Summary
In People v. Maldonado (59 A.D.2d 692, supra), we rejected a finding that a tinfoil packet could be the basis of probable cause since it is not recognized as the telltale sign of narcotics.
Summary of this case from People v. Charles JOpinion
October 27, 1977
Judgment of conviction, Supreme Court, Bronx County, rendered March 10, 1976, unanimously reversed, on the law, and the indictment dismissed. The information relied on by the police to justify the arrest and search of defendant-appellant was derived from observation by a police officer through binoculars at 9:30 P.M. after dark, of activity on the side of a car opposite that faced by the observer, at a distance said to have been 500 feet, of the passage of pieces of tinfoil from the driver to defendant in return for pieces of green paper. The suppression court, expressing doubt as to the possibility of such observation, took a view himself in an endeavor to reconstruct the scene testified to. Assuming the observation to have been as testified, it did not justify the arrest. The standards laid down in People v LeBron ( 48 A.D.2d 800) and People v Corrado ( 22 N.Y.2d 308) have not been met. Speaking of police knowledge as a basis for transmuting suspicion into probable cause, the Corrado court observed (p 313): "This knowledge, it is claimed, justified the officer in drawing the inference that appellants probably had contraband in their possession. The argument is defective because the envelopes could have contained any number of noncontraband items. This is in sharp contrast to the translucent glassine envelope which has come to be accepted as the telltale sign of heroin. Still, even in the case of the glassine envelope it has never been held that the mere passing of such an envelope establishes probable cause. We conclude, therefore, that the testimony concerning the use of these common envelopes for marijuana does not raise the level of inference from suspicion to probable cause." We know of no case in which it has been held that tinfoil packages are "accepted as the telltale sign of" contraband. There is, therefore, no basis here for the inference that the observed traffic in tinfoil — assuming that it was indeed observed — amounted to traffic in the forbidden substance.
Concur — Kupferman, J.P., Evans, Capozzoli and Markewich, JJ.