People v. Darby

OPINION OF THE COURT

Saxe, J.

The suppression of the controlled substances seized from defendant was based upon the hearing court’s conclusion that a portion of the police officers’ testimony was contradicted by expert testimony, and its consequent rejection of that aspect of the officers’ testimony. We conclude that the expert’s testimony did not contradict the officers’ observations, and that therefore rejection of their testimony was unnecessary and unwarranted.

The arresting officers testified at the suppression hearing that when they were several feet from defendant, they detected the very strong smell invariably associated with street-level phencyclidine (PCP) wafting from him. They explained that in their training at the Police Academy, and in the course of approximately 50 prior arrests for PCP possession or sale, they have learned to recognize the distinctive odor. Indeed, they indicated that the Police Department uses special plastic bags for storing vouchered PCP to contain the smell.

In granting defendant’s suppression motion, the hearing court credited the testimony of defendant’s expert to the effect that pure, unadulterated PCP does not give off an odor at room temperature, and would not alter the odor of a substance such as marihuana that was mixed with it. In view of this testimony, the court rejected that portion of the officers’ testimony in which they said they smelled PCP on defendant prior to conducting their search of his pocket.

We generally do not disturb determinations concerning credibility and the evaluation of expert testimony which are supported by the record (see, People v Prochilo, 41 NY2d 759, 761). Here, however, acceptance of the expert’s testimony did not require the rejection of the officers’ testimony. The expert merely stated that pure, unadulterated PCP has no smell. He conceded that he had no familiarity with the chemical make-up of current “street-level” PCP. On the other hand, the officers stated that the “street-level” PCP that they are familiar with, from training and from numerous prior arrests, possesses a distinctive, pungent odor. Therefore, the two sets of testimony do not contradict one another. Accepting as true the expert’s assertion, his testimony afforded no logical basis for discounting the officers’ assertions that they had detected the odor associated with PCP. The officers did not challenge the odorless nature of PCP; they merely asserted that the street-level (i.e., adulterated) PCP they encountered on the job had a distinctive odor.

The hearing court believed that in view of the expert’s testimony, it was incumbent upon the People to offer evidence identifying and explaining the nature of the adulterant mixed with the street-level PCP found in defendant’s possession that caused the asserted distinctive odor. We disagree.

It is fair to say that virtually every adult member of our society knows full well that illegal drug sales transacted on street corners do not involve pure, unadulterated substances. Sadly, this is such common knowledge as to fall within the category of “notorious facts” of which judicial notice may be taken (see, Prince, Richardson on Evidence § 2-203 [Farrell 11th ed]). It having been established that the street-level PCP regularly encountered by the police could be identified by its distinctive odor, the issue of exactly which adulterant created the odor is irrelevant. To require expert testimony in order to establish the identity of the particular adulterant in the PCP in defendant’s possession, and in the PCP the officers had previously encountered, would constitute an unnecessary waste of time. The distinctiveness of the odor was enough, when combined with the officers’ other observations and knowledge, to give the officers probable cause for stopping and searching defendant.

Therefore, the hearing court lacked a valid basis for its rejection of the officers’ testimony that they smelled the distinctive odor of PCP. Once the officers’ testimony is accepted in this respect, probable cause for the challenged search has been successfully established, and suppression must be denied.

Accordingly, the order of the Supreme Court, New York County (James Yates, J.), entered on or about April 24, 1998, which granted defendant’s suppression motion, should be reversed, on the law, the motion denied, and the matter remanded for further proceedings.