People v. Ballejo

• Decision Date: 12 November 1985
• Citation: 114 A.D.2d 902,495 N.Y.S.2d 75
• Parties: The PEOPLE, etc., Appellant, v. Freddie BALLEJO, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 75

495 N.Y.S.2d 75

114 A.D.2d 902

The PEOPLE, etc., Appellant, v. Freddie BALLEJO, Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 12, 1985.

John J. Santucci, Dist. Atty., Kew Gardens (Alexander P. Schlinger, of counsel), for appellant.

Philip L. Weinstein, New York City (Irma B. Ascher, of counsel), for respondent.

Before MANGANO, J.P., and BRACKEN, O'CONNOR and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People from an order of the Supreme Court, Queens County (Pitaro, J.), dated March 18, 1985, which, after a hearing, granted that branch of defendant's omnibus motion which sought suppression of physical evidence.

Order affirmed.

Defendant Freddie Ballejo and a woman companion were sitting on a stoop in an area of Queens particularly noted for narcotic trafficking, when they were seen by Police Officer Phyllis Johnson, who was at the time in uniform and riding with her partner in a marked patrol car. Johnson observed the woman look in her direction and push a dark object which had been in her hand under nearby bushes. The officer did not see anything in defendant's hands. Johnson's partner stopped the vehicle in front of the stoop, and the officers left their car.

As the officers approached, defendant and the woman stood up and started to walk away, the woman holding onto defendant's arm. Johnson called out for them to stop, which they did.

While her partner detained defendant and his companion, Johnson proceeded to look under the bushes, from which she retrieved a black vinyl pouch. This was the same item which Johnson had seen the woman push under the bushes. Johnson opened the pouch and found 13 small white envelopes containing white powder, which, from prior experience, she determined was probably cocaine.

Johnson told her partner to search defendant. She saw him feel defendant's pants, heard him state that he felt a bulge, and then observed him put his hand inside defendant's pants and remove a soft black leather pouch. Johnson examined the pouch as it was handed to her and found more of the same type of white envelopes as had been found in the vinyl pouch.

Johnson placed both people under arrest, after which they were handcuffed and driven to the precinct, where the pouches and their contents were vouchered. After the prisoners were removed from their car, Johnson and her partner conducted a routine search of the vehicle. Johnson found two more white paper envelopes on the rear seat behind the area where defendant had been sitting. These items, apparently containing white powder which Johnson believed to be cocaine, were also vouchered.

Prior to taking the patrol car out on the road at the beginning of their tour, the officers had searched it, including a removal of the rear seat, and found nothing. The arrest of defendant and the woman was the first made by the officers during their tour that day; no one else had been in the car. Johnson did not see either prisoner placing the envelopes on the rear seat nor did her partner tell her of making such an observation.

The woman, Elizabeth Umpierre, later pleaded guilty to criminal possession of a controlled substance in the seventh degree. Defendant, who was not charged with acting in concert with Umpierre, moved, inter alia, to suppress the cocaine found on his person. The hearing court suppressed that evidence as well as the envelopes of alleged cocaine found in the patrol car.

We affirm.

Defendant was not observed to be engaging in any criminal activity. There was no testimony that he knew of the contents of Umpierre's pouch or saw that she had attempted to hide it as the officers approached in their patrol car. Indeed, there is no evidence that defendant was even aware that Umpierre had such a pouch in her possession. While the character of a neighborhood as a narcotics-prone area is certainly relevant in reviewing a police officer's evaluation of whether he has a reasonable suspicion that drug activity is occurring (People v. McRay, 51 N.Y.2d 594, 605, n. 5, 435 N.Y.S.2d 679, 416 N.E.2d 1015), the fact that a person is in such a neighborhood is not a basis for concluding that he is engaged in criminal, or narcotics-related, activity (Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357).

Here, Officer Johnson apparently determined that defendant was a suspect because of his proximity to Umpierre, who had been seen hiding the cocaine-filled pouch, and because defendant walked away with her. However,...