PEOPLE v. GREEN (1999)

Appeal by the People from an order of the Supreme Court, Kings County (Silverman, J.), dated April 9, 1998, which, after a hearing, granted those branches of the defendant's omnibus motion which were to suppress certain physical evidence and statements made by him to the police.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendant's omnibus motion which were to suppress the physical evidence recovered from a shopping bag and the defendant's statements to the police and substituting therefor a provision denying those branches of the motion;  as so modified, the order is affirmed.

At approximately 11:25 P.M. on August 23, 1997, the defendant was using a public telephone, holding a shopping bag, and wearing a knapsack on his back in the vicinity of a Brooklyn intersection.   When police officers approached the location in a marked vehicle in order to investigate the making of an unfounded call for assistance, the defendant placed the shopping bag on the ground, hung up the telephone, and began to walk away from the area.   When the defendant was some 15 to 20 feet away from the bag, one officer began to question him about the false police call while a second officer looked inside the shopping bag and discovered what appeared to be a brick of cocaine.   Upon observing the second officer looking into the bag, the defendant fled and was apprehended following a brief chase on foot.   The second officer then advised the first officer that the shopping bag contained cocaine, whereupon the defendant claimed, in an apparent reference to the knapsack, that he had only one bag and did not know anything about any other bag.   After confiscating the knapsack from the defendant, but prior to transporting the defendant to the station house, the officers searched the knapsack and recovered more cocaine.   During a subsequent body search of the defendant at the station house following the administration of Miranda warnings, the defendant suddenly claimed that he only could be charged with regard to items on his person and not with respect to what was found in the bag.   The hearing court suppressed the physical evidence and statements, finding that the search of the shopping bag was unlawful and that all of the evidence which followed was the fruit of the poisonous tree.   We modify the order to deny suppression as to the contents of the shopping bag and the defendant's statements.

 The suppression of the cocaine recovered from the shopping bag was improper.   It is well settled that a defendant bears the burden of proving that he has standing to contest the seizure of evidence by establishing that he has “a personal legitimate expectation of privacy” in the object or area searched (see, People v. Whitfield, 81 N.Y.2d 904, 906, 597 N.Y.S.2d 641, 613 N.E.2d 547).   Such standing was negated in this case by the People's demonstration that the defendant's conduct in placing the bag on the ground and walking away from it constituted his voluntary and knowing relinquishment of any privacy expectation therein.   The record supports the conclusion that the defendant abandoned the shopping bag as a calculated risk and not in response to any unlawful police conduct (see generally, People v. Ramirez-Portoreal, 88 N.Y.2d 99, 643 N.Y.S.2d 502, 666 N.E.2d 207).   Therefore, the defendant lacked standing to challenge the admissibility of the bag's contents.

 The People further sustained their burden of demonstrating that the statements made by the defendant at the scene and during the subsequent search at the station house were admissible.   Both statements were voluntary and spontaneous, and did not result from police interrogation or its functional equivalent (see, People v. Lynes, 49 N.Y.2d 286, 425 N.Y.S.2d 295, 401 N.E.2d 405;  People v. Morgan, 226 A.D.2d 398, 640 N.Y.S.2d 586;   People v. Lipscomb, 214 A.D.2d 970, 626 N.Y.S.2d 919, lv. denied 86 N.Y.2d 797, 632 N.Y.S.2d 510, 656 N.E.2d 609, cert. denied 516 U.S. 1078, 116 S.Ct. 787, 133 L.Ed.2d 737;  People v. Jackson, 211 A.D.2d 490, 621 N.Y.S.2d 323;  People v. Pryor, 194 A.D.2d 749, 600 N.Y.S.2d 81).

 However, the suppression of the contents of the knapsack must be upheld.   That evidence is not admissible on the theory that it was recovered pursuant to a search incident to a lawful arrest.   The police removed the knapsack from the defendant's back and then handcuffed the defendant and placed him in a patrol car.   Accordingly, the requisite exigent circumstances to justify the subsequent warrantless search of the knapsack were not present (see, People v. Gokey, 60 N.Y.2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723;  People v. Johnson, 241 A.D.2d 527, 660 N.Y.S.2d 730;  People v. Rosado, 214 A.D.2d 375, 625 N.Y.S.2d 162).

MEMORANDUM BY THE COURT.