Following a jury trial, defendant was convicted of possession of a dangerous drug in the first degree pursuant to section 220.20 of the Penal Law. The crime arose from his receipt of 46 pounds of packaged marijuana at Kennedy International Airport.
The principal issue is whether the marijuana seized following defendant's arrest should have been suppressed because some information leading to the arrest was improperly obtained by California police officers in another prosecution. Another important issue is whether defendant's possession of the marijuana is sufficient to infer his knowledgeable possession. A pretrial hearing had been conducted on defendant's motion to suppress the seizure of this and other marijuana found in a vehicle used by defendant.
The conviction should be affirmed. The New York surveillance and arrest did not depend necessarily in whole or in part on the purportedly illegal California police search. The motion to suppress was properly denied. There was independent and untainted cause, an airline employee's information, for the California police to advise the New York police whose independent confirmatory observations resulted in defendant's arrest. The proof of defendant's physical possession, by consignment, delivery and acceptance, was warrant for the jury to infer his knowledge.
Richard Dunkel, a customer service agent for American Airlines at Los Angeles International Airport, became suspicious of two cartons delivered to the terminal by one Peter Abt. The
Equipped with defendant's name, the air flight number, arrival time, and air bill number, Detective Tobin went to Kennedy Airport the following morning. At 7:00 A.M. the two described cartons arrived. They were marked "George Carlton in care of Tanker Reisman". Detective Tobin approached close to the shelved cartons and detected a strong odor of marijuana. He did not open the cartons but kept them under surveillance.
That evening at about 11:00 P.M. defendant Reisman appeared at the airlines terminal and approached Detective Tobin who was attired in an American Airlines uniform. Upon stating that he wished to claim certain packages, Tobin directed him to the freight agent. Defendant identified himself and signed the air bill, while Tobin accompanied him. Apparently from a distance, defendant picked out the appropriate packages. The detective, assisting Reisman, then carried one of the cartons, containing the sand, to the parking lot when he was intercepted by a companion of Reisman who insisted upon carrying the carton the rest of the way to an automobile. Tobin surrendered the carton and waited for both men to reach the car. He then arrested both men, seized the two cartons, and made further searches with the assistance of two Federal agents. A search of Reisman produced a paper with the notation "No. 6615254, To George Carlton, care of me [Reisman], N. Y. C. hold American No. 10643 to 830", and a check made out to Reisman and indorsed by him to Peter Abt, the consignor. The search of the car
At the suppression hearing defendant argued that the surveillance, interception, and arrest resulted directly from the unlawful search in California by Sergeant McKnight of the Los Angeles police. Defendant urged that the illegal police activity in California resulted in the seizure in New York of the remaining carton of marijuana, and, therefore, required its suppression. Reisman relied on a California Supreme Court order in the California prosecution of the consignor Abt determining that Sergeant McKnight's search was illegal not for absence of probable cause but for lack of a warrant when the circumstances permitted obtaining one. (Abt v. Superior Ct., 1 Cal.3d 418.)
The suppression court in denying the motion accepted the illegality of the search by the Los Angeles police. It held, however, that the prior unofficial search by the airlines employee at the Los Angeles airport was an untainted and independent basis for transmitting the information to New York City and prompting police surveillance in this State.
Upon the trial defendant Reisman was convicted of the felony possession charge and his codefendant acquitted. As noted earlier, both defendants were acquitted of the charge related to the small quantity of marijuana found in the automobile. In acquitting the codefendant of all charges, the jury probably accepted his testimony that he was only doing Reisman a favor in accompanying him and believed the cartons to contain men's and women's clothing. Reisman did not testify.
It would be unrealistic to atomize the several facts relied upon by the New York police as influential in making the arrest and incidental search. To be sure, when Tobin placed the cartons
The presence of independent untainted information distinguishes this case from Silverthorne Lbr. Co. v. United States (251 U.S. 385) and Nardone v. United States (308 U.S. 338) which incepted the exclusionary derivative evidence rule. Independent untainted evidence establishing probable cause for police conduct will sustain the arrest or seizure even if there has been antecedent illegal conduct by the police (Wong Sun v. United States, 371 U.S. 471, 487-488; Silverthorne Lbr. Co. v. United States, supra, at p. 392). Indeed, when, as in this case, the untainted information "would have inevitably resulted" in the New York surveillance, and then the arrest and seizure, the rule with its appendant exception is more than satisfied (Wayne v. United States, 318 F.2d 205, 209 [BURGER, J.], cert. den. 375 U.S. 860; Harlow v. United States, 301 F.2d 361, 372-373, cert. den. 371 U.S. 814; Hernandez v. United States, 353 F.2d 624, 628, cert. den. 384 U.S. 1008).
The result is eminently sensible. The New York police should not be handicapped by police illegality in another jurisdiction which is not "necessarily responsible" for the present prosecution, that is, is not an essential ingredient to the New York prosecution. Moreover, in the absence of collusion between the police of the two jurisdictions, the exclusion of the otherwise properly obtained New York evidence serves no legitimate purpose.
Conceding transitory manual possession of the packaged contraband, defendant argues that the prosecution failed to establish knowledgeable possession. Proof of such possession, defendant urges, is equally consistent with defendant's lack of knowledge of the contents, and therefore the indictment should have been dismissed.
The crime of possessing dangerous drugs requires a physical or constructive possession with actual knowledge of the nature of the possessed substance (Penal Law, §§ 220.05-220.20). Knowledge, of course, may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred (see, e.g., People v. Groom, 60 Cal.2d 694, 696; People v. Embry, 20 Ill.2d 331, 332; 72 C. J. S., Poisons, § 7, subd. c, par. ). Generally, possession suffices to permit the inference that the possessor knows what he possesses, especially, but not exclusively, if it is in his hands, on his person, in his vehicle, or on his premises (e.g., 2 Wigmore, Evidence [3d ed.], §§ 244-245, 260; cf. Kuchlik v. Feuer, 239 App. Div. 338, 339). This, of course, is an elemental inference based on common experience and all but universal probabilities. Thus it is an ancient rule of inference or rebuttable
By statutes or decisional precedents the rule and variants have been applied to dangerous drugs (see, e.g., U. S. Code, tit. 21, § 174, repealed 84 U. S. Stat. 1291; U. S. Code, tit. 26, § 4744, repealed 84 U. S. Stat. 1292; Penal Law, § 220.25; People v. Nettles, 23 Ill.2d 306, 308; People v. Cirilli, 265 Cal.App.2d 607, 612-613; People v. Hokuf, 245 Cal.App.2d 394; Wong Sun v. United States, supra, at p. 493; 72 C. J. S., Poisons, § 7, subd. c, par. ).
Moreover, the foregoing reasoning is particularly applicable to dangerous drugs as the Illinois court said so aptly, albeit with reference to possession in premises rather than on the person: "[W]here narcotics are found on premises under defendant's control, it may be inferred that the defendant had both knowledge and control of the narcotics. The inference is based largely upon the nature of the commodity and the manner in which its illegal traffic is conducted * * * [T]hey are sold for exorbitant sums on the black market and are therefore
The probabilities justifying the inference of knowledge in this case are unusually impressive. The marijuana was in defendant's hands when he accepted delivery. This under the rules is sufficient to permit the inference of knowledge subject, of course, to rebuttal by countervailing proof. But there was much more in this case. The consignment was made in care of defendant. It is significant defendant had on his person a check indorsed over as payable to the consignor. Defendant accepted delivery on the consignment which together with the check established that the transaction was one of which he had full awareness. Moreover, defendant claimed the packages as his apparently before he was near enough to read or identify their markings. It could not be one of those rare instances where one may receive and accept a package unanticipated from an unknown sender.
For a residual issue, defendant requested a charge of the misdemeanor of criminal drug possession in the fourth degree, a crime which does not require any particular minimum quantity of the drug (Penal Law, former § 220.05, as enacted by L. 1965, ch. 1030). Interestingly, defendant had previously and successfully moved to have the fourth count of the indictment, criminal possession in the fourth degree, dismissed. Possession in the first degree (Penal Law, former § 220.20, as enacted by L. 1965, ch. 1030) depended on the quantity of the drug involved. The weight of the contraband in the carton was uncontradicted. Moreover, the nature of the case and its circumstances depended entirely on a commercial-like shipment of the large quantity. The case could stand or fall on that proof and no other. Consequently, under no view of the facts, because there was no basis in any of the evidence, could the jury find the accused innocent of the higher crime and yet guilty of the misdemeanor which required no minimum quantity (People v. Asan, 22 N.Y.2d 526, 530;
Accordingly, the order of the Appellate Division should be affirmed.