People v. Munoz

McGivern, J. (dissenting).

I find the ultimate conclusion of the learned Trial Judge difficult to reconcile with his simultaneous finding that the officer’s testimony was credible ” and I believe everything he says ” and the “ the officer’s [sic] actions justified suspicion”. Paradoxically, the majority avers that they too believe the police officer.

In my view, the totality of circumstances herein completely justified the arrest by a knowledgeable police officer and the subsequent search, which actually revealed packets of cocaine on the person of Munoz. Particularly, considering that defendant did not live in the neighborhood, a high crime area, the defendant’s claimed ownership or control of the vehicle, the ownership of which was not explained, from which car a companion departed, leaving behind a white plastic bag reasonably taken to have all the outward aspects of narcotics, the fact he could not produce a license, registration or other identification; then there is the bulge in the front waistband of the defendant’s trousers, and finally his evasive behavior. And the officer was no neophyte. He had taken courses at the Police Academy involving narcotics and had been involved in about 50 arrests for heroin. I cannot dismiss this entire factual street-scene complex as too tenuous a connection with the defendant as to render probable cause deficient.

‘ ‘ Probable cause is the sum total of layers of information and the synthesis of what the police have heard, what' they know, and what they observe as trained officers. (See Smith v. United States, 358 F. 2d 833, 837 [Burger, J.], cert. den. 386 U. S. 1008.) ” (People v. Tolentino, 40 A D 2d 596 [1st Dept., September 26, 1972].) We have here not mere suspicion based on bare intuition or a wild surmise. We do have the educated judgment of an experienced police officer, based on a summary *340of Ms observations and expertise, that he had probable cause for a search, the results of which justified the accuracy of his aroused judgment, or as the Trial Judge said “ the officer’s [sic] actions justified suspicion

In the eyes of a street-wise policemen on West 137th Street, Manhattan, at 11:00 a.m., he had probable cause to believe Munoz, a stranger, was bent on mischief, and considering the area, that he was in possession of narcotics. And he was right. (See People v. Fenuta, 39 A D 2d 674 and People v. Meyers, 38 A D 2d 484.) “ But we will remember that what we are talking about is not the proof beyond a reasonable doubt required for the conviction of a crime but reasonable ground or probable cause for making a search, that is, observations or information sufficient to move a reasonable man to conclude that a crime is being committed or attempted.” (People v. White, 16 N Y 2d 270, 273.)

The majority view is unrealistic and out of joint with the known conditions obtaining in certain sections of Manhattan today. Suppression of this evidence represents another gossamer and hyperteehnical extension of constitutional safeguards resulting in a palpably wrong conclusion, serving no good purpose in our urban society. To the contrary. It makes .society’s efforts to stem the drug trade most difficult, and frustrates commendable police work, all because of an upside-down' view of the defendant’s rights, at variance with the background, history and original purpose of the Fourth Amendment. (See People v. Qualls, 29 N Y 2d 569; People v. Corrado, 22 N Y 2d 308; People v. Rivera, 14 N Y 2d 441, 445; People v. Rosemond, 26 N Y 2d 101, 104; People v. Butterly, 25 N Y 2d 159, 162-163; People v. Meyers, 38 A D 2d 484, supra, and People v. Tolentino, 40 A D 2d 596, supra.)

Lastly, I do not accept the view of the majority that the law in this area is static, held in the vise of precedents, so inflexible and procrustean as not to be swayed by creative thinking in tune with the flagrant realities of life in Manhattan today. * ‘ This Court should not be ignorant as judges of what we know as men ” (Watts v. Indiana, 338 U. S. 49, 52).

Thus, I would reverse and deny defendant’s motion to suppress the challenged evidence.

Nunez and Kupferman, JJ., concur with Capozzoli, J., in separate opinions; McGivern, J. P., dissents in an opinion.

Order, Supreme Court, New York County entered on April 3,1972, affirmed.