Published on:

Drug Possession Defendant Contends No Probable Charge for Search


One early morning in August of the year 2000, a police officer and his partner were on patrol in uniform in a marked patrol car. The officer testified that he had been a member of the New York City Police Department for four years and had made approximately 10 arrests involving cocaine possession or marijuana possession, had received training with respect to narcotics and marijuana at the police academy, and been involved in over 100 criminal law and drug crime related arrests. A New York Criminal Lawyer said the officer also testified that he considered interaction with criminals as part of his training on the subject of narcotics, and that he had been involved with hundreds of suspects who were under the influence of alcohol or marijuana. Specifically, the officer testified that he had seen loose tobacco in piles in stairwells, on sidewalks, and most commonly alongside glassine envelopes, and based upon these experiences as a police officer, he had learned that the presence of loose tobacco was a result of an individual emptying out a Philly Blunt cigar and refilling it with marijuana and/or cocaine.

At approximately 4:00 A.M. on August 7, while in the patrol car, the officer observed the accused standing next to a parked automobile. The car was parked on the parking apron in front of a closed auto repair shop. The officer testified that the location is in the vicinity of a nightclub. The officer testified that the neighborhood near this club is patrolled more heavily because there are a lot of problems that stem from the said nightclub. A New York Criminal Lawyer said the the officer stopped at a red light, he saw the accused standing outside the open driver’s door, throwing garbage over his shoulder which landed several feet behind him. The officer also observed a passenger in the front seat of the car.

The officer pulled his patrol car into the lot behind the accused man’s vehicle and approached the accused. The accused apologized for throwing the trash and began picking it up. The officer asked the accused for his license, registration and insurance. The officer asked the accused whose car it was and the accused responded that it was his car. The accused then gave the officer a New Jersey license which had the name and bore his photograph. The officer observed that the accused had glassy eyes, was unsteady on his feet, had trouble responding to the officer’s questions, and had slurred speech. The passenger of the car had exited the car and began yelling at the officer.

While still standing outside the accused man’s car, the officer looked inside the open driver’s side door of the car and saw loose tobacco strewn on the front passenger seat and on the center console between the two front bucket seats. The officer asked the accused if he could search the car and he said no. The officer entered the car, opened the center console, and found four bags of marijuana and one bag of cocaine. The officer did not search any other part of the car. The accused and the passenger were then placed under arrest. The officer asked the accused if the drugs belonged to him and he answered no and continued to deny that the drugs were his. A New York Drug Possession Lawyer said the accused also stated that the other person should be placed under arrest.

The accused and the passenger were taken to the precinct for processing. As the officer was searching the accused, he repeatedly stated to the officer that he wanted to talk to him. The officer told the accused it was too late whereupon he already stated that the drugs belonged to him and that they didn’t belong to the other person in the car.

The officer recovered another driver’s license during the arrest processing search of the accused. The accused had a second New Jersey license with his photograph and a different name. The officer stated to the accused to be straight with him and that there was an additional charge to lie. The accused stated that the first license bearing another name was the correct one. The officer testified that it didn’t add up and asked the accused his date of birth and addresses, but he wasn’t answering straight. The accused stated to the officer that the first license was not his and he told the officer that he had gone to New Jersey Motor Vehicles with his cousin’s information and obtained that license.

The accused was processed through Central Booking and brought to the District Attorney’s Office. The same day, the accused was read his Miranda warnings by the Assistant District Attorney to which he answered yes after each question. The accused made written and oral statements to the officer and the Assistant District Attorney regarding the drugs, the licenses, and the other man in the car.

The accused argues that his behavior and the subsequent observations of the tobacco-pile in the car are insufficient to establish probable cause for the police officer to search the car. The standard for probable cause justifying a search or seizure is not the same as that to establish guilt. Probable cause is defined as the body of information available to a police officer who would lead a reasonable person who possesses the same expertise as the officer to conclude, under the circumstances, that a crime is being or was committed. Since the Fourth Amendment’s commands are practical and not abstract, they must be interpreted in a commonsense and realistic fashion.

Battlefield experience gained from the war on drugs has prompted the courts to change their view on what constitutes probable cause. The jurisprudence in the area of observations of street drug transactions, for example, has moved beyond such niceties as distinctions based on the color or degree of opacity of the envelope to the point where the visual identification of the object exchanged for money is merely one element in the totality of the circumstances to be considered in any probable cause assessment. The courts have applied evolving tests to determine the hallmark of a drug transaction. A glassine envelope went from a mere telltale sign of heroin to the hallmark of an illicit drug exchange. Similarly, the tinfoil packet was soon recognized as the cocaine analogy of the glassine. In the mid-1980’s, with the advent of crack/cocaine, the plastic vial joined the glassine envelope and tinfoil packet as a hallmark of drug activity. Over these two decades of increased drug trafficking, the courts realized that they cannot operate in a vacuum and cannot ignore developing modes and techniques of drug trafficking and use.

For the court to analyze the street encounters and apply the fluid concept of probable cause necessary in the drug trade, the court must increasingly rely on an officer’s expertise in narcotics cases as well as the nature of certain neighborhoods and changing trends in marijuana possession and narcotics use and sale. In the 1980’s, the courts focused on three factors they felt were relevant in determining probable cause: the hallmark or telltale sign of a drug-prone area, and the officer’s expertise; later, the courts added the aspect of the container to determine probable cause. More recent case law holds that in a probable cause analysis, the emphasis should not be narrowly focused on a recognizable drug package or any other single factor, but on an evaluation of the totality of the circumstances, which takes into account the realities of everyday life unfolding before a trained officer.

The initial encounter by the police with the accused was proper. The observation of the accused man’s car in the parking apron in front of a closed auto repair shop at 4:00 A.M., where no car should have been, coupled with the accused throwing garbage on the street gave the police the common-law right to inquire. In fact, the right of the police to approach a stationary or parked car is analogous to the right to approach a citizen on the street to request information. The officer’s request for information from the accused like the request for information from a citizen on the street is a minimal intrusion on the individual’s right to privacy. There was no restraint on the accused man’s freedom nor had his movement been significantly interrupted. The officer possessed an objective and credible reason for approaching the accused and making inquiry after his initial observations and at that point did not need to have any indication of criminality.

The officer’s request for the license, registration and other papers was proper inquiry based on his initial observations combined with the subsequent observations that the accused was unsteady on his feet, had glassy eyes and slurred his speech. The officer also testified that the lot and shop were located near a club; the officer stated that the area required increased patrol because it was a problem. While a more amplified record would have been preferable, the court recognizes and may even take notice that the common problem associated with a club notorious in New York, is excessive drug use as well as other antisocial activity.

Therefore, the officer’s knowledge of the area combined with the accused man’s inebriated or high condition elevated the officer’s suspicion and gave him the right to inquire. Therefore, it was proper for the officer to request identification from the accused.

Based on records, no search occurred when the officer looked into the interior of the car. Police officers may look through car windows. The purpose of the officer’s action is irrelevant as to whether his gaze was by accident or decision, the conduct does not constitute a search. The pile of loose tobacco inside the car seen by the officer, combined with all the other factors, gave the officer reasonable grounds to believe that a crime had been committed, and a level 3 detention and a forcible stop was therefore authorized.

While there are no direct cases regarding piles of tobacco, the court finds that the fluid concept of totality of the circumstances in establishing probable cause allows the court to recognize the events as indication of drug activity as it is carried out. A New York Sex Crimes Lawyer said the indication of drug activity recognized by the courts is ever evolving, and is based on the actual practices of drug trade and consumption as they too evolve. The officer’s subsequent search of the console’s interior was based upon probable cause and was therefore proper.

When the accused was placed under arrest and taken to the precinct for processing, he stated that he wanted to speak to the police. The unprompted accused stated to the officer that the drugs were his and not the other person’s. Although he was in custody, the statements were spontaneous and not the subject of custodial interrogation and are admissible. Once at the precinct, the police had the authority to search the accused incident to a lawful arrest. The court finds the statements admissible. Pedigree information is a recognized exception to restriction on inquiry. It is also essential, after arrest, for the police to be able to properly complete their administrative duties. The search which turned up the second license, as a search incident to an arrest, was also proper.

The law is made with equal consideration for everyone, regardless of who we are and what we are. However, one person’s rights ends when other person’s rights begin. Police officers who arrest suspected criminals are trying to protect private individuals from harm. If you need a NY Drug Crime Attorney to defend you from controlled substance related arrest, or a New York Criminal Lawyer for your crime-related actions, feel free to call or visit the office of Stephen Bilkis and Associates.

Contact Information