THE OBSERVATIONS BY THE POLICE OF THE INTERACTIONS BETWEEN DEFENDANT AND A WOMAN WHO WAS A “KNOWN DRUG USER” PROVIDED PROBABLE CAUSE TO ARREST FOR A DRUG SALE; STRONG, EXTENSIVE DISSENT (FIRST DEPT). ​

The First Department, affirming the denial of defendant’s suppression motion, over an extensive dissent, determined the police had probable cause to arrest defendant for a drug sale based upon their observations of the interaction between defendant and a woman, “a known drug user,” outside a motel:

In determining whether probable cause exists in a drug sale case, courts must consider factors such as: “telltale signs” of a drug transaction (for example, an exchange of a glassine envelope for money); whether the area has a high incidence of drug trafficking; the police officer’s “experience and training” in drug sale investigations; and “additional evidence of furtive or evasive behavior on the part of the participants” … . Another factor to consider is an officer’s knowledge of a participant’s past involvement in drug crimes … . Here, in a locale known for drug sales, an experienced officer witnessed a woman who was a known drug user give defendant something, saw defendant put his hands into his pants, and saw defendant touch hands with the woman. Based upon this testimony, the hearing court properly found that the officers had probable cause to arrest defendant. This peculiar interaction between defendant and the woman, under the circumstances, is not susceptible to innocent interpretation. People v Tapia, 2024 NY Slip Op 04487, First Dept 9-19-24

Practice Point: Here the police observed only body movements and did not see any identifiable objects exchanged between defendant and a woman who was “a known drug user.” The police saw the defendant and the woman “touch hands” and defendant had reached inside his pants before “touching hands” with the woman. The majority concluded the police had probable cause to arrest for a drug sale. There was a strong, extensive dissent.