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Probable Cause Questioned in Drug Crime


Drug offenses are governed by numerous laws of varying degrees. Each one is reliant on the laws of search and seizure at the federal and state level to ensure that the officers and prosecutors do not overstep their boundaries in a zealous attempt to make more cases. A New York Criminal Lawyer said if they do, then they jeopardize the trust that the citizens have placed in them. The laws of search and seizure are in place to protect all citizens from illegal intrusions into their homes and businesses. If the prosecutorial team violates that trust, then it is a threat to the freedom of all people, not just the defendant in the drug crime case.

On January 19, 1973, at around 7:30 at night, a narcotics officer was observing activity in a known high drug trafficking area from the roof top of an eighteen story building. He observed a man approach a suspected drug dealer and offer him money. The suspected dealer refused the money and the man produced a larger amount from his pocket. The dealer accepted that amount and left to enter a building. He came back a short time later and put his hand on top of the recipient’s hand in an awkward hand shake. The officer stated later in court that in his experience, that type of hand motion is used to conceal the passing of narcotics from one person to another.

The observing officer communicated with a uniformed chase officer on the roadway that he had observed the drug transaction. He described the defendant by his physical description and by his clothing. He told the chase vehicle that the defendant was walking down the roadway toward his location. He observed the recipient as he walked right up until his contact with the chase officer when the observing officer told the chase officer that it was the man right next to him.

The chase officer reached into the man’s coat pocket where the observing officer had told him that the drugs were concealed and removed a tin foil pouch that contained several smaller packages of what was later determined to be cocaine. When the case got to court, the defendant made a motion to suppress the evidence because he contends that it was the fruit of an illegal search. He states that at the time that the officer reached into his pocket, he was not under arrest and was not in possession of a weapon. A New York Criminal Lawyer said he contends that the encounter did not constitute a stop and frisk under the elements of Terry v Ohio, 1968, because the officer reached inside of his pocket and removed the suspected drugs. He contends that the case was not a search incident to arrest, because he was not in custody at the time that the officer reached into his pocket and removed the drugs. Because the collection of the drugs did not fall into a situation of stop and frisk, or search incident to an arrest, the defendant maintains that it was an illegal search and all fruits of the search need to be excluded from court under the Exclusionary Rule.

The Exclusionary rule states that any evidence that is the result of an illegal search and seizure, must be excluded from evidence at trial unless the case meets certain exceptions. In this case, the searching officer had exited his vehicle and immediately reached into the defendant’s pocket without saying anything to him. However, the observing officer had witnessed what he contends was a drug transaction based upon his knowledge, training, and experience as a law enforcement officer for the state of New York. He never lost sight of the subject, and he had instructed the arresting officer as to the exact location of the contraband.

The state makes the case that the search was not illegal because from the moment of the transaction until the moment of seizure, he was being observed by the observation officer. The subject was immediately arrested. A New York Drug Possession Lawyer said the arrest and the seizure were virtually simultaneous and that rendered the search a legal search pursuant to an arrest.

The defense disagreed. They contend that since the arresting officer did not tell the subject that he was under arrest until after he had reached into the defendant’s pocket, that the search was not incident to arrest and was not legal. Pursuant to the Exclusionary Rule, there are several exceptions that enable law enforcement to present evidence that would normally be excluded from court. One of these exceptions is hot pursuit. If the subject is fleeing from the police and they are attempting to apprehend him, he should consider that he has been seized and all evidence on his person or that he discards can be used in court as evidence against him. Another exception to the Exclusionary Rule is inevitable discovery. If the prosecution can show that the evidence seized would inevitably have been discovered by legal means in the course of the investigation, then the evidence can be presented in court.

In this case, it is clear that the subject was about to be arrested. The officer reached into the pocket that he was informed by the observing officer concealed the newly purchased narcotic drugs. It is clear that whether the defendant was told he was under arrest before or after the arresting officer retrieved the drugs is immaterial to the case. Obviously, a New York Sex Crimes Lawyer said the officer would have reached into the defendant’s pocket immediately following informing him that he was under arrest. The integrity of the search, while ill-timed, was certainly within the scope that the evidence would inevitably have been discovered because the officers already had probable cause to accomplish the arrest before he was stopped.

Probably cause is the requirement for a physical arrest. Probable cause has been defined and redefined many times over the years, but it is that degree of certainty that a law officer possesses that would lead him or her based on training, experience, and knowledge to believe that a crime has been committed and that the person that they are interested in has been involved in that crime in some integral fashion. It is less than articulable suspicion and more than beyond a reasonable doubt. Probable cause is integral to determining if the defendant could legally have been arrested at the time that the arresting officer took custody of the cocaine in his pocket.

It is clear from the review of this case, that the officers did possess probable cause to arrest the subject at the time that the arresting officer reached into his pocket. However, the original trial court condemned the action as an illegal search. The prosecutor presented the situation to the Supreme Court and the decision was overturned. The search was conducted as part of an arrest of the subject. Because that arrest contained the necessary probable cause to assume that the defendant had committed the offense of purchasing narcotics and that he had concealed the cocaine in his jacket pocket, it is clear that the officers would have located that evidence whether or not it was done before the actual words were spoken that placed the defendant under arrest. The order was reversed and the evidence was admitted in court.

At Stephen Bilkis & Associates with its criminal lawyers there are convenient offices throughout New York State and Metropolitan area. Our drug crime attorneys can provide you with advice to guide you through difficult situations. Hiring a cocaine possession Lawyers can prevent you from losing precious time with your family.

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