeals had pronounced in People v McRay (51 NY2d 594), 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 opacity of the envelope (see, e.g., People v Small, 144 Misc 2d 560, 562). As the McRay Court noted (supra, at 604):

"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.” (Emphasis added.)

We reject the notion that the activities observed by Officer Black constituted innocuous behavior susceptible to innocent interpretation (cf., People v De Bour, 40 NY2d 210, 216). 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 AD2d 301) 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 NY2d 583, 592, cert denied 449 US 1023).

In People v Matienzo (184 AD2d 296, affd 81 NY2d 778), 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 AD2d 200), clearly transcending mere reasonable suspicion which would warrant only further inquiry. There is nothing in the De Bour 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 US 98, 102). The combination of elements here amply established probable cause for a lawful arrest. The motion to suppress should have been denied. Concur—Wallach, Asch, Kassal and Rubin, JJ.