On October 1, 1989, the narcotics unit, Tucson, Arizona airport detail, received an anonymous tip that two black males would transport narcotics aboard American Airlines flight no. 230 bound for Newark International Airport, Newark, New Jersey. The Arizona police believed that both men, later identified as Jessie Ellis and Vernon Kelly, had purchased one-way tickets to Newark airport and had refused to place identification tags on their suitcases when asked to do so by airline personnel.
This information was communicated by telephone to the port authority police at Newark International Airport, who provided it to Detective Joseph Bienkowski, a 23-year veteran of the Criminal Investigations Bureau. Detective Bienkowski, in turn, contacted the United States Customs Office to conduct a K-9 screening of all the luggage from flight no. 230. Detective Bienkowski and other police from the DEA and port authority participated in the investigation. The officer observed the K-9 dog sniff each bag before it was placed on the conveyor belt. The dog reacted positively to four bags. Immediately following the dog's reaction, Detective Bienkowski placed a "dummy bag" ahead of the four bags in question. It is common practice for port authority officers to place "dummy bags" ahead of suspected contraband bags to alert plainclothes officers waiting at the baggage carousel as to which passengers and bags to observe.
Detective Bienkowski went to the luggage claim area for the aircraft in question and joined several other plainclothes agents
who were watching that area. Ellis and Kelly claimed the four bags in question and began to exit the baggage area.
As Ellis and Kelly walked toward the terminal doors, Detective Bienkowski and the other officers identified themselves as police officers and both men placed the bags on the floor. Defendants were asked for their permission to have their four bags searched and were informed that they had the right to refuse the search. Kelly stated, "They're not our bags. You can search them." Ellis, standing beside Kelly, did not answer and remained silent throughout the search. The luggage was opened and the four bags contained approximately 100 pounds of marijuana divided into five packages of approximately 20 pounds a package. Ellis and Kelly were then placed under arrest.
Defendants Kelly and Ellis were indicted for possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1). Ellis moved to suppress the evidence of the warrantless search. The motion was joined by Kelly.
The State based its justification for the warrantless search on three grounds. First, totality of the circumstances that gave Detective Bienkowski probable cause to search defendants' bags. The State later abandoned the probable cause argument based upon the United States Supreme Court's decision in Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979). The State concluded that although probable cause to search and arrest did exist, no exigent circumstances were present to justify a warrantless search of the luggage. The United States Supreme Court has delineated suitcases as areas in which one has a reasonable expectation of privacy and stressed that "the very purpose of a suitcase is to serve as a repository for personal items when one wishes to transport them." Id. at 764, 99 S. Ct. at 2593. Furthermore, where the police "without endangering themselves or risking loss of the evidence lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search
thereof until after judicial approval has been obtained. In this way constitutional rights of suspects to prior judicial review of searches will be fully protected." Id. at 766, 99 S. Ct. at 2594.
Next, the State attempted to prove that Kelly and Ellis abandoned their Fourth-Amendment property interest in the bags when they placed their luggage down.
The State relied on the theory of "abandonment of property" in the context of the Fourth Amendment. The focal point of this argument centered on State v. Farinich, 179 N.J. Super. 1, 430 A.2d 233 (App.Div.1981), aff'd o.b. 89 N.J. 378, 446 A.2d 120 (1982), which held that "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 to it at the time of the search." Id. at 6, 430 A.2d 233. It is not necessary for a defendant ...