PEOPLE v. RILEY (1997)

Orders, Supreme Court, New York County (Jeffrey Atlas, J.), entered April 15, 1992 and March 18, 1994, respectively granting defendant's motions to suppress physical evidence and to dismiss the indictment, unanimously reversed, on the law, the motions are denied, and the indictment is reinstated.

Defendant was indicted for criminal possession of a controlled substance in the third degree.   On a Monday evening in the summer of 1991, two uniformed police officers, on duty on an upper level of the Port Authority Bus Terminal in Manhattan, were watching defendant's activity across Eighth Avenue, at the corner of 41st Street.   On at least two occasions, defendant was seen engaging in transactions with passersby, accepting money in exchange for items withdrawn from a brown paper bag that he left on the sidewalk, near a chain link fence.   After observing two such transactions, one of the officers descended and approached the scene.   As he did so, defendant went to make a telephone call, moving the bag to another location along the fence, about ten feet closer to the public telephones on the street.   While defendant was on the telephone, the approaching officer picked up the bag.   Discovering vials inside which appeared to contain crack cocaine, the officer placed defendant under arrest for unlawful possession.

The issue on this appeal is whether defendant had a reasonable expectation of privacy in this bag, so as to preclude a warrantless seizure.   The test requires both a subjective determination that the party challenging the seizure has an expectation of privacy in the item seized, and an objective determination that such an expectation is reasonable under the circumstances (People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108, 643 N.Y.S.2d 502, 666 N.E.2d 207).   The suppression court found that defendant had an expectation of privacy over this bag, which he had not abandoned, and thus had standing to raise the issue.

The reasonableness of that expectation does not, in our view, survive scrutiny here.   The street corner in question is one of the City's busiest pedestrian thoroughfares, located across the street from a major commuter transportation center, and is well known to this Court as an area of frequent illegal drug activity (see, People v. King, 200 A.D.2d 487, 488, 606 N.Y.S.2d 647, lv. denied 83 N.Y.2d 873, 613 N.Y.S.2d 133, 635 N.E.2d 302).   It is inconceivable that a reasonable person would purposely leave anything of value unguarded on this sidewalk without intending to relinquish a legitimate expectation of privacy in it (People v. Wolf, 232 A.D.2d 263, 648 N.Y.S.2d 92;  see also, People v. Garcia, 232 A.D.2d 272, 648 N.Y.S.2d 555, 556).  Even defendant's repeated returns to the stash did not bar access to it by the multitude of others using this thoroughfare, and thus did not create for him an expectation of privacy that was objectively reasonable (People v. Mims, 88 N.Y.2d 99, 112-113, 643 N.Y.S.2d 502, 666 N.E.2d 207).

MEMORANDUM DECISION.