finding that probable cause is an objective standard that turns on whether a reasonable officer, in light of his experience and training, could believe a crime was being committed
How later courts described this case
- finding that probable cause is an objective standard that turns on whether a reasonable officer, in light of his experience and training, could believe a crime was being committed
- officer had probable cause to arrest based on seeing in defendant’s hand several tinfoil packets, which he recognized from experience as com *851 monly-used containers for narcotics
- probable cause is assessed in light of police officer’s experience and training
Written by the judges who cited it.
The opinion
GALLAGHER, Associate Judge
(dissenting) :
In my view this was an arrest based upon a suspicion, which turned out to be correct. The circumstances here do not rise to the level of probable cause.
It appears the arrest was based essentially upon these factors:
(a) The arresting officer knew from his experience on the narcotics squad that narcotic drugs are sometimes transported in tinfoil packets.
(b) He also knew that the area of the city where the arrest took place has a high rate of narcotics traffic.
(c) Consequently, when he saw the companion examine and then pass to appellant a number of tinfoil packets which the latter put in his pocket, he “assumed” they contained narcotics.
The officers did not know appellant and his companion and had no information concerning them. There were no other suspicious circumstances leading to their arrest related by the officer.
The trial court entered these findings:
The officer indicated that it was not dark, still light. He saw the other gentleman remove tinfoil packs, and that the defendant took possession, and that the officer assumed what was inside the tinfoil packets from his knowing the area and experience, some 200 arrests. I believe in that situation, from the experience of the officer, there is probable cause.
The arrest took place at 6:45 p.m. on November 13, 1970. During cross-examination, the officer said it was still light when the arrest occurred. The trial court apparently thought visibility at the time of the arrest was material as it specifically adopted in its findings the testimony of the officer that it was not dark when it occurred. Yet, it is a matter of common knowledge that at 6:45 p.m. in the middle of November in this city it is dark and has been for some time.
Be that as it may, I do not believe that seeing tinfoil packages being given to another person in an area known for narcotics traffic is enough to arrest for a narcotics offense, as was done here. Remers v. Superior Court of Alameda County, 2 Cal. 3d 659 , 87 Cal.Rptr. 202 , 470 P.2d 11 (1970). Even though narcotics are known to be wrapped in tinfoil these days, so are many legitimate items. Next year it may be tissue paper or brown bags.
Due to the present use of tinfoil packages to transport narcotics, observation of them may well be an important factor leading to arrest if combined with another suspicious circumstance, totaling to probable cause. The area of an arrest may at times be a valid consideration in evaluating circumstances leading to an arrest. On the other hand, its relevance goes only so far and should stop short of being used to “bootstrap” into probable cause to arrest.
In affirming a conviction in Peterkin v. United States, D.C.App., 281 A.2d 567 (decided October 6, 1971), this court described the circumstances leading to the arrest as a borderline situation. There, in a known narcotics area of the city, the police saw from 10 feet away a transfer of pills from a vial to a person in exchange for two or more dollar bills. Measuring those circumstances against the facts presented here, I think these fall below the border. There may well have been cause for further investigation by the officers but I think when the arrest occurred probable cause was lacking.