A HYPOTHETICAL ANSWER TO A HYPOTHETICAL QUESTION

Please note that the Counsel's answer to this question would have been entirely different had the Officer seen something in the hand of the person who gave the $20 to the "dealer." Had the officer seen a rock, white powder or a baggie corner, Counsel would have advised that the Officer had probable cause to make an arrest under those circumstances. In this situation, the Officer knew that the Church Street area is a high crime, high drug area. It is arguable that the Officer had articulable suspicion to believe that criminal activity was underway which would have justified a stop and frisk for weapons. However, here the Officer completely deprived both "persons" of their freedom by forcing them up again the wall. With respect to the one who ran, there is no doubt that he was under arrest by virtue of being physically forced into the wall during the initial confrontation. While articulable suspicious might rise to the level of probable cause by virtue of the exchange between the person and the Officer, here the initial restraint is the trigger point. At that point, probable cause did not exist to arrest the individual, and the subsequent flight can't "bootstrap" the initial arrest to the level of probable cause.

It is arguable that the second person, the one who stayed in place, was not initially in custody and therefore was not arrested. However, upon the Officer's return, there is no indication that the Officer sought consent or that any other justifiable exception to the warrant requirement existed. If "stupidity" were a crime, the second person was as guilty as guilty can be.

Unfortunately, this one is a loss for the Officer as to the suppression issue. However, the good thing is that the crack cocaine is off the street (unless the second person is stupid enough to go to the PD and request a return of his property, in which case he could be charged with Possession of Cocaine and the crack would still be off the street), and the dealer lost his $20. Maybe both will think a second time before standing on the Church Street Corner buying and selling.

And obviously, the best thing is that no one was hurt in this confrontation.

By comment, please advise whether you think Counsel's hypotheticals are helpful to the readers. If so, Counsel will continue to post. If they're a waste of time . . . Counsel may continue to post anyway . . .