| People v Harris |
| 2011 NY Slip Op 02974 [83 AD3d 1220] |
| April 14, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Vernon L.Harris, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (John R. Thweat of counsel), forrespondent.
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 ofcriminal possession of marihuana in the first degree and criminal possession of a weapon in thethird degree (two counts).
Upon execution of a search warrant, the police discovered two loaded handguns and 13pounds of marihuana in a safe in defendant's apartment. After unsuccessfully moving to suppressthese items, defendant pleaded guilty, reserving his right to challenge the suppression ruling onappeal. Defendant was sentenced to six years in prison and three years of postrelease supervisionfor the marihuana charge and 3 to 6 years in prison for each of the weapons charges, with allterms to run concurrently. Defendant appeals, and we affirm.
We find no merit to defendant's contention that the search warrant for his apartment was notsupported by probable cause. After an investigation of defendant had begun in August 2006 forthe sale of large quantities of marihuana, the City of Elmira Police Department received atelephone 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 aconfidential informant living near defendant who agreed to notify the police if defendant wasobserved taking out his trash. In April and May 2008, acting on tips from the informant, thepolice obtained trash allegedly discarded by defendant on three separate occasions. A search of[*2]the trash revealed mail addressed to defendant at his address,cocaine residue, particles of marihuana, and knotted baggies commonly used in packagingnarcotics.
Initially, we reject defendant's challenge to the admissibility of the evidence found in histrash. To mount such a challenge, a defendant must first have standing, which entails a legitimateexpectation of privacy in the place where the evidence was found, and it is settled law that onehas no reasonable, objective expectation of privacy in trash that he or she left in a public spacefor removal by a third party (see People v Ramirez-Portoreal, 88 NY2d 99, 112-113[1996]; People v Philbert, 267 AD2d 607, 609 [1999], lv denied 94 NY2d 905[2000]). We decline defendant's invitation to find a distinction here because defendant threw histrash into a closed dumpster at a private apartment complex and because the dumpster was underthe control of a private waste management company, rather than leaving it along a public streetand under the control of the public department of sanitation. The Court of Appeals has held thatit 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 putit there" (People v Ramirez-Portoreal, 88 NY2d at 113). County Court properly foundthis rationale equally applicable to trash left in a dumpster in the parking lot of defendant'sapartment complex, where residents of 138 units in 10 buildings shared five communaldumpsters, as it is to trash left at a curb along a public street. Abandonment is a question of intentand trash disposed of in a communal place where others can access it with the understanding thatit will be removed by a third party is deemed to be abandoned (see United States vMinker, 312 F2d 632, 634 [3d Cir 1962], cert denied 372 US 953 [1963]; see alsoCalifornia v Rooney, 483 US 307, 325-326 [1987, White, J., dissenting]). Accordingly,defendant lacks standing to challenge on due process and Fourth Amendment grounds the seizureof his trash (see People v Philbert, 267 AD2d at 609; Matter of Devon H., 225AD2d 135, 140 [1996]).
Given our conclusion that the evidence of a periodic drug possession found in defendant'strash was legally obtained, we find that the warrant was supported by probable cause. A searchwarrant application does not require proof " 'sufficient to warrant a conviction beyond areasonable doubt but merely information sufficient to support a reasonable belief that an offensehas been or is being committed or that evidence of a crime may be found in a certain place' " (People v Fenger, 68 AD3d 1441,1442 [2009], quoting People v Bigelow, 66 NY2d 417, 423 [1985]). Here, the applicationwas supported by the affidavit of a police officer who participated in the ongoing investigation ofdefendant, seized defendant's marihuana-scented deposit at the credit union, contacted theconfidential informant and personally seized and searched the bags of trash which yieldedevidence of identification, drug possession and sale. Defendant argues that because the police didnot seek the warrant for over a year after learning of the money deposited at defendant's creditunion, that evidence became stale and cannot be relied upon to support the warrant. However,"the warrant herein was primarily justified by the existence of more recent facts" revealingongoing criminal activity sufficient to justify a finding of probable cause at the time the warrantwas issued (People v Church, 31AD3d 892, 894 [2006], lv denied 7 NY3d 866 [2006]; see People v Gaviria,183 AD2d 913, 914 [1992], lvs denied 81 NY2d 839, 1014 [1993]; cf. People vRodriguez, 303 AD2d 783, 785 [2003]). Indeed, the evidence in defendant's trash of illegalactivity, even standing alone, was sufficient to support a reasonable belief that drugs and/orevidence of drug sales might be found in defendant's apartment (see People v Sherwood, 79 AD3d1286, 1289 [2010]; People vMing, 35 AD3d 962, 965 [2006], lv denied 8 NY3d 883 [2007]; People vMcCulloch, 226 AD2d 848, 849 [1996], lv denied 88 NY2d 1070 [1996]; Peoplev Ashton, 169 AD2d 353, 355-356 [1991], appeal dismissed 79 NY2d 897 [1992]).[*3]
Lahtinen, Garry and Egan Jr., JJ., concur. Ordered thatthe judgment is affirmed.