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Decision is reversed on appeal

Sometime in early February 1970, the police learned from a reliable informant that a certain person (the defendant) along with a friend of his were engaged in extensive heroin trafficking. The two criminal men were investigated and kept under surveillance. On 5 March 1970, a detective received information that defendant and his friend would be in possession of heroin at a service station in the Bronx. A warrant authorizing a search of both men was obtained. The friend was the first to arrive at the gas station. No heroin was found on his person. He is said to have consented to the search of his automobile which was on the apron of the gas station where five ounces of heroin were found. A few minutes later, the defendant arrived at the scene. He was searched and once again no contraband was found, but automobile keys were recovered. Defendant was asked if he had a car and if it might be searched. He identified his car and agreed to the search. Ten ounces of heroin were found in the trunk of the car.

Defendant was then arrested and for the first time advised of his rights. Following a Huntley hearing, the Trial Court concluded that the search of defendant’s car flowed directly from the questions and answers suppressed by the order of 15 January 1971. On 26 January 1971, the Supreme Court of Bronx County issued an order suppressing the evidence obtained from defendant’s automobile. Assault was not involved although other criminal activities were suspected.

On appeal, the Appellate Court unanimously reversed, on the law and on the facts, and the defendant’s motion to suppress the heroin seized from his automobile was denied.
As defined under the law, probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. In dealing with probable cause, the court deals with probabilities; probabilities which are not technical, but are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

Here, there was ample evidence, independent of the questions and defendant’s answers about his automobile, to dissipate any taint and to approbate the search. The police had probable cause to search defendant’s automobile. Defendant’s car was known to the detectives, since he had been under surveillance for several weeks. One of the detectives knew his license plate number; and another saw the defendant arrive in his car. During the course of the investigation, the police observed the defendant in association with known narcotics dealers. Just prior to the search of defendant’s automobile, they had found heroin in his companion’s car. Under these circumstances, the police clearly had sufficient probable cause to search defendant’s automobile without a warrant.

Meanwhile, on 22 July 1977, the Supreme Court of Kings County rendered judgment convicting another defendant of criminal sale of a controlled substance in the third degree, upon a jury verdict.

On appeal, the Appellate Court reversed judgment, on the law, and a new trial was ordered.
Here, the undercover police officer testified that he approached defendant on the street and told him that he had $46 and that he wanted five bags of heroin. Defendant told the officer to come with him to a social club at 2008 Fulton Street. Inside the social club defendant introduced the officer to a certain person, A. A gave defendant a small amount of cocaine to snort. The officer and A then went to another room. Defendant did not accompany them. A then sold two bags of heroin to the officer for $20. The officer testified that he never paid defendant any money for drugs; nor had he seen any heroin in defendant’s possession. However, police officers who were members of the undercover officer’s back-up team, testified that they saw defendant drive a car registered to A’s brother and that, subsequent to the heroin sale to the undercover officer, they saw the defendant speak to A.

Based on the records of the case, the court was of the opinion that the evidence adduced did not warrant a charge on the defense of agency, and that the lower court should have charged the jury on the agency defense. The prosecutor should not have offered extensive evidence on the procedures involved in the manufacture of heroin or on the hierarchy in the drug trade. This testimony was discussed by the prosecutor during his summation. It was prejudicial, its probative value was slight and it deprived defendant of a fair trial.

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