New York Criminal Lawyer Blog
A nine-year veteran police officer was on patrol one evening when he responded to a radio communication of a man with a gun wearing a brown jacket on the corner of 121st Street and Seventh Avenue. When he arrived at the location, he exited his vehicle and spoke, first with a woman, and then with a man sitting in front of 2027 Seventh Avenue.
About 15 minutes after his arrival while he was still looking for the man described in the radio report, the officer observed defendant exit the door on the left side of the vestibule at 2027 Seventh Avenue, which was the entrance to a social club. A New York Criminal Lawyer said at the time, the officer was approximately five feet in front of defendant at whom he was looking directly. Defendant was then holding a packet of three by six inch white envelopes in one hand and a black plastic bag in the other. When he looked up and saw the officer, defendant was startled, jumped back, and immediately placed the stack of white envelopes in a plastic bag.
Thereafter, the officer approached defendant and asked him what he had put in the bag. Defendant replied, “I put nothing in the bag.” Nonetheless, it was apparent to the officer, with hundreds of narcotics arrests experiences where approximately a dozen of which were made in the immediate vicinity of the social club known for its drug activities, something was in the bag since the bottom was pressed downward. The officer told defendant that he had seen him put a stack of envelopes in the bag, but defendant insisted, “I didn’t put anything in the bag.”
The officer then asked defendant to open the bag. When defendant, instead of complying, hung his head, the officer opened the bag, looked inside, and saw several stacks of white envelopes, later determined to number as 57 in all, with the words “New York Yankee Season Tickets” printed on the front.
Defendant began to breathe heavily. His hands began to shake. The officer asked him where he had gotten the tickets, and he replied that he had found the bag in a lot. When the officer said “I don’t believe you”, defendant replied, “Well, a friend gave me the tickets and asked me whether or not I could sell them and we could make some money”.
The officer then placed defendant under arrest, without Miranda warnings.
Defendant pleaded guilty to attempted criminal possession of stolen property in the first degree and was sentenced to a one year term of incarceration, which he has served.
Defendant now challenges the propriety of the Trial Term’s denial of his motion to suppress the 228 stolen New York Yankee season tickets (four complete sets), valued in excess of $1,500, that were the subject of the charge to which he pleaded.
Was the arrest valid? Was the search and seizure valid?
In evaluating the propriety of a police officer’s actions during a street encounter, the crucial factor is whether the police behavior can be characterized as reasonable.
Here, given the officer’s experience, the setting, both as to the time and location, in which the officer found himself, and defendant’s response, i.e., secreting the envelopes inside the bag when he spotted the officer standing outside the social club, the officer quite reasonably suspected that the envelopes contained narcotics.
While it is a fact that the envelopes were white, not glassine, and had not been exchanged, nevertheless, the arresting officer who is experienced enough had reason to be suspicious. He had previously made arrests in which the narcotics were packaged in plain white envelopes.
In assessing the reasonableness of police conduct in surveillance activities thought to be narcotics related, once possession of the incriminating package is established, the absence of an exchange of the package does not render behavior, otherwise suspicious, innocuous, if sufficient that the indicia of criminality is present. Such an exchange is not a prerequisite to a finding of probable cause.
The possession of envelopes of a type such as those herein involved, which can be used in the sale of drugs, coupled with the officer’s observation of furtive conduct, gives rise to, at least, a reasonable suspicion.
Under the circumstances presented, the officer was plainly duty bound to investigate.
What is more, the manner in which the officer pursued his inquiry was eminently reasonable. At no point did he forcibly seize defendant; nor did he tell defendant that he was not free to leave. A Staten Island Criminal Lawyer said he simply approached defendant and asked him what he had put in the bag.
Defendant’s negative response only served to confirm the officer’s initial suspicion of illicit conduct. In view of what the officer had just witnessed defendant’s denials were, on their face, absurd.
Defendant’s false answers which were obvious to the officer generated a basis for further police action. Defendant’s untruthful response to the officer’s questions significantly changed the nature of the encounter. Defendant’s patently false answers to the officer’s inquiry afforded solid ground to look further.
Given the circumstances and defendant’s obvious falsehoods, it was both reasonable and proper for the officer to focus on the contents of the bag.
Here, the officer, as he was duty bound to do, pursued his investigation in the least intrusive manner possible by asking defendant to open the bag. When defendant lowered his head in response, it was obvious that further inquiry about the envelopes would be unavailing. This prompted the officer to open the bag himself. Directing his attention to the envelopes, the focus of his suspicions, the officer found that they bore the legend “New York Yankee Season Tickets”, certainly an incongruous discovery under the circumstances. Defendant’s further response, first that he had found the tickets in a lot, and then that a friend had given them to sell, made plain that he was not their true owner.
Clearly, the officer had a sufficient basis upon which to make an arrest.
Defendant’s responses were not the product of custodial questioning and therefore constitutionally infirm, but, rather, well within the permissible scope of legitimate non-custodial police inquiry.
Similar police conducts has been upheld as part of an escalating inquiry, despite the lack of probable cause. It should not make any difference, for Fourth Amendment purposes, whether a suspect acquiesces in a police officer’s request, made pursuant to his duty to investigate, to open a bag, or whether the officer, pursuant to that same duty, opens the bag.
In all, every step taken by the officer in the rapidly escalating street encounter was an appropriate response to a new developing circumstance, each of which more clearly pointed to a criminal activity. The officer’s investigation was conducted in the least intrusive manner possible. The officer is not obliged simply shrug his shoulders and allow a crime to occur or a criminal to escape. Neither the state nor federal constitution requires such a result. The officer’s actions, including the opening of defendant’s bag to check its contents, were not only reasonable but the only appropriate steps to take under the circumstances.
Accordingly, the court finds that the officer’s conduct was reasonable at every stage of the encounter; the suppression of the stolen property was properly denied; and, the conviction and sentence is affirmed.
When one is faced with criminal charges, the consultation with a lawyer is crucial. Without one, at times, may result to a waiver of rights which could have severe repercussions to your conviction or acquittal. Thus, you must contact a legal representative immediately upon arrest, whether you have been charged with possession of stolen property, sex crimes or a theft charge. Contact Stephen Bilkis & Associates and confer with our New York Criminal Lawyers or our New York Arrest Attorneys.