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Court Determines if Probable Cause was Present for a Stop and Search


At around 9pm on September 26, 1985, a police officer was on radio motor patrol. As he was driving around the area of the corner of 204th Street and 113th Avenue, the police officer observed two men standing at that corner and one of them handed to the other a plastic bag containing smaller plastic packets. A New York Criminal Lawyer said the plastic packets contained a white powder-like substance. This was not the first time the police officer had seen plastic packets with a powder-like substance in them. He knew from experience that this is the common packaging for angel dust or heroin.

The police officer parked his patrol car and exited it. As he approached the two men, he saw the one who received the plastic bag stuff the bag in his shirt pocket. He also smelled something burning. The police officer had prior experience and instantly recognized the smell of burning heroin.

As the officer approached, the two men walked away. The police officer called out to the man who received the plastic packets. The man turned around and walked back to the officer. At this time, the officer observed that the man walked stiffly as though his legs couldn’t be bent at the knees. He was uncoordinated and walked like a tin man. A New York Criminal Lawyer said his previous experience with heroin addicts signaled to him that the man was exhibiting behavior common to people under the influence of heroin.

The police officer frisked the man and found the plastic bag. It contained 27 other smaller individually wrapped packets of heroin. A gravity knife and the sum of $115 were also taken from the man’s person.

The police officer read to the man the Miranda warnings and arrested him for drug possession (heroin). The man waived his right to have a lawyer present and gave a statement to the arresting officer. He told the officer that he was not selling heroin; he used heroin. He bought the heroin and that is why he was caught in possession of it.

At the trial, the judge suppressed the police officer’s testimony, the plastic packets and the defendant’s statements. He ruled that the police officer’s demeanor during his testimony was not credible. He also ruled that the police officer was intent on arresting the defendant for heroin possession from the time he exited his police vehicle.

The Supreme Court ruled that the trial court judge committed an error in suppressing the officer’s testimony, the physical evidence which was seized and the statements made after the arrest. The Court ruled that the police officer had a reasonable suspicion that the crime of heroin possession was being committed. The reasonable suspicion was triggered first because the area was known to be a high drug traffic area; he saw two people exchange money for a packet filled with smaller packets of individually wrapped white powder; the small plastic packets of white powder looked like heroin sold on retail; he saw the defendant stash the plastic packets into his pocket; he smelled burning heroin as he approached the two men; he saw the defendant’s gait which was uncoordinated and robot-like.

At the time that he approached the man, he already had probable cause to stop the man and frisk him. At that time, the man’s behavior and demeanor was similar to other heroin users he had observed in the past. The smell of burning heroin was familiar to him because he had smelled burnt heroin in the past. The appearance of the white powder in individual plastic packets was similar to heroin clandestinely sold on retail on the streets.

When the police officer stopped the defendant and frisked him, therefore, he had probable cause. When the frisk yielded a concealed gravity knife, the sum of $115 dollars and the individually packed white powder, the police officer arrested the man. The physical evidence was then legally seized because it was seized upon probable cause. There was no reason for the physical evidence to be suppressed. The statements given by the defendant to the police officer were knowingly given despite the Miranda warnings. They ought not to be suppressed either.

Given the totality of the factual circumstances of this case, the Court ruled that there was sufficient information which led the police officer to believe that the crime of heroin possession was being committed. The frisk that yielded the physical evidence and the subsequent statements made to the police officer are all admissible.

At Stephen Bilkis and Associates, New York City Drug Crime lawyers are ready and willing to assist you. Their New York Drug Crime lawyers will advise you that evidence obtained without probable cause cannot be admitted as evidence against you. Their NYC Drug Crime attorneys will also advice you that statements given to the police without being given the Miranda warnings are not admissible evidence against you. Whether you have been charged with sex crimes, drug possession or a theft charge, contact our office for legal advice and a free consultation.

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