Tejada v. Christian

OPINION OF THE COURT Murphy, P. J. In this article 78 proceeding, petitioner seeks an order annulling respondent’s determination, dated September 21, 1977, which conditioned petitioner’s eligibility for continued occupancy in her apartment upon permanent exclusion of her son, Alexander. The operative facts may be briefly stated. Petitioner Tejada is a tenant in Baruch Houses, a project owned and operated by respondent, the New York City Housing Authority. Her son, Alexander, resides with her in the subject apartment. On or about May 26, 1976, the petitioner received respondent’s notice that a recommendation had been made that her tenancy be terminated for nondesirability. A specification, attached to the notice, charged that: "On or about 3/23/76, your son, Alexander Tejada, in concert with another, did unlawfully possess a gun and/or live ammunition on project grounds. * * * "That at all times set forth in these charges Alexander Tejada was a resident of the premises which is the subject of this proceeding.” A termination hearing was eventually held on August 2, 1977. Respondent’s sole witness at the hearing was Housing Authority police officer Young. The officer testified that, on March 23, 1976, he was questioning two men, named Baycott and Buffalo, concerning stolen property. During their interro [529] gation, Baycott told Young that one Derek Alston had hit him with a gun the prior day. Young testified that Baycott pointed at Alston who was standing nearby. At that time, Alexander was standing next to Alston. Officer Young then approached Alston and Alexander; he asked them to accompany him and officer Jackson to a building in the Baruch development. In the lobby of that building, the officers frisked Alexander and discovered a bulge in his waistband. After a more thorough search, the officers removed a gun from Alexander’s waistband. They also found four to six rounds of ammunition in Alston’s pocket. Neither the petitioner nor Alexander testified at the termination hearing. At the close of the hearing, petitioner’s counsel moved to dismiss the proceeding on the ground that the evidence had been obtained through an illegal search and seizure. The hearing officer, citing Matter of Finn’s Liq.JShop v State Liq. Auth. (24 NY2d 647, 657, n 2), correctly ruled that he lacked the jurisdiction to pass upon that constitutional issue. On September 2, 1977, the hearing officer rendered his "Decision and Disposition” in which he sustained the specification against the petitioner. However, he found that the petitioner was eligible to continue her tenancy subject to the permanent exclusion of her son from the household and the project premises on or before November 15, 1977. In the "Determination of Status for Continued Occupancy”, dated September 21, 1977, the respondent reaffirmed that the petitioner could remain in occupancy subject to the exclusion of her son. The petitioner brought this article 78 proceeding to annul respondent’s determination on the ground that officer Young’s testimony should be suppressed as the product of an illegal search. The court at Special Term denied the application because petitioner lacked standing to raise that constitutional issue. On appeal, one question raised by the petitioner warrants only passing comment. The respondent does have the right, as a consequence of the nondesirable conduct of petitioner’s son or any other member of her household, to evict petitioner or to impose conditions upon her continued tenancy (Lopez v Henry Phipps Plaza South, 498 F2d 937, 946; see, also, Hines v New York City Housing Auth., 67 AD2d 1000). Two other questions raised by petitioner merit more extended discussion. [530] The first question is whether officer Young’s testimony would have been suppressed had Alexander sought to suppress it. Prefatorily, it should be stressed that, although Alexander was arrested, the criminal case against him was never prosecuted. Hence, this suppression issue was never resolved in the criminal proceeding. It should be further emphasized that the petitioner, not Alexander, was the tenant listed for the subject apartment. Therefore, Alexander was not a formal party to the termination proceeding nor is he a party to this article 78 proceeding. The first question is thus framed in hypothetical terms since Alexander never made a motion to suppress at Special Term nor did he, individually, have a right to do so. A person, otherwise acting innocently, may not be arrested merely because he was in the company of another individual who may have engaged in criminal activity. (People v Griffith, 63 AD2d 138, 142; cf. People v Ranton, 56 AD2d 854.) In circumstances similar to those found in this proceeding, this court has already found that police officers do not have the right to stop and frisk one individual merely because he is standing alongside a second individual who reportedly has a gun (People v Trapier, 47 AD2d 481). Analogously, officer Young had no reason to suspect that Alexander had committed, was committing or was about to commit any crime. Therefore, the officer’s initial stop of Alexander and his subsequent search of his person were illegal. Had Alexander made an application in this or any other proceeding to suppress Young’s testimony, that application would have been granted. Before addressing the second question, the ramifications of the affirmative answer to the first question should be explored. If Alexander, rather than the petitioner, were the listed tenant for the apartment, the answer to the present dispute would appear to be evident. This court would necessarily be obliged to grant Alexander’s petition suppressing Young’s testimony at the termination hearing. The court would be required to find that the respondent should not be permitted to avail itself of the fruits of its unlawful activity in order to impose sanctions upon Alexander, whose constitutional rights were violated. The grant of suppression would also deter future misconduct on the part of the Housing Authority police officers, who are aware that an unlawful arrest of a tenant may well lead to the commencement of eviction proceedings by their employer, the respondent (Mat [531] ter of Finn’s Liq. Shop v State Liq. Auth., supra, at p 655). In this hypothetical situation, respondent’s determination would be annulled for a total failure of proof once Young’s testimony was suppressed by this court. If petitioner happened to be residing in Alexander’s apartment at that time, then she would enjoy the derivative benefit of the fact that Alexander could not be evicted. The second question is whether the petitioner has "standing” to request the suppression of officer Young’s testimony. The court at Special Term answered this question in the negative because the gun was not seized from petitioner’s person. This "standing” issue with regard to the exclusionary rule has been analyzed under many theories, from many aspects, and in diverse factual situations. (See, generally, 3 La Fave, Search and Seizure, § 11.3, pp 543-612.) Suffice it to say that the legal problems presented in this case are novel, if not unique. This court is called upon to harmonize legal principles and public policy considerations in the (1) criminal, (2) landlord-tenant, (3) domestic relations and (4) constitutional law areas. Therefore, the recitation of excerpts from "standing” cases in totally different factual settings will not be of any assistance in resolving this controversy. As was mentioned above, the respondent may properly hold the petitioner responsible for her son’s wrongdoing. Fairness, however, requires that petitioner be reciprocally accorded the right to take advantage of any defense available to her son. Furthermore, the efficacy of the exclusionary rule set forth in the Finn case can only be sustained if petitioner and Alexander are treated as a family unit for purposes of any suppression application. Otherwise, the ultimate determination of whether a family should be evicted would depend upon the fortuities of a situation rather than upon the application of sound legal principle or policy. For example, if the wrongdoer happened to be the listed tenant, then the family could not be evicted because of the wrongdoer’s right to suppress the illegally seized evidence. If, on the other hand, the wrongdoer were merely a member of the household, then the family could be evicted because the listed tenant would lack "standing” to challenge that same evidence. If for no other reason than to establish uniformity of legal treatment in this sensitive landlord-tenant area, the exclusionary rule should be expanded or redefined to give petitioner "standing” in this proceeding. Petitioner’s "standing” permits her to suppress [532] officer Young’s testimony for the same reasons, set forth in the discussion of the first question, that would have enabled Alexander to do so. Accordingly, the order of the Supreme Court, New York County (Williams, J.), entered October 19, 1978, dismissing this petition brought to annul respondent’s determination, dated September 21, 1977, should be reversed, on the law, and the petition should be granted, without costs.