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August 24, 1984


The opinion of the court was delivered by: MINER




 On February 29, 1984, a two-count indictment was filed charging defendant Sheldon Buschel with unlawful possession with intent to distribute approximately 1,250 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1) (count I) and charging defendants Sheldon Buschel and Mark Hein with a conspiracy to possess with intent to distribute that marijuana in violation of 21 U.S.C. § 846 (count II). Presently before the Court is defendant Hein's motion to suppress all evidence seized from him following his allegedly unlawful arrest. Fed. R. Crim. P. 41(f). The challenged arrest was made without a warrant and assertedly without probable cause.A hearing on the motion was conducted on May 30 and 31, 1984. *fn1" Final submissions of counsel were received in chambers on August 9, 1984.


 On February 15, 1984, approximately 1,250 pounds of marijuana were seized from a home owned by Leonard Durell. At the time, the home was rented and occupied by defendant Sheldon Buschel. *fn2" Allegedly, when Buschel discovered the marijuana was missing, he called Durell and accused him of its theft. Fearing for his safety, Durell subsequently requested protection from the New York State Police. On February 19, 1984, New York State Police Investigator Gregory Harlin and others were assigned to protect Durell. According to Harlin, Durell appeared nervous and frightened and told Harlin of conversations he had had with Buschel in which Buschel had stated that he was not the only one involved in the case and that he would not "take the fall" alone.

 On February 20, 1984, Investigator Harlin returned a telephone call he had received from Durell. Durell told Harlin that he (Durell) was to meet Buschel at the intersection of Front and Church Streets in New Paltz, New York. Harlin testified that Durell stated that "they" (Buschel and another) were going to meet him (Durell) there. Harlin then arranged to meet with Durell in New Platz prior to Durell's meeting with Buschel, and notified New York State Police Investigator Daniel Reidy of the impending meeting. Harlin met Durell at a parking area on lower Main Street in New Platz at approximately 7:00 P.M. on the 20th. He advised Durell that he would follow him to the Front and Church Street location where the meeting with Buschel was to occur.

 A. Investigator Harlin's testimony

 Harlin testified that after his meeting with Durell he turned his vehicle off Main Street and proceeded to the intersection of Front and Church Streets. Before arriving there, he observed defendant Hein standing by a restaurant. He then observed Hein walk to the corner and then towards the Durell car in which a passenger, who later proved to be Buschel, was now seated. After Harlin exited his car on Front Street, Hein looked at him, turned around, and then walked back toward the restaurant. Harlin approached the Durell car and observed Buschel sitting in the front passenger seat. He also observed Hein walking up Front Street, looking back and talking into his coat. Harlin opened the door of the Durell car and arrested Buschel. By this time, Investigator Reidy had arrived and a search of Buschel uncovered a small tape recorder with a microphone attached to his sleeve and a quantity of marijuana. Harlin and Reidy then proceeded in their car up Front Street in search of another person whom they believed to be involved. When they came upon Hein, Harlin exited the car and placed Hein under arrest. Reidy assisted in the arrest and subsequent search which revealed a walkie-talkie, a beeper and a small notebook. No drugs were found on Hein's person.

 B. Investigator Reidy's testimony

 Reidy testified that after receiving a call from Harlin he drove to New Paltz. Along the way, he passed Durell's house looking for Durell's yellow Pinto or Escort type car. While in New Platz, Reidy spotted the car parked on a corner and saw "two gentlemen," whom he later identified as Buschel and Hein. According to Reidy, the two appeared to be talking on the street corner, although he could see no lip movement. Reidy saw Hein walk away and observed Buschel enter Durell's car. Within a minute, he observed Harlin place Buschel under arrest. He then observed Hein walking up the street, apparently talking to no one and looking back over his shoulder. Reidy then assisted in the arrest and search of Buschel. Harlin then told Reidy he thought there were "two of them." Reidy agreed and said he had seen one. Reidy and Harlin then drove up Front Street and turned onto Main Street where they saw Hein in a recessed doorway. They drove around the block once and when they returned saw that Hein had moved and was now heading in the opposite direction on Main Street.The officers approached Hein and immediately placed him under arrest.


 In addition to questioning the complete truthfulness of the above account as set forth by Investigators Harlin and Reidy, *fn3" defendant points to a number of factors assertedly supportive of his position that his arrest was without probable cause. First, defendant contends that there were no investigative inquiries made nor any opportunity given him to explain his presence, demeanor or any other suspicions the officers may have had prior to his arrest. Moreover, defendant suggests that there is no evidence that these officers feared for their own safety prior to his arrest. Finally, defendant notes that prior to the evening of his arrest he was not known to any law enforcement officers, he had never been by any law enforcement officers, and no officer had any information from any source that he was in any way associated with defendant Buschel. *fn4"

 Regarding the hearing testimony, defendant strenuously urges that no evidence has been adduced which would indicate that the officers had probable cause to effect his arrest. First, defendant points to the testimony of Investigator Harlin to the effect that prior to his arrest of Buschel, he had never seen Hein and Buschel together and had no information that Hein was in any way involved in the drug conspiracy. Second, defendant indicates what are alleged to be substantial contradictions and inconsistencies in the testimony of Investigator Reidy.

 The Government's position with respect to probable cause in this case is simple. Indeed, the meager effort made by the Government to support its theory of the validity of the arrest bespeaks an overly sanguine projection of the disposition of the instant motion. In short, the Government is content to rely simply upon the experience of the arresting officers, their suspicions that a confederate of Buschel would be in the area, and the somewhat suspicious behavior of Hein in the Town of New Platz on the evening of the arrest.

 After careful review of the hearing testimony and the arguments of counsel, the Court is persuaded that there was an insufficient basis for the arresting officers' determination of probable cause and the fruits of the arrest must therefore be suppressed.


 Both the starting and ending point for purposes of the present motion is found in the well settled proposition that warrantless arrests are unlawful unless made upon probable cause. Dunaway v. New York, 442 U.S. 200, 208, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Wong Sun v. United States, 371 U.S. 471, 479, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Probable cause, of course, "must be determined with reference to the facts of each case. . . ." United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983). In general, "probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient in themselves to warrant a person of reasonable caution in the belief that (1) an offense has been or is being comitted (2) by the person to be arrested." Id.; see also United States v. Torres, 740 F.2d 122, slip op. at 5335 (2d Cir. 1984). "The quantum of evidence required to establish probable cause to arrest need not reach the level of evidence necessary to support a conviction, . . . but it must constitute more than rumor, suspicion, or even a "strong reason to suspect." United States v. Fisher, 702 F.2d at 375 (quoting Henry v. United States, 361 U.S. 98, 101, 4 L. Ed. 2d 134, 80 S. Ct. 168 (1959)).

 The Government has posited four factors, evaluation of which, in the context of the present case, is claimed to support a finding of probable cause. These factors include: (1) the experience and training of the police officers, see United States v. Price, 599 F.2d 494, 501 (2d Cir. 1979); (2) elusive meanderings while appearing to be waiting for someone, especially where the experienced officers have observed this pattern of behavior before, see United States v. Vasquez, 634 F.2d 41, 43 (2d Cir. 1980); (3) the appearance of checking for surveillance, see United States v. Fisher, 702 F.2d 372, 373, 378 (2d Cir. 1983); and (4) movements that are designed to avoid encounter with a police officer, see id. While all those factors have some relevance to the subject arrest, it is important to note that the cases cited by the Government employing these factors all involved only investigative stops, not warrantless arrests. It hardly need be stated that the standards governing the propriety of each are significantly different. See, e.g., United States v. Vasquez, 638 F.2d 507, 520 (2d Cir. 1980), cert. denied, 454 U.S. 975, 70 L. Ed. 2d 396, 102 S. Ct. 528 (1981). While the totality of factors urged by the Government may have established a legitimate basis for an investigatory stop, that is, a reasonably articulable suspicion that Hein was or was about to be engaged in criminal activity, see United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981); United States v. Nargi, 732 F.2d 1102, 1105 (2d Cir. 1984), it is clear that those same factors do not support a finding of probable cause to arrest. *fn5"

 The weakness of the Government's position is exemplified in its own statement that "there was sufficient probable cause to believe that [Hein] was performing a counter-surveillance of the Buschel and Durell meeting and was therefore a member of the conspiracy to possess, with intent to distribute, the 1250 pounds of marihuana seized from the Durell house." Government's Post-Hearing Brief in Opposition to Defendant Hein's Motion to Suppress at 9. The Court simply is unable to fathom how probable cause to believe that a defendant was engaged in "counter-surveillance," even when coupled with the other factors presented here, may lead to the objective conclusion that a defendant has engaged in or is engaging in criminal conduct. The hearing testimony establishes that at the very most, Hein's behavior was somewhat suspicious. Probable cause, however, must consist of "more than rumor, suspicion, or even a "strong reason to suspect." United States v. Fisher, 702 F.2d at 375 (quoting Henry v. United States, 361 U.S. 98, 101, 4 L. Ed. 2d 134, 80 S. Ct. 168 (1959)).

 The Court is satisfied that these officers acted without probable cause in effecting Hein's arrest. First, although there is a substantial dispute as to whether Investigator Reidy actually saw Hein standing with Buschel immediately preceeding the arrests, *fn6" the Court concludes that even assuming the truth of Reidy's observations, the defendants' presence together was insufficient to establish probable cause. The facts here are remarkably similar to those held in Sibron v. New York, 392 U.S. 40, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), not to support a finding of probable cause. The Sibron court noted:

 The prosecution has quite properly abandoned the notion that there was probable cause to arrest Sibron for any crime at the time Patrolman Martin accosted him in the restaurant, took him outside and searched him. The officer was not acquainted with Sibron and had no information concerning him. He merely saw Sibron talking to a number of known narcotics addicts over a period of eight hours. It must be emphasized that Patrolman Martin was completely ignorant regarding the content of these conversations, and that he saw nothing pass between Sibron and the addicts. So far as he knew, they might indeed "have been talking about the World Series." The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security. Nothing resembling probable cause existed until after the search had turned up the envelopes of heroin.

 392 U.S. at 62-63. Here too, the mere presence of Hein in the area of Bushel's arrest simply is an insufficient basis upon which to ground a determination of probable cause. Even assuming the officers know that a confederate of Bushel's would be in the area, there was no information or facts from which they reasonably could infer that Hein was that person. As in Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979), "none of the circumstances preceding the officers' [arrest] of [defendant] justified a reasonable suspicion that he was involved in criminal conduct." Id. at 51-52.

 The additional factors relied upon by the Government and claimed to bolster the officers' probable cause determination likewise are rejected. First, although the Government now characterizes defendant's "suspicious" behavior as having been in the nature of "counter-surveillance," see United States v. Vasquez, 638 F.2d 507, 513 (2d Cir. 1980), cert. denied, 454 U.S. 975, 70 L. Ed. 2d 396, 102 S. Ct. 528 (1981), *fn7" there was no testimony by the officers that this was in fact how they perceived defendant's actions. Indeed, their testimony indicated at most their observation of somewhat suspicious behavior on the part of Hein.While the "experience of a police officer is a factor to be considered in the determination of probable cause . . ., the relevance of the suspect's conduct should be sufficiently articulable that its import can be understood by the average reasonable prudent person." United States v. Fisher, 702 F.2d 372, 378 (2d Cir. 1983) (citations omitted). The mere fact that Hein observed the arrest of Buschel with apparent interest, or perhaps only curiosity, and then walked both toward and away from the scene, hardly can impel the conclusion that he was engaged in "counter-surveillance." *fn8" "From all that appears in the record, [Hein's] conduct was entirely ambiguous, and ambiguous conduct does not provide probable cause for arrest." Id. (citation omitted).

 Similarly, there is no basis in the record upon which to conclude that Hein was attempting to flee the scene, or, in the Government's words, "moving so as to avoid an encounter with the police." *fn9" The testimony of both Reidy and Harlin was only to the effect that after apparently observing the arrest of Buschel, Hein simply turned around and walked the other way. *fn10" There is hardly any indication of "flight" to be found in such behavior, particularly since there is no evidence that Hein knew that Reidy and Harlin were police officers. In Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), the Supreme Court reiterated the general rule that when a police officer insufficiently or unclearly identifies his office or his mission, a suspect's flight "must be regarded as ambiguous conduct." 371 U.S. at 482; see also Miller v. United States, 357 U.S. 301, 310-12, 2 L. Ed. 2d 1332, 78 S. Ct. 1190 (1958). In holding that such conduct was insufficient to support a finding of probable cause, the Court placed considerable reliance on its well established refusal to accord probative value in criminal trials to evidence of an accused's alleged flight, 371 U.S. at 483 n.10, and quoted from its decision in Alberty v. United States, 162 U.S. 499, 40 L. Ed. 1051, 16 S. Ct. 864 (1896):

 [I]t is not universally true that a man, who is conscious that he has done wrong, "will pursue a certain course not in harmony with the conduct of a man who is conscious of having done an act which is innocent, right, and proper;" since it is a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses. Nor is it true as an accepted axiom of criminal law that "the wicked flee when no man pursueth; but the righteous are as bold as a lion."

 162 U.S. at 511. Because Hein's avoidance of the officers provides no basis upon which an inference of guilt may be grounded, that fact could not supply the necessary probable cause for his arrest.


 On balance, the Court finds inescapable the conclusion that officers Reidy and Harlin acted without probable cause in effecting the warrantless arrest of defendant Hein. While it is a closer question whether there may have been sufficient articulable suspicion warranting an investigatory stop, it is clear that that is a course of action these officers elected not to pursue. Having opted to arrest rather than simply question Hein, their actions can only be justified upon a finding of probable cause. Because probable cause was lacking, the arrest itself was unlawful and the fruits derived therefrom must be suppressed.

 It is so Ordered.

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