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State v. Bailey

Decided: October 31, 1967.


Kilkenny, Carton and Matthews. The opinion of the court was delivered by Carton, J.A.D.


Defendant appeals from an order denying his petition for post-conviction relief. He was tried and convicted on May 5, 1964 of violating N.J.S.A. 24:18-4 (possession of a narcotic drug).

The circumstances giving rise to this charge were as follows: On February 8, 1964 defendant was standing in front of a poolroom in Asbury Park about 9:30 P.M. According to Detective Burke of the Asbury Park Police, he and Detective Davis were on patrol in a police car. Burke testified that when he was about six feet from defendant

he saw the latter put his hand in his pocket and drop a package to the ground. While Bailey, on request of one of the police officers, was proceeding to the police car, Burke picked up the package and examined its contents. Within the package were seven cellophane bags, two hypodermic needles, a "burnt bottle cap" and "two converted eye droppers." Upon finding these articles Burke arrested defendant, who denied any knowledge of this package.

Detective Davis testified also that defendant attempted to flee on his arrival at headquarters and was later recaptured. According to Officer Annunziata, defendant also threw a cellophane package into the trash basket in the men's room at police headquarters, which Annunziata recovered from the basket. Chemical analysis disclosed that the bags, needles and eye droppers contained a morphine alkaloid; the bottle cap contained heroin.

During the course of the trial counsel for defendant objected to the admission into evidence of the narcotic paraphernalia and the findings of the chemist on the ground that they were the products of an unlawful search and seizure. This objection was overruled, as well as a motion for dismissal at the close of the State's case made on the same ground.

Defendant testified that Detective Burke got out of the car and said "Bailey come here"; that he was told to get in the car; he then got in the car, and Burke got out of the car and walked a few feet and picked up a package. Bailey denied that the package was his. He also contradicted Annunziata's testimony that he had thrown away the cellophane package at headquarters. Reverend Copeland, with whom Bailey was in conversation at the time, testified that defendant complied with the police officer's request to come to the car; that Detective Burke got out of the car, opened the door for Bailey to get in the back seat, and then picked something up where Bailey and Copeland had been standing about ten feet away. He denied that he had seen Bailey drop anything during their conversation.

Previous to the conviction in the County Court defendant had been found guilty in the municipal court of unlawful possession of narcotic paraphernalia (N.J.S. 2A:170-77.5) and being under the influence of a narcotic drug (N.J.S. 2A:170-77.8).

After sentence defendant petitioned for post-conviction relief on the grounds that (1) he was not provided with effective counsel at trial; (2) the defense of double jeopardy should have been raised by his attorney, and (3) the sentencing was improper. The county judge found that defendant had had the benefit of effective counsel and held that he had not been placed in double jeopardy, reserving decision on the question as to improper sentencing. On this appeal defendant has abandoned the contention that he was denied effective counsel, but challenges the determination concerning the question of double jeopardy and the validity of the sentence. He also raises other issues.

Defendant claims that his arrest was illegal because it was based on the results of an illegal search which preceded it. The contention is that the right to arrest must precede the search, but that in this case just the opposite occurred. Since there was no warrant for defendant's arrest and no claim by the State that the police officers had probable cause to believe he was committing or had committed a crime, defendant argues the arrest was illegal and the fruits of that arrest tainted.

The validity of the argument so advanced depends upon whether there was, in fact, an illegal search or seizure. The State's position is that, under the circumstances under which the police obtained and examined the packet, there was no illegal search and the seizure was lawful for the reason that the evidence obtained was abandoned property. We agree.

Abandonment is "the voluntary relinquishment of all right, title, claim and possession, with the intention of not reclaiming it." Black's Law Dictionary (4th ed. 1957), p. 13. Abandonment depends upon concurrence of the intention to abandon manifested by some overt act or failure

to act which carries the implication that the owner neither claims nor retains any interest. That the packet was abandoned is amply supported by defendant's denial of ownership at the time it was retrieved by the police officers and his repeated denial of ...

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