An offender was charged with one count of criminal sale of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the fourth degree and one count of criminal possession of a controlled substance in the third degree. A hearing was held to determine whether probable cause existed to arrest the offender and whether cocaine alleged to have been recovered from his person is admissible at trial.
A police officer testified that he was employed as a sergeant and supervised a narcotics investigation of cocaine-dealing in the county. As part of the investigation two undercover police officers were used to make purchases of cocaine.
The primary target of the investigation was a man known to the police. Prior to the date of the arrest, approximately five purchases of cocaine had been made by the undercover police officers. The first purchase of cocaine was made by the first undercover police officer directly from the man. The balance of the purchases thereafter was made by the second undercover police officer and involved other individuals assisting the man. The said other individuals acted in various role such as lookouts, distributor of the drug and handlers of currency. The police officer further stated that the man was either present or aware based on phone communications of each of the narcotics transactions.
The police officer stated that a decision was made to take down the operation. In connection with the take down, the second undercover police officer arranged to purchase 70 grams of cocaine from the man. Afterward, he spoke with the man on the phone regarding the drug transaction and then met with a second person regarding the sale. Several individuals were arrested in connection with the operation. The man, however, escaped the apprehension.
Even if the offender was not known at the time of the take down to be involved with the drug operation, the police officer said that prior to the initial purchase of cocaine the offender was with the man when they were stopped on the street by the police in a ruse which was intended to obtain the identity of the man and the person he was with at the time, who turned out to be the offender.
Subsequently, the man was contacted by the second undercover police officer and an agreement was made to purchase 100 grams of cocaine the following day. On the said day, the man contacted the second undercover police officer and informed him that the location was to have occurred was hot because there were police present and that the transaction would therefore take place at another place at 6:00 P.M.
The police officer was informed of the change and accordingly arranged for a ghosting police officer to remain in a nearby building close to the second undercover police officer at the newly arranged sale location.
The police officer stated that he was approximately five car lengths away from the vehicle in which the second undercover police officer was parked and that he was able to maintain a constant view of the vehicle.
The police officer testified that a white taxi cab drove past the vehicle in which the second undercover police officer was parked and then returned to the vicinity. He then received a communication from the undercover police officer who said that the offender was in the area. Shortly thereafter, the vehicle in which the undercover police officer was parked was approached by the offender. As the offender approached the vehicle, the second undercover police officer informed the others that he did not know who the offender was. The police officer, too, did not at that time recognize the offender. The offender then knocked on the window of the vehicle.
The second undercover police officer rolled down his window and asked the offender for where is the man. The offender pointed in the direction where the white cab that had previously driven past. The field team was notified by the second undercover police officer that the man was in the white taxi cab and told to move in. The white taxi cab then took off but was blocked by police vehicles.
Another narcotics investigator testified that he was on duty as part of the above-referenced investigation. His main function as the ghosting police officer was to watch the second undercover police officer. He stated that from his designated place he observed the offender approach the vehicle in which the second undercover police officer was seated.
He further testified that he observed the offender approach the vehicle and then knock on the window. He also saw hand gestures being made between the offender and the undercover police officer.
He was then instructed to move in to apprehend the offender. He pulled out his shield, clipped it to his jacket and identified himself as a police officer to the offender while approaching the vehicle.
He stated that the offender was initially a little resistant and tensed up when he identified himself as a police officer. He grabbed the offender’s hands and told the offender to turn around.
Upon facing the offender and first seeing his hands, the detective saw that the offender had a cigarette box in his hands. After he rear-cuffed the offender, he took the cigarette box and secured the offender, did a quick pat down of his waistband area and looked in the cigarette box. The detective then walked the offender to the sidewalk and looked in the cigarette box.
The detective also said that he looked in the cigarette box to see if there were narcotics inside. He was initially concerned that the offender might be armed but was not concerned that there might be a weapon in the cigarette box. He also did not believe that the planned sale of 100 grams of cocaine would fit inside the cigarette box. Heroine in a clear plastic bag was recovered from inside the cigarette box.
The court finds that the arrest of the offender was supported by probable cause to believe he was a participant in the arranged sale of narcotics between the man and the undercover police officer.
The court also finds that the police were entitled to search the cigarette box. It is also clear that at the time of his arrest, the offender could easily have taken steps to destroy or conceal the contents of the cigarette box. Several facts, in addition those which provided probable cause for the offender’s arrest, supported the said inference.
The detective also looked into the cigarette box in close spatial and temporal proximity to the offender’s arrest. He also testified that he took what were apparently only a few steps with the offender before looking into the cigarette box, the distance from the street next to the undercover vehicle to the sidewalk. The record also makes clear that only a matter of moments passed between the arrest and the search of the cigarette box. Therefore, thee search was not significantly divorced in time or place from the crack arrest.
In the court’s view, the search of the offender’s cigarette box and the recovery of the narcotics from that box were lawful. Further, the offender’s suppression motion is denied.
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