NEW YORK COURT OF APPEALS

People v. Wesley

73 N.Y. 2d 351 (1989)

Kaye, Judge.

The central issue to be decided on this appeal is whether defendant has standing to challenge a search that results in the discovery of contraband, based solely on his alleged constructive possession of that contraband. Consonant with State law since People v. Ponder, 54 N.Y. 2d 160, 445 N.Y.S.2d 57, 429 N.E. 2d 735, abrogating “automatic standing,” we conclude that defendant failed to establish standing to challenge the search and therefore reverse the appellate Division order overturning his conviction. (Emphasis added).

Defendant was arrested following a search of the house occupied by his girlfriend, Jacquelin Glass, and their infant son. The Rochester Police Department Narcotics Unit had received information that a large quantity of marihuana had been delivered to that location from Florida. Members of the unit arrived at the house shortly before midnight to execute a “no-knock” search warrant. Police with sledgehammers entered through both the front and side doors. Defendant attempted to hold the front door closed and was handcuffed as soon as the officers were inside.

The search of the house began in the upstairs master bedroom, where the officers immediately found two suitcases containing nearly 75 pounds of marihuana bricks in one of the closets. A smaller quantity of marihuana was discovered in a dresser, along with a handgun and $800 in cash; this dresser contained men’s clothing and masculine toilet articles. Another dresser held women’s clothing, but also contained a shoebox with a wallet and various items of identification in defendant’s name. Other identification belonging to defendant, including a temporary driver’s license and birth certificate, as well as unopened mail addressed to him and an address book with his parole officer’s card, was found elsewhere in the bedroom. Men’s and women’s clothing hung in the closet in which the marihuana was discovered. In addition to several scales and a box of envelopes of a type commonly used to package “nickel bags” of marihuana, $18,000 in cash was found in three metal boxes in another bedroom closet; inside one of the boxes was identification bearing a photograph of defendant in the name of Sam Glass.

A search of a second bedroom similarly disclosed men’s and women’s clothes in the closet, and a large cardboard box holding defendant’s correspondence and other personal items, including a number of photographs of him. When the ground floor was searched, more photographs of defendant were found in the living room. A stolen .45 caliber pistol and clip of ammunition were found in the kitchen cupboard. At the time of the search, Glass told one officer that “all the stuff upstairs” belonged to defendant. Both Glass and defendant were charged with possession of the guns and marihuana.

Before trial, both defendants moved for suppression of the fruits of the search. The People opposed defendant’s motion on the basis that he had no standing to complain of the search of Glass’s house, pointing to defendant’s failure in his motion papers to allege any privacy interest in the premises and in particular to earlier testimony before the Grand Jury. Both defendant, and Glass had testified under oath before the Grand Jury that defendant never stayed at Glass’s house, that he kept no clothes or other personal property there except for a few stored papers, that a male boarder had resided in the house, and that defendant had no proprietary interest in the premises but was merely a visitor, albeit a daily one.

Defendant’s motion to suppress was denied for lack of standing. A hearing was conducted on Glass’s motion, which was also denied on the ground that the search warrant met the “totality of circumstances” test set forth in Illinois v. Gates, 462 U.S. 213,103 S Ct. 2317, 76 L.Ed 2d 527. Following a jury trial, defendant was convicted of possession of the marihuana and one of the guns, and Glass was convicted on the marihuana charge.

We now determine that defendant failed to establish standing to challenge the search and therefore reverse the Appellate Division order.

“In order to qualify as a person aggrieved by an unlawful search and seizure, one must have been a victim of a search and seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” (Jones v. United States 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L Ed 2d 697).

Only recently, in a unanimous opinion, this court again applied the rule of Ponder that it is a defendant’s burden to demonstrate his or her own constitutional interest in seeking suppression. In (People v. Rodriguez, 69 NY 2d 159, 513 NYS 2d 75, 505 NE 2d 586), the defendant was charged with possession of drugs and hypodermic instruments found in an apartment in which he was sleeping. Affirming the denial of the defendant’s motion to suppress, we traced the evolution of the standing requirement up to the abrogation of the automatic standing rule and, citing Ponder, restated its holding that “the search and seizure entitlement under our own State constitution was sufficient if accorded only to those with standing and that there was no reason to apply a more generous standing rule than was allowed under the Federal constitutional standard”. (Id., at 162, 513 NYS 2d 75, 505 NE 2d 586).

This analysis is codified in CPL 710.60, which allocates to the defendant seeking suppression of evidence the initial burden of showing sufficient grounds for the motion based on sworn allegations of fact; such grounds necessarily include a showing of standing – that is, a legitimate expectation of privacy in the searched premises.

Placing upon a defendant the burden of asserting an interest in the searched premises at the pretrial stage is fair, sensible and consonant with this court’s long – established view that Fourth Amendment rights are personal.

Since Ponder, we have carved out a narrow exception in one particular class of constructive possession cases. In cases where a defendant is charged with possession of a gun based on the statutory presumption found in Penal Law 265.15 (3), which attributes possession of a gun to the passengers in an automobile simply by virtue of their presence in the car where the gun is found, we have held that the defendant has a right to challenge the legality of the search regardless of whether he or she is otherwise able to assert a cognizable Fourth Amendment interest. We reasoned that fundamental tenets of fairness require that a defendant charged with possession under the statutory presumption be given an opportunity to contest the search (People v. Millan, 69 NY2d 514). However, we made clear in Millan that this exception was in no way inconsistent with Ponder, which remains the law (id., at 519)

Nor does the Ponder rule create the unfairness or anomaly that defendant here, stands convicted while his girlfriend remains free (dissenting opn., at 367). That result arises because, despite substantial evidence to the contrary, defendant, chose to take the position that he had little connection with the searched premises. Had he asserted a similar interest in the premises to that of his girlfriend, the result might well have been otherwise.

As this case has been decided by the Appellate Division and presented to us only the fact that this is a constructive possession case in asserted as support for defendant’s claim of standing to seek suppression of the contraband. That is simply insufficient under the law.

Accordingly, the order should be reversed an the case remitted to the Appellate Division, Fourth Department, for consideration of the facts and other issues not reached on appeal to that court.

(Dissenting Opinion is Omitted)