People v. Harris

• Decision Date: 14 April 2011
• Citation: 920 N.Y.S.2d 850,83 A.D.3d 1220,2011 N.Y. Slip Op. 02974
• Parties: The PEOPLE of the State of New York, Respondent,v.Vernon L. HARRIS, Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1220

920 N.Y.S.2d 850

2011 N.Y. Slip Op. 02974

The PEOPLE of the State of New York, Respondent,

v.Vernon L. HARRIS, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

April 14, 2011.

Richard W. Rich Jr., Elmira, for appellant.Weeden A. Wetmore, District Attorney, Elmira (John R. Thweat of counsel), for respondent.Before: SPAIN, J.P., LAHTINEN, GARRY and EGAN JR., JJ.SPAIN, J.P.

Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered February 27, 2009, convicting defendant upon his plea of guilty of the crimes of criminal possession of marihuana in the first degree and criminal possession of a weapon in the third degree (two counts).

Upon execution of a search warrant, the police discovered two loaded handguns and 13 pounds of marihuana in a safe in defendant's apartment. After unsuccessfully moving to suppress these items, defendant pleaded guilty, reserving his right to challenge the suppression ruling on appeal. Defendant was sentenced to six years in prison and three years of postrelease supervision for the marihuana charge and 3 to 6 years in prison for each of the weapons charges, with all terms to run concurrently. Defendant appeals, and we affirm.

We find no merit to defendant's contention that the search warrant for his apartment was not supported by probable cause. After an investigation of defendant had begun in August 2006 for the sale of large quantities of marihuana, the City of Elmira Police Department received a telephone call in July 2007 from a local credit union alleging that defendant had exchanged over $5,000 in small bills, reeking of marihuana, for larger bills. The police then approached a confidential informant living near defendant who agreed to notify the police if defendant was observed taking out his trash. In April and May 2008, acting on tips from the informant, the police obtained trash allegedly discarded by defendant on three separate occasions. A search of the trash revealed mail addressed to defendant at his address, cocaine residue, particles of marihuana, and knotted baggies commonly used in packaging narcotics.

Initially, we reject defendant's challenge to the admissibility of the evidence found in his trash. To mount such a challenge, a defendant must first have standing, which entails a legitimate expectation of privacy in the place where the evidence was found, and it is settled law that one has no reasonable, objective expectation of privacy in trash that he or she left in a public space for removal by a third party ( see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 112–113, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996]; People v. Philbert, 267 A.D.2d 607, 609, 700 N.Y.S.2d 243 [1999], lv. denied 94 N.Y.2d 905, 707 N.Y.S.2d 390, 728 N.E.2d 989 [2000] ). We decline defendant's invitation to find a distinction here because defendant threw his trash into a closed dumpster at a private apartment complex and because the dumpster was under the control of a private waste management company, rather than leaving it along a public street and under the control of the public department of sanitation. The Court of Appeals has held that it would be unreasonable to presume that a bag left in the trash where others have access to it “would remain undisturbed or undiscovered out of respect for the privacy of the person who put it there” ( People v. Ramirez–Portoreal, 88 N.Y.2d at 113, 643 N.Y.S.2d 502, 666 N.E.2d 207). County Court properly found this rationale equally applicable to trash left in a dumpster in the parking lot of defendant's apartment complex, where residents of 138 units in 10 buildings shared five communal dumpsters, as it is to trash left at a curb along a public street. Abandonment is a question of intent and trash disposed of in a communal place where others can access it with the understanding that it will be removed by a third party is deemed to be abandoned ( see United States v. Minker, 312 F.2d 632, 634 [3d Cir.1962], cert. denied 372 U.S. 953, 83 S.Ct. 952, 9 L.Ed.2d 978 [1963]; see also California v. Rooney, 483 U.S. 307, 325–326, 107 S.Ct. 2852, 97 L.Ed.2d 258 [1987] [White, J., dissenting] ). Accordingly, defendant lacks standing to challenge on due process and Fourth Amendment grounds the seizure of his trash ( see People v. Philbert, 267 A.D.2d at 609, 700 N.Y.S.2d 243; Matter of Devon H., 225 A.D.2d 135, 140, 650 N.Y.S.2d 120 [1996] ).

Given our conclusion that the evidence of a periodic drug possession found in defendant's trash was legally obtained, we find that the warrant was supported by probable cause. A search warrant application does not require proof “ ‘sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an...