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State v. Burgos

Decided: May 12, 1982.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CLEMENTE MERCADO BURGOS, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Passaic County.

Bischoff, King and Polow. The opinion of the court was delivered by King, J.A.D.

King

This case presents the issue of a criminal suspect's right of privacy in a narcotics stash maintained in open view on a public street. Defendant was found guilty by a jury of possession of cocaine with intent to distribute, N.J.S.A. 24:21-19 a(1), and sentenced to a prison term of four years. On this appeal he contends that the Law Division judge erred in denying his motion to suppress.

On November 23, 1979 Detectives Tierney and Davis of the Paterson Police Department were conducting a narcotics surveillance

at Park Avenue and Summer Street. Both were specialized narcotics detectives. At about 3:15 p.m. defendant walked into the surveillance area and placed an object on the ground beneath the center passenger side of an automobile parked near the intersection. Defendant then lounged about the intersection. Shortly, a man approached defendant, spoke briefly with him, and placed paper money in his hand. Defendant then walked back to the vehicle, retrieved the object which he had placed underneath it several minutes before, removed something and replaced the object on the ground under the vehicle. Defendant then returned to the corner and gave something to the man who had handed him money. This ritual was repeated twice with two other people.

Based on their experience and defendant's reputation, the detectives concluded that they had observed three drug sales in which defendant had hidden his stash on the ground beneath the parked vehicle while selling on the street corner. They radioed headquarters for two back-up narcotics detectives, Rivera and DeStefano, and continued to observe defendant. The back-up arrived promptly; DeStefano detained defendant; Rivera went to the parked car and picked up an aspirin tin containing six packets of cocaine from the ground on the passenger's side.

Defendant contends that the warrantless inspection of the stashed aspirin tin and the discovery of the contraband cocaine violated the Warrant Clause of the Fourth Amendment of the federal constitution. He contends that "the proper course of action would have been to obtain a search warrant from a magistrate and then open the tin." We disagree and affirm.

We hold that defendant had no protected Fourth Amendment rights in the narcotics stash maintained remotely from his person. Defendant obviously used this cache of cocaine in a tin container on a public street underneath a parked car so if approached and searched by police he would not be caught physically in possession of narcotics. Usually the question of abandonment of property for Fourth Amendment privacy purposes

arises where an item is simply discarded, Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960) (left behind in waste basket of vacated hotel room), or abandoned during flight, Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924) (bootleggers dropped a jug). See State v. Farinich, 179 N.J. Super. 1 (1981), aff'd 89 N.J. 378 (1982). For Fourth Amendment purposes we find this case to be simply another variation on the recognized theme of abandonment of personal property for purposes of constitutionally protected privacy.

We agree with the analysis of the Supreme Court of Minnesota, as presented in City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W. 2d 365 (1975), and as approved by the leading academic authority, LaFave, Search and Seizure, § 2.6 at 368 (1978). There police followed a suspect into a dry cleaning establishment and saw him tuck an object under a counter. They retrieved the item, an eyeglass case, and found syringes and other narcotics paraphernalia. Defendant maintained that he retained a privacy interest in the glass case even though he discarded it in a location to which any member of the public had equal access. He claimed an intention only to hide the case, not to relinquish his right of ownership. The Supreme Court of Minnesota rejected this analysis and declined to extend constitutional protection to property concealed in order to promote a criminal venture, saying

The distinction between abandonment in the property-law sense and abandonment in the constitutional sense is critical to a proper analysis of the issue. In the law of property, the question, as defendant correctly states, is whether the owner has voluntarily, intentionally, and unconditionally relinquished his interest in the property so that another, having acquired possession, may successfully assert his superior interest. Brown, Personal Property (3 ed.) § 1.6. In the law of search and seizure, however, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment. Cf. Katz v. United ...


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