In one evening, a Detective, who was assigned as backup to an undercover police officer who was attempting to buy controlled substances at a social club. There is no evidence in the record that the undercover officer was able to achieve that objective. However, at 8:00 P.M., the undercover officer advised the Detective by radio transmission that a tall white male with a pony tail approached her inside the social club and asked her “if she wanted to take a hit of cocaine”.
A Queens County Criminal attorney said that approximately six hours after the defendant asked the undercover officer if she wanted a “hit” of the drug cocaine, the undercover officer left the social club, and the Detective and other police officers arrived at the social club. The police directed its occupants to leave, and “stopped” and searched the defendant and “everybody when they came out”. The Detective recovered a packet of cocaine from the defendant’s jacket pocket and a .38 caliber automatic gun from the defendant’s boot.
It is unclear from the record whether the defendant was arrested before or after the search. Our dissenting colleague’s conclusion that the defendant was “the first of seven patrons to be arrested and searched”, is based upon a statement of the defendant’s attorney made upon “information and belief” during colloquy. During subsequent colloquy, the defense counsel stated, also “on information and belief”, that the undercover officer was a “very beautiful” woman, and that the defendant “could have been just trying to pick her up”. Clearly, neither of these representations constituted evidence.
After a hearing, the court suppressed the gun and cocaine recovered from the defendant’s person. In so doing, the hearing court did not dispute the veracity of the Detective, or his right to rely on hearsay information provided by the undercover officer. Rather, the court found that the defendant’s statement to the undercover officer was merely an inquiry into the undercover officer’s “wishes and desires”, not evidence of a crime.
The crime of criminal sale of a controlled substance may be predicated upon an offer or agreement to sell cocaine, even if an actual delivery of cocaine did not occur. However, not every casual offer is made criminal. To constitute a sale, there must be evidence to indicate an ability and intent on the part of the defendant to complete the transaction. A promise to deliver a drug at some point in the “near future” is insufficient, as a matter of law, to constitute a sale.
In the instant case, there is no evidence that the undercover officer saw anything that appeared to be cocaine, or had any reason to believe that the defendant possessed cocaine. Nor was there evidence that the defendant had the ability or intent to complete an exchange of cocaine from himself or any other person. There was no evidence of a prior relationship between the defendant and the undercover officer. Therefore, no inferences could be drawn as to the particulars of any future delivery.
As noted by the Supreme Court, a reasonable inference was that the defendant’s statement to the undercover officer was merely an inquiry into her “wishes and desires”. The defendant’s statement was made in a social club, where casual conversation is rampant. The defendant may have been attempting to strike up a conversation with a female. Conduct which falls within the statutory definition of a sale of cocaine constitutes a crime, whatever the defendant’s motive, but casual conversation does not.
A finding of probable cause to arrest does not require proof beyond a reasonable doubt. However, there must be reasonable cause to believe that a crime was or is being committed, and the defendant committed the crime. Conduct which is, at most, equivocal and suspicious, is not sufficient to establish probable cause to arrest.
Accordingly, the order suppressing the physical evidence recovered from the defendant’s person is affirmed.
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