Drug conviction tossed over illegal arrest

A state appeals court has reversed drug and loitering convictions and suppressed evidence and statements made by the defendant because there was no probable cause for the arrest.

Defendant Khalik Jones was convicted in Suffolk County in October 2018 before state Supreme Court Justice William J. Condon of third-degree criminal possession of a controlled substance and first-degree loitering.

Condon denied a defense motion to suppress the evidence and statements in the case, but, in a decision released Feb. 9, the Appellate Division of state Supreme Court, Second Department, reversed that ruling.

During the suppression hearing a police officer testified that, on the morning of May 26, 2017, he and another officer were at a train station investigating a tip about an alleged drug dealer.

The tipster claimed that someone called “DA” rode the train from New York City to sell heroin at 125 Patchogue Ave., in Mastic.

The tip did not include a physical description of the dealer, but the officer testified that he knew the alleged dealer was a tall, bald black man in his mid-30s.

About 10 a.m. that day, the officer testified that he saw a tall bald black man in his 30s — Jones — get off the train and eventually make his way to 123 Patchogue Ave. and go inside.

The officer testified that he had personally made numerous arrests at 123 Patchogue, next to the location mentioned in the tip. He said the home was “probably our number one community complaint in the precinct.” He said there had been “numerous overdoses” there.

He said the home was “just a known location for users and dealers to operate out of.”

The officer testified that he had made controlled buys at 123 Patchogue Ave. with confidential informants, and he saw drug transactions, overdoses, and people using and dealing narcotics there.

The officer said that after the man arrived at the house, “the volume of traffic, both vehicle and pedestrian, picked up significantly.”

The officer said he saw cars and people coming and people on foot and bicycles coming and going.

The officer watched the house for about an hour. During that time he saw a car pull into the driveway and Jones walked over, leaned into the front driver’s-side window and engaged in a “very quick and secretive” interaction that was “consistent with a narcotics transaction,” according to the decision.

The officer said he could only see “general body movements.” The officer could not hear anything that was being said, and did not see an exchange of money and drugs.

The officer also testified that he saw another car park several houses away. A white man got out of the vehicle and walked to Jones “and exchanged in a secretive exchange consistent with narcotics activity.”

The officer said he saw “a quick hand-to-hand interaction” between the white man and Jones, but he “did not see any money or drugs.”

The officer said he also saw a Hispanic man walk up to Jones and the white man. The trio had a “quick” interaction, and then dispersed, the officer said.

The officer approached Jones with his “Taser out” and his shield displayed, according to the decision. Jones was “very compliant” and placed his hands behind his back. The officer put Jones in handcuffs.

Jones was frisked, but police found no weapons, drugs or money on him.

The Hispanic man told police he was there “to buy drugs from DA,” but no drugs or money was found on him.

The white male said he was there because he owed “DA” drug money. No drugs or money were found on that man either.

The officer said Jones was “detained” when he was initially approached and handcuffed, and was arrested for loitering about 30 minutes later.

Jones was placed inside a police car and taken to the police station. After the defendant was arrested and taken to the station, another officer found a bag containing heroin in the back seat area of the police vehicle used to transport Jones.

Jones was charged with drug possession and loitering.

Before the trial, his lawyer filed a motion to suppress the heroin and statements he made to police officers after his arrest that he “tried ditching the bag of drugs in the car” and that he “had to resort to taking street drugs as my meds aren’t strong enough.”

Jones’s lawyer filed the suppression motion on the ground that he was seized and detained by the police without a legal basis.

“Police officers cannot make an arrest in search of a crime; rather, probable cause to believe that a crime has been committed must exist prior to an arrest,” the Second Department panel wrote.

The officer “did not have probable cause to reasonably believe that the defendant was committing, or had committed, a crime, at any point prior to the defendant’s arrest,” according to the decision.

The officer testified that he arrested Jones for loitering, “but there was no testimony at the suppression hearing that the defendant had ‘remained’ in any place with the other individuals with whom he interacted.”

The interactions between the Jones and the others were described as “quick,” “fluid,” and lasting about one minute, according to the decision.

The officer also did not testify about any observations to support a reasonable belief that Jones “was at the location for the purpose of unlawfully using or possessing a controlled substance, or that a narcotics offense had otherwise occurred.”

The officer did not observe any physical property or currency being handled or exchanged by Jones or the other two men.

The observations made by the officer “were not a sufficient basis … to form a reasonable belief that a narcotics offense was occurring or had been committed,” the court ruled.

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