Hey Baby, What's Your Sign? Don't I Know You From Somewhere? Oh, And Would You Like to Take a Hit of Cocaine?

At issue in a recent New York Court of Appeals case, People v Gomcin, 2007 NY Slip Op 02590, was whether the lower court correctly determined that there was insufficient probable cause to support the defendant's arrest for possession of cocaine.  In this case an undercover female officer stationed inside a club in Queens radioed another member of the undercover team and advised that a man had approached her and asked "if she wanted to take a hit of cocaine."  A few hours later, the police evacuated the club and searched every patron as they exited the club.  Cocaine and a gun were recovered from the defendant and he subsequently moved to suppress the evidence on the grounds that it was obtained as a result of an illegal search unsupported by probable cause.

The trial court concluded that the defendant's inquiry alone was insufficient to establish probable cause for the arrest and Appellate Division agreed:

Reasoning that defendant's inquiry as to whether the female undercover officer "wanted to take a hit of cocaine" was "an inquiry as to her desire and state of mind, and it's not enough to give probable cause to believe that [defendant] possessed drugs," Supreme Court granted defendant's motion to suppress the drugs and gun...The Appellate Division agreed with the motion court's "reasonable inference" that "defendant's statement to the undercover officer was merely an inquiry into her wishes and desires.' The defendant's statement was made in a social club, where casual conversation is rampant. The defendant may have been attempting to strike up a conversation with a female" (id. at 495).

The Court of Appeals concluded that the lower court's determination should not be disturbed on the grounds that the determination of probable cause is a mixed question of law and fact and the record below supported the Appellate Division's conclusion.

Makes sense to me.  At least the Court of Appeal's determination does.  I'm not so sure about the lower courts' conclusions though. 

I'm a bit skeptical about the supposition that the defendant was simply trying to "strike up a conversation with a female."  For some strange reason I find it hard to believe that the inquiry "Would you like to take a hit of cocaine" is the latest version of "Hey baby, what's your sign?"  or "Is your father a thief?  Because it looks like he stole the stars from the sky and put them in your eyes."   

And, I'm not sure that I'm buying that the defendant was conducting some sort of unscientific survey regarding the club patrons'  "desire and state of mind".  I envision some guy walking around with a clipboard and pen, querying each patron as to whether, at that particular moment in time, they'd like to take a hit of cocaine, and then tabulating the results at the end of the night.  Not bloody likely, in my humble opinion.

But, of course, reasonable minds can differ.

So, if your reasonable mind really and truly thinks that this guy  was just trying to hit on the undercover cop or assess her state of mind, then have I got an investment opportunity for you!  You see, there's this bridge in Brooklyn and...hey, don't I know you from somewhere?  Maybe I met you at my cousin's wedding?  Or maybe you're Joe's little sister?  You kind of look like him.  No?  Oh, well, then would you like to take a hit of cocaine?   Oh, ok, just wondering.

Comments

[Randy L. Braun]

Those "lines" blow, big time. At least, back in the day, I used classy lines like "Did it hurt a lot when you fell from Heaven?"