decided: June 6, 1968.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
GENNARO CORRADO, JACK CATALAN AND ABE MOSSEY, APPELLANTS
Appeal, by permission of the Chief Judge of the Court of Appeals, from a judgment of the Appellate Term of the Supreme Court in the Second Judicial Department, entered December 16, 1966, affirming judgments of the Criminal Court of the City of New York, Kings County (Edward D. Caiazzo, J., at time of conviction and at time of sentence), adjudging defendants to be youthful offenders, arising out of the initial charges of possessing narcotics in violation of section 1751 of the Penal Law.
Chief Judge Fuld and Judges Burke and Breitel concur with Judge Keating; Judge Jasen dissents and votes to affirm in an opinion in which Judges Scileppi and Bergan concur.
On the night of January 26, 1966 Detectives Lawrence LaBriola and John Stoehr and two other police officers were sitting in an automobile on East 16th Street between Kings Highway and Quentin Road in Brooklyn. The officers had come there on the basis of a tip received from an undercover member of the Police Department that a pound of marijuana would be passed on the corner of Kings Highway and East 16th Street sometime between 9:00 p.m. and midnight.
The officers arrived at 8:30 p.m. and had been waiting for somewhat more than an hour when a car pulled up and parked across the street from the officers. Inside the car were three teenagers, whom the officers did not know or recognize. Appellant Corrado was in the driver's seat, appellant Catalan was sitting next to Corrado, and appellant Mossey was in the rear seat behind Corrado.
Catalan got out of the car, walked along the sidewalk toward Quentin Road for about 50 to 60 feet to another car. He appeared to bend down, but otherwise was out of sight. He remained at the car for a few seconds and then returned. He got back into Corrado's car and was then observed by the police officers to hand four opaque, manila envelopes to Corrado. After some conversation, Catalan again left the car and started to walk towards Quentin Road. At this point, Corrado was seen to turn around and hand the envelopes to Mossey, who bent down and moved his hands toward the floor.
Corrado started the car. Hearing this, Detective Stoehr, who was driving, moved his automobile across East 16th Street at an angle blocking the path of Corrado's car. Detective LaBriola went up to the driver, Corrado, while Detective Stoehr opened
--> the rear door of the car, entered, and seized the four envelopes. They were sealed. Detective Stoehr opened them and found what appeared to him to be marijuana. The envelopes were confiscated and the appellants arrested.
Upon their pleas of guilty, appellants were adjudged youthful offenders. The sole question raised on this appeal is whether there was probable cause to arrest (Code Crim. Pro., § 177). The People do not and cannot contend that the fruits of their search of the car can be used as a basis to establish probable cause. Their position is simply that there is sufficient independent evidence to sustain the arrests.
It cannot seriously be contended, and we do not understand the People to argue, that the objective conduct observed by the officers constituted probable cause. There is nothing suspicious or even particularly unusual about the overt activities of the three youths here. In substance, what the officers observed were three teenagers sitting in a car in the early hours of the night.*fn1 One of them leaves the car, walks about three car lengths down the street to a second car, bends down for a few seconds and then returns to his companions in the first car. He is then observed to pass some envelopes to the driver, and, after a brief period, leaves. Even if we accept the argument that such demeanor would be characteristic of modus operandi used for a "drop",*fn2 this conduct is far more easily explained by the typical activities of three teenagers than by the fact that the three were handling contraband. At most, the appellants' behavior was equivocal and suspicious.
In People v. Valentine (17 N.Y.2d 128) the arresting officer was also sitting in a parked automobile near a street corner in Brooklyn. He observed a man standing on the corner. Six unknown persons approached the man. Each of these persons engaged this man in a short conversation, and, at the conclusion thereof, each was seen to hand him money in bill form. On three of these occasions the man was observed making notations on a slip of paper. Unlike the present case, the only reasonable inference for what was observed by the officer in Valentine was that the man was engaged in policy.
Nor is People v. White (16 N.Y.2d 270) comparable to the instant case. We there held that probable cause existed where there was "a showing that a known addict holding money in his hand and talking to the suspected drug peddler quickly put the money away and left the scene when the detective approached" (supra, p. 273). Here the appellants were not known to the officers, and no claim is made that the undercover agent had given the officers a description of the appellants (cf. McCray v. Illinois, 386 U.S. 300). Also, there is no evidence that Catalan was attempting to flee when the arrests occurred.
In Henry v. United States (361 U.S. 98) Federal officers were investigating a theft of whiskey from an interstate shipment. On the afternoon of the day following the theft, on the basis of a rather vague tip possibly connecting the defendant with an interstate theft, they observed the defendant with another man come out of a tavern, get into an automobile and drive by a circuitous route to an alley beside a residential premises and stop. The defendant got out of the car, went into the building and returned to the automobile with some cartons and drove away. The Federal agents attempted to follow but lost the car. However, later they saw the car again at the tavern. And, once more, the same pattern was repeated. On this occasion, when the defendant left the alley, the officers stopped the automobile, searched the cartons and found not stolen whiskey, but stolen radios. The Supreme Court held that no probable cause existed. It is evident, therefore, that the appellants' conduct here, by itself, could not sustain their arrests since their conduct was no more suspicious than that found by the Supreme Court in Henry to be insufficient to warrant an arrest.
The People argue, nevertheless, that probable cause existed here because there was uncontradicted testimony by Detective Stoehr that, in his experience as an investigator assigned to the Narcotics Bureau, he had never seen loose marijuana in small quantities passed or sold in envelopes other than in the type involved here.*fn3 This knowledge, it is claimed, justified the officer in drawing the inference that appellants probably had contraband in their possession.*fn3
The argument is defective because the envelopes could have contained any number of non-contraband 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.*fn4
In reaching our conclusion, we have not retreated in any manner from our prior decisions that a police officer is entitled to draw on his whole knowledge and experience as a criminal investigation officer (People v. Valentine, supra, p. 132; People v. Brady, 16 N.Y.2d 186; see, also, Bell v. United States, 254 F. 2d 82, cert. den. 358 U.S. 885; Jackson v. United States, 302 F. 2d 194, 196). Thus, where a layman would see absolutely nothing suspicious about the envelopes and the events preceding the arrests, the officer was surely entitled to use his expertise to the contrary. It does not follow, however, that the officer is entitled to draw the inference of criminality when others, possessed of the same special knowledge or expertise, would not (see Henry v. United States, supra, p. 102; Brinegar v. United States, 338 U.S. 160, 175).
For the reasons stated, the judgment of conviction should be reversed and the case remitted to the Criminal Court of the City of New York for further proceedings not inconsistent with the views expressed herein.
Judgment reversed, etc.
Jasen, J. (dissenting). The police detective with over four years' experience in narcotics investigation testified that every narcotics arrest he had previously made, except for cigarettes, involved narcotics "in this type of Manila envelope." This testimony stands uncontradicted in the record and is not incredible as a matter of law. It is certainly not unusual for a person of ordinary eyesight to observe manila envelopes at a distance of perhaps 20 feet even if they are the size of pay envelopes as described by appellants' counsel on oral argument.
We do not attach much significance to the fact that the envelopes have by now been lost, nor is it a good ground for reversal. Neither is the description of the envelopes by appellants' counsel on oral argument a basis for reversal. We must look to what the record states. It describes the envelopes sufficiently to support the police testimony that this is a common way to transfer drugs. Appellants' counsel was confronted with the envelopes at the suppression hearing and had the opportunity to examine the detectives with regard to the appearance of the envelopes.
The objective conduct observed by the detectives constituted probable cause. Here, the detectives observed a car stop on a city street late on a winter's evening. One man leaves the car and returns with four sealed envelopes of the type in which narcotics are passed. He hands the envelopes to the driver, who in turn gives them to a rear seat passenger who apparently places them on the floor. The car then attempts to drive away leaving one passenger behind.
It seems a reasonable inference to experienced narcotics investigators that here, indeed, is a narcotics "drop." It is possible that the appellants were handing out pay envelopes at night, car to car, but it is very unlikely. One detective had previously made narcotics arrests at Kings Highway and East 16th Street, a block or two away. All that was needed was a reasonable ground to believe that narcotics were being transferred.
There are few absolutes in the area of the law dealing with probable cause for arrest. We have emphasized from time to time that probable cause is not to be evaluated from the remote vantage point of a library but, rather, from the viewpoint of a prudent and cautious police officer on the scene at the time of the arrest. (People v. Valentine, 17 N.Y.2d 128; People v. Brady, 16 N.Y.2d 186; cf. People v. Hook, 15 N.Y.2d 776; cf. Bell v. United States, 254 F. 2d 82 [D. C. Cir., 1958], cert. den. 358 U.S. 885.) The issue is whether such a police officer in the particular circumstances presented by the record in this case, conditioned by his observations and information, and guided by the whole of his police experience could reasonably have believed that a crime had been committed by appellants.
It is possible that appellants' acts would appear innocuous to a person untrained in the ways of the criminal. However, it was certainly reasonable for the arresting officers who were experienced in the pattern of criminal behavior which they were observing to deduce that a crime was being committed in their presence. (Code Crim. Pro., § 177, subd. 1; People v. Valentine, supra.)
Accordingly, the judgment of conviction should be affirmed.