Summary
denying a defendant's motion to suppress and finding that officer had probable cause to seize three "tightly wrapped newspaper objects" based on officer's trained expertise in narcotics arrests involving decks of heroin "similarly packaged in tightly wrapped newspaper coverings"
Summary of this case from State v. DelaozOpinion
April 22, 1993
Legal Aid Society (Robert M. Baum and Peter M. Carter of counsel), for defendant.
Robert T. Johnson, District Attorney of Bronx County (Emil Piedra of counsel), for plaintiff.
Does an experienced officer's observation of a tightly wrapped newspaper object on the person of the defendant give rise to a reasonable objective determination by the officer that he has probable cause to search and seize that package which he believes to be heroin? The defendant Henry Germany has moved to suppress evidence seized from his person while he was a passenger in a taxi on September 3, 1992 in violation of his constitutional rights. (Mapp v Ohio, 367 U.S. 643; CPL 710.20.) For the reasons hereinafter enumerated, the court denies his motion to suppress the contraband seized.
FINDINGS OF FACT
Officer Miguel Rodriguez, a six-year veteran of the police department, who had participated in approximately 200 arrests including 100 narcotics arrests, testified that he was on duty as an anticrime officer in plain clothes in an unmarked vehicle on September 3, 1992. At approximately 2:30 P.M., he observed a cab travel through a red light. The cab was pulled over and stopped. As the officer approached the driver, he observed the defendant, one of three passengers, place three "very tight", "square shape", "bundles of newspapers" into his pocket. Each "bundle" was approximately 1 1/2 inches square and one-half-inch to one-inch thick and was tightly wrapped with a scotch taped newspaper covering.
Based on his training at the police academy and based on his experience as a street narcotics officer, Officer Rodriguez recognized the tightly wrapped newspaper objects as "bundles or bricks" of heroin. Each "bundle or brick", he testified, consists of approximately 50 decks of heroin each in a glassine bag. The officer further indicated that he had personally observed this method of packaging in 8 to 10 of his 50 heroinrelated arrests. Officer Rodriguez seized the three "bundles" and arrested the defendant. A traffic citation was not issued to the cab driver.
CONCLUSIONS OF LAW
The defendant urges that the police officer's testimony as to the taxi stop was patently tailored to nullify any constitutional objections as to reasonableness. In effect, the defendant urges that this was a pretext stop. Why, he contends, would an undercover officer stop a taxi for a traffic violation and thereby make it known that he is in fact a police officer. The defendant further argues that the fact that no traffic citation was given to the taxi driver supports this position.
The court finds that these arguments are mere conjecture. The articulable justification for the stop of the taxi was the violation of the Vehicle and Traffic Law. (People v Johnson, 178 A.D.2d 549; People v Coggins, 175 A.D.2d 924.) In fact, Officer Rodriguez had not seen the defendant in the car when the Vehicle and Traffic Law violation occurred. The court may infer that the discretionary decision by the officer not to issue a traffic summons to the cab driver resulted from the more important attendant narcotics arrest.
The defendant's second contention, and indeed one of considerable merit, is the claim that even though the observation by the police officer occurred in a "plain view doctrine" situation, there was no probable cause to seize opaque newspaper-wrapped bundles.
Based on the current fluid nature of the law of search and seizure, this court finds that the facts in this case warrant a finding that probable cause existed. Hence, for the following reasons, the court rejects this argument as well.
"[P]robable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would `warrant a man of reasonable caution in the belief,' Carroll v. United States, 267 U.S. 132, 162 (1925), that certain items may be contraband * * * A `practical, nontechnical' probability that incriminating evidence is involved is all that is required". (Texas v Brown, 460 U.S. 730, 742; People v McRay, 51 N.Y.2d 594, 602.)
The decisions of the courts continue to evolve fluidly in their findings of the quantum of evidence required to find probable cause. (Illinois v Gates, 462 U.S. 213; People v McRay, 51 N.Y.2d 594, supra.)
In cases involving the possession of narcotics, the changes brought about by the increasing proliferation of narcotics and the newer types of packaging have caused appellate courts to constantly rethink the requirements of probable cause.
In 1975, the exchange of a glassine envelope in a narcotics prone area did not constitute probable cause. (People v Oden, 36 N.Y.2d 382.) Yet by 1980, the Court of Appeals found that the exchange of a glassine envelope was the "hallmark of an illicit drug exchange." (People v McRay, 51 N.Y.2d 594, 604, supra.) By 1992, the mere possession of green glassines protruding through a hole in a brown paper bag, coupled with the officer's observation of a person holding $10 in front of the defendant and the officer's experience in making similar arrests at the location involving cocaine in green glassine envelopes, was sufficient to find probable cause. (People v Rivera, 183 A.D.2d 509 [1st Dept 1992].)
The packaging of narcotics in foil or tinfoil packets took a similar route through the courts in the fluid concept of society's needs. A foil packet became a telltale sign. (People v Balas, 104 A.D.2d 1039 [2d Dept 1984]; People v Green, 133 A.D.2d 170 [2d Dept 1987].) A plastic vial joined the glassine and foil as a telltale sign of narcotics. (People v Goggans, 155 A.D.2d 689 [2d Dept 1989].) In 1990, the crack pipe was added to the group. (People v Edwards, 160 A.D.2d 501 [1st Dept 1990].) In all of these transparent packages cases, the courts generally found that an additional factor established the probable cause. Paramount to these factors was the great weight given to the nature and extent of the officer's knowledge, training and experience in the determination that such an officer could with reasonable caution believe that a person was committing a crime.
The stage in our society's burgeoning narcotics problem has reached the time in which courts (albeit divided in opinion) are finding probable cause in situations involving the observation of opaque packages.
In 1985, the Court of Appeals refused to find that a white envelope would serve as the initial predicate for a finding of probable cause. (People v McNatt, 65 N.Y.2d 1046.) However, in 1992, two Appellate Division holdings supported the proposition that probable cause is found where the officer observes an opaque package. The First Department has upheld the sufficiency of probable cause where "a police officer, using binoculars, observed defendant pass a small, folded white envelope believed to be the packaging for heroin in exchange for money." (People v Sanchez, 181 A.D.2d 499, 500 [1st Dept 1992], lv denied 79 N.Y.2d 1054.) The Second Department has upheld probable cause where the officer "observed a folded paper `bindle', which he said he knew was commonly used in packaging cocaine" (People v Sallito, 186 A.D.2d 766, 767 [2d Dept 1992], lv denied 80 N.Y.2d 1030). Although the Sallito decision does not describe "bindle", this court infers that the package was opaque. A bindle is "a small package, envelope, or paper containing a narcotic (as morphine, heroin, or cocaine)." (Webster's Third New International Dictionary 217 [1986].)
Finally we note that, in a decision squarely on point, the First Department has upheld the seizure of "two tightly wrapped square, shiny brown, packages" where the officer, on at least 10 prior occasions, "had seen narcotics in `rock' or `brick' form identically wrapped." (People v Aqudelo, 150 A.D.2d 284, 285 [1st Dept 1989], citing Robbins v California, 453 U.S. 420, 427.)
We further note that in each of these recent decisions the appellate courts have found some additional relevant factor. (People v Sanchez, supra [an exchange for money]; People v Sallito, supra [a box of drug paraphernalia in the same vehicle]; People v Aqudelo, supra [the officer's expertise].)
In the instant case, the court credits the credible, trained expertise of Officer Rodriguez who had made 100 narcotics arrests including 50 for heroin. In 8 to 10 of these arrests he had observed "bundles or bricks" containing 50 decks of heroin similarly packaged in tightly wrapped newspaper coverings. Accordingly, we find this factor as the overriding relevant corroboration to serve as the basis to provide the requisite amount of information Officer Rodriguez could reasonably find probable cause to arrest and seize the drugs from the defendant Henry Germany.
Accordingly, the court denies the motion of the defendant to suppress the contraband narcotics.