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Morales v. Greiner

United States Court of Appeals, Second Circuit
Aug 19, 2004
381 F.3d 47 (2d Cir. 2004)

Summary

holding that where defendant "was arrested in a location known to have significant narcotics activity" and an undercover detective observed [defendant] engaging in hand-to-hand sales that there was probable cause for arrest

Summary of this case from United States v. Matos

Opinion

No. 03-2894-pr.

Argued: July 14, 2004.

Decided: August 19, 2004.

Petitioner-appellant moves for a certificate of appealability in his appeal from the district court's denial of his 28 U.S.C. § 2254 petition.

Morales' petition is DENIED.

RAUL MORALES, Pro Se, White Deer, PA, for Petitioner-Appellant.

VICTOR BARALL, District Attorney of Kings County, Brooklyn, NY, for Respondent-Appellee.

Before: POOLER, SACK and RAGGI, Circuit Judges.


In February 2002, Morales, pro se, filed a section 2254 petition in the district court challenging his Kings County conviction for possession and sale of a controlled substance. In his petition, Morales argued that his arrest was not supported by probable cause and his appellate counsel rendered ineffective assistance by failing to raise a claim that the police lacked probable cause for his arrest. The facts relevant to this appeal are fully set forth in the district court's opinion, Morales v. Greiner, 273 F. Supp.2d 236 (E.D.N.Y. 2003). Briefly, on April 9, 1998, Morales was arrested after an undercover police officer, conducting a "buy and bust" operation in an area known for "narcotics activity", observed Morales engaging in activities that appeared to be narcotics transactions. On four separate occasions, Morales "touched hands" with another individual, entered the vestibule of a building with that person, engaged in some sort of transaction, and then quickly exited. The undercover officer also observed one of the individuals holding a glassine envelope in his hands as he emerged from the vestibule — the type of envelope that the undercover officer knew to be used to package narcotics. Approximately twenty-five minutes after the fourth transaction occurred, Morales was arrested. Following a jury trial, Morales was convicted of one count of Criminal Sale of a Controlled Substance in the Third Degree and two counts of Criminal Possession of a Controlled Substance in the Third degree.

Currently before this court is Morales's motion for a certificate of appealability. Upon due consideration, it is ordered that his motion be denied and his appeal be dismissed because Morales has not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c); see Miller-El v. Cockrell, 537 U.S. 322 (2003). Both of Morales's claims on appeal are without merit because there was probable cause to support his arrest. Morales was arrested in a location known to have significant narcotics activity and an undercover detective observed Morales engaging in four transactions that appeared to be narcotics sales. We hold that these facts are sufficient to establish probable cause that an "offense has been or is being committed." Dunaway v. New York, 442 U.S. 200, 208 n. 9 (1979). In so holding, we do not rely on the district court's alternative finding that, where a habeas petitioner claims that his attorney rendered ineffective assistance of counsel for failing to raise a Fourth Amendment challenge, the "prejudice" prong of the Strickland analysis can never be satisfied.Strickland v. Washington, 466 U.S. 668, 694 (1984).

For these reasons, Morales' petition is DENIED.


Summaries of

Morales v. Greiner

United States Court of Appeals, Second Circuit
Aug 19, 2004
381 F.3d 47 (2d Cir. 2004)

holding that where defendant "was arrested in a location known to have significant narcotics activity" and an undercover detective observed [defendant] engaging in hand-to-hand sales that there was probable cause for arrest

Summary of this case from United States v. Matos

finding probable cause where defendant "touched hands" with other individuals in an area known for "narcotics activity"

Summary of this case from United States v. Matos

finding probable cause based on the fact that “[o]n four separate occasions, [the suspect] ‘touched hands' with another individual, entered vestibule of a building with that person, engaged in some sort of transaction, and then quickly exited”

Summary of this case from U. S. v. Lahey

denying a certificate of appealability, and noting that the defendant touched hands with multiple individuals and law enforcement saw an individual leave an alleged transaction with an envelope sometimes used to package drugs so there was probable cause to support the defendant's arrest

Summary of this case from United States v. Scott

In Morales, there was probable cause to arrest where an undercover officer observed the plaintiff touch hands with another individual.

Summary of this case from Virgil v. City of New York

In Morales, a police officer observed that "[o]n four separate occasions, [the defendant] 'touched hands' with another individual, entered the vestibule of a building with that person, engaged in some sort of transaction, and then quickly exited."

Summary of this case from United States v. McDow

In Morales v. Greiner, 381 F.3d 47, 48 (2d Cir. 2004), the Second Circuit held that probable cause to arrest existed where an undercover narcotics officer observed the defendant at a location known to have significant narcotics activity, and saw him engage in four apparent narcotics sales.

Summary of this case from U.S. v. Midyett

In Morales, the undercover officer saw four transactions in which the defendant "`touched hands' with another individual, entered the vestibule of a building with that person, engaged in some sort of transaction, and then quickly exited."

Summary of this case from U.S. v. Midyett
Case details for

Morales v. Greiner

Case Details

Full title:RAUL MORALES, Petitioner-Appellant, v. CHARLES GREINER, Respondent-Appellee

Court:United States Court of Appeals, Second Circuit

Date published: Aug 19, 2004

Citations

381 F.3d 47 (2d Cir. 2004)

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