People v. Darby

Rosenberger, J. P.

(dissenting). The People appeal from an order granting defendant’s motion to suppress crack cocaine and phencyclidine (PCP) seized from his person. At the suppression hearing, Sergeant Timothy Breen testified that on the evening of October 23, 1997, he responded to anonymous *115 complaints of drug dealing from an apartment building. He and his partner observed three people, at different times, stop in front of the building, speak to defendant, enter the building with him and exit a minute later. The officers entered the building and encountered defendant counting money on the stairs. For safety reasons, Breen placed his hands on defendant’s waistband and right jacket pocket.

At this point, Breen alleged, he detected an odor that he claimed he recognized from other drug arrests as PCP. This prompted him to reach into the pocket and remove a plastic bag containing 19 bags of PCP and 20 bags of crack cocaine.

Breen’s partner, Officer Paul Nyland, also testified that he was familiar with the odor of PCP from other drug arrests, and that he smelled it coming from defendant’s pocket. The People did not present any expert testimony concerning the physical properties of PCP generally or the chemical composition of the PCP found on defendant. Moreover, the police laboratory report in the record contains a separate page showing that a test was performed on the crack cocaine to determine its composition and purity (88.1%), but simply lists the contents of the other bags as 32.1 grains of phencyclidine without specifying its purity or what additives, if any, were included. The PCP emitted no odor when displayed in the courtroom at the suppression hearing in a sealed plastic bag from the police laboratory.

Defendant’s expert, Dr. Max Solomon, was qualified as an expert in chemical analysis who had analyzed PCP more than 100 times, mainly in connection with criminal cases, although he had not done so within the past 12 years. Under thorough questioning by both counsel and the Judge, Dr. Solomon testified unequivocally that PCP does not give off any odor at room temperature, whether in its pure crystalline form or in the diluted form in which it is typically sold on the street. When burned, as in a cigarette, PCP does have an odor.

The majority conveys the mistaken impression that Dr. Solomon restricted his testimony to the properties of pure PCP and was ignorant of the form in which it was sold by dealers. To the contrary, the witness testified that drug dealers typically dilute the pure product with vegetable matter such as marihuana, paper or leaves, but that even adulterated PCP did not have a PCP-specific odor. For instance, if the added substance was marihuana, the mixture would smell like ordinary marihuana.

The only time PCP would have an odor of its own, Dr. Solomon stated, would be if the compound were improperly pre *116 pared with an excess of piperidine, a liquid which is one of the three chemical components of PCP. However, he believed it would be uncommon to find PCP with excess piperidine on the street.

The court stated, prior to ruling on the motion, that in light of Dr. Solomon’s testimony, it was incumbent upon the People to present evidence either contradicting the defense expert’s assertion that PCP has no odor, or showing that the PCP recovered from defendant had an odoriferous additive or component such as piperidine. As the prosecution did not do so, the court found a lack of probable cause and granted defendant’s motion.

Contrary to the majority’s characterization, the court did not suppress the contraband because of the absence of proof that it was less than 100% pure. As even defendant’s expert noted, street-level drugs are typically impure. However, the issue is not whether any impurities were present, but what they might have been.

The hearing court did not err. “Questions of credibility are primarily to be resolved by the trier of fact who actually sees and hears the witnesses, and whose determination is to be accorded great' weight and not disturbed on appeal unless clearly unsupported by the record” (Matter of Noe H., 210 AD2d 43 ; see also, People v Harper, 156 AD2d 380, 381 , lv denied 76 NY2d 736 ). The record supports the court’s rejection of the officers’ allegations that they were able to smell room-temperature PCP through two layers of plastic bags, inside defendant’s coat pocket. Defendant’s expert presented uncontroverted scientific testimony that this would not be possible. If the People disagreed with Dr. Solomon’s conclusions as to the drug’s observable characteristics, they could have presented their own expert; for example, a chemist who could testify that the PCP recovered from defendant had an excess of piperidine.

The majority treats several matters as established fact, disregarding the credibility findings of the Supreme Court. Yet, the hearing court not only saw and heard the witnesses, but also saw the subject packet of PCP and had the opportunity to assess its smell or lack thereof.

If the officers’ testimony about the odor is not considered, the remaining facts do not amount to probable cause. Defendant was not seen exchanging any objects with the persons who entered the building or receiving any currency from them, nor did the officers overhear any of the conversations between these individuals (People v Wilson, 175 AD2d 15, 17 , lv denied 78 *117 NY2d 1015 ). While the officers’ observations may have provided a basis for requesting information, they did not justify a search of his pockets {supra, at 17). Accordingly, I would affirm the motion court’s order.

Williams and Mazzarelli, JJ., concur with Saxe, J.; Rosenberger, J. P., and Tom, J., dissent in a separate opinion by Rosenberger, J. P.

Order, Supreme Court, New York County, entered on or about April 24, 1998, reversed, on the law, defendant’s motion to suppress denied, and the matter remanded for further proceedings.