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UNITED STATES v. JABBAR

December 11, 1986

UNITED STATES OF AMERICA,
v.
JAHAD JABBAR, Defendant



The opinion of the court was delivered by: EDELSTEIN

OPINION AND ORDER

EDELSTEIN, District Judge :

The defendant, Mr. Jahad Jabbar, is charged in an indictment with possessing with intent to distribute eighteen glassine envelopes containing cocaine and seven glassine envelopes containing heroin in violation of 21 U.S.C. Sections 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. Section 2. Defendant has moved pursuant to Federal Rules of Criminal Procedure 12(b)(3) and 41(e) to suppress evidence seized in alleged violation of his Fourth Amendment rights. An evidentiary hearing was held on October 27, 1986. The motion is denied.

 BACKGROUND

 On May 20, 1986, at approximately 4:00 P.M., New York City police officer Antoine Dandridge ("Officer Dandridge"), acting in an undercover capacity, went to the southwest corner of 123rd Street and Lexington Avenue in New York City seeking to make an undercover purchase of controlled substances. At that location, Officer Dandridge was approached by a black male later identified as Darryl Sealey ("Sealey") who offered to sell Dandridge the drug marijuana. Officer Dandridge rejected the offer and inquired of Sealey where he might purchase the crack form of cocaine. Gesturing to an individual standing nearby, Sealey responded that "[w]ell, my man has it over here."

 Officer Dandridge, in Sealey's presence, purchased a vial of crack from the individual pointed out by Sealey and later identified as Michael Brown ("Brown"). After the purchase, Officer Dandridge returned to his private automobile and radioed his back-up field team. Officer Dandridge detailed the purchase which had just taken place and gave descriptions of Sealey and Brown so that arrest could be made. Officer Dandridge described Sealey as a black male wearing a blue shirt with white trim and blue jeans. Officer Dandridge further stated that the suspect would be near 123rd Street and Lexington Avenue in the company of another black male wearing a red and black plaid jacket.

 New York City Police Detective Donald Kennedy ("Detective Kennedy"), an experienced member of the back-up field team, heard Officer Dandridge's description of the two participants in the buy and bust operation over his police car radio moments after the sale took place. Detective Kennedy immediately drove against traffic to arrive at Lexington Avenue between 122nd Street and 123rd Street. From Lexington Avenue, at approximately 4:07 P.M., Detective Kennedy saw a black male, about 5'7" tall, wearing a blue warm-up or sweatshirt style zippered jacket with white trim and blue jeans talking to another black male wearing a red and black plaid jacket in front of 2010 Lexington Avenue. These two men separated when they saw the police approach; the man wearing the blue jacket, later identified as Jahad Jabbar ("Jabbar"), walked briskly north on Lexington Avenue toward 123rd Street and the man wearing the plaid jacket, later identified as Brown, walked south toward 122nd Street. Detective Kennedy did not see anyone else on that block matching the undercover officer's description of a black man wearing a blue shirt with white trim and blue jeans.

 Detective Kennedy followed Jabbar and, within minutes of the sale to Officer Dandridge by Brown and Sealey, placed him under arrest for participating in a sale of crack, while another police officer arrested Brown who was wearing the red and black plaid jacket. During a search following the arrest, Detective Kennedy found twenty-five glassine envelopes containing white powder in Jabbar's jacket pocket.

 After the arrest and search, Officer Dandridge drove by the scene of the arrest to identify the suspects. Officer Dandridge positively identified Brown but informed the back-up team Sergeant that Jabbar was not the other participant in the original drug transaction. Detective Kennedy did not learn that Jabbar was not one of the sale suspects until he returned to the precinct. Sealey was arrested inside a building on Lexington Avenue between 122nd Street and 123rd Street approximately ten minutes after the apprehension of Jabbar and Brown. Sealey, a black male about 5'8" tall, was wearing a blue shirt with a white stripe around the collar and dungarees when he was arrested.

 DISCUSSION

 Jabbar moves to suppress the narcotics seized as a result of the search of his pockets by Officer Kennedy. Jabbar claims that because the description given by Officer Dandridge was not sufficiently specific, the police did not have probable cause to arrest Jabbar. Accordingly, Jabbar maintains that the police did not have probable cause to believe that a search of Jabbar's person would disclose evidence of a crime. Second, defendant asserts that his apprehension on the street was not a full-blown arrest but rather a brief investigatory "stop" pending verification by the undercover officer who had purchased the drugs. As a result, Jabbar maintains that the apprehending officer was entitled to conduct a pat-down frisk of the outside of Jabbar's clothing but was not entitled to conduct a search of the inside of Jabbar's pockets. Based on these contentions, Jabbar claims that the contraband was taken from his person as a result of an illegal arrest and search and as such must be suppressed.

 A. Probable Cause

 An arrest made without a warrant is unlawful unless it is made upon probable cause. Dunaway v. New York, 442 U.S. 200, 208 & n.9, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979). Although the evidence necessary to support the existence of probable cause need not reach the level of evidence necessary to support a conviction, it must constitute more than rumor, suspicion, or a strong reason to suspect. United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983). The existence of probable cause to arrest a suspect must be determined with reference to the facts of each case. Id. In this Circuit probable cause exists if "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 committed (2) by the person to be arrested." Id. Where a description of a suspect does not identify any specific individual, as opposed to being applicable to a number of potential suspects, probable cause to arrest does not exist. Id. at 375-76. For example, where an otherwise unimplicated laundry proprietor was mistakenly arrested instead of another laundry operator on that same street with the very same surname, probable cause to arrest did not exist since there were several launderies on that street. Wong Sun v. United States, 371 U.S. 471, 479, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).

 In the instant case, Officer Dandridge's description of Sealey as a black male wearing a blue shirt with white trim in the company of another black male wearing a red and black plaid jacket on Lexington Avenue near 123rd Street was sufficiently detailed so that it would not "fit a very large group of ordinary young men." United States v. Rosario, 543 F.2d 6, 8 (2d Cir. 1976). Though an otherwise adequate description can be rendered unsatisfactory by the mere passage of ...


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