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decided: February 20, 1969.


Appeal, by permission of the Chief Judge of the Court of Appeals, from a judgment of the Appellate Term of the Supreme Court in the Second and Eleventh Judicial Districts of the Second Judicial Department, entered February 16, 1968, affirming a judgment of the Criminal Court of the City of New York (Ludwig C. Glowa, P. J., Harry J. Donnelly and Pauline Malter, JJ., at time of trial; John F. Furey, P. J., Herbert I. Sorin and Morgan E. Lane, JJ., at time of sentence), rendered in Kings County, convicting defendant of unlawful possession of narcotics (Public Health Law, ยง 3305).

Chief Judge Fuld and Judges Burke, Scileppi and Breitel concur in Per Curiam opinion; Judge Bergan dissents and votes to affirm in a separate opinion in which Judges Keating and Jasen concur.

Author: Per Curiam

 The People concede that before the police officer opened the tin box and discovered the glassine envelopes of heroin, there was no probable cause to make an arrest and, therefore, the search cannot be sustained on the ground that it was incident to a lawful arrest. Accordingly, the only basis upon which the search could be sustained is, as the People contend, that the defendant abandoned the evidence seized. The police officer testified that the defendant "dropped a tin box" just prior to the police officer's making contact with the defendant's hand. Considering the testimony of the police officer most favorably to the People, it is our opinion that this proof is insufficient, as a matter of law, to constitute an abandonment. There is no proof that the defendant threw it away or attempted to dispose of it in any manner which might have manifested the requisite intention to abandon. Moreover, the police officer's testimony reveals that he picked up the box so soon after it had been dropped that it is impossible to determine whether or not the defendant, if given the opportunity, would have picked up the box himself. Absent any such proof, the seizure of the tin box under the circumstances of this case cannot be sustained.

Accordingly, the judgment appealed from should be reversed, the motion to suppress the evidence should be granted, and the information dismissed.


Judgment reversed, etc.

Bergan, J. (dissenting). The proof is undisputed, and the determination of the fact-finder has been affirmed, that, as the policeman approached defendant, the latter dropped a tin box.

[24 N.Y.2d 12 Page 15]

    --> This was before the officer touched the defendant's hand or body. The policeman immediately picked up the box, and when he did so he found it contained heroin.

It is not possible to hold as a matter of law that this was not an abandonment of the box. The undisputed evidence is that the defendant physically dropped the box before the policeman came in contact with him. There was, therefore, no "search". This evaluation of undisputed events was within the fact-finding jurisdiction of the trial court and the Appellate Term. This court has no jurisdiction to alter that evaluation. Probable cause is here irrelevant. The policeman did not need probable cause to approach defendant or to pick up the box. Thereafter, he had adequate probable cause to make the arrest.

The judgment should be affirmed.


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