People v. Mims

• Decision Date: 25 October 1994
• Citation: 617 N.Y.S.2d 316,205 A.D.2d 78
• Parties: The PEOPLE of the State of New York, Appellant, v. John MIMS, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 316

617 N.Y.S.2d 316

205 A.D.2d 78

The PEOPLE of the State of New York, Appellant, v. John MIMS, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Oct. 25, 1994.

Nancy Strohmeyer, of counsel (Mitchell G. Krapes and Paul Harnisch, with her on the brief, Robert M. Morgenthau, Dist. Atty., New York County), for appellant.

Before SULLIVAN, J.P., and CARRO, ELLERIN, ASCH and TOM, JJ.

TOM, Justice.

On September 27, 1991, at approximately 10:30 p.m., Police Officers Brian Fleming and Edward Lott were in uniform on a rooftop observation post overlooking the front of 303 West 154th Street, a six-story residential building (the "Building"). As Officer Lott guarded the roof area to ensure that no one approached the officers from behind, Officer Fleming, with binoculars, observed defendant as he stood in front of the Building. He observed two individuals approach defendant and after a short conversation, one of the individuals handed defendant money in exchange for green-capped vials of what Officer Fleming believed to be crack.

Officer Fleming testified that less than one minute later, two different individuals approached defendant and spoke to him for a short period of time. Defendant thereafter walked across the street to the front of an abandoned building, reached into a three-foot by four-foot cardboard box sitting on top of a pile of garbage and removed a brown paper bag. Officer Fleming then observed defendant remove "something" from the bag, place the bag back into the box and return the box to the garbage pile. Defendant subsequently walked back across the street to where the individuals were standing and handed them green vials in exchange for currency.

After the second transaction, the officers left the observation post and proceeded to the front of the Building. At this juncture, Officer Lott detained defendant while Officer Fleming crossed the street and recovered the brown bag. Upon inspecting the bag, Officer Fleming discovered that it contained 18 green-capped vials which the officer believed, in his experience, contained crack cocaine. Upon handcuffing and searching defendant, Officer Fleming recovered $130, including 45 one-dollar bills. In addition, Officer Lott recovered another green-capped vial from the ground near where defendant was standing.

At the Mapp/Dunaway hearing, only Officer Fleming testified on behalf of the People. Officer Lott did not appear.

In an oral decision rendered November 20, 1992, and in a subsequent, undated written decision, Justice Berman held that defendant had standing to contest the search of the bag and that although Officer Fleming had probable cause to arrest defendant based upon his observations, Officer Lott did not possess the requisite probable cause as no evidence was adduced that Officer Fleming conveyed his observations to Officer Lott or directed him to make the arrest. The People subsequently moved for reargument and the court adhered to its original decision. We now affirm.

The question of whether an individual has abandoned personal property and thereby relinquished the expectation of privacy in that property turns on intent (People v. Howard, 50 N.Y.2d 583, 593, 430 N.Y.S.2d 578, 408 N.E.2d 908, cert. denied 449 U.S. 1023, 101 S.Ct. 590, 66 L.Ed.2d 484; People v. Boodle, 47 N.Y.2d 398, 418 N.Y.S.2d 352, 391 N.E.2d 1329, cert. denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383; People v. Phelps, 192 A.D.2d 483, 597 N.Y.S.2d 30, lv. dismissed 82 N.Y.2d 758, 603 N.Y.S.2d 1000, 624 N.E.2d 186; People v. Kelly, 172 A.D.2d 458, 568 N.Y.S.2d 804, affd. 79 N.Y.2d 899, 581 N.Y.S.2d 661, 590 N.E.2d 246). There is, in addition, a presumption against the waiver of constitutional rights and it is the People's burden to overcome that presumption with evidence of " 'an intentional relinquishment or abandonment....' " (People v. Howard, supra, 50 N.Y.2d at 593, 430 N.Y.S.2d 578, 408 N.E.2d 908, citing Brookhart v. Janis, 384 U.S. 1, 4[, 86 S.Ct. 1245, 1247, 16 L.Ed.2d 314].

Although we have held that such actions, such as haphazardly dropping an item, or tossing it aside, and quickly walking away, constitute an abandonment (see, People v. Phelps, supra, 192 A.D.2d at 483, 597 N.Y.S.2d 30; People v. Butler, 184 A.D.2d 305, 584 N.Y.S.2d 571, lv. denied 80 N.Y.2d 927, 589 N.Y.S.2d 855, 603 N.E.2d 960; People v. Marrero, 173 A.D.2d 244, 569 N.Y.S.2d 449, appeal dismissed 78 N.Y.2d 969, 574 N.Y.S.2d 949, 580 N.E.2d 421), we have also held that a defendant, by placing a bag inside a recessed area in a building's lobby wall, covering the opening with a metal plate, and returning to the stoop in front of the building, did not abandon his property (People v. Kelly, supra, 172 A.D.2d at 458, 568 N.Y.S.2d 804); that the mere placing of property on a shelf and walking a short distance away did not effect an abandonment (People v. Pacheco, 107 A.D.2d 473, 486 N.Y.S.2d 950, appeal dismissed 67 N.Y.2d 631, 499 N.Y.S.2d 680, 490 N.E.2d 547); and that the placement of a bag on a newsstand shelf, and walking away did not constitute an abandonment (People v. Campbell, 160 A.D.2d 363, 554 N.Y.S.2d 103). Further, in People v. Howard (supra), the Court of Appeals recognized that concealment of property in a trash can does not necessarily constitute an abandonment (id., 50 N.Y.2d at 593, 430 N.Y.S.2d 578, 408 N.E.2d 908, citing Work v. United States, D.C.Cir., 243 F.2d 660, 662).

In the instant action, the People have failed to meet their burden of demonstrating an intentional abandonment of the property. Rather, Officer Fleming's testimony at the suppression hearing clearly reflects actions, taken on the part of the defendant, not to abandon the property, which might consist of a casual toss of the bag onto the garbage, but an effort to conceal the property and exclude other individuals from its contents.

The dissent's position is that since the defendant did not meet his burden of showing a legitimate expectation of privacy in the seized property he, therefore, had no standing to challenge the seizure of the bag containing the vials of cocaine. We disagree.

In People v. Whitfield, 81 N.Y.2d 904, 906, 597 N.Y.S.2d 641, 613 N.E.2d 547, the Court of Appeals held that '[a] showing of a possessory or proprietary interest in the item seized by itself ... is not the determinative factor on the issue of standing' (People v. Rodriguez, 69 N.Y.2d 159, 163 [513 N.Y.S.2d 75, 505 N.E.2d 586], citing Rawlings v. Kentucky, 448 US 98 [100 S.Ct. 2556, 65 L.Ed.2d 633]. The court must also consider such factors as whether the defendant took precautions to maintain privacy and whether the defendant had the right to exclude other persons from access....

(Id., at 906 597 N.Y.S.2d 641, 613 N.E.2d 547).

In the instant case, defendant, based on the testimony of Officer Fleming, clearly exercised dominion and control over the bag and took affirmative steps to maintain that control by secreting the bag in a box in front of an abandoned building. After retrieving "something" from the bag, defendant did not toss it away but rather, placed the bag back into the box. Defendant remained in close proximity to the bag where he was able to observe it and anyone who might approach it. There was no testimony that other persons were near the vacant area where the cardboard box was placed nor was the lot being used by anyone else. There was no evidence presented by the People which might indicate defendant's desire to relinquish control or otherwise abandon his property.

Further, Officer Fleming did not testify that the "something" defendant retrieved from the paper bag appeared to him to be vials of crack cocaine. It, therefore, appears that he was unable to identify what was taken out of the bag by defendant.

As we stated in People v. Delgado, 192 A.D.2d 318, 319, 595 N.Y.S.2d 467, "the law requires solely that a defendant demonstrate a reasonable expectation of privacy in the area searched" (id. at 319, 595 N.Y.S.2d 467, citing People v. Rodriguez, 69 N.Y.2d 159, 513 N.Y.S.2d 75, 505 N.E.2d 586; Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85; see also, People v. Fuentes-Borda, 186 A.D.2d 405, 589 N.Y.S.2d 5 [where we held that police observations of defendant entering, exiting and locking an apartment established a privacy interest sufficient to confer standing on the defendant to challenge a police search of the apartment].

In the case at bar, Officer Fleming's observations, having clearly seen defendant in possession of the bag and taking actions to avoid anyone from finding it, were sufficient to confer standing on the defendant with regard to the search of his bag. The fact that defendant failed to assert a possessory interest in the bag at the time of the search does not, as the dissent suggests, preclude him from challenging that search at a later time (see, People v. Millan, 69 N.Y.2d 514, 518-519, 516 N.Y.S.2d 168, 508 N.E.2d 903; People v. Echols, 157 A.D.2d 976, 978, 550 N.Y.S.2d 457, appeal denied 76 N.Y.2d 734, 558 N.Y.S.2d 896, 557 N.E.2d 1192; People v. Gonzalez, 115 A.D.2d 73, 80, 499 N.Y.S.2d 400, affd. 68 N.Y.2d 950, 510 N.Y.S.2d 86, 502 N.E.2d 1001).

With regard to Officer Lott's immediate arrest of defendant upon arriving on the scene, we find that the officer lacked probable cause to effectuate that arrest. While we are aware that probable cause may be communicated from one officer, who personally observed the drug sale, to the arresting officer (see, People v. Petralia, 62 N.Y.2d 47, 51-52, 476 N.Y.S.2d 56, 464 N.E.2d 424, cert. denied 469 U.S. 852, 105 S.Ct. 174, 83 L.Ed.2d 109), we have also held in People v. Mitchell, 185 A.D.2d 163, 164, 585 N.Y.S.2d 759, appeal dismissed 81 N.Y.2d 819, 595 N.Y.S.2d 390, 611 N.E.2d 291, that:

[The police] cannot be considered to have relied on information possessed by each other without there having been any communication of either the information itself or a direction to arrest....

(Id.,...