
    The People of the State of New York, Respondent, v Leon Alexander, Appellant.
    Argued May 7, 1975;
    decided June 19, 1975
    
      Barry Bassis and William E. Hellerstein for appellant.
    The mere observation of glassine envelopes in appellant’s hand did not provide probable cause to seize these envelopes or the ones subsequently uncovered in his pants. (People v Corrado, 22 NY2d 308; People v Russell, 34 NY2d 261; People v Gonzalez, 362 F Supp 415; People v Valentine, 17 NY2d 128; People v Brown, 24 NY2d 421; United States v Moon, 351 F2d 464; People v Butterly, 25 NY2d 159.)
    
      Richard H Kuh, District Attorney (Kenneth P. Kolson and 
      Lewis R. Friedman of counsel), for respondent.
    Probable cause existed for the seizure of the glassine envelopes that appellant was observed holding in his hand; the additional narcotics found on appellant’s person were properly seized as the product of a search incidental to a lawful arrest. (People v Corrado, 22 NY2d 308; People v Cox, 28 NY2d 752; United States v Mont, 306 F2d 412, 371 US 935; United States v Devenere, 332 F2d 160; United States v Moon, 351 F2d 464, 383 US 929; People v Santiago, 28 NY2d 753; People v Perel, 34 NY2d 462; Gustafson v Florida, 414 US 260.)
   Gabrielli, J.

The defendant seeks to have set aside his conviction, upon his plea of guilty, of the crime of attempted criminal possession of a dangerous drug. The Appellate Division has affirmed (44 AD2d 910) and the defendant contends, basically, that there was a lack of probable cause to authorize the seizure of a quantity of heroin.

While riding in the right rear passenger seat of a marked patrol car on West 116th Street in New York City, the arresting officer observed defendant leaning against the rear of a parked vehicle, holding a stack of glassine envelopes in his partially cupped hand, the open portion of which was facing the street. The record showed that this officer had previously made over 100 narcotics arrests, more than half of which involved glassine envelopes, and that he had received formal training in drug detection. Upon completion of a suppression hearing at which the arresting officer and the other two officers present in the car testified, the hearing Judge in an oral decision made a finding that "he [the arresting officer] saw what looked like plastic envelopes — what they call glassine envelopes, in the manner in which he described it in this courtroom, and that seeing that at a moments notice, he ran out of the car, and as he got there — the defendant now realizing that there was a [uniformed] officer coming — attempted to get rid of it in any way he did, and he dropped it or threw it — anyway you want to describe the manner. And he [the officer] grabbed his [defendant’s] hands. * * * I find that to be a proper search”.

In view of these affirmed findings of fact, there must be an affirmance. In addition to the officer’s observation of "a quantity” of glassine envelopes, a "telltale sign of heroin” (People v Corrado, 22 NY2d 308, 313; see, also, United States v Mont, 306 F2d 412, 414, cert den 371 US 935; United States v Moon, 351 F2d 464, 465, cert den 383 US 929), it was found that the arresting officer was trained and experienced in narcotics police work (People v Valentine, 17 NY2d 128) and, perhaps most important, that, prior to the arrest, the defendant dropped or threw the envelopes, thereby evincing a consciousness of guilt upon seeing the approaching uniformed officer (People v Butterly, 25 NY2d 159, 162-163). In these circumstances, where more than one inference may be drawn from the facts, the question of probable cause is primarily one of fact (People v Oden, 36 NY2d 382), and this court has no power to review factual determinations, save the situation, not now before us, where upon any view of the facts, probable cause does not exist (People v Leonti, 18 NY2d 384, 390 and the authorities cited therein; Cohen and Karger, Powers of the Court of Appeals [rev ed], § 198, p 742).

The order of the Appellate Division should be affirmed.

Cooke, J.

(dissenting). I dissent and vote to reverse. The facts are not in dispute. What is in question is whether some of those facts were improperly considered and employed by the court as the basis of its finding of probable cause.

Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing that an offense has been committed (Henry v United States, 361 US 98, 102; Brinegar v United States, 338 US 160, 175-176). It has been held that the question of probable cause is a mixed question of law and fact, the truth and existence of the facts and circumstances being a factual question and the determination that such facts and circumstances constitute probable cause being a question of law (Director Gen. v Kastenbaum, 263 US 25, 28; Worthington v United States, 166 F2d 557, 564; Cooper v United States, 16 F2d 830, 831; 6 CJS, Arrest, § 6, pp 598-599; 75 Am Jur 2d, Trial, § 360; cf. Stewart v Sonneborn, 98 US 187, 194; Fagnan v Knox, 66 NY 525, 527; Besson v Southard, 10 NY 236, 240; McCormick v Sisson, 7 Cow 715, 717; 87 ALR2d 183, 188-189; see People v De Sisto, 27 Misc 2d 217, 241, revd on other grounds sub nom. People v Lo Cicero, 17 AD2d 31, mod 14 NY2d 374).

Knowledge of those facts and circumstances which formed the basis of the belief that an offense has been committed must have rested within the officer’s mind at the time he restrained defendant. The testimony of the arresting officer should be reviewed to determine the actual order in which the events occurred. On direct examination, Officer Best testified: "I saw the defendant, Leon Alexander, leaning against an automobile, with his right hand cupped, with a quantity of glassine envelopes in that same hand. * * * He was to the curb side. * * * He had his back to me. * * * I got out of the automobile. I asked the officers to stop immediately. I got out of the automobile. As I was getting out of the automobile the defendant glanced towards me. * * * As the defendant looked in my direction I called out a name and looked up towards the second story window, as if someone had called to me. When I did this, to my knowledge the defendant froze. The defendant froze and I was able to get up on the defendant and place both hands about his wrist. Prior to me getting to place both hands on his wrist, almost simultaneously the defendant dropped or intentionally dropped * * * a quantity of glassine envelopes to the ground.”

On cross-examination the following exchange took place:

"Q. Then what did you do when you grabbed him by both wrists? A. The defendant had dropped some of — the amount of glassine envelopes to the ground.

"Q. He dropped them? A. Yes.

"Q. At what point did he drop them? Before or after you grabbed his wrists? A. About simultaneous, I guess.

"Q. Simultaneously? A. About. Almost.

"Q. Did he drop them involuntarily as you grabbed his wrists or did he try to get rid of them? A. I think he tried to get rid of them.

"Q. He tried to get rid of them? A. Yes.

"Q. How did he try to get rid of them?

"THE COURT: Show us.

(The witness demonstrates)

"THE COURT: Opening his fist, indicating.”

There is additional testimony in the record on the issue of whether the officer’s recorded notation that defendant "threw” the glassine envelopes conflicted with his in-court statement that defendant "dropped” them. But all such testimony and the findings of fact based thereon relate to that which happened "almost simultaneously” with the officer placing both his hands on defendant’s wrist. An act of the defendant at that time, and the officer’s perception thereof, cannot be included among those facts and circumstances used as a basis for the finding of probable cause. Only those facts and circumstances which were found to have occurred prior thereto may be considered. Thus, the only factors which could have been considered are the experience of the officer and the view he had of the packet of glassine envelopes cupped in defendant’s hand as the officer rode by in a moving vehicle. Although glassine envelopes have come to be accepted as a "telltale sign of heroin”, this court has declared on numerous, occasions that the mere possession or passing of such envelopes does not, without more, establish probable cause (e.g., People v Corrado, 22 NY2d 308, 313). To the possession of glassine envelopes there was no supplementation by any additional behavior raising the level of inference from suspicion to probable cause (People v Russell, 34 NY2d 261, 264; People v Brown, 32 NY2d 172, 174; People v Brown, 24 NY2d 421, 423; People v Corrado, supra). As a matter of law, the facts and circumstances known to the officer at the time he grabbed defendant’s wrist were insufficient to constitute probable cause.

Chief Judge Breitel and Judges Jasen, Jones and Wachtler concur with Judge Gabrielli; Judge Cooke dissents and votes to reverse in a separate opinion in which Judge Fuchs-berg concurs.

Order affirmed.  