People v. Ramirez-Portoreal

• Decision Date: 02 May 1996
• Docket Number: RAMIREZ-PORTOREA,A
• Citation: 643 N.Y.S.2d 502,666 N.E.2d 207,88 N.Y.2d 99
• Parties: , 666 N.E.2d 207 The PEOPLE of the State of New York, Respondent, v. Joseppellant. The PEOPLE of the State of New York, Appellant, v. Alberto SANCHEZ, Respondent. The PEOPLE of the State of New York, Appellant, v. John MIMS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 502

643 N.Y.S.2d 502

88 N.Y.2d 99, 666 N.E.2d 207

The PEOPLE of the State of New York, Respondent, v. Jose RAMIREZ-PORTOREAL, Appellant.

The PEOPLE of the State of New York, Appellant, v. Alberto SANCHEZ, Respondent.

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

Court of Appeals of New York.

May 2, 1996.

[88 N.Y.2d 102] [666 N.E.2d 209] Castillo & Siegel, Albany (Gaspar M. Castillo Jr. and Thomas J. Neidl, of counsel), for appellant in the first above-entitled action.

Sol Greenberg, District Attorney of Albany County, Albany (Christopher D. Horn, of counsel), for respondent in the first above-entitled action.

[88 N.Y.2d 103] Robert M. Morgenthau, District Attorney of New York County, New York City (Patrick J. Hynes, of counsel), for appellant in the second above-entitled action.

Joel M. Stein and Andrea G. Hirsch, New York City, for respondent in the second above-entitled action.

[88 N.Y.2d 104] Robert M. Morgenthau, District Attorney of New York County, New York City (Aytan Y. Bellin and Paul Harnisch, of counsel), for appellant in the third above-entitled action.

[666 N.E.2d 210] Martin M. Lucente and Daniel L. Greenberg, New York City, for respondent in the third above-entitled action.

OPINION OF THE COURT

SIMONS, Judge.

Defendants in these three unrelated appeals have been arrested and prosecuted for various counts of criminal possession of drugs. Prior to their arrests, each had deposited or hidden drugs in a public place and they challenged the legality of the police actions in seizing them. The questions raised are whether, in such circumstances, a defendant has standing to challenge the legality of the police conduct and whether the alleged "abandonment" of the property affects the right to do so. Defendant Mims also successfully claimed that he was arrested without probable cause. The arrest was unlawful, he says, because there was insufficient evidence to warrant the imputation of knowledge from one law enforcement officer to the other under the "fellow officer" rule.

For the reasons which follow we reverse all three orders.

I. People v. Ramirez-Portoreal

On June 10, 1992, three law enforcement officers were on a drug interdiction assignment at the bus terminals in the City of Albany. Sheriff's Investigator Matthew Campbell testified at the suppression hearing that he, Inspector John Burke and Detective Jimmy Tuffy were looking for drug couriers travelling from New York City, through Albany, to points west. The three plainclothes officers, with their badges prominently displayed, were seated on a loading platform observing bus passengers. Defendant Ramirez-Portoreal and two companions arrived on a bus from New York City. When they alighted, defendant was carrying a single piece of luggage; his companions carried none. One of defendant's companions noticed the officers, and the three travelers immediately boarded a westbound bus and took seats in different parts of it. Before sitting, defendant placed the bag he carried in an overhead luggage compartment located one row behind his seat and across the aisle from it.

The three officers boarded the bus, identified themselves and announced that they were conducting "drug interdiction." They asked all passengers to show their tickets and identification. Defendant produced a ticket but no identification. When Burke asked him whether he had any luggage aboard the bus, he replied that he did not. When asked whether the bag that the officers had seen him place in the luggage rack was his, defendant denied ownership of it. Inspector Burke then asked the bus passengers as a group whether the bag belonged to anyone, and whether anyone objected to his opening it to learn its ownership. None of the passengers responded. Upon opening the bag, the officer discovered a glassine bag containing dime bags of heroin. Defendant and his companions were removed from the bus and arrested. A further search of the bag revealed a quantity of marihuana.

County Court concluded that Ramirez-Portoreal had standing to challenge the police conduct, and that he had not abandoned the bag. Applying the tiered analysis of People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562, the court determined that the officer's questions regarding ownership of the bag constituted a common-law inquiry which was made without a founded suspicion of criminality to support that level of intrusion. Accordingly, the court concluded that the search of the bag was improper and granted defendant's motion to suppress the physical evidence. The Appellate Division reversed. It concluded that the evidence at the suppression hearing revealed no more than defendant's possessory interest in the bag, particularly in light of his denial of ownership of it, and decided that defendant had failed to establish standing (see, 214 A.D.2d 830, 625 N.Y.S.2d 328). Defendant appeals.

People v. Sanchez

Testimony at the suppression hearing established that on March 1, 1993, an undercover officer in a drug-prone location in Manhattan observed defendant Sanchez surreptitiously place a light brown "package," which bore the characteristics of narcotics packaged for street sale, into the exhaust pipe of a parked van. After placing the drugs there, the defendant walked several feet away but did not leave the immediate area. Two other officers, acting on the undercover's radio transmission, approached defendant and identified themselves. They told him not to move and immediately conducted a safety "pat-down." The undercover officer directed one of the backup officers to remove the package from the exhaust pipe. When the officer did so, he recovered 10 small, pink baggies containing cocaine and held together by masking tape.

Criminal Court granted defendant's motion to suppress the drugs. It did not expressly consider whether defendant had established standing to challenge the police conduct. Addressing only the issue of defendant's abandonment of the package, it determined that he had not abandoned the property when he secreted it in the exhaust pipe of the van. Finding the police conduct illegal, the court granted defendant's motion to suppress the physical evidence. The Appellate Term held that defendant's standing was established by the fact that he had actually possessed the package moments before being detained and that he remained close to it at all times. It concluded that the circumstances did not justify a police intrusion any greater than an initial stop and inquiry of defendant, and it therefore affirmed the lower court. The People appeal.

People v. Mims

Police Officer Brian Fleming testified at the suppression hearing that on September 27, 1991, he and Officer Edward Lott were stationed on the roof of a building in northern Manhattan. While Officer Fleming used binoculars to observe defendant Mims on the sidewalk on the north side of 154th Street, Officer Lott stood guard to make sure no one approached from the rear. Lott did not observe the scene below. Fleming saw two people approach and give defendant currency in exchange for green-topped vials. Moments later, another pair approached defendant. After a brief conversation, defendant crossed to the south side of 154th Street and reached into a cardboard box that was among a pile of boxes and garbage. He pulled a paper bag from the box, withdrew unidentified items from the bag, replaced the bag in the box, and returned to the other side of the street. Again, Fleming saw defendant conduct what appeared to be a drug sale.

Officers Fleming and Lott left the roof, got into their patrol car and drove around the block onto 154th Street to Mims' location. When they got out of the car, Lott detained defendant while Fleming went to retrieve the paper bag from the box in the trash pile. Fleming looked inside the bag and found 18 green-capped vials of crack cocaine. He then recrossed the street, searched defendant and recovered $130 from defendant's pocket. Lott found another green-capped vial on the ground near defendant.

Defendant moved to suppress the evidence and after a hearing Supreme Court granted the motion and dismissed the indictment. The court concluded that defendant had not abandoned the bag of crack vials, and that he therefore had standing to contest Officer Fleming's recovery of the bag. On the merits, the court found that while Officer Fleming possessed probable cause to arrest defendant, Officer Lott did not because the People had failed to present direct evidence of any communication from Fleming to Lott. Accordingly, it determined that Lott's arrest of defendant was not supported by probable cause and all the evidence was suppressed because it had been seized as incident to an illegal arrest. A divided Appellate Division held that defendant's conduct in maintaining "control" over the paper bag in the garbage served to confer upon him standing to contest the search of it, and that the People had failed to establish that he had abandoned his property. It further concluded that Supreme Court had not erred in finding the evidence insufficient to establish Officer Lott's probable cause (205 A.D.2d 78, 617 N.Y.S.2d 316). The People appeal.

II.

A defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched (People v. Wesley, 73 N.Y.2d 351 358-359, 540 N.Y.S.2d 757, 538 N.E.2d 76; People v. Reynolds, 71 N.Y.2d 552, 557, 528 N.Y.S.2d 15, 523 N.E.2d 291; People v. Rodriguez, 69 N.Y.2d 159, 513 N.Y.S.2d 75, 505 N.E.2d 586; People v. Ponder, 54 N.Y.2d 160, 445 N.Y.S.2d 57, 429 N.E.2d 735; see, Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633; United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619; Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; see generally, 5 LaFave,...