On appeal from Superior Court, Law Division, Essex County.
Seidman, Antell and Lane. Antell, J.A.D. (dissenting).
[179 NJSuper Page 3] The subject matter of this appeal is the denial of defendants' motion to suppress evidence. Both were indicted for possession
of marijuana and possession of the same with intent to distribute. Following the denial of the suppression motion, both defendants retracted their not guilty pleas and entered pleas of guilty to possession with intent to distribute. As the State acknowledges, the crucial issue is whether the property appropriated by the police was voluntarily abandoned by defendants so that they had no standing to complain of the search and seizure of the property.
During the evening of January 5, 1978 the Newark police department relayed to Port Authority police headquarters at Newark Airport a telephoned message received from the sheriff's office in Broward County, Florida, concerning a suitcase aboard a plane due to arrive at Newark from Fort Lauderdale shortly after midnight. The Port Authority police called the sheriff and were informed that a suitcase which had broken open at the Fort Lauderdale loading ramp contained green plastic bags filled with suspected marijuana. The suitcase was described and a baggage claim number given. Five officers of the Port Authority police were dispatched to the Delta terminal building. Two positioned themselves at the airplane when it arrived and identified the bag as it was unloaded and placed upon the conveyor belt leading to the baggage carousel inside the building, where the other officers were waiting. Defendant Farinich was observed claiming the suitcase and leaving the baggage area with another man, later identified as defendant Vorel, who was carrying two suitcases. The officers, in uniform, followed and accosted them, taking them by the arm, and said that they wished to question them about the suitcases. As the police were leading defendants to the side of the area, Farinich struck the arm of one officer, dropped his suitcase, and fled. Vorel also dropped his suitcases and ran in the opposite direction. They were separately pursued and apprehended some distance away, handcuffed, and taken to the Delta baggage office.
It is unclear whether the suitcases were opened by the police in the baggage office before or after defendants were brought
in. According to the only police officer who testified at the suppression hearing, the suitcases, none of which was locked, were opened at about the time defendants arrived. But Vorel (Farinich did not testify) insisted that when they reached the baggage room the suitcases were already open. All contained bags of green vegetation that appeared to be marijuana.
The trial judge found that the suitcases had been abandoned and, consequently, there was no search and seizure in violation of defendants' Fourth Amendment rights. We agree with the conclusion reached.
Preliminarily, we address the threshold issue of whether the police were justified in stopping defendants in order to question them about the suitcases. Defendants contend that there was no probable cause for the police to do so because the information on the basis of which they acted was essentially hearsay. The information in the possession of the police amply supported a reasonable belief on the part of the police that defendants possessed contraband. Probable cause must be judged on the basis of the composite information in the hands of the police, including hearsay. A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause for arrest. Terry v. Ohio , 392 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906-907; State v. Sheffield , 62 N.J. 441, 447 (1973). Defendants' flight is significant. It has been held that while police may have the right to make an inquiry, in the absence of information that a crime has occurred a suspect's failure to stop or his flight would be an insufficient basis for seizure or detention, but even in such case evidence seized will not be suppressed if the suspect abandoned it. Cf. People v. Howard , 50 N.Y. 2d 583, 430 N.Y.S. 2d 578, 408 N.E. 2d 908 (Ct.App.1980), cert. den. U.S. , 101 S. Ct. 590, 66 L. Ed. 2d 484 (1980).
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." State v. Bailey , 97 N.J. Super. 396, 400 (App.Div.1967). In the context of the Fourth Amendment a defendant "abandons" property when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search. United States v. Colbert , 474 F.2d 174, 176 (5 Cir. 1973). The issue of whether property has been abandoned is factual in nature. United States v. Jackson , 544 F.2d 407, 409 (9 Cir. 1976). In Jackson the defendant, while walking through an airport carrying a suitcase containing heroin, was approached by two law enforcement officers who identified themselves and said they wanted to talk to him. On hearing this, he dropped the bag and began to move away, but was stopped after taking three steps. The bag was seized. The Court of Appeals rejected the District Court's finding of abandonment, stating, "[w]e are not persuaded that the simple acts alone of putting a suitcase down and walking on a few steps indicated an intent to abandon the suitcase." Id. at 410. But in United States v. Colbert, supra , defendants were stopped by police officers who noticed that one fitted the description of a suspected felon. Defendants identified themselves as book salesmen, in part so as to explain briefcases they were carrying that contained sawed-off shotguns. When the officers asked to look inside the ...