dissenting.
Behind a delicatessen, a man handed one small, unidentified item to defendant and another small, unidentified item to another individual, both of whom gave him currency in exchange. This event occurred in a so-called high crime area. Based on those observations, the police claimed that there was probable cause to arrest the two men for involvement in a drug transaction.
This, admittedly, is a close case. Nonetheless, however malleable probable cause may be, I cannot conclude on those facts that there was a well-grounded suspicion that a crime had occurred justifying defendant’s arrest and the seizure of evidence. See Commonwealth v. Banks, 540 Pa. 453, 658 A.2d 752, 753 (1995) *48(finding that “mere police observation of an exchange of an unidentified item or items on a public street corner for cash,” does not “constitute probable cause to arrest”) (emphasis added); People v. Ratcliff 778 P.2d 1371, 1377-78 (Co.1989) (finding police officer’s observation of exchange of unknown object between two men, one of whom was known to officer as “a drug user and dealer,” in area known to police for drug trafficking, was insufficient to establish probable cause to arrest defendant); People v. Oden, 36 N.Y.2d 382, 368 N.Y.S.2d 508, 329 N.E.2d 188, 191 (1975) (finding “the mere passing of a glassine envelope in a neighborhood in which narcotics were known to have been present, unsupplemented by any additional relevant behavior or circumstances found to exist, was insufficient to raise the level of inference from suspicion to probable cause”).
Although the police may have had a reasonable and articulable suspicion to make a Terry stop and engage in further inquiry, I cannot find the existence of probable cause for a search or seizure on the bare facts of this case. See State v. Pineiro, 181 N.J. 29-30, 853 A.2d 897 (2004) (Albin, J., concurring) (arguing that otherwise innocent conduct is not transformed into criminal activity simply because it occurred in high crime area). I, therefore, respectfully dissent.
For affirmance—Chief Justice PORITZ and Justices VERNIERO, LaVECCHIA, ZAZZALI, and WALLACE—5.
For reversal—Justice ALBIN—1.