People v. Hester

*122OPINION OF THE COURT

Markewich, J.

Again, we come to the problem of the significance to be attached to one simple circumstance: the passage of glassine envelopes from one hand to another. A current line of cases (see infra) teaches that absent other solid evidentiary factors, this simple fact is insufficient as probable cause for.arrest for criminal possession of a controlled substance. However, accepting the circumstances as set forth in the dissent we find the reasons stated by the suppression court for denial of the motion of defendant-appellant to suppress to be less than sufficient to justify the result reached. Indeed, as the dissent is read up to the citation of People v Goss (67 AD2d 876) one is impelled to a belief that its conclusion must logically be for reversal. It is a rude shock then to encounter this observation: "However, the totality of circumstances illustrated by the foregoing narration of facts as accepted by the hearing court on defendant’s motion to suppress, mandates an affirmance herein.” Unfortunately, that totality consists of only one solid fact—that officers observed three bundles of glassine envelopes handed by another person to defendant—and several factors, equivocal in nature, capable only of engendering suspicion, though sufficient to trigger further investigation. That further investigation never occurred and, under the law as.it stands, no probable cause existed for the arrest immediately after the observation.

There follows a quotation for People v Alexander (37 NY2d 202, 203-204). However, that case provides a slender reed on which to lean because it has no application to the facts here found. Close examination of the text of that case reveals that the majority in the Court of Appeals found itself bound by the factual determination below of the circumstances of the arrest. A reading of the dissent indicates the nature of the factual finding which was considered binding; it was obvious that the defendant there had deliberately abandoned the contraband involved by throwing it to the ground when the officer approached. That arrest was not made until after discard and, therefore, abandonment of the contraband. This finding obviated any unlawful search issue. (See Alexander, supra, pp 204-205.)

Let us examine the circumstances here which provided, we are told, "probable cause,” as described by the suppression court, quoted in one of the dissent’s final paragraphs. They are *123listed as observations "made in a high crime area, a high narcotics traffic area bolstered by testimony of furtive actions on the part of these defendants”. Reference is made to "suspicious conduct,” axiomatically a license only for officers to investigate further, but not probable cause; and to "looking up and down the street to determine whether they were being observed or not,” which is equivocal conduct also not constituting probable cause. The fleeting factor of furtiveness is insufficient to lay a solid foundation for probable cause. In any event, a transaction conducted openly, though possibly fearfully, subject to observation on the public street, can scarcely be termed "furtive.” In short, that conclusion which we familiarly call "probable cause” is arrived at here by a process of speculation. Let us compare this description with others.

"In People v. Brown (24 NY2d 421, 423), where the arrest was based on 'a high crime area, a suspected narcotic addict, a meeting, parting, return, and movement of hands’, there was found to be a lack of probable cause. In People v Corrado (22 NY2d 308), there was a tip from an undercover policeman that marijuana would be present at a given time and place, defendants appeared in a car at said location at about said time, one of them left their car and walked to a second vehicle where he bent down for a few seconds and then returned to his companions in the first car where he was observed passing four opaque, manila envelopes to the driver. Despite these observations and testimony by a detective, experienced in narcotics, that he had never seen loose marijuana in small quantities passed or sold in envelopes other than in the type involved here, probable cause was found to be lacking” (People v Oden, 36 NY2d 382, 385-386).

"The People argue * * * that probable cause existed here because there was uncontradicted testimony by Detective Stoehr that, in his experience as an investigator assigned to the Narcotics Bureau, he had never seen loose marijuana in small quantities passed or sold in envelopes other than in the type involved here. This knowledge, it is claimed, justified the officer in drawing the inference that appellants probably had contraband in their possession.

"The argument is defective because the envelopes could have contained any number of noncontraband items. This is in sharp contrast to the translucent glassine envelope which has come to be accepted as the telltale sign of heroin. Still, even in the case of the glassine envelope it has never been held that *124the mere passing of such an envelope establishes probable cause. We conclude, therefore, that the testimony concerning the use of these common envelopes for marijuana does not raise the level of inference from suspicion to probable cause” (People v Corrado, 22 NY2d 308, 312-313).

Thus, every factor listed by the suppression court is eliminated, leaving only the transfer of glassine envelopes. And, as to the glassine envelopes themselves, the only fruit of the police observations, they do not, by themselves, provide probable cause for arrest. On this point and in addition to Corrado (supra), see People v Goss (67 AD2d 876, supra), People v Thomas (62 AD2d 945), People v Maldonado (59 AD2d 692). There was no further investigation here to provide additional facts before the arrest.

It may be argued that, because there were three bundles of glassine envelopes, that circumstance alone would provide probable cause. But if the mere passing of one glassine envelope does not provide anything by way of probable cause (e.g., People v Goss, supra), neither do three bundles or three dozen bundles except as exacerbating factors after probable cause is established. One hundred times nothing still multiplies out to a product of nothing. The holding in Corrado (supra) applied to the circumstances here requires the conclusion we reach.

Accordingly, the judgment, Supreme Court, New York County (Cropper, J.), rendered March 9, 1978, should be reversed, on the law, defendant-appellant’s plea of guilty vacated, the motion to suppress (Alexander, J.) granted, and the indictment dismissed.