One evening, a detective was assigned as backup to an undercover police officer who was attempting to buy controlled substances at a social club. Nowhere in the records is it showed that the undercover officer was able to achieve such objective. However, later that night, the undercover officer advised the backup 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”. The undercover officer referred to the subject by name. It is not clear from the records of the case whether the undercover officer and the subject engaged in any additional conversation.
At about six hours after the undercover officer was offered with cocaine, she left the social club. Thereafter, 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 (drug possession) and a .38 caliber automatic gun (gun crime) from the defendant’s boot.
It is uncertain from the record whether the defendant was arrested before or after the search.
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.
Was there a valid search and seizure? Is the evidence admissible?
The court does not dispute that the detective was a trained and experienced narcotics officer, who was entitled to rely upon information provided by an undercover officer who was part of his team. In view of the detective’s candid admission that the police searched everybody when they came out of the social club prior to any confirmation from the undercover, it appears that the search of the defendant was not motivated by the detective’s training or experience, or even upon the specific information provided by the undercover officer. Such wholesale searches, in violation of the probable cause requirement, have been universally condemned.
The Supreme Court of the United States has held that, in general, the legality of a search or seizure is to be measured by the objective circumstances, and not the subjective motivation of the officer. Further, the question of whether the search occurred minutes before or minutes after the arrest is generally immaterial. Thus, even if the information provided by the undercover officer was not the motivation for the search and/or arrest of the defendant, the question of whether the information provided by the undercover officer was sufficient to provide probable cause to arrest the defendant is still relevant to our inquiry.
While it is true that the detective was entitled to rely upon information provided by the undercover officer and that the undercover officer was not required to testify at the hearing, however, the detective’s bare-bones recitation of the information provided by the undercover officer was wholly inadequate to provide probable cause to arrest. Since it is unclear whether the undercover officer and the defendant engaged in additional conversation, it cannot be said with certainty the context in which the defendant purportedly asked her if she wanted a “hit” of cocaine.
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 drugs at some point in the “near future” is insufficient, as a matter of law, to constitute a sale.
On the argument that defendant clearly had the ability to deliver cocaine, since cocaine was found on his person, it is beyond cavil that the fruit of a search incident to an arrest cannot be used to establish probable cause to arrest. As the Supreme Court of the United States held over 50 years ago, reasoning which would justify the arrest by the search and at the same time justify the search by the arrest will not do.
Here, 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 (cocaine possession or crack possession, a drug crime in violation of criminal laws); no evidence that the defendant had the ability or intent to complete an exchange of cocaine from himself or any other person; 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.
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 evidence is inadmissible; there was an unlawful search and seizure.
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