(APPEARANCES ENTERED.) CHIEF JUSTICE RABNER: WELCOME, COUNSEL. MR. BLUM,
PLEASE GO AHEAD. PETER T. BLUM: PLUM MAY IT PLEASE THE COURT I'D LIKE TO
RESERVE THREE MINUTES FOR REBUTTAL. CHIEF JUSTICE RABNER: THAT'S FINE.
PETER T. BLUM: OFFICERS COULD NOT REASONABLY CONCLUDE THAT GARTRELL HAD
ABANDONED HIS SUITCASE BY RUNNING. AT THE TIME GARTRELL APPEARED TO BE RUNNING
FROM ARREST ON A BENCH WARRANT NOT TO KISS CARD HIS SUITCASE, THEREFORE, THE
POLICE NEEDED A SEARCH WARRANT TO OPEN THAT SUITCASE. THERE'S TWO POINTS I'D LIKE
TO EMPHASIZE IN MY INTRODUCTORY COMMENTS. THE FIRST IS ABOUT THE STRICT NECESSARY OF
THE ABANDONMENT TEST. A PERSON ANDS PROPERTY WHEN HE HAS NO INTENTION OF RADIO
CLAIMING IT. HE'S KNOWINGLY AND VOLUNTARILY RELINQUISHING ANY POSSESSORY OWNERSHIP
INTEREST. NOW, THIS TEST WAS DRAWN FROM PROPERTY COMMON LAW AND IN PROPERTY
LAW THIS IS THE TEST FOR DISCARDING PROPERTY. WHEN THAT TEST IS MET
BASICALLY SOMEONE ELSE CAN COME ALONG AND CLAIM THE PROPERTY AS THEIR OWN BECAUSE
IT'S BEEN DISCARDED AND THE ADOPTION OF THIS TEST WAS MEANT TO PROVIDE THE STRONGEST
PROTECTION POSSIBLE ACCORDING TO JOHNSON. BASICALLY THE IDEA IS THE POLICE SHOULD
GET A WARRANT IF THEY KNOW WHO OWNS THE PROPERTY AND IF THE PROPERTY HASN'T BEEN
DISCARDED. AND IN ADOPTING THIS TEST, THE FEDERAL REASONABLY EXPECTATION OF
PRIVACY TEST WAS SPECIFICALLY REJECTED WITH THE COMMENT THAT IT OFTEN PRODUCES
RESULTS CONTRARY TO COMMONLY HELD EXPECTATIONS OF PRIVACY. NOW, IN
THIS PARTICULAR CASE, THE POLICE OFFICERS WERE INVESTIGATING ASSAULT AT THE BUS
STATION. GARTRELL HAD A SUITCASE WITH HIM WHEN THE POLICE WERE TALKING TO HIM. HE WAS
SUSPECTED IN THE ASSAULT. THEREFORE THE INVESTIGATION HAD NOTHING AT ALL TO DO WITH
THE SUITCASE, THE POLICE OFFICERS WERE GOING TO ISSUE GARTRELL A SUMMONS FOR
DISORDERLY CONDUCT AND LET HIM GO. BUT AS THEY'RE TALKING TO HIM THEY FIND
OUT HE'S GOT A BENCH WARRANT. SO AT THAT POINT GARTRELL ASKS TO LEAVE THE BAG WITH
HIS BROTHER WHO WAS PULLING UP IN A SUV AND THE POLICE BASICALLY IGNORED GARTRELL,
TOLD HIM TO TURN AROUND STARTED TO HANDCUFF HIM. AT THAT POINT GARTRELL FLED.
NOW, THEY CAUGHT GARTRELL AFTER A VERY SHORT CHASE AND THEN THEY OPENED THE
BAG AFTER THEY HAD GARTRELL IN CUSTODY. THE CIRCUMSTANCES HERE SUGGESTED GARTRELL
WAS RUNNING FROM THE ARREST, NOT THAT HE WAS DISCARDING THE BAG THAT HE HAD
BEEN TRYING TO KEEP SAFE, A REASONABLE OFFICER COULD NOT CONCLUDE THAT GARTRELL
WAS RELINQUISHING ALL INTEREST IN THE BAG WITH THE INCIDENT NEVER AGAIN TORY CLAIM
IT. THE SECOND THING I'D LIKE TO EMPHASIZE IF MY INTRODUCTORY COMMENTS
IS THAT THE ISSUE IS IN FACT WHAT A REASONABLE POLICE OFFICER COULD CONCLUDE
THAT THE BAG WAS ABANDONED. WHAT WE'RE TRYING TO DO IN A SEARCH AND SEIZURE CASE
IS DETERMINE WHETHER THE POLICE ACTED REASONABLY WE'RE TRYING TO PROTECT EVERYONE'S
RIGHTS AND DETER UNREASONABLE POLICE CONDUCT. THEREFORE WE LOOK AT THE
SITUATION WE LOOK AT THE FACTS THAT THE POLICE KNEW AT THE TIME OF THE
INTRUSION. AND, YOU KNOW, IT'S IMPORTANT TO REALIZE THIS BECAUSE WE DON'T WANT OUR
THINKING COLORED BY THE PACKET THAT ULTIMATELY THEY DID FIND CONTRABAND IN
THE BAG, THAT'S NOT THE WAY WE ANALYSIS THE ISSUE IN THE CONSTITUTION ALONG SEARCH
AND SEIZURE CASE. WE LOOK AT WHAT THE POLICE KNEW AT THE TIME OF THE INTRUSION
AND NOT WHAT HAPPENED AFTERWARDS. AND THE OTHER UP SHOT I THINK OF VIEWING THE
ISSUE THIS WAY IS THAT IT COMES INTO FOCUS, THE SIGNIFICANCE OF THE POLICE NOT TALKING
TO GARTRELL BEFORE THEY OPEN THE BAG. EVEN IF THE POLICE WERE STARTING TO HAVE
SUSPICION ABOUT HIS THE BAG AT THAT POINT, THE CIRCUMSTANCES WERE STILL HIGHLY
AMBIGUOUS AND IF THE CIRCUMSTANCES WERE AMBIGUOUS THE POLICE WERE OBLIGATED
TO TAKE REASONABLE STEPS BEFORE CONCLUDING THE BAG WAS ABANDONED. THEY HAD THE
BAG, THEY HAD GARTRELL THEY SHOULD HAVE ASKED HIM ABOUT THE BAG UNDER THESE
CIRCUMSTANCES. THE LAST THING I'D LIKE TO MENTION JUST VERY QUICKLY BECAUSE
I DON'T INTEND TO SPEND A LOT OF TIME ABOUT IT IS THAT THERE WAS NO VALID SEARCH
INTENT TO ARREST HERE. WHEN THE THE POLICE OPENED THE BAG THEY HAD -- THE BAG WAS
SAFE, THEY HAD GARTRELL IN ANOTHER SPOT, GARTRELL COULDN'T GRAB THE BAG, THERE WAS
NO VALID SEARCH INTENT TO ARREST HERE. AND THEREFORE FOR ALL THESE REASONS
THE POLICE NEEDED A SEARCH WARRANT OR SOME OTHER EXCEPTION BEFORE OPENING THE
BAG. BUT THEY COULD NOT RELY ON THE ABANDONMENT EXCEPTION. CHIEF JUSTICE
RABNER: IS THERE ANY DISPUTE IN THE RECORD THAT THE DEFENDANT FLED AND LEFT
THE BAG BEHIND. PETER T. BLUM: NO, THERE NOISE DISPUTE ABOUT THAT.
CHIEF JUSTICE RABNER: BEGINNING WHERE YOU STARTED WITH COMMON LAW PROPERTY RIGHTS
TO THIS, SUPPOSE ALL THE OFFICERS INVOLVED HAD PURSUED THE DEFENDANT AT THAT
POINT AND THE BAG WAS JUST LEFT BEHIND, COULD A PASSERBY HAVE CLAIMED IT.
PETER T. BLUM: NO, NO, ABSOLUTELY NOT. CHIEF JUSTICE RABNER: WHY NOT.
PETER T. BLUM: WELL, WE'RE GETTING INTO SOMETHING VERY INTERESTING HERE, I MEAN
NEW JERSEY -- I MEAN NEW JERSEY HAS IT LIKE PRETTY MUCH EVERYONE WHERE THESE DAYS UPCLIMBED PROPERTY STATUTE. IF A PASSERBY CAME UPON THAT BAG THEY WOULD
PATTERSON: WAS WASN'T THAT THE SAME AS CAR VAL, IT'S A BUS ABANDONED LEFT THERE.
COULD SOMEONE DECIDE MATCHES MY SUIT I'M GOING TO GO GRAB THAT, WHERE DOES THE
COMMON LAW PROPERTY LAW FIT INTO THIS BECAUSE IT SEEMS THAT THERE ARE MANY SITUATIONS
WHERE ABANDONMENT IS FOUND WITHOUT SOME CONCEPT THAT SOME STRANGER TO THE ITEM
COULD JUST WALK-UP AND TAKE IT. PETER T. BLUM: WELL, PREVIOUSLY BEFORE
JOHNSON CARVAJAL I THINK THAT'S TRUE BUT I THINK JOHNSON CARVAJAL DID THIS
TEST TO PROVIDE THE PROTECTION. CHIEF JUSTICE RABNER: PASS. JUSTICE
PATTERSON: WHERE DOES CARVAJAL DIFFER FROM GARTRELL FROM HAVING THE ABILITY TO
WALK-UP AND TAKE IT IT SEEMS LIKE IT'S THE SAME OUTCOME. PETER T. BLUM:
I MEAN -- THERE'S TWO THINGS. IN CARVAJAL THE POLICE ACTUALLY TALKED TO CARVAJAL
THE CIRCUMSTANCES WERE AMBIGUOUS AND THEY TALKED TO HIM. THEY DIDN'T DO THAT IN
THIS CASE. AND AS TO SOMEONE JUST BEING ABLE TO TAKE A YOU BEEN CLAIMED BAG
ON A BUS. JUSTICE WAINER APTER: CARVAJAL THEY TALKED ABOUT THE BAG WAS
HIS AND HE DENIED THE BAG WAS HIS. HERE THEY KNEW THE BAG WAS HIS HE WAS HOEDING
IT HE SAID SPOON COME GET MY CLOTHES NOT YOUR CLOTHES. SO WHAT -- YOU SAID THEY
SHOULD HAVE SPOKEN TO THE DEFENDANT WHAT SHOULD THEY HAVE ASKED HIM. PETER T.
BLUM: AND I THINK THAT QUESTION HIGHLIGHTS HOW SORT OF RIDICULOUS IT WAS TO FEET
THE BAG AS ABANDONED BECAUSE YEAH, I DOUBT THAT THEY WOULD HAVE, YOU KNOW, COME UP
TO GARTRELL AT THAT POINT WHEN THEY HAD HIM AND THE BAG SECURE AND SAY IS THIS
YOUR BAG BECAUSE I MEAN IT WAS OBVIOUSLY HIS BAG THEY WOULD HAVE PROBABLY GONE
RIGHT TO THE CONVERSATION WHETHER YOU CONSENT THAT WE CAN OPEN THE BAG.
JUSTICE PIERRE-LOUIS: AGAIN HE HAD FLED FROM POLICE CUSTODY. THE GOAL OF FLEEING IS
TO GET AWAY AND NEVER COME BACK. IF HE HAD BEEN SUCCESSFUL IN HIS ATTEMPT
TO FLEE HE WOULD HAVE BEEN GONE, HE WOULDN'T HAVE BEEN ARRESTED, THERE'S NO
COMING BACK -- I DON'T THINK REALISTICALLY THERE'S COMING BACK TO THE SCENE TO
RETRIEVE A BAG THAT WAS LEFT WITH POLICE THE PEOPLE WHO HE WAS FLEEING FROM. SO,
YOU KNOW, THE IDEA THAT -- THERE SHOULD HAVE BEEN ALL THIS QUESTIONING, AT THE
MOMENT DEFENDANT DECIDED TO FLEE THE SCENE HE WAS GONE HOPING MAYBE THE FALSE
HOPE OUT RUN THE POLICE AS AND NOT BE ARRESTED AND NEVER HAVE TO DEAL WITH THE
POLICE OR THE BAG OR THE CONSEQUENCES THAT WOULD FLOW THERE AFTER. PETER T.
BLUM: RIGHT, BUT THAT'S JUST AN INCIDENTAL CONSEQUENCE, HE'S NOT -- HE'S NOT
DISCARDING THE BAG. JUSTICE PIERRE-LOUIS: I HAVE TO GO BACK TO THE QUESTION
THE CHIEF ASKED EARLIER WITH REGARD TO THE STATEMENT YOU MADE IN YOUR OPENING
STATEMENT ABOUT COMMON LAW PROPERTY THAT YOU KNOW IF SOMEONE HAS DISCARDED AN ITEM
THEN SOMEONE CAN COME ALONG AND JUST CLAIM IT AS THEIR OWN. AGAIN, IF ALL THE
POLICE HAD RUN AFTER HIM AND THAT BAG WAS JUST LEFT BY ITSELF OUT IN FRONT
OF NEWARK PENN STATION WHERE THERE ARE TONS OF PEOPLE AND TONS OF ACTIVITY ALL THE
TIME I MEAN THERE IS A REAL POSSIBILITY THAT SOMEONE REALLY COULD HAVE JUST
TAKEN THAT BAG. I MEAN ANY TIME, YOU KNOW, YOU POSSIBLY LEAVE A PHONE SOME
WHERE OR AN ITEM YOU COME WHACK WITH THE HOPE THAT IT'S THERE BUT THERE'S THE VERY
REAL POSSIBILITY THAT FOVEA LEFT SOMETHING YOUR PHONE IN A RESTAURANT, YOUR
PURSE SOME WHERE, THERE'S A REAL POSSIBILITY THAT SOMEONE IS JUST GOING TO
GRAB IT BECAUSE IT IS LEFT UNATTENDED. PETER T. BLUM: I THINK THAT LINE OF
REASONING IS AN APPLICATION OF THE REASONABLE EXPECTATION OF PRIVACY TEST WHICH HAS BEEN
DISCARDED. YES, HE WAS TAKING A CHANCE BY JUST FLEEING AND LEAVING HIS PROPERTY
THERE. I MEAN ABSOLUTELY AND MAYBE A BIG CHANCE. JUSTICE PIERRE-LOUIS:
IF HE SUCCESS HAD WE WOULDN'T BE HERE. PETER T. BLUM: WELL, I MEAN EVEN
IF HE HAD SUCCESS HAD AND GOTTEN AWAY I WOULD STILL SAY THE POLICE WOULD HAVE
NEEDED A WARRANT TO OPEN THAT BAG. BECAUSE YOU KNOW, THE CIRCUMSTANCES DID
NOT SUGGEST THAT HE WAS DISCARDING THE BAG. I MEAN. JUSTICE PATTERSON:
THE VIDEO ILLUSTRATES HOW MANY PEOPLE ARE WALKING IN THE PROXIMITY OF THEIR
ENCOUNTER AND THE PROXIMITY OF THE BAG. WHAT ABOUT THE FACT THAT WE HAVE A BAG THAT
IS CLOSED, THAT NOBODY KNOWS WHAT IS IN IT. YOU SAVE THE SAFETY OF PEOPLE
WALKING BACK AND FORTH ON ONE OF THE BUSIEST STREETS IN NEWARK TO CONSIDER,
IS IT YOUR CONTENTION THAT THE ONLY REASONABLE THING FOR THE POLICE TO DO IS
TO STAND BY, TRY TO GET A TELEPHONE WARRANT, WAIT AROUND AND LEAVE THAT BAG SITTING
THERE AND WE ALL RECALL THE BOSTON MARATHON SITUATION AND YOU KNOW OTHER SITUATIONS
IN EUROPE WHERE BOMBINGS HAVE GONE OFF IN SUBWAY STATIONS AND WAIT AROUND TO SEE
IF THEY GET A WARRANT. PETER T. BLUM: I THINK THEY CAN IMPOUND THE BAG
AND KEEP IT FOR SAFE KEEPING. JUSTICE PATTERSON: BUT NOT OPEN IT. PETER
T. BLUM: BUT NOT OPEN IT RAY RIGHT. JUSTICE FASCIALE: MR. BLUM I'D LIKE TO
ON PICK UP ON SOMETHING JUSTICE PIERRE-LOUIS LIEU OH MENTIONED WHETHER WE SHOULD
GO TO ATTACH GREATER WAIT TO SOME FACTS AND NOT OTHERS, OBVIOUSLY THE ISSUE IS
WHETHER HE KNOWINGLY AND VOLUNTARILY RELINQUISHED ANY POSSESSORY OR OWNERSHIP
INTEREST IN THE SUITCASE. AND WE KNOW AS THE FACTS WERE UNFOLDING THE POLICE KNEW
THAT A VIM COMPLAINED OF BEING ASSAULTED, WE KNEW THAT THIS DEFENDANT FLED TO COMMIT
CRIMINAL OFFENSE, RESISTING ARREST BY FLIGHT. WE KNEW HE IN FACT RAN FROM
THE POLICE. WE KNEW HE FLED WITHOUT KNOWING WITHERING SPOON WOULD AGREE TO
TAKE POSSESSION IN RESPONSE TO HIS QUESTION SPOON CAN YOU GRAB MY CLOTHES. WE KNEW
HE ACTUALLY RAN AWAY. WE KNEW THERE WAS NO TRANSFER OF THE BAG WHATSOEVER AND WE
ALSO KNOW SPOON TOOK NO STEPS AT ALL TO ACT ON THE REQUEST, HE DIDN'T GET OUT
VEHICLE. HE DIDN'T SPEAK TO THE POLICE, ET CETERA. MY QUESTION IS HERE HE
FLED AND THIS GOES TO THE POINT THAT JUSTICE PIERRE-LOUIS WAS MAKING, SHOULD WE
ATTACH GREATER WEIGHT TO THAT FACT THAN PERHAPS HIS REQUEST THAT A THIRD PARTY
TAKE THE BAG. PETER T. BLUM: WELL, I THINK I CAN ANSWER THE QUESTION THIS
WAY. I THINK THE STATE'S POSITION IS THAT WHEN SOMEONE FLEES AND LEAVES THEIR
PROPERTY BEHIND IT'S ABANDONED. NO MATTER HOW VALUABLE THAT PROPERTY APPEARANCE TO
BE, NO MATTER HOW PRIVATE IT APPEARS TO BE, NO MATTER THE CIRCUMSTANCES, YOU
FLEE AND LEAVE YOUR PROPERTY BEHIND IT'S ABANDONED. AND I DON'T THINK THAT
THAT COULD POSSIBLY BE THE LAW. I THINK THEY NEED MORE THAN JUST SOMEONE'S
TRYING TO AVOID AN ARREST AND INCIDENTALLY THEY LEAVE THEIR PROPERTY BEHIND.
THEY'RE NOT JUST DISCARDED THEREFORE, PROPERTY. JUSTICE FASCIALE: SO THE ONLY
FACT YOU HAVE THEN WHEN YOU SAY WE HAVE TO LOOK AT WHAT THE FACTS THE POLICE HAD
BEFORE THEM IS HIS REQUEST SPOON, CAN YOU GRAB MY CLOTHES, THAT'S IT? WHAT
OTHER FACT IS THERE THAT SUGGESTS HE DID NOT KNOWINGLY AND VOLUNTARILY RELINQUISH
HIS OWNERSHIP OR POSSESSORY INTEREST IN THE SUITCASE? PETER T. BLUM:
WELL, I MEAN THAT KIND OF SHIFTS THE BURDEN OF PROOF. JUSTICE FASCIALE:
I'M NOT TRYING TO SHIFT THE BURDEN OF PROOF I'M JUST ASKING YOU WHAT OTHER FACTS
ARE THERE. WE'RE LOOKING AT THIS IN TERMS OF A WHAT A REASONABLE OFFICER COULD
CONCLUDE BASED ON THE TOTALITY OF THE CIRCUMSTANCES. SO OTHER THAN THE REQUEST
SPOON CAN YOU GRAB MY CLOTHES? WHAT OTHER FACTS EXIST THAT SHOW HE DID NOT
KNOWINGLY APPEAR VOLUNTARILY WAIVE RELINQUISH HIS OWNERSHIP AND POSSESSORY
INTEREST IN THE BAG. PETER T. BLUM: I MEAN I THINK I'M ANSWERING THE QUESTION
THE WAY I'M ASKING WHILE THAT FACT IS HELPFUL TO US RIGHT AND SHOWS HE WAS
INTERESTED IN KEEPING THE BAG, I THINK EVEN WITHOUT THAT FACT I DON'T THINK THE POLICE
COULD REASONABLY CONCLUDE THAT THE BAG WAS ABANDONED. BECAUSE THE. JUSTICE
WAINER APTER: SO HERE IT DOES NOT HINGE ON SPOON BEING PRESENT TO POTENTIALLY TAKE
THE PROPERTY. IN OTHER WORDS YOU'RE SAYING HE HAD BEEN ALONE. HE FLEECE THE POLICE
IN ORDER TO AVOID A SEIZURE, THE PROPERTY IS STILL NOT ABANDONED EVEN IF THERE'S
NO INDICATION THERE'S ANYONE ELSE WHO HE WAS POSSIBLY TRYING TO HAND THE PROPERTY
OFF TO. PETER T. BLUM: RIGHT BECAUSE IF THE POLICE SEES HE HAS THE BAGGIES
THE APPARENT OWNER OF THE BAG AND ALL THEY HAVE IS THAT HE'S TRYING TO FLEE
ON AN ARREST FROM A BENCH WARRANT. JUSTICE WAINER APTER: IS THERE ANY
OTHER CASE THAT HELD THAT. I KNOW THE SIX COURT AMENDMENT NOT ABANDON WHILE
FLEEING THE POLICE IN ATTEMPT TO AVOID A SEIZURE SOUNDS LIKE YOU'RE SAYING
IT'S WRONG. THAT IS HAS THERE EVER ANY OTHER COURT THAT HELD WITH YOU AND YOU RUNNING
AWAY FROM POLICE YOU AN ABANDON SOMETHING OR YOU THROW SOMETHING TO THE SIDE THAT
THAT IS NOT ABANDONED. PETER T. BLUM: WELL, TWO THINGS I DON'T THINK
REASONABLE EXPECTATION OF PRIVACY CASES FROM OTHER JURISDICTIONS ARE HELPFUL. NEW
JERSEY HAS ADOPTED A STICKER TEST. JUSTICE WAINER APTER: EVEN THE NEW JERSEY
CASE. PETER T. BLUM: YEAH, SINCE JOHN AND CARVAJAL THERE DOESN'T
APPEAR TO BE PUBLIC HAD NEW JERSEY CASES A BUNCH OF UNPUBLISHED CASE. JUSTICE
WAINER APTER: THERE'S NO OTHER JURISDICTION THAT HAS A SIMILAR TO TEST TO NEW
JERSEY'S. PETER T. BLUM: I DON'T KNOW FOR SURE. I KNOW THAT THE VAST MAJORITY
JUST USE THE REASONABLE EXPECTATION OF PRIVACY TEST WHICH IS NOT PROTECTIVE
ENOUGH BECAUSE IT'S OFTEN INTERPRETED IN WAYS CONTRARY TO EXPECTATIONS OF
PRIVACY. I MEAN IN JURISDICTIONS THAT USE THAT CRITICIZED TEST IT IS OFTEN THE IDEA
IN THOSE JURISDICTION THAT IS IF SOMEONE PUTS DISTANCE BETWEEN THEM AND THEIR
PROPERTY THAT'S IT AUTOMATIC IT'S ABANDONED. AND THAT CAN'T POSSIBLY BE THE
CASE. AND I THINK NEW JERSEY INTENTIONALLY ADOPTED A STICKER TEST. JUSTICE
NORIEGA: SO COUNSEL IT SEEMS YOU'RE ADVOCATING FOR A POSITION WHERE THERE IS
NO CHANCE FOR ABANDONMENT TO EVER WORK IN THIS CIRCUMSTANCE. IF HE HAD SUCCESS HAD IF
MR. GARTRELL HAD SUCCESS HAD IN WE SAY SAIDING THE POLICE IS THERE EVER A
SITUATION WHERE YOU DEEM IT APPROPRIATE OR THE POLICE TO CLAIM ABANDON. AND
LOOK INTO THE BAG. PETER T. BLUM: I'M NOT SAYING THAT SOMEONE CAN NEVER
ABANDON SOMETHING JUST BY THEIR ACTIONS. JUSTICE NORIEGA: THIS CASE IF
MR. GARTRELL HAD SUCCESS IN ADDITION EVADING THE POLICE IS IT YOUR POINT THEY
COULD HAVE GONE INTO THE BAG AND CLAIM ABANDONMENT. PETER T. BLUM: NO,
EVEN IF HE HAD SUCCESSFULLY GOTTEN AWAY. JUSTICE NORIEGA: BACK TO THE
QUESTION YOU RECEIVED EARLIER, WHAT FACTS CAN YOU POINT TO THAT WOULD GET THUS.
PETER T. BLUM: I THINK THERE'S AN ABSENCE OF FACTS THAT HE WAS JUST
DISCARDING THIS PROPERTY. I MEAN THE STATE HAS THE BURDEN OF PROOF ON ABANDON.
AND THERE'S NOTHING THEY CAN SHOW EXCEPT JUST THAT HE RAN AND RUNNING IS NOT
ENOUGH IN CIRCUMSTANCES LIKE THIS. JUSTICE WAINER APTER: SO WHAT IF A
SUSPECT IS FLEEING THE POLICE AND REACHES IN THEIR POCKET AND PULSE OUT A BAG IT'S
NOT CLEAR SO THE POLICE CANNOT SEE IT IN PLAIN SIGHT JUST THROW THE BAG ON THE
GROUND. DOES YOUR ARGUMENT APPLY THERE ALSO. THE POLICE WOULD HAVE TO IMPOUND
THAT BAG, GET A WARRANT TO SEARCH IT BECAUSE JUST BECAUSE THE PERSON IS FLEEING
FROM THE POLICE DISCARDS SOMETHING AND THROWS IT TO THE SIDE IS NOT ENOUGH.
PETER T. BLUM: SO AS THEY'RE RUNNING FROM THE POLICE THEY DISCARD SOMETHING. I
THINK I WOULD LIKE TO KNOW A LITTLE MORE OF THE FACTS BECAUSE I'VE SEEN CASES WHERE
AS SOMEONE IS FLEEING THEY'RE DOING SOMETHING TO HIDE PROPERTY TO KEEP IT
SAFE FROM THE POLICE. IF THAT'S WHAT THE FACTS LOOK LIKE I'M NOT SURE THERE'S
ABANDONMENT THERE. JUSTICE PATTERSON: A WEAPON THAT'S THROWN INTO THE
WOODS DURING A FLIGHT, CAN THAT BE SEIZED. PETER T. BLUM: I WEAPON WOULD BE
A DIFFERENT SITUATION THAT'S NOT A CLOSED CONTAINER. JUSTICE WAINER APTER:
WHAT IF IT'S A WEAPON IN A BAG AND THE BAG IS NOT CLEAR. PETER T. BLUM:
RIGHT, IF THERE'S A CLOSED CONTAIN ERR AND IT LOOKS LIKE IF SOMEONE IS BEING
CHASED ARE THE POLICE THEY'RE KIND OF TRYING TO HIDE THAT CLOSED CONTAINER FROM
THE POLICE, I WOULD SAY IN A SITUATION LIKE THAT THERE'S NO ABANDONMENT. I
MEAN I THINK. JUSTICE WAINER APTER: DOESN'T THAT SEEM THAT COULD CREATE
ADVERSE INSENSE I HAVE FOR PEOPLE ABOUT TO BE ASSED POSSESSING ILLEGAL WEAPON
THAN NARCOTICS TO ALWAYS FLEE AND DISCARD THAT THING ASIDE. PETER T. BLUM:
I DON'T THINK THERE'S ADVERSE EXPENSES PEOPLE ARE GETTING OBSTRUCT HAVE RESISTING
ARREST CHARGES. I DON'T THINK PEOPLE ARE GOING TO BE AWARE OF THE SEARCH AND
SEIZURE LAW AND PLAIN THREE DIMENSIONAL CHESS. JUSTICE PIERRE-LOUIS: GOING BACK
TO THE SUV DRIVER, IS THERE ANY FACTS THAT SHOW THAT THAT DRIVER WAS EVER
DEFINITIVELY CONNECTED TO DEFENDANT? BECAUSE BASED ODD REPORT THAT WE HAVE
BEFORE US IT SEEMS AS THOUGH WE HAVE THE DEFENDANT ON VIDEO CALLING SOMEONE, WE DON'T
HEAR THE OTHER HASSLE OF THE CONVERSATION DIRECTING SOMEONE TO COME TO PENN STATION,
AGAIN, AN AREA WHERE THERE'S A LOT HAPPENING AND MOTIONING TO SOMEONE CALLING
TO SOMEONE NAMED SPOON, IT DOESN'T APPEAR AS THOUGH THE OFFICERS EVER LAID
EYES ON THIS PERSON, THAT THE PERSON EVER PULLED THE WINDOW DOWN, WAVED TO
DEFENDANT, WAS THE SUV DRIVER EVER DEFINITIVELY CONNECTED TO DEFENDANT.
PETER T. BLUM: I THING IT'S IMPORTANT TO WATCH THE VIEWS IN THIS RESPECT. I MEAN
LIEU LIE WHICH I DID AND I DON'T SEE IT. I SEE A WHITE SUV. PETER T. BLUM:
I GUESS I DON'T UNDERSTAND THE POINT OF THE QUESTION. I MEAN I THINK -- IT'S
NOT APPLYING A FIGMENT OF IMAGE NATION IT WOULD HAVE TO BE SHAKESPEARIAN.
JUSTICE PIERRE-LOUIS: THERE'S A CAR THERE. WHAT I'M SAYING IS DOES IT APPEAR THAT
THE OFFICERS TESTIFIED SOMEONE WAS STANDING THERE SPEAKING TO DEFENDANT, WAS
THAT PERSON EVER CONNECTED TO DEFENDANT. BECAUSE ONE OF THE THINGS YOU SAID
EARLIER WAS THAT WHETHER THE POLICE ACTED REASONABLY IS AN IMPORTANT INQUIRY
HERE. AND IN THIS SITUATION IT APPEARS WE HAVE OFFICERS STANDING THERE, YOU HAVE
SOMEONE -- YOU HAVE THE DEFENDANT TALKING TO SOMEONE, MOTIONING TO SOMEONE.
AGAIN, THERE'S A LOT OF PEOPLE AND A LOT OF CARS OUT IN FRONT OF NEWARK PENN STATION
AT ANY GIVEN TIME PARTICULARLY DURING THE EVENING HOURS. HE SEEMS TO BE MOTIONING
TO SOMEONE. THE OFFICERS NEVER LAY EYES ON THIS PERSON IT APPEARS, IT DOESN'T
SEEM AS ANYONE EVER LAID EYES ON THIS PERSON AFTER DEFENDANT FLEES IT'S MY
UNDERSTANDING THAT THIS WHITE -- THE PERSON IN THE WHITE SUV NEVER APPROACHES POLICE,
NEVER SAYS ANYTHING TO INDICATE HEY I'M THE ONE HE WAS TALKING TO AND HE WANTS
ME TO TAKE HIS BAG. NONE OF THAT EVER HAPPENED SO AGAIN TO YOUR POINT WE'RE
LOOKING AT WHETHER THE OFFICERS ACTED REASONABLY, WITH THOSE CIRCUMSTANCES WHY
WAS IT NOT REASONABLE FOR THEM TO ASSUME THAT THIS PERSON EITHER TOOK OFF OR DIDN'T
EXIST TO BEGIN WITH. PETER T. BLUM: WELL I MEAN THERE'S TWO ISSUES,
OUR MAIN ARGUMENT IS THAT GARTRELL YOU KNOW DID NOT ABANDON THE BAG, OFFICERS COULDN'T
REASONABLE CONCLUDE THAT HE WAS ABANDONING THE BAG. AND THAT'S THE MAIN REASON
WE'RE USING THAT WHOLE THING ABOUT THE BROTHER PULLING UP IN THE SUV. I MEAN
IT SHOWS THAT HE HAD AN INTEREST IN KEEPING HIS BAG, KEEPING IT SAFE, YOU KNOW
IT DOESN'T LOOK LIKE UNDER THESE CIRCUMSTANCES THAT HE WAS JUST DISCARDING THE
BAG. THAT'S THE MAIN WAY WE'RE USING THAT. I MEAN THERE IS THIS THIRD PRONG
ABOUT OTHER APPARENT OWNERS. YEAH, WE'VE ALSO MADE AN ARGUMENT ON THAT PRONG
TOO BUT IT'S NOT OUR MAIN ARGUMENT. I MEAN THE MAIN ARGUMENT WE'RE MAKING
AND THE WAY WE'RE USING THIS THING ABOUT THE BROTHER PULLING UP IS THAT IT HELPS
SHOW THAT GARTRELL WAS NOT JUST ABANDONING THE BAG. BUT AS AS I SAID.
CHIEF JUSTICE RABNER: DOES YOUR ARGUMENT GET STRONGER IF IN THIS CASE SPOON SHOWS
UP, WALKS UP TO THE OFFICERS AND SAYS MY FRIEND ASKED ME TO CLAIM HIS BELONGINGS
AND TAKE THEM, HE JUST CALLED ME NOT A MINUTE AGO, DOES THAT HELP YOU.
PETER T. BLUM: I MEAN IF HE HAD SHOWED UP LIKE DURING YOU KNOW AS THEY'RE TRYING
TO ARREST HIM I MEAN WHENEVER. YEAH, I MEAN. CHIEF JUSTICE RABNER: OR
EVEN -- PETER T. BLUM: I THINK WE WOULD HAVE A PERHAPS A QUIET STRONG
ARGUMENT ON THE THIRD PRONG THEN. IT MIGHT HELP THAT ARGUMENT QUITE A BIT.
JUSTICE PATTERSON: THAT WOULDN'T MAKE SPOON THE OWNER BECAUSE HE WOULD SAYING IN THE
HYPOTHETICALLY HE WOULD BE SAYING I'VE BEEN ASKED TO TAKE THESE THINGS THAT
BELONG TO MY FRIEND MR. GARTRELL, I DON'T THINK THAT WOULD CREATE THAT ARGUMENT.
I THINK WHAT THE CHIEF IS ASKING ABOUT WHERE THAT -- PETER T. BLUM: I
MEAN OWNER, I DON'T KNOW THAT I'D INTEREST THE WORD FROM JOHNSON CARVAJAL SO
LITERALLY, I THINK THEY MEAN SOMEONE WHO SERVES A POSSESSORY INTEREST. CHIEF
JUSTICE RABNER: I JUST WANTED TO FOLLOW-UP. SO IF HAVING THAT EVIDENCE WOULD MAKE
FOR A STRONGER ARGUMENT AGAINST ABANDONMENT DOES THE ABSENCE OF IT WEAK EVEN YOUR
CASE UNDER THE FACTS HERE. PETER T. BLUM: I DON'T THINK IT DOES WEAK EVEN
THE CASE. BECAUSE THERE IS JUST NOTHING WE HAVE HERE EXCEPT THE FLIGHT AND THE
FLIGHT APPEAR CIRCUMSTANCES LIKE THESE DOESN'T SEEM TO SHOW THAT HE'S
DISCARDING THE BAG I MEAN THE STATE HAS THE BURDEN OF PROOF AND THERE'S JUST REALLY
NOTHING FOR THEM TO POINT TO. JUSTICE FASCIALE: WHAT EVIDENCE EXISTS THAT
HE INTENDED TORY CLAIM THE SUITCASE OTHER THAN SPOON CAN YOU GRAB MY CLOTHES.
PETER T. BLUM: I MEAN PART OF THE TEST. JUSTICE FASCIALE: JUST THE EVIDENCE,
TELL ME WHAT EVIDENCE EXISTS TO SHOW THAT HE INTENDED TORY CLAIM THE SUITCASE.
PETER T. BLUM: YOUR HONOR, I THINK THERE ISN'T ANY PROOF THAT HE WOULDN'T
HAVE WANTED IT BACK IF HE COULD GET IT BACK. JUSTICE FASCIALE: LET'S DO
IT THIS WAY. SPOON CAN YOU GRAB MY CLOTHES. IS THAT PROBATIVE OF THE DEFENDANT'S
INCIDENT TORY CLAIM THE BAG AT SOME POINT IN THE FUTURE. PETER T. BLUM:
IF HE COULD, YES, I MEAN IT'S PROOF THAT HE WASN'T KNOWINGLY AND VOLUNTARILY
RELINQUISHING ANY INTEREST WITH THE INCIDENT NEVER AGAIN TORY CLAIM. I JUST THING
THE QUESTION IS TURNING THE BUTT AROUND A LITTLE BIT. JUSTICE FASCIALE:
WELL STICK WITH IT BECAUSE I'M NOT TRYING TO SHIFT THE BURDEN OF PROOF AT ALL.
I'M JUST LOOKING NOR LOOKING AT THE TOTALITY OF THE EVIDENCE WHAT THE POLICE
OFFICERS SAW. OTHER THAN SPOON CAN YOU GRAB MY CLOTHES IS THERE ANYTHING ELSE THAT
AN OBJECTIVE POLICE OFFICER, A REASONABLE POLICE OFFICER COULD POINT TO TO
SAY WELL OBVIOUSLY HE DIDN'T INTEND TO RELINQUISH HIS POSSESSORY OR OWNERSHIP
INTEREST IN THE CASES OTHER THAN THE STATEMENT SPOON CAN YOU GRAB MY CLOTHES.
PETER T. BLUM: I THINK THOSE STATEMENTS AND HIS ANSWERS WHERE HE SEEMED TO BE
PASSING THE BAG OFF AND KEEP I HAVE SEARCH INTENT TO ARREST. JUSTICE
FASCIALE: WHAT ACTIONS. PETER T. BLUM: THE WHOLE THING WITH THE WHITE
SUV IT'S PULLING IT UP. IT HELPS SUBSTANTIATE THAT ENDED TO KEEP HIS BAG SAFE,
HE WANTED TO KEEP HIS PROPERTY SAFE. JUSTICE FASCIALE: CAR PULLING UP AND
HIM SAYING SPOON CAN YOU GRAB MY CLOTHES, THOSE TWO FACTS, ANYTHING ELSE.
PETER T. BLUM: I MEAN I THINK THOSE ARE VERY IMPORTANT FACTS THAT SHOWS THAT HE WAS
NOT -- JUSTICE FASCIALE: IS THERE ANYTHING ELSE. PETER T. BLUM:
I MEAN THOSE ARE THE MOST IMPORTANT FACTS. JUSTICE FASCIALE: YOU'RE SAYING
THEY'RE THE MOST PORT. PETER T. BLUM: RIGHT. JUSTICE FASCIALE:
BUT IS THERE ANYTHING ELSE. PETER T. BLUM: I DON'T -- I DON'T -- I CAN'T
THINK OF ANYTHING THAT'S, YOU KNOW, SIGNIFICANT IN THE WAY THAT THAT'S
SIGNIFICANT. BUT I THINK -- JUSTICE SOLOMON: WHATEVER HAPPENED TO SPOON
WE HAVE THIS WHITE CAR, ANYBODY EVER IDENTIFY WHOSE CAR THAT WAS, WHO WAS IN IT
OR WHETHER THIS GUY EVEN HAS A BROTHER. PETER T. BLUM: WRIT, WELL THE POLICE
WHO HAD THE BURDEN OF PROOF WHEN THEY WERE ASKED AT THE HEARING. JUSTICE
SOLOMON: I'M ASKING I'M NOT ASKING ABOUT THAT I'M JUST ASKING WHATEVER HAPPENED
TO SPOON, DID ANYBODY EVER IDENTIFY THIS VEHICLE AND WHO WAS IN IT. YOU SEEM TO BE
RELYING ON IT. PETER T. BLUM: WE DON'T KNOW. JUSTICE SOLOMON:
IS THE ANSWER NO. PETER T. BLUM: YEAH, WE DON'T KNOW WHAT HAPPENED.
JUSTICE SOLOMON: SO WE HAVE NO IDEA WHOSE CAR THIS WAS WHO WAS IN WHETHER IT WAS
HIS BROTHER, NOBODY KNOWS. JUSTICE PATTERSON: DO YOU KNOW. JUSTICE
SOLOMON: WHAT IS COMING BACK TO WHAT JUST JUSTICE FASCIALE AND I THINK JUSTICE
PIERRE-LOUIS ASKED ABOUT IT TO YOU'RE SING THIS AND TO BE NO INTENTION OF RADIO CLAIMING
WHATEVER IT IS THE BAG IN THIS CASE, RIGHT. PETER T. BLUM: RIGHT.
JUSTICE SOLOMON: WHAT IS REQUIRED OF THE POLICE TO CONCLUDE THERE'S NO INTENTION
OF RADIO CLAIMING IT. HAS ANYBODY EVER IDENTIFIED THAT IN TERMS THAT YOU CAN
GIVE US. PETER T. BLUM: I THINK IN CASES LIKE THIS WHERE YOU KNOW SOMEONE
IS JUST FLEEING FROM AN ARREST AND LEAVING THEIR PROPERTY BEHIND I THINK IT'S
GOING TO BE VERY DIFFICULT FOR THE POLICE. I MEAN I THINK THEY'RE GOING TO HAVE
TO GET A WARRANT. JUSTICE SOLOMON: IS THERE ANY CASE THAT TELLS US
WHAT OWES THAT. JUSTICE WAINER APTER: OR IS THERE ANY CASE THAT EVER HELD
THAT. SOMEONE IS FLEEING ARE THE POLICE THEY HAVE TO GET A WARRANT. ANY CASE.
PETER T. BLUM: POST JOHNSON AND CARVAJAL NO OTHER JURISDICTION.
JUSTICE WAINER APTER: OTHER THAN NEW JERSEY. CHIEF JUSTICE RABNER: I THINK
WE'VE COVERED SOME OF THIS SO IS THERE ANYTHING YOU WOULD LIKE TO SAY BEFORE
WE GET YOU BACK ON REBUTTAL. PETER T. BLUM: I WILL YOU KNOW JUST LEAVE
THE SEARCH INTENT TO ARREST TO MY INTRODUCTORY COMMENTS AND THANK YOU.
CHIEF JUSTICE RABNER: THAT'S FINE, THAT YOU MR. BLUM. MR. SHALOM. ALEXANDER
SHALOM: MAY IT PLEASE THE COURT I'LL FOCUS MOSTLY ON PRONG THREE BUT BEFORE I DO
I'D LIKE TO ANSWER A COUPLE QUESTIONS THAT HAVE COME UP AND BEFORE I DO THAT I WANT
TO FRAME OUT ABANDONMENT. I DON'T THINK OF ABANDONMENT AS SIMPLY OH I DON'T THINK
THE CASES THING OF ABANDONMENT AS SIMPLY AN EXCEPTION TO OUR WARRANT REQUIREMENT.
IT IS AN EXCEPTION TO STANDING. SO BECAUSE -- AND THAT'S A BIG DEAL. WE HAVE
YOU HAD A I CAN STANDING IN NEW JERSEY. AND SO IT'S A VERY NARROW WINDOW AND
THAT'S WHY THE REQUIREMENT ON THE STATE TO PROVE ABANDONMENT IS EXTREMELY ONEROUS.
AND SO I'M GOING TO FIRST RESPOND TO TWO QUESTIONS. JUSTICE PATTERSON:
THIS IS BY THE PREPONDERANCE OF THE EVIDENCE THERE'S NO ENHANCED BURDEN.
ALEXANDER SHALOM: BUT WHAT THEY MUST SHOW IS EXTREMELY SIGNIFICANT. THEY MUST SHOW
THAT THE PERSON NEVER AGREES ON PROBLEM ONE, THE PERSON INCIDENT TO NEVER COME
BACK TO THIS. NOT THAT IT'S UNLIKELY THEY WOULD COME BACK BUT THAT'S WHY THEY
PLED. JUSTICE PATTERSON: BUT THEY KNOWINGLY AND VOLUNTARILY RELINQUISHED
ANY POSSESSORY OR OWNERSHIP INTEREST IN THE PROPERTY. IS THAT THEY WOULD NEVER
FOR THE REST OF THEIR LIVES WANT THAT PROPERTY BACK. ALEXANDER SHALOM:
I THINK IT DOES PAL PAT -T YOU DON'T LOOK AT WHAT'S HAPPENING AT THE MOMENT.
ALEXANDER SHALOM: I'LL TRY TO GIVE AN EXAMPLE IN A MOMENT FIRST LET ME
ANSWER A QUESTION JUSTICE WAYNE APPEAR AT THE ASKED WHEN SOMEONE DIFFICULTIES
CARDS SOMETHING DON'T WE CONSIDERING -T ABANDON ABSOLUTELY NOT. YOU CAN LOOK
AS FAR AS BACK AS THIS COURT'S POSITION IN TOKER WITH WHICH REJECTED THE SUPREME COURT
DECISION IN THE OTHER CASE. JUSTICE SCHOOL POSTED PROF HE SAID THE WHICH COULD FLEE
WITH NO MAN PURSUE ET CETERA AND IF YOU RUN BECAUSE YOU'RE GUILTY. FAKEER WE SAID
NO. THERE'S ALL QUESTIONS WE CAN DO ABOUT WHAT YOU CAN DO ABOUT THAT BEGUN
IN NONE OF THOSE CASES DO WE TALK ABOUT THE BEGUN AS ABANDON ABANDON. WOULDN'T
MEAN THE POLICE COULD SEARCH IT WOULD MEAN THE DEFENDANT COULDN'T CONTEST THE
SEARCH. THE REASON THERE'S SO FEW CASES ON ABANDON. BECAUSE THERE ARE LOTS
OF OTHER EXCEPTIONS THAT WE CAN TALK ABOUT AND WE USE ABANDONMENT SPARELY.
I WANT TO JUSTICE PATTERSON RADIO RESPOND TO YOUR QUESTION ABOUT THE SAFETY CONCERN,
IF THERE WAS A CONCERN ABOUT AN ABANDONED BAG IN A TRANSIT CENTER COULD IT BE
SERVED. IF THERE WERE SAFETY CONCERN CONSISTENT WITH THE POSSIBILITY OF A BOMB,
THAT IS AN EXIGENCY TEST AND IF THE STATE CAN SATISFY THE EXIGENCY TEST THEY CAN
SEARCH IT WITHOUT A WARRANT. THE STATE DIDN'T ATTACHMENT TO DO SO HERE BUT
THAT IS OF COURSE VIABLE WE'RE NOT AS YOU GOING ANY TIME POLICE SEE A BAG IN A
TRANSIT CENTER THEY HAVE TO JUST WAIT AND GET A WARRANT. IF THEY FEAR IT HAS A BOMB
THERE IS WELL ESTABLISHED TEST FOR EXIGENCY. WITH THAT BEING SAID LET ME
TAKE AN STAB AT PRONG THREE. BECAUSE THE STATE AND THE ATTORNEY GENERAL
SUGGESTION THAT IS WE HAVE PROPOSED A RULE THAT IS UNWORKABLE. I THINK YOU'LL
SEE THAT THEIR RULE AND THEIR RULE AS I UNDERSTAND IT IS IF YOU INTEREST IN
TRANSFERRING OWNERSHIP BUT THE TRANSFER HAS NOT BEEN PERFECTED, THEN THERE IS NOT
ANOTHER OWNER, I THINK THAT CAN'T BE SO AND LET ME GIVE YOU AN EXAMPLE. MIKE
AND BOB ARE FRIENDS AND THEY'RE ON AN AIRPLANE TOGETHER. MIKE IS IN THE FIRST
ROW AND BOB IS ALL THE WAY IN THE BACK THEY'RE TRAVELING TOGETHER BUT DON'T HAVE
SEATS TOGETHER. AS HE'S GETTING OFF HE YELLS HEY BOB PLEASE GRAB MY BAG.
JUSTICE FASCIALE: WHICH I REMEMBER DIFFERENT THAN THE FACTS HERE BECAUSE THE FACTS
ARE CAN YOU -- SOLE SOLE. JUSTICE FASCIALE: SPOON CAN YOU GRAB MY CLOTHES
PRO NOT POLICE GRAB MY BAG IT'S A QUESTION. ALEXANDER SHALOM: LESS POLITE
SO LET'S SAY BOB CAN YOU POLICE GRAB MY BAG WALKS OFF THE PLAIN HAVING NOT
HEARD FROM BOB. ON THE STATE'S THEORY THAT BAG IS NOW ABANDONED BOG IS 30 ROWS
BACK BUT UNLESS HE GRABS IT IMMEDIATELY NO TRANSFER HAS HAPPENED THAT CAN'T BE RULED.
JUSTICE PATTERSON: IN AN ENCLOSED ENVIRONMENT VERSUS IN A SITUATION WHERE
IT'S NOT EVEN CLEAR WATCHING THE VIDEO WHETHER THE UNKNOWN PERSON NEVER
IDENTIFIED DON'T KNOW IF IT'S HIS BROTHER FRIEND DON'T KNOW IF THERE IS A
RELATIONSHIP BETWEEN THEM NEVER RESPOND. ALEXANDER SHALOM: I'LL GET TO THAT
AND OF COURSE I RECOGNIZE THAT WE'RE TALKING ABOUT DIFFERENT FACTS, THAT'S THE
NATURE OF THESE. BUT THE RULE THAT THEY'RE PROPOSING WOULD SUPPLY WITH EQUAL
FORCE TO MIKE AND BOB AS IT IT WOULD TO SPOON AND MR. GARTRELL. JUSTICE
SOLOMON: IF BOB LEAVES THE PLAIN NEVER COMES BACK NEVER IDENTIFIED. ALEXANDER
SHALOM: WE DON'T KNOW THAT SPOON LEFT. WHAT WE DON'T KNOW. JUSTICE SOLOMON:
NO, WE KNOW A FAIR AMOUNT AND THAT IS ABSOLUTELY NOTHING CONNECTS SPOON TO OUR
DEFENDANT OR THE VEHICLE TO OUR DEFENDANT. ANAPHORICALLY, IN BOB'S CASE IF BOB
IS ON THE PLANE HE'S ON THE PLANE IN THIS CASE WE DON'T KNOW IF THERE'S A SPOON.
WHATEVER HAPPENED TO THE GUY, THE ANSWER IS NOTHING HE DISAPPEARED.
ALEXANDER SHALOM: AGAIN WE'RE GOING TO ASK WHAT THE OBJECTIVE OFFICER KNOWS, S THE
OBJECTIVE OFFICER HAS SEEN MIKE LEAVE THE PLANE HE CAN'T COME BACK YOU'RE NOT
ALLOWED BACK ON THE PLANE HE DOESN'T KNOW IF THERE'S A BOB. WHAT BOB'S RELATION
IS TO MIKE. JUSTICE SOLOMON: NO, HE COULD SAY YO BOB, SPOON IS GONE SPOON
NEVER SHOWS UP. ALEXANDER SHALOM: RESPECTFULLY JUSTICE SOLOMON I I DON'T
THINK THAT'S AN ACCURATE ASSESSMENTS. WE KNOW THAT IN THE FIVE MINUTE PERIOD
FROM THE TIME MR. GARTRELL GETS ARRESTED TILL THE BAG GETS SEARCHED SPOON DOES NOT
COME OUT AND SAY PLEASE LET ME CLAIM THE BAG. BUT WE ALSO KNOW THAT POLICE
MAKE NO EFFORT TO SEEK OUT SPOON. AND THERE'S MUCH MADE IN THE CASE WELL THEY
COULDN'T BE ASKED TO GO 20,000 PEOPLE OR 10,000 PEOPLE OR 5,000 PEOPLE BUT THERE'S
ONE CAR. THEY KNEW WHAT THE WHITE SUV WAS, WE ALL SEE THE WHITE SUV. THEY
COULD HAVE GONE UP AND SAID ARE YOU MR. SPOON, ARE YOU SPOON. THEY DIDN'T
DO THAT AND IN FACT WHEN YOU CHECK OUT THE TRANSCRIPT THEY MADE CLEAR THAT HAD
SPOKEN COME UP THEY WOULDN'T HAVE GIVEN HIM THE BAG. JUSTICE WAINER APTER:
I THINK ANOTHER BIG DIFFERENCE HYPOTHETICAL MIKE IS GET IN THE OFF A PLANE IN THE
SAY WAY ALL PEBBLED PLANE WHERE IN THIS CASE THE DEFENDANT IS ACTIVELY PLEADING
FROM POLICE AND THE BAG. HE STARTS RUNNING AWAY WHEN POLICE ARE TRYING TO ARREST
HIM. HE'S TRYING TO GET AWAY AS FAR AWAY FROM THE BAG AS POSSIBLY CAN HE COULD
HAVE CARRIED THE BAG WITH HIM WHEN AS HE WAS RUNNING. HE IS INTENTIONALLY
FLEEING FROM THE BAG SO WHY DID THAT NOT TELL POLICE SOMETHING THAT WOULD NOT BE
TRUE IN AN AIRPLANE SITUATION WHERE EVERYONE GATES OFF THE PLANE AND SOMEONE MIGHT
ASK THEIR SPOUSE TO CARRY THE SUITCASE FOR THEM. ALEXANDER SHALOM: THEY'RE
DIFFERENT SUGGESTIONS FOR SURE AND TO BE CLEAR THERE'S NO DOUBT MR. GARTRELL
IS FLEEING FROM POLICE. THE QUESTION IS IS HE FLEEING -- HE'S TRYING TO SEPARATE
HIMSELF FROM FLEECE BUT THAT DOESN'T MEAN HE'S TRYING TO SEPARATE HIMSELF FROM THE
BAG. JUSTICE WAINER APTER: IN THIS CASE IT SEEMS HE DOES HE'S RUNNING
AWAY FROM THE BAG HE COULD HAVE FLED IT WOULD NOT HAVE BEEN AS SUCCESSFUL AND
IT WASN'T SUCCESSFUL ANYWAY HE COULD HAVE FLED WHILE PULLING THE BAG AND HE CHOSE
TO RUNAWAY FROM THE BAG. ALEXANDER SHALOM: SURE, THAT THEORETICALLY ONE
COULD FLEE WITH AN WHEEL I SUITCASE MY EXPERIENCE IT'S NOT THE MOST COMMON
PRACTICE OF THOSE SEEKING TO EVADE POLICE. I'M NOT SURE THAT THE DISTINCTION CARRIES
THE DAY. CHIEF JUSTICE RABNER: MR. SHALOM YOU HAVE DIFFICULTS THAT YOU
POINTED TO WITH THE STANDARD THAT'S BEING DISCUSSED. WHAT'S THE STANDARD YOU
PROPOSE. ALEXANDER SHALOM: I THINK CONSISTENT WITH MY PRELIMINARY POINT IN
ORDER TO SHOW ABANDONMENT THE BURDEN ON THE STATE IS HIGH, THEY MUST. SO IT'S
A POINT -- AGAIN WE'LL LEAVE PRONG ONE TO THE SIDE SINCE IN THIS CASE THAT
IS TOTALLY ESTABLISHED. BUT IF THEY WANT TO SHOW THAT THE PERSON HAS DISCLAIMED
POSSESSORY OR PROPERTY INTEREST IN IT THERE NEEDS TO BE AN AFFIRMATIVE SHOWING
IN JUST LEAVING IT UNSUFFICIENT. CHIEF JUSTICE RABNER: SO SUPPOSE -- TAKE
FLIGHT OUT OF THE SITUATION. SUPPOSE THIS DEFENDANT IS DRIVING GETS A CALL
FROM FRIENDS SAYING YOU KNOW THERE'S POLICE UP AHEAD JUST BE CAREFUL AND HE
PAUSES AND PUTS THE BAG IN A PARK AND DRIVES AND COMES BACK FIVE MINUTES LATER
TORY CLAIM IT. IS THERE ABANDONMENT THERE. ALEXANDER SHALOM: NO. I THINK
ABANDONMENT REQUIRES THAT HIS INTENT TO PERMANENTLY DISCARD IT NOT TO LEAVE
IT SOME WHERE. ACTUALLY. JUSTICE PATTERSON: WHAT DEFENDANT POSSIBLY
COULD MEET THIS STANDARD BECAUSE YOU WOULD HAVE TO PRESUMABLY IF SOMEONE HAS AN
INTEREST IN EITHER THE BAG OR THE CONTENTS OR WHATEVER, THEY WOULD RATHER HAVE
IT BACK THAN NOT HAVE IT BACK. ALEXANDER SHALOM: IF IT'S THE PERSON
THAT. JUSTICE PATTERSON: SO THERE MUST BE A VERBAL STATEMENT I'M OUT OF
HERE I'M GOING TO RUN AROUND THE COPY AND WALK ACROSS THE STREET. ALEXANDER
SHALOM: I DON'T THINK IT HAS TO BE VERBAL IT HAS TO BE AFFIRMATIVELY. JUSTICE
PATTERSON: MEANING WHAT, WHAT'S THE DIFFERENCE BETWEEN RUNNING AWAY WE SEE THE
VIDEO HE RUNS A VIEW BLOCKS IF HE HADN'T GOTTEN INTO A SITUATION WHERE HE COULDN'T
GET OUT EASILY HE MAY HAVE BEEN ABLE TO GO LONGER, WHAT DOES HE NEED TO DO?
HE NEEDS TO GESTURE IN SOMEWAY THAT INDICATES I'M DONE WITH BAG.
ALEXANDER SHALOM: I THINK I'M HAVING A HARD TIME COMING UP WITH VERBALLY LATEST
SO I'M GOING TO STICK WITH THAT. JUSTICE PATTERSON: THE ONLY DEFENDANT
IN A SCENARIO LIKE THIS HOP IS STANDING BY ABANDONMENT IS THE DEFENDANT WHO
WHILE RUNNING OR ABOUT TO RUN SAYS I AM HERE TO ABANDON MY BAG AND I'M OUT OF
HERE \GUYS\GUISE GOOD LUCK CATCHING ME. ALEXANDER SHALOM: THAT'S RIGHT
AND TWO QUICK POINTS THAT DOESN'T MEAN THAT'S THE ONLY SITUATION IN WHICH THAT
BAG CAN GET SEARCHED OR EVEN THE ONLY SITUATION WHERE IT CAN GET SEARCHED
WITHOUT A WARRANT. JUSTICE PATTERSON: I UNDERSTAND BUT WE'RE TALKING ABOUT
HERE A TEST OF ABANDONMENT WHICH INDICATES A DESIRE TO BE SEPARATED FROM THAT BAG.
ALEXANDER SHALOM: THAT'S RIGHT AND I THINK IT'S A VERY NARROW BAND.
JUSTICE PATTERSON: SO IT'S GOT TO BE I'M NEVER COMING BACK FOR THIS BAG, I'M OUT OF
HERE AND I HAVE NO FURTHER INTEREST IN THIS BAG. ALEXANDER SHALOM: THAT'S
RIGHT. JUSTICE NORIEGA: DOES THE REASON THE POLICE ARE APPROACHING THE
INDIVIDUAL MATTER OR MAKE A DIFFERENCE IN YOUR TEST. ALEXANDER SHALOM:
I THINK IT DOES JUSTICE NOR. I THINK WHEN THE INITIAL APPROACH IS WITH RESPECT TO
THE CONTRABAND MATERIAL, TO THE BAG AS WAS THE CASE IN CARVAJAL FOR EXAMPLE, THEN
THE IDEA IS THEY'RE REALLY TRYING TO SEPARATE THEMSELVES FROM THE REASON THE
POLICE CAME HERE. BUT THE POLICE WERE ARRESTING MR. GARTRELL ON A BENCH
WARRANT. AND THAT IS FUNDAMENTALLY DEFENSE -- I HAD ANOTHER EXAMPLE BUT IT'S
A BAD ONE. JUSTICE WAINER APTER: WOULD YOUR RESPONSE TO JUSTICE PATTERSON
THAT THE PERSON HAS TO AFFIRMATIVELY SAY I'M HEREBY ABANDONING THIS BAG BE
OR SOMETHING SIMILAR THEY DON'T HAVE TO WHY HEREBY. IF THE PERSON IS FLEEING ANTILOGS
SOMETHING FROM THEIR PERSON AND IT IS NOT CLEAR AND SO THE POLICE YOU KNOW CANNOT
JUST PLAIN VIEW PICK IT UP WOULD THAT APPLY AS WELL, THE PERSON HAS TO WILLFULLY
AND THROWING SOMETHING SAYING I'M TRYING TO GET RID OF THIS. ALEXANDER SHALOM:
I THINK THAT'S RISE JUSTICE WAYNE THAT'S TRUE IN DROP SITUATE CASES GRANTED
RARELY IS IT IN AN OPAQUE CONTAINER BUT MOST OFTEN IN THOSE CASES YOU'RE TALKING ABOUT
THE CONTRABAND NATURE IS IMMEDIATELY PARENT. JUSTICE PATTERSON: WHEN YOU
REFER TO THOSE CASES YOU REFER TO THROWING THE GUN OR DROPPING THE GUN SAL
SHALL I SPEAK SOMETIMES THE DRUGS IS IN AN OPAQUE CONTAINER THAT'S PLAUSIBLE.
IF YOU LOOK THROUGH THE LAW. THOSE CASES ARE REGION AND THEY'RE NEVER ANALYZED
IN AN ABANDON. FRAMEWORK CONTAIN. JUSTICE WAINER APTER: SO WHAT'S THE
MOST HELPFUL OF THOSE CASES TO YOU. ALEXANDER SHALOM: I THINK THE SUM
TOTAL OF THEM BUT TUCK TACKERS IS THE PLACE TO START. THE AND THE TICKER IT'S
A LITTLE LEGAL TUBE IN THE FIRST INTENTION. THE WHEN WAS MR. TICKER SEES HAD.
BUT IT'S NOT ABOUT ABANDONMENT. IT'S ABOUT OTHER QUESTIONS. CHIEF JUSTICE
RABNER: I'M STILL STRUGGLING WITH THE HYPO THAT I ASKED YOU EARLIER BECAUSE
I'M CONCERNED ABOUT WHAT THAT DOES TO ABANDONMENT LAW. IMAGINE IF AN OFFICER
HAD COME UP DURING THAT FIVE MINUTE GAP SEEN AN UNINTEND ATTENDED BAG IN A PUBLIC PLACE
AND I ASSUME IT WAS ABANDONED BASED ON THE FACT THAT HAPPEN IT WAS JUST THERE,
THAT'S NOT ENOUGH. ALEXANDER SHALOM: MISHEAR CHIEF JUSTICE AND I MAY HAVE
MISUNDERSTOOD HAD THE OFFICER GO THERE. AS I UNDERSTOOD HE LEFT THE BAG IN A PARK
AND CAME BACK TO IT FIVE MINUTES LATER, HELP ABANDONED IT NO, I THINK ONCE HE COMES
BACK TO IT IT'S CLEARLY NOT. CHIEF JUSTICE RABNER: AND IN THE INTRODUCTORY
COMMENTS TRIM. ALEXANDER SHALOM: SO IF THEY GET THERE AND SEE A BAG WITH
NO ONE THERE THAT IS PROBABLY A DIFFERENT SITUATION BUT THAT'S PROBABLY ON
PRONG ONE, RIGHT THERE'S NO KNOWN OWNER, A BAG THAT SAYS PROPERTY OF ALEXANDER
SHALOM PRIVATE INTEND TO DEEP FOREVER MIGHT BE A DIFFERENT SITUATION. I THINK ONE THING
THAT. CHIEF JUSTICE RABNER: IN A CASE WHERE THERE IS AN AS YOU SAY PEDESTRIAN
HAD KNOWN OWNER THE FILL ACT OF ABANDONMENT ALONE IN THE COMMON PARLANCE IS NOT
ENOUGH. ALEXANDER SHALOM: I THINK THAT'S RIGHT AND I THINK IT GETS TO
WHAT MR. BLUM WAS TALKING ABOUT THAT WE AREN'T A REASONABLE EXPECTATION OF
PRIVACY ALONE JURISDICTION. SO WE TALKED ABOUT MANY OF THE QUESTIONS -- TALKED
ABOUT WHEN YOU LEAVE SOMETHING IN A PUBLIC CASE SOMEONE MIGHT TAKE IT AND THAT'S
TRUE. THAT IS A KNOWN RISK. I THINK MR. BLUM HIT THE NAIL ON THE HEAD IF THEY
TAKE IT THEY MIGHT JUST POCKET YOUR IPHONE BUT THEY'RE NOT SUPPOSED TO. WHAT THE
LAW ASKS THEM TO DO IS TO BRING IT TO THE POLICE AND SAY I HEY I FOUND THAT IPHONE
AND SO YES THERE'S A RISK THAT THEY WON'T FOLLOW THE LAW BUT IF WE ARE FOLLOWING
THE LAW LEAVING IT THERE IS NOT SUFFICIENT. JUSTICE NORIEGA: WHAT SHOULD
THE POLICE HAVE DONE IN THIS CASE. ALEXANDER SHALOM: THANK YOU FOR THAT
QUESTIONS. FIRST THING BE A LITTLE MORE PATIENT. THEY SEARCHED RIGHT AWAY.
THE SECOND IS WITH THIS POTENTIAL OWNER AND SO STATE'S POSITION IS UNTIL THE
TRANSFER HAS BEEN PERFECTED THERE IS NO KNOWN OWNER BUT THERE IS ONE PERSON
THEY THOUGHT HE WANTED TO TRANSFER TO AND THEY SHOULD HAVE GONE UP TO THAT PERSON
AND ASKED. AND IF HE THEN DISCLAIMED IT THEN PRONG THREE LEAVES. BUT THE
FACT THAT HE DIDN'T ACTIVITY SPEAK UP THERE WAS ONE PERSON FOR THE POLICE TO
ASK, THERE WASN'T THE HOLE UNIVERSAL OF PEOPLE. JUSTICE PATTERSON: IT'S
NOT SO HERE CLEAR ON THE VIDEO AT ALL THAT THIS PARTICULAR PERSON HAS BEEN
POINTED TO AS THE CORRECT PERSON. THERE ARE PLENTY OF CARS GOING BACK AND FORTH
AND IT COULD BE ANYBODY OR IT COULD BE NOBODY. ALEXANDER SHALOM: AND IT'S
POSSIBLE THAT THERE WAS NO ONE IN THE WHITE SUV IT'S POSSIBLE IT WASN'T SPOON
IT'S POSSIBLE SPOON WASN'T HIS BROTHER. ALL THOSE THINGS WERE POSSIBLE. I THINK
THE BURDEN JUSTICE NOR IS ON THE POLICE TO GO FIND THAT OUT AND IF THEY GO -- I
HAVE NO IDEA WHAT YOU'RE TALKING ABOUT THAT PART IS DONE. JUSTICE
PATTERSON: BUT SOMEONE WAS STANDING WITH THE BAG AFTERWARD. CLEARLY THE BAG
WAS NOT LEFT WITH THE POLICE WHEN MOST OF THEM WENT CHASE DEFENDANT. HERE IS
OPPORTUNITY FOR SOME CONTACT WITH SPOON IF HE WAS THERE AND EXITED. ALEXANDER
SHALOM: I DON'T THINK THAT IS A FAIR ASSESSMENT OF HOW YOU HAD YOU WOULD EXPECT
A PERSON -- THIS IS A HIGH STRESS SITUATION THEY JUST SAW SOMEONE RUN AND BE
CHASED BY POLICE, THERE'S GOING TO BE A LOT OF AS A RESULT AND I DON'T THINK
THE FIRST I THINK TICKET OF I'VE READ JOHNSON I KNOW WHAT I NEED TO GO I NEED
TO ASSERT MY CLAIM TO THIS BAG. I THINK FIVE MINUTES IS NOT VERY LONG.
JUSTICE PATTERSON: JOHNSON IS NOT CLOSE TO THIS CASE JOHNSON IS AN ENCLOSED ENVIRONMENT
IN AN APARTMENT. ALEXANDER SHALOM: I DON'T THINK WE SHOULD PUT THE
ONUS ON SPOON TO KNOW WHAT ABANDONMENT LAW REQUIRES HIM I THINK WE SHOULD PUT THE
ONUS ON POLICE. JUSTICE PATTERSON: AS YOU CORRECTLY POINTED OUT THE
REASONABLENESS OF THE OFFICER GIVEN THE TOTALITY OF THE CIRCUMSTANCES AND YOU
DON'T HAVE ANY SPOON SIGHTINGS IN THIS SITUATION -- ALEXANDER SHALOM: I
THINK YOU DO IN A SENSE CHECKING OUT THAT ONE CAR IS. JUSTICE WAINER APTER:
WHAT ARE YOU SO EVIDENCE TO ASK THE DRIVER OF THE CAR, PRONG THREE THERE ARE
NO OTHER APPARENTLY OR OPEN KNOWN OWNERS OF THE PROPERTY. BUT COUNSEL ARGUED
THAT IT'S NOT ONLY WHETHER THERE'S AN APPARENT OR KNOWN OWNER OF THE PROPERTY MAYBE
IT'S ALSO IF THERE'S SOMEONE WHO COULD TAKE THE PROPERTY. DO YOU WANT TO GRAB
THIS BAG OR IS IT IS THIS YOUR BAG, BECAUSE PRESUMABLY SPOON WOULD HAVE ANSWERED
NO, IT IS NOT MY BAG BECAUSE WE HEARD THE DEFENDANT SAY SPOON CAN YOU GRAB
MY CLOTHES? ALEXANDER SHALOM: SO I THINK I AGREE WITH MR. BLUM THAT THE
WORD OWNER IS IN PRONG THREE SHOULD NOT BE SIMPLY APPEAR PROPERTY INTEREST
OTHERWISE BOB WHEN IS NO PROPERTY INTEREST IN MIKE'S BACK. HE'S GRABBING IT FOR MIKE
TO RETURN TO HIM ONCE THEY GET OFF THE PLANE IT CAN'T JUST BE PROPERTY.
JUSTICE WAINER APTER: IS THERE ANY CASE THAT EVER HELD OR SOMETHING LIKE THAT THAT
PRONG THREE IS NOT -- DOESN'T MEAN WHAT IT SAYS AND INSTEAD HAS TO MEAN SOMETHING
BROADER. ALEXANDER SHALOM: I DON'T KNOW OF ANY CASE. I ALSO AS EVER ACKNOWLEDGE
THERE IS A PAUCITY OF PUBLISHED OPINIONS ON ABANDONMENT IN NEW JERSEY POST
JOHNSON AND CARVAJAL. JUSTICE NORIEGA: AT THE END OF THE DAY DO THE POLICE
GET INTO THIS BAG REGARDLESS GIVEN THE FACTS OF THIS CASE AND FACT MR. GARTRELL
WAS ARRESTED AND TAKEN BACK TO THE PENN STATION WOULDN'T THEY ALSO HAVE GOTTEN
INTO THIS BAG. ALEXANDER SHALOM: THEY MIGHT HAVE UNDER THE INVENTORY THEORY
THEY NEEDED TO MAKE SOME PROOFS AND THEY DIDN'T ATTEMPT TO. INVENTORY REQUIRES
THEM TO CHECK CERTAIN BOXES THAT MAY OR MAY NOT HAVE BEEN CHECKED BUT I THINK YOU'RE
RIGHT ONTO SAY THAT ULTIMATELY WHAT THIS WAS WAS POLICE JUMPING THE GUN RATHER THAN
GETTING INTO SOMETHING THEY MAY NEVER HAVE HAD A CHANCE TO GET INTO. CHIEF
JUSTICE RABNER: MR. SHALOM IS THERE ANYTHING YOU WOULD LIKE TO ADD THERE IS NOT.
CHIEF JUSTICE RABNER: MR. DUCOAT COAT. FRANK J. DUCOAT: GOOD MORNING
YOUR HONORSES ANIME IT PLEASE THE COURT. THERE ARE TWO EQUALLY HER TORE US
BASIS ON WHICH THIS COURT CAN AN AFFIRM THE JUDGMENT OF THE APPELLATE. THE
FIRST ONE WE SPENT TALKING ABOUT MOSTLY THIS MORNING THAT'S ABANDONMENT. HERE
ACTIONS SPEAK LOUDER THE UNDERSTANDABLE ACT OF FLEEING POLICE IN A LAWFUL ARREST
IS LOUDING THAN ANY SPOKEN YET COMPLETELY UNREALIZED DESIRE EXPRESSED BEFORE
THE FLIGHT TO TRANSFER THE BAG. HAD THE DEFENDANT TOOK OFF RUNNING THE BAG
WAS HIS AND IT WAS HIS ALONE. NO TRANSFER TOOK PLACE AND HIS GOAL WAS CRYSTAL
CLEAR TO PLACE AS MUCH DISTANCE BETWEEN HIMSELF AND THE BAG AS POSSIBLE. HE MAY HAVE
WANTED HIS PRESENTENCE REPORT TO TAKE IT. HE MAY HAVE FENDED HIS BROTHER TO
TAKE IT HE MAY HAVE REED HIS DIRE TO TAKE IT. BUT A THEN NEVER COMPLETED DESIRE
TO TRANSFER INTEREST NOT A TRANSFER OF INTEREST. WHAT MATTERS IS THAT HE RAN.
THE BAG HAD NOT BEEN GIVEN TO ANYONE ELSE. NO PROMISE WAS MADE THAT HE COULD BE
GIVEN TO ANYONE ELSE AND IT WAS LEFT BEHIND IN A PUBLIC PLACE, A BUSY TRANSIT
HUSBAND AT RUSH HOUR. JUSTICE PATTERSON: IS THE STATE CONCEDING THAT
SPOON IS THE BROTHER OF DEFENDANT. FRANK J. DUCOAT: NO, ABSOLUTELY NOT THE
STATE NOT CONCEDING THAT. THE TESTIMONY OF ONE OF THE OFFICERS THEY HAD NO
IDEA WHO THIS PERSON WAS. SOMEONE THOUGHT IT MAY HAVE BEEN BASED ON DEFENDANT'S
SPEAKING ON THE PHONE POINTING AT A CAR. THAT MAYBE A FAIR INFERENCE BUT IT
CERTAINLY WASN'T AN ESTABLISHED FACT. JUSTICE PATTERSON: WAS THAT BASED ON THE
DEFENDANT'S USE OF THE WORD BUREAU, IS THAT WHY THAT CAME FROM. FRANK J.
DUCOAT: NO, I THINK IT WAS MORE HIM POINTING AND THE VEHICLE KIND OF FOLLOWING THE
PATH, THAT'S OKAY. ALWAYS HAPPY TO ANSWER THE COURT'S QUESTIONS. JUSTICE
PATTERSON: THAT JUST COST ME MONEY. FRANK J. DUCOAT: THE POINTING AND WHAT
THE VEHICLE WAS DOING BUT IT WAS NOT ESTABLISHED. NOW THE FACTS IN THIS CASE MY
OR 41 ITCH THE COURT SHOULD LOG JOHNSON AND CARVAJAL \CAST\CAVITY NO DOUBT
ON THAT DECISION. THERE THE POLICE DID NOT KNOW WHAT THE DEFENDANT HERE DID
KNOW AND THAT'S WHO OWNED THE BAG. IN JOHNSON POLICE SHOULD HAVE ASKED THE
QUESTIONS IN CARVAJAL THEY DID ASK. BUT THE QUESTION ENVISIONED BY THOSE CASES
SERVES TO DETERMINES WHO OWNS THE PROPERTY. IT'S NOT TO PASS AT A TIME THE
TRANSFER OF PROPERTY ONCE THE OWNER FLEES THE SCENE. THE STATE FINDS IT LARGE AND
THE TRIAL JUDGE MISSED THIS AS WELL, THE ACT OF RUNNING FROM THE POLICE IS
A CRIME IN AND OF ITSELF. IT'S A POTENTIALLY DANGEROUS ONE. IT'S SO SERIOUS THIS
COURT HAS SAID DOING SO WOULD BREAK THE CHAIN FROM AN ILLEGAL ARREST. HERE OF COURSE
WE HAVE A LEGAL ARREST. THE DEFENDANT'S ACTIONS SPOKE LOUDER THAN HIS WORDS.
AND I DO JUST WANT TO MAKE A COUPLE BRIEF POINTS ON SEARCH INTENT TO ARREST.
IT CAN'T BE REASONABLY SUBSTITUTED THAT HAD DEFENDANT NOT RUN THE BAG WOULD
HAVE BEEN SEARCHED INCIDENT TO ARREST. IT WAS IN HIS POSSESSION, IT WAS AT HIS
FEET. THE PET PERMS A SEARCH OF CONTAINERS WITHIN THE ARREST HE'S POSSESSION EVERYONE
AGREES IT WAS IN HIS POSSESSION. THEY CANNOT BE COMMITTED TO THOUGHT A
CONSTITUTIONAL SEARCH BY COMMITTING THE ILLEGAL ACT OF OBSTRUCTION AND THEN
SAYING WHAT THE MOTION JUDGE SAID HERE WAS THAT WELL THE DEFENDANT GOT TOO FAR AWAY
FROM THE EXCEPTION TO STILL FLY. THIS COURT SAID IN WILLIAMS THE LAW SHOULD
DETER AND GIVE NO INCENTIVE TO SUSPECTS TO ENDANGER THE POLICE AND THEMSELVES
AND THE PUBLIC I HAD ADD IN THIS CASE BY NOT SUBMITTING TO OFFICIAL AUTHORITY.
IF YOU FIND THIS EXCEPTION NOT APPLICABLE IN THIS CASE YOU'RE DOING JUST THAT
AND AS TO REMOTEMENTNESS WHICH IS TALKED ABOUT IN THE BRIEF. THIS WAS NOT
REMOTE. DEFENDANT WAS CLOSE BY VERY LITTLE TIME HAD PASSED. BY HIS OWN FACTS
NOT THE STATE'S FACT HIS BROTHER WAS NEARBY AND HE HAD ALREADY OBSTRUCTED ONCE.
SO THIS IDEA THAT PUBLIC SAFETY IS NO LONGER AN ISSUE IS SIMPLY NOT SUPPORTED
BY THE RECORD. AND AGAIN, IF THERE WAS SOME REMOTENESS THAT REMOTENESS WAS
THE DIRECT RESULT OF DEFENDANT'S WRONGDOING NOT ANY UNREASONABLE CONDUCT BY THE
POLICE. THE TOUCH STONE IS HERE IS AS IT IS ALMOSTNESS, THE OFFICERS DID NOTHING
UNREASONABLE. I WANT TO CLEAR UP ONE FACT IT SEEMS KIND OF MISSED SPOON FLED
THE AREA TOO. IF YOU LOOK AT P A EIGHT OF THE APPELLATE DIVISION APPENDIX
WHICH IS PART OF THE RECORD IN THIS COURT, THAT IS A POLICE REPORT THAT WAS PUT
INTO EVIDENCE AND IT SAYS IT SHOULD BE NOTED THAT THE WHITE SUFFICIENT FLED THE
AREA SHORTLY AFTER THE FOOT PURSUIT AND PROPERTY WAS UNABLE TO BE TRANSFERRED
TO THE DRIVER. SO ANY NOTION THAT THE POLICE SHOULD HAVE WENT UP TO SPOON
AND FIGURED OUT WHO HE WAS AND IS HE GOING TO TAKE THE BAG, IS HE NOT GOING TO TAKE
THE BAG. SPOON WAS GONE TOO. JUSTICE WAINER APTER: COULD YOU READ THAT
ONE MORE TIME. FRANK J. DUCOAT: P A EIGHT IT SHOULD BE NOTED THAT THE
WHITE SUV FLED THE AREA SHORTLY AFTER THE FOOT PURSUIT AND PROPERTY WAG UNABLE TO
BE TRANSFERRED SO WE DON'T KNOW EXACTLY THE MOMENT THEY LEFT BUT CERTAINLY AT LEAST
ONE OFFICER NOTED THAT SPOON WAS GONE. JUSTICE SOLOMON: IS THAT VISIBLE
ON THE VIDEO I DON'T REMEMBER THAT. FRANK J. DUCOAT: I'M SORRY. JUSTICE
SOLOMON: IS THAT VISIBLE ON THE VIDEO THE WHITE SUFFER TAKING OFF. FRANK J.
DUCOAT: NO, BECAUSE AT THAT POINT THE OFFICERS START CHASING THE DEFENDANT.
JUSTICE SOLOMON: SO IT DOESN'T SO UP ON THE VIDEO. FRANK J. DUCOAT: NO.
JUST TO BE CLEAR OUR POSITION IS NOT FLIGHT IS ALWAYS ABANDON. IT SOUNDS
LIKE WHAT THE OTHER SIDE IS SAYING FLIGHT IS NEVER ABANDONMENT. WE KNOW THAT THAT
CAN'T BE THE CASE. WHERE AND WHEN THE CIRCUMSTANCES OF THE FLIGHT MATTER SO
IF A DEFENDANT IS BEING ARRESTED IN THE FRONT ROOM OF HIS HOUSE HE LET'S THE
OFFICERS IN THEY GO TO PLACE HIM UNDER ARREST BECAUSE THEY FOUND OUT HE HAS
A WARRANT HE TAKES OFF IN THE FRONT DOOR AND LEAVES A BAG BEHIND. HE HASN'T
ABANDONED THE BAG IT'S STILL IN HIS HOUSE. IF HE LEAVES IT IN NEWARK PENN STATION
THAT'S CLEETLY DIFFERENT PART PART SHORT OF BEING IN A SITUATION WHERE IT REMAINS
IN HIS HOME WHAT IS AN EXAMPLE OF A SITUATION IN WHICH THE STATE WOULD
CONCEDE THAT FLIGHT IS NOT ABANDONMENT. FRANK J. DUCOAT: FLIGHT AND LEAVING
THE PROPERTY BEHIND. JUSTICE PATTERSON: IN A PUBLIC SETTING ON THE
STREET. FRANK J. DUCOAT: I MEAN IT'S VERY HARD TO CONCEIVE OF ONE. I
THINK THE WOULD BE MAYBE IF THERE WAS ANOTHER APPARENT OWNER IF DEFENDANT WAS
TRAVELING WITH SOMEONE AND THEY BOTH HAD ONE BAG AND THEY WERE STANDING THERE TOGETHER
AND THE DEFENDANT TOOK OFF RUNNING AND HIS BROTHER WAS STANDING NEXT TO HIM.
WE'RE PRETTY CLEAR THE POLICE WOULD HAVE TO ASK THE BROTHER IS THIS YOURS
AND IF HE SAYS IT'S NOT IT'S ABANDON IF HE SAYS IT'S NOT. ONE PERSON HAS PROPERTY
AND THEY TAKE OFF RUNNING AND THEY LEAVE IT BEHIND THEN I STRUGGLE TO FIND AN
EXAMPLE WHERE THAT WOULDN'T BE ABANDONMENT. CHIEF JUSTICE RABNER: WHAT IF A DEFENDANT
IN A SIMILAR SEEP ARROW SAYS THIS ITS MY BAG DON'T TOUCH IT AND THEN MINUTES
LATER FLEES. FRANK J. DUCOAT: WELL I THINK THE FLIGHT WOULD THEN NEGATE
ANYTHING HE SAYS BEFORE THAT. FLIGHT IS A SIGNIFICANT CONSTITUTION AL -- IT HAS
A CONSTITUTION ALONG SIGNIFICANCE THAT CAN'T BE IGNORED SO LEAVING IT BEHIND YOU MAY
SAY THAT THAT'S MY BEG NEVER TOUCH IT IT'S MINE I WANT IT FOREVER AND THEN
YOU RUNAWAY PROSECUTE THE POLICE AND IT TAKES THEM A WEEK TO CATCH UP TO YOU WITH
PROPERTY IS AN ABANDONED MOMENT HE TAKES OFF RUNNING AND LEAVES IT NO ONE ELSE'S
POSSESSION. I THINK THAT'S GOING TO BE WHAT DISTINGUISHES -- YOU KNOW WHEN
THIS HAPPENS IN PUBLISH IS IT LEFT WITH ANYBODY, IS IT -- ARE THERE OTHER APPARENT
OWNERS. JUSTICE NORIEGA: IT SOUNDS LIKE THE STANDARD YOU'RE ADVOCATING
FOR FLIGHT WILL ALWAYS EQUAL RELINQUISH. IS THAT ACCURATE. FRANK J. DUCOAT:
CERTAINLY FLIGHT AND LEAVING PROPERTY BEHIND IN A PUBLIC PLACE I THINK WOULD ALWAYS
BE ABANDONMENT AND THERE MAYBE FACTS WHERE IT'S NOT I CAN'T THINK OF ANY CERTAINLY
JUST THE FACT THAT IT WAS A PUBLIC PLACE. THE REASON WHY THAT'S THE CASE IT GOES
TOUTIESTS INCIDENT. WHAT WAS THE INTENT'S FLIGHT YOU KNOW WHAT THAT DID THAT
INTEND. DID HE INTEND TO LEAVE THE BAG BEHIND OR DID HE COME BACK. IF HE
LEAVES IT BEHIND IN HIS APARTMENT I THINK IT'S FAIR TO SEE THAT HE INCIDENTS TO
COME BACK FOR IT. JUSTICE NORIEGA: WHAT IF POLICE ARE ARRESTING SOMEBODY IN THE
LOBBY OF THEIR WORKPLACE AND THEY'RE EXITING THEIR WORKPLACE FOR THE DAY IN THE
BRIEFCASE AND AS THEY'RE LEAVING THE POLICE APPROACH FOR SOMETHING NOT RELATED
TO THE BRIEFCASE. THERE'S AN ARREST WARRANT IN THIS CASE. THE PERSON DROPS THE
BACK RUNS OUT THE BACK DOOR AND HOSE TO NEVER BE ARRESTED, IS THAT BAG ABANDONED
IN THAT CASE EVEN THOUGH IT'S A FAMILIAR CASE UNEXPECTED LOCATION. FRANK
J. DUCOAT: I THINK IT STILL WOULD BE BECAUSE YOU'RE LEAVING THE BAG IN A LOBBY OF
A BUILDING IS NOT THE SAME AS SAYING HE'S BEING ARRESTED IN HIS OWN OFFICE,
THE FACT ARE GOING TO MATTER IS IT -P COMMON FOR THAT COMPANY TO LEAVE BRIEF
CASES OVERNIGHT IN THE LOBBY IF THIS WERE THAT MIGHT BE UNREASONABLE. JUSTICE
NORIEGA: FROM WHOSE PERSPECTIVE ARE WE ANALYZING UNWE'RE TAKING BROAD WORLD
APPROACH WHAT YOU YOU AN AGREE IS REASONABLE IS IT US OR THE POLICE. FRANK J.
DUCOAT: IT'S THE POLICE JOHNSON AND CARVAJAL IT'S A WHAT WOULD AN OBJECTIVELY
REASONABLE OFFICER THINK OF THESE CIRCUMSTANCES THAT'S THE TEST. JUSTICE
PATTERSON: GOING TO YOUR SECOND POINT ABOUT THE SEARCH INTENT TO ARREST IT SEEMS
CLEAR ON THE VIDEO THAT THE ARREST AND THE SEARCH OF THE BAG TOOK PLACE BLOCKS A PART.
FRANK J. DUCOAT: WELL THEY FINISH APPREHENDING HIM BLOCKS A PART.
JUSTICE PATTERSON: BUT HE IS FINALLY ARRESTED AND IT'S NOT ANYWHERE.
FRANK J. DUCOAT: CONSTITUTIONAL IT'S HE'S UNDER ARREST WHEN THEY TELL HIM HE HAS
A WARRANT AND HE CANNOT LEAVE. THEN HE TAKES OFF RUNNING THEY EVENTUALLY CATCH
HIM. I THINK EVERYONE ONCE THEY SAY TO HIM WE HAVE A WARRANT FOR YOUR ARREST
HE SAYS OH YEAH A BENCH WARRANT AT THAT POINT HE'S NOT GOING ANYWHERE. HE'S
SEIZED. CHIEF JUSTICE RABNER: IS THERE ANY RISK THAT THE OFFICERS AND THE
CIRCUMSTANCES WE HAVE HERE WOULD HAVE BEEN UNABLE TO PRESERVE THE EVIDENCE
HAD THEY NOT SEARCHED IT WHEN THEY DID. FRANK J. DUCOAT: NO, THEY HAD SEIZED
IT AND HE WAS UNDER ARREST. CHIEF JUSTICE RABNER: IS THERE ANY RISK TO
OFFICER SAFETY UNDER THE CIRCUMSTANCES OF THIS CASE GIVEN WHERE THE BAG WAS AND.
FRANK J. DUCOAT: YES, I THINK THERE WAS STILL SOME RISK. HE WASN'T THAT
FAR AWAY. CHIEF JUSTICE RABNER: HOW FAR AWAY WAS HE. FRANK J. DUCOAT:
FROM THE TESTIMONY IT SEEMS HE'S ON THE OTHER SIDE OF THE DOORWAY INTO PENN STATION
SO THEY SEARCH THE BAG RIGHT OUTSIDE THE DOOR. JUSTICE WAINER APTER: BECAUSE
THEY HAD BROUGHT HIM BACK. JUSTICE PIERRE-LOUIS: HE'S IN HANDCUFFS.
FRANK J. DUCOAT: HE'S IN HANDCUFFS AS ARE MOST PEOPLE THAT ARE ARRESTED.
JUSTICE NORIEGA: FROM THE VIDEO IT APPEARED THAT HE WAS ON THE GROUND BLOCKS AT
LEAST TWO TO THREE BLOCKS AWAY PROSECUTE WHERE THE BAG WAS I DON'T KNOW ABOUT
ANYONE ELSE I DIDN'T SEE HIM BAG AT THE SCENE AT THE TIME OF THE SEARCH.
FRANK J. DUCOAT: YOU DON'T SEE HIM VIDEO THE TESTIMONY WAS HE WAS BROUGHT BACK
THERE. CHIEF JUSTICE RABNER: CAN YOU EXPLAIN THE RISK TO OFFICER SAFETY
UNDER THESE FACTS. FRANK J. DUCOAT: THERE IS RISK HE WOULD BREAK FREE
FROM THE OFFICERS. CHIEF JUSTICE RABNER: AND WITH HIS HANDCUFFED HANDS
WHAT MIGHT HE HAVE DONE WITH RESPECT TO THE BAG THAT WOULD JEOPARDIZE OFFICER
SAFETY QUEUE DUE HE COULD HAVE GRABBED THE BAG AT THAT POINT THEY DON'T KNOW WHAT'S
IN THE BAG. CHIEF JUSTICE RABNER: I'M SPEAKING ABOUT OFFICER SAFETY
OF THE. FRANK J. DUCOAT: THE PRESERVATION OF EVIDENCE IS ANOTHER ONE
OF THE RAGS NATIONAL SEARCH WARRANT INTENT TO ARREST. CHIEF JUSTICE RABNER:
I THOUGHT WE COVERED PRESERVATION OF EVIDENCE IN THE EARLIER QUESTION. FRANK
J. DUCOAT: I'M SORRY, THE FACT THAT HE WAS HANDCUFFED DOESN'T END THE INQUIRY
BECAUSE PEOPLE WHO ARE PLACED UNDER ARREST ARE ALWAYS HANDCUFFED. IF THAT'S THE
STANDARD THERE'S NO MORE SEARCH INTENT TO ARREST PEOPLE ARE HANDCUFFED AND THEN
THEY'RE SEARCHED I DON'T THINK IT MAKES A LOT OF SENSE TOO SAY WELL HE WAS
HANDCUFFED HE CAN'T DO ANYTHING. PEOPLE ARE HANDCUFFED UNDO HURT OFFICERS, DO AGAIN
TRY TO RUNAWAY AND ONCE -- HE MAY NOT BE ABLE TO GRAB THE BAG BUT HE COULD HAVE
RAN AWAY WHILE BEING HANDCUFFED. I DON'T KNOW IF HE WAS HANDCUFFED FRONT OR
BACK ONCE HE TAKES OFF RUNNING THAT'S DANGER. JUSTICE PIERRE-LOUIS: BUT
HE STILL WOULDN'T HAVE BEEN NEAR THE BAG. THE IMMEDIATE AREA WHERE SOMEONE
IS BEING ARRESTED THEY MIGHT REACH FOR SOMETHING THAT'S USUALLY THAT'S THE
RATIONALE BEHIND THE SEARCH SPENT TO ARREST HE'S HANDCUFFED HE'S NOT NEXT TO THE
BAG, HE'S INSIDE PENN STATION, THE BAG IS STILL OUTSIDE THAT'S WHAT WE'RE TRYING
TO UNDERSTAND WHY THIS THIS SEEN ARROW I DON'T SEARCH INCIDENT TO ARREST WOULD
BE -- FRANK J. DUCOAT: HE'S ON THE OTHER SIDE OF THE DOOR. SO IT'S NOT
TO SAY HE'S, YOU KNOW, ON THE OTHER SIDE OF THE TERMINAL WITH YOU KNOW BUSES
AND TRAINS AND EVERYTHING ELSE. HE IS FAIRLY CLOSE SO -- AND YOU KNOW I WOULD
POINT THIS COURT TO US VERSUS ROB SON WHICH IS IN MY BRIEF AND THAT RAILLESS SON
TALKS ABOUT HOW COURTS SHOULD NOT BE AGAINING IN A CASE BY CASE ANALYSIS WITH
SEARCH INTENT TO ARREST. THE QUESTION WAS THERE A VALID ARREST WAS THERE PROPERLY
IN THEIR POSSESSION AND WAS IT SUBSTANTIALLY CONTEMPORANEOUS WITH THE ARREST THERE
DOESN'T NEED TO BE A CASE BY CASE ANALYSIS WELL IF THE BAG IN THIS CASE WOULD NOT
HAVE SUPPOSED A THREAT TO OFFICER SAFETY THE OFFICERS AREN'T ALLOWED TO SEARCH.
JUSTICE PATTERSON: DOESN'T THIS GO DIRECTLY TO THE SECOND PRONG YOU JUST
ISSUED. DOESN'T THE DISTANCE GO DIRECTLY TO ONE OF THOSE PRONGS AND THAT IS
WHETHER THE POSSESSORY IN THE MOMENT IN TIME IS THERE POSSESSION OF THE ITEM.
FRANK J. DUCOAT: FOR ABANDON. JUSTICE PATTERSON: FOR SEARCH INTENT TO
ARREST. FRANK J. DUCOAT: FOR SEARCH INTENT TO ARREST THERE JUST AND
TO BE A VALID ARREST, THE BAG HAS TO BE IN THEIR POSITION. JUSTICE PATTERSON:
THAT SECOND PRONG DOESN'T THE DISTANCE BETWEEN THE DEFENDANT AND THE BAG AT THE
MOMENT WE'RE TALKING ABOUT AND THERE'S A SEARCH GO DIRECTLY TO THAT QUESTION
WHETHER THERE IS THAT SECOND PRONG IS MET. FRANK J. DUCOAT: BUT NO ALL CASES
THE ARRESTEE IS NOT GOING TO BE HOLDING THE BAG WHEN THEY'RE PLACED IN HANDCUFFS
IT'S ITEMS AT THEIR FEET BACK PACK YOU KNOW WHAT I MEAN. CHIEF JUSTICE RABNER:
SO PROXIMITY MATTERS BASED ON YOUR -- FRANK J. DUCOAT: PROXIMITY AS YOULY
MATTERS SO IN THE CASE LAW IT TALKS ABOUT MOVING THE TEST TO THE OTHER SIDE OF THE
ROOM OR YOU KNOW IN A DIFFERENT ROOM IN THE APARTMENT, THAT'S OKAY. AND THERE'S
OTHER CASES WHERE YOU KNOW THE OFFICERS MOVE THE DEFENDANT YOU KNOW TWO STORIES
UP AND SEARCH THE BAG A HALF HOUR LATER SO THAT WAS DEEMED NOT SUBSTANTIALLY
CONTEMPORANEOUS IT DOES MATTER BUT YOU KNOW AGAIN WE'RE ALWAYS LOOKING -T IT
THROUGH THE ICE OF REASONABLENESS AND THE REASON WHY THE BAG WAS NOT AT DEFENDANT'S
FEET WAS NOT BECAUSE THE OFFICER SEPARATED THE DEFENDANT AND THE BAG AND WAITED
AN UNREASONABLE AMOUNT OF TIME. THE REASON WHY FIVE TO SIX MINUTES HAD PASSED
WAS BECAUSE HE RAN AWAY. CHIEF JUSTICE RABNER: SUPPOSE SOMEONE RUNS
AWAY AND IS PHYSICALLY RESTRAINED A HUNDRED 50 YARDS PROSECUTE THE ITEM ITSELF
SEARCH INTENT TO ARREST APPROPRIATE UNDER THOSE CIRCUMSTANCES. FRANK J. DUCOAT:
IF IT WAS REASONABLE UNDER THE CIRCUMSTANCES TO BRING THEM BACK TO THE POINT OF
ARREST YES. CHIEF JUSTICE RABNER: DON'T BRING THE PERSON BACK. NOT APPROPRIATE
TO CONDUCT A SEARCH. FRANK J. DUCOAT: 150 YARDS. CHIEF JUSTICE
RABNER: YES. FRANK J. DUCOAT: IT'S CLOSE, IT'S GOING TO DEPEND ON ALL THE
FACTS IT'S 149 YARDS IS FINE 150 IS NOT. CHIEF JUSTICE RABNER: ASSUME
HASSLE A MILE WOULD BE SUFFICIENT DISTANCE THAT PROXIMITY -- FRANK J.
DUCOAT: AT SOME POINT YES. CHIEF JUSTICE RABNER: IF THE POLICE THEN DECIDE
THEY CHOOSE TO BRING THE INDIVIDUAL BACK TO THE SUITCASE, THERES RECOLLECTS THE VALIDITY
OF A SEARCH INTENT TO ARREST. FRANK J. DUCOAT: NEVER DEAD SO I WOULDN'T
SAY LESS RECOLLECT IS IT REASONABLE UNTHE CIRCUMSTANCES. IN THIS CASE IT WAS
REASONABLE TO BRING HIM AND THE BAG BACK TO PENN STATION. JUSTICE WAINER APTER:
THAT'S WHY I DIDN'T UNDERSTAND YOUR ANSWER ON THE HALFWAY. I THOUGHT YOU HAD
SAID BEFORE SEARCH INTENT TO ARREST WHERE I THE PROPERTY IN REALIZE TO THE PERSON
AT THE MOMENT THE PERSON IS PLACED UNDER ARREST OR SEIZED WHICH IS BEFORE THEY FLEE.
SO IN THE CHIEF'S EXAMPLE IF SOMEONE -- YOU SAID THAT HE OR SHE WAS ARRESTED
EVEN THOUGH HE HAD NOT BEEN APPREHENDED AT THE MOMENT THEY SAY YOU'RE UNDER ARREST
AND THEY ASK HIM TO TURN AROUND SO THEY CAN PUT HANDCUFFS ON HIM. IN THE CHIEF'S
EXAMPLE, IF THAT SAME THING HAPPENS AND THEN THE PERSON PLEA FLEECE HALF AWAY MILE
AWAY I THOUGHT YOU WOULD SAY IT WOULD STILL BE A SEARCH INTENT TO ARREST WHEN
THE PERSON UNDER ARREST BEFORE HE FLED AND THE ITEM WAS IN PROXIMITY TO HIM
AT THAT TIME BUT THEN IT SOUNDED LIKE YOU WEREN'T SAYING THAT. FRANK J.
DUCOAT: THE QUESTION WAS WAS IT SUBSTANTIALLY CONTEMPORANEOUS SO DISTANCE IS
GOING TO MATTER, TIME IS GOING TO MATTER, WHAT THE POLICE DID IS GOING TO MATTER.
JUSTICE WAINER APTER: IS IT SUBSTANTIALLY CONTEMPORANEOUS WITH TIME
AND PLACE WHEN THE POLICE SAY YOU ARE UNDER ARREST OR WITH WHEN THE POLICE ACTUALLY
APPREHEND THE PERSON AFTER FLIGHT. FRANK J. DUCOAT: I THINK IT WOULD HAVE
TO BE THE LATTER. I MEAN. JUSTICE WAINER APTER: SO THEN IN THIS CASE IT
WOULD BE WHEN THEY APPREHEND HIM TWO BLOCKS AWAY WHERE AVERAGE ALLEY YOU HAD SAID
NO YOU ARE UNDER ARREST AND THEN HE WAS RIGHT NEXT TO THE SUITCASE.
FRANK J. DUCOAT: WHEN THEY TELL HIM HE'S UNDER ARREST HE HAS TO SUBMIT TO THAT ARREST.
JUSTICE WAINER APTER: HE DONATARY. FRANK J. DUCOAT: RIGHT. SO IN THIS CASE
I MEAN THE ARREST STARTED THERE AND IT WAS COMPLETED WHEN THEY CAUGHT HIM. MAYBE
I'M NOT UNDERSTANDING YOUR QUESTION. BUT. JUSTICE WAINER APTER: MY QUESTION
WAS WHEN YOU'RE TALKING ABOUT PROXIMITY TO THE ITEM, IS IT AT THE TIME THE
PERSON IS TOLD YOU ARE UNDER ARREST OR IS IT AT THE TIME THAT HE IS EVENTUALLY
APPREHENDED WHEN IF THERE IS A CASE. FRANK J. DUCOAT: I'M SORRY, THE ARREST
HAS TO BE SUBSTANTIALLY CONTEMPORANEOUS WITH THE SEARCH. SO WHEN THE ARREST
WAS COMPLETED IN THIS CASE THE QUESTION IS WAS THE SEARCH SUBSTANTIALLY
CONTEMPORANEOUS, NOT AS THE EXACT SAME MOMENT OR SECONDS, WHAT IS REASONABLY
SUBSTANTIALLY CONTEMPORANEOUS. CHIEF JUSTICE RABNER: THE ARSENIC WAS
COMPLETED WHEN THEY PHYSICALLY RESTRAINED HIM TWO BLOCKS AWAY. FRANK J. DUCOAT:
YES. CHIEF JUSTICE RABNER: OKAY. JUSTICE PATTERSON: FOR THE PROXIMITY
ELEMENT WE THEN LOOK AT THE COMPLETION OF THE ARREST WHAT'S THE PROXIMITY AND
IN THIS CASE THESE TWO EVENTS ARE BLOCKS A PART SO HOW COULD -- FRANK J.
DUCOAT: YES, I THINK SO, YES. CHIEF JUSTICE RABNER: MR. DUCOAT DO WE NEED
TO REACH THIS ARGUMENT IF YOUR FIRST ARGUMENT. FRANK J. DUCOAT: NO, OF
COURSE NOT THE COURT CAN AFFIRM ON ONE OR EITHER BASIS. JUSTICE NORIEGA:
SOMETHING I WANTED TO ASK YOU ABOUT ABOUT THE ABANDONMENT ISSUE. WHAT WAS THE
URGENCY IN THIS CASE THAT REQUIRED THEM TO CONDUCT THE SEARCH IN THE MANNER WHICH
THEY DID ON THE STREET LIKE THAT. FRANK J. DUCOAT: WELL, I MEAN URGENCY,
THE BAG YOU KNOW IT WAS LEFT AT PENN STATION. BUT URGENCY IS NOT A ELEMENT
OF ABANDONMENT. ONCE THE PROPERTY IS ABANDONED THE DEFENDANT LOSES HIS
STANDING TO CHALLENGE IT. THE POLICE CAN SEARCH IT. THEY COULD HAVE SEARCHED IT
THERE. IF HE HAD GOTTEN AWAY THEY COULD HAVE SEARCHED IT AN HOUR LATER UNDER
ABANDONMENT. JUSTICE NORIEGA: HAS WHAT WAS THE PURPOSE OF TO DO SO. WHAT WAS
THE POINT OPENING THE BAG AT THAT POINT. WHAT WERE THEY LOOKING FOR. WE HAD
NO INDICATION IN THE RECORD THAT DREW THEIR ATTENTION TO THE BAG. FRANK J.
DUCOAT: THERE'S NO TESTIMONY WHAT THEY WERE LOOKING FOR. THEY WERE LOOKING FOR
PROBABLY OWNERSHIP OF THE BAG TO DETERMINE YOU KNOW TO MAKE SURE IT WAS HIS AND
TO THEN SECURE IT THEY DON'T NEED TO -- THEY DON'T NEED TO KNOW WHAT'S IN THE
BAG OR MEET SOME KIND OF. JUSTICE NORIEGA: ARE YOU HONESTLY CLAIMING THAT
THEY DIDN'T KNOW WHOSE BAG IT WAS BEFORE THEY BELIEVED IT WAS ABANDONED.
FRANK J. DUCOAT: NO, THEY HAD REASON TO BELIEVE IT WAS THE DEFENDANT'S, THAT'S FOR
SURE. THEY DIDN'T KNOW WHAT WAS IN IT. AND YOU KNOW, THERE'S NO EX ENGINE
SITUATE ELEMENT TO ABANDONMENT. IT'S IMPORTANT WE KEEP THESE EXCEPTIONS
SEPARATE SO WE DON'T BLUR THE LINES, THERE'S NO EXIGENCY TORE SEARCH REQUIRED
INCIDENT. THERE'S NO EXIGENCY REQUIRED TORE ABANDONMENT. IF THE POLICE HAD A REASON
TO BELIEVE THERE WAS A BOMB IN THAT BAG. CHIEF JUSTICE RABNER: ARE YOU
ARGUING SEARCH INTENT TO ARREST SO IT'S APPROPRIATE FOR TO US SEARCH FOR THE
RISK THAT THE EVIDENCE WOULD HAVE NOT BEEN RESERVED AND THE RISK TO OFFICER
SAFETY, THAT'S THE UNDER RATIONALE. FRANK J. DUCOAT: I WOULD DISAGREE WITH
THAT ONLY BECAUSE US RESIST ROBINSON SAYS ONCE THERE IS A VALID ARREST THE COURT
SHOULDN'T ENGAGE IN A CASE BY CASE INTERPRETATION WHERE WAS CERTAIN
PROPERTY. CHIEF JUSTICE RABNER: SO WE SHOULD IGNORE THE PROXIMITY ELEMENT
UNDER THE BROAD LANGUAGE YOU'RE CITING TO US WHICH DOESN'T MAKE SENSE. FRANK J.
DUCOAT: NOT THE PROXIMITY, NO, WHETHER THERE WAS ANYTHING ABOUT THIS BAG COULD HAVE
BEEN DAQUAN RUSS OR DID WE KNOW THERE WAS EVIDENCE IN I OR ANYTHING LIKE THAT. THOSE
AREN'T THE PROPER QUESTIONS TO BE ASKING. UNDER, YOU KNOW, THE SUBSTANTIAL
CONTEMPORANEOUS REQUIREMENT PROXIMITY DOES MATTER BUT YOU KNOW IT'S A REASONABLENESS
TEST. SO. JUSTICE PATTERSON: I THOUGHT YOU WERE ARGUING EARLIER
THAT WAS POTENTIAL DANGER GOING TO THE CHIEF'S QUESTION TO THE OFFICERS AT A
LATER POINT HAD THE DEFENDANT WAS BROUGHT NEARER TO THE BAG THAT THE PROXIMITY
THEREFORE, CREATED A SITUATION WHERE THE BAG COULD HAVE BEEN A THREAT TO THE
OFFICERS. FRANK J. DUCOAT: YES, THERE WAS STILL A RISK BASED ON THOSE
FACTS, YES. THERE WAS A RISK HERE. BUT I WOULD SIMPLY RESPONDING TO THE QUESTION
THAT YOU KNOW, THEY DIDN'T NECESSARILY HAVE TO BE THAT KIND OF RISK. SO IN THIS
CASE THERE WAS SUFFICIENT EVIDENCE THAT THE DEFENDANT WAS CLOSE BY, THE SEARCH HAD
TAKEN PLACE FIVE TO SIX MINUTES LATER, HE HAD ALREADY FLED ONCE BY HIS OWN
FACTS HIS BROTHER WAS IN THE AREA SO THOSE ARE CONCERNS. BUT I WAS REALLY
RESPONDING TO THE NOTION IN THE OPPOSING COUNSEL'S BRIEFS THAT SAY YOU KNOW THERE
WAS NO URGENCY HERE. THERE WAS NO -- THE RATIONALE FOR THE EXCEPTION HAD VANISHED.
WHILE WE DON'T HAVE TO PROVE THE RASH ANALYSIS EXIST IN EVERY CASE THEY EXIST
IN THIS CASE. JUSTICE WAINER APTER: CAN I ASK ONE MORE QUESTION ABOUT
ABANDONMENT. IS WHETHER A BAG HAS BEEN AN ABANDONED A QUESTION OF FACT OR A
QUESTION OF LAW. FRANK J. DUCOAT: ICE IT'S A QUESTION OF LAW. CERTAINLY
THE FACTS THAT THIS COURT WOULD CONSIDER TO THE EXTENT THERE WERE FACTUAL DISPUTES
THIS COURT WOULD HAVE TO DEFER TO ANY FACT FINDINGS MADE BY THE MOTION JUDGE. BUT
TO THE EXTENT THE MOTION JUDGE FOUND THAT YOU KNOW, THE DEFENDANT'S ACT OF
RUNNING AWAY WAS NOT ABANDONMENT I THINK ANDY NOTICE OH THAT'S WRONG AND A I
THINK IT'S NOT SUPPORTED BY WHAT WE SEE IN THE VIDEO. SO UNDER EITHER STANDARD
THAT COULD NOT STAND. JUSTICE WAINER APTER: IN FARINICH DID WE SAY
IT WAS A QUESTION OF FACT AND POST JOHN AND AND CARVAJAL IT'S NOW A QUESTION OF LAW OR
WAS I JUST MISUNDERSTANDING FARINICH. FRANK J. DUCOAT: I CAN'T RECALL
IF THAT WAS ADDRESS IN ADDITION FAR. I KNOW CARVAJAL AND JOHNSON DON'T CHANGE THE
STANDARDS. IT'S A MIXED QUESTION. THE FINAL QUESTION OF WHAT'S ABANDONED IS
A LEGAL QUESTION. ANY FACTS LEADING UP TO THAT TO THE EXTENT THEY'RE DISPUTED
OBVIOUSLY DEFER TO THE MOTION COURT. I JUST WANT TO SAY ONE THING ABOUT TICKER
BECAUSE THAT WAS BROUGHT UP IN THIS RESPONSE TO ONE OF THE JUSTICES QUESTION.
THAT CASE IS EASILY DISTINGUISHABLE BECAUSE ILLEGAL POLICE CONDUCT MAY LEAD
TO INVOLUNTARY RELINQUISHMENT. SO IF THE POLICE BUM RUSH SOMEONE WHO IS STANDING
THERE AND THE FACTS ARE THAT THE PERP LAN BECAUSE THEY WERE AFRAID FOR THEIR LIFE
THEY DIDN'T VOLUNTARILY RELINQUISH IT. SO IT'S NOT -- YOU KNOW THAT'S NOT A GREAT
EXAMPLE BECAUSE IF SOMEONE IS FACED WITH ILLEGAL OH INFLATE INTRODUCTORY COMMENTS
ILLEGAL POLICE CONDUCT AND RUNS BECAUSE THEY'RE AFRAID FOR THEIR SAFETY THEY'RE
NOT REALIGN QUICK BE THEIR PROPERTY. THAT WOULD BE SEPARATE ALTOGETHER. AND
JUST SOMEONE -- THE AIRPLANE EXAMPLE, I MEAN I THINK THIS WAS ADDRESSED BUT YOU KNOW,
THE EQUIVALENT HERE WOULD BE MORE IF BOB LEFT OUT THE BACK OF THE PLANE ASSUMING
THAT WAS AN OPTION. IF THIS WAS A BUS WITH A FRONT ENTRANCE AND A BACK ENTRANCE
AND SOMEONE AT THE FRONT SAYS HEY GRAB MY BAG AND THAT PERSON BOLTS OUT THE
BACK OF THE BUS THAT BAG WAS AND HAD THAT'S EXACTLY WHAT HAPPENED IN THIS CASE.
CHIEF JUSTICE RABNER: THANK YOU MR. DUCOAT. MR. COOPER-DAUB OTHER- WILLIAM P.
COOPER-DAUB: GOOD MORNING YOUR HONORS, FROM URGE THIS COURT TO FOCUS ON HIS PARENT
SUBJECT OF DESIRE TO PERHAPS RETAIN THE BAG AND MAYBE GET IT BACK IF HE COULD. BUT
ABANDONMENT WAS WASN'T TURNED ON SUBJECTIVE HOPES I DON'T THINK THE CASES WE
HAVE EVER SPELL OUT THAT THERE MUST BE A FINDING THAT DEFENDANT INTENDED YOU KNOW
SPECIFICALLY WANTED TO KNAVERY CLAIM THE BAG. ABANDONMENT DOESN'T HAVE TO BE
THE ULTIMATE GOAL. IT DOESN'T HAVE TO BE PRE IMMEDIATE EIGHT HAD IN MOST CASES
THAT ABANDONMENT IS A CONSEQUENCE FROM THIS OTHER CHOICE OFTEN A SPUR OF THE
MOMENT ONE SO IN THIS CASE DEFENDANT MADE A CHOICE TO FLEE UNLAWFUL ARREST
IN ORDER TO PRESUME INCREASE HIS CHANCES OF ESCAPING OR PERHAPS FOLLOWS DISTANCE
HIMSELF FROM THIS BAG WHICH HE KNEW CONTAINED HANDGUN AMMUNITION, CRITICAL
METHAMPHETAMINE. HE CHOSE TO LEAVE THAT BAG BEHIND WHEN HE FLED. THAT'S SUFFICIENT
TO SHOW THAT HE RELINQUISHED IT. I THINK SIMILARLY WE CAN LOOK AT AND I'M
SORRY HAD HE ESCAPED HIS BAG WOULD HAVE BEEN FULLY LEFT THERE ON THE SIDEWALK.
I DON'T THINK HE HAS PROVIDED ADEQUATE EXPLANATION FOR WHAT THE POLICE WERE
SUPPOSED TO DO IN THAT CASE. HE SAID WELL THEY SHOULD HAVE ASKED SPOON BUT AS WE
KNOW THERE'S EVIDENCE IN THE RECORD THAT SPOON ACTUALLY LEFT AROUND THE SAME
TIME THAT DEFENDANT FLED. JUSTICE FASCIALE: WHAT IF SPOKEN DID NOT LEAVE
AT THAT SAME TIME WOULD THE POLICE BE OBLIGATED TO AS MR. SHALOM SAID.
WILLIAM P. COOPER-DAUB: I DON'T BELIEVE THEY WOULD BE UNDER KNOBBLES TO. THE SAME
POLICE REPORT THAT SAYS HE LEFT SAYS I FORGET THE ATLANTIC BUT IT IS THAT
RIGHTED IS FROM TRYING TO TRANSFER IT TO BROTHER. THERE'S HAS BEEN SOME SUGGEST
OFFICERS WITH RESPECT THING ABOUT DOING IT ANYWAY SIMPLY WERE NOT ABLE TO OR
WHOEVER IT WAS THE WHITE SUV WHO WE DON'T REALLY KNOW WHO IT WAS WAS NO LONGER ON THE
SCENE. I THINK THESE ARGUMENTS ABOUT WELL DEFENDANT WAS HOPING HE COULD COME
BACK FOR IT. WE KNOW THAT CAN'T CARRY THE DAY TORE DEFENDANT EVEN JUST LOOKING
AT CARVAJAL I THINK EVEN ON THE FACTS OF CARVAJAL I THINK IT'S QUITE LIKELY I
DON'T KNOW IF THIS WAS EVER ARGUED TO THE COURT. I THINK IT'S QUIETLY MR. CARVAJAL
WOULD HAVE LIKED TO IF HE COULD HAVE GOTTEN HIS BAG FULL OF VALUABLE AND NARCOTIC
BACK. IF THE POLICE STOPPED QUESTIONING HIM AND LEFT HIM AND LEFT THE BAG
I HAVE LITTLE DOUBT HE WOULD HAVE RADIO CLAIMED THAT BAG. JUSTICE NORIEGA:
HE DENIED THE BAG OUT RIGHT. WHEN ASKED IF HE HAD ANY CONNECTION TO THAT BAG.
HE DENIED ANY CONTENT. DOESN'T THAT MAKE IT DISTINGUISHABLE FROM OUR SITUATION.
WILLIAM P. COOPER-DAUB: CERTAINLY A DIFFERENT CASE. AS YOU THE ARGUMENT
SIMPLY THE DEFENDANT HAS A HOPE THEY CAN GET THE BAG BACK LATER THAT WILL DEFEAT
ABANDONMENT I UNDERSTAND MR. GARTRELL -- THAT WAS A GRADE HE DIDN'T HAVE THE
BAG IN HIS POSITION WHEN THE POLICE PULLED OVER THE BUS, IT WAS WITH THE OTHER LUGGAGE,
THE POLICE ASKED -- I HE DIDN'T HAVE ANY BAG CHECK, I THINK POLICE ASKED EVERYONE
ON THE BUS IF IT WAS THERE BAG AND THEY MAY HAVE ASKED HIM MORE SPECIFICALLY
AND HE SAID NO. JUSTICE NORIEGA: ISN'T THERE A CONNECTION BETWEEN THE
MANNER IN WHICH SOMETHING IS RELINQUISHED AND THE CIRCUMSTANCES SURROUNDING THAT
AND TO THE DESIRE TO EVENTUALLY HAVE ANY POSITION TO COME BACK AND GET IT.
WILLIAM P. COOPER-DAUB: I THINK THAT FOR CERTAINLY THE CIRCUMSTANCES ARE IMPORTANT,
THIS IS THE TOTALITY OF THE CIRCUMSTANCES TEST ALWAYS SO CERTAINLY WHAT THE
DEFENDANT'S CONDUCT WOULD CONVEY TO A REASONABLE OFFICER IS THE QUESTION. SO
-- BUT. JUSTICE NORIEGA: LET'S JUMP OFF OF THAT POINT. WHAT WOULD IT
DO TO A REASONABLE OFFICER. SETTING ASIDE ANY ADDITIONAL FACTS. HERE WE HAVE
THE INDIVIDUAL IS ARRESTED, THE OFFICERS HAVE POSSESSION OF THE BAG AND NOW THEY
CAN PUT THOSE TWO THINGS AND BRING THEM BACK TO THE SAYS, BRING THE BAG BACK TO THE
STATION, WHY THE SEARCH, WHY DOES THE SEARCH HAVE TO HAPPEN OUT ON THE STREET
AND ABANDONMENT TO BE USED AT THAT PARTICULAR MOMENT IN TIME.
WILLIAM P. COOPER-DAUB: I DON'T KNOW -- AS MR. COTISES SAYS NO URGENCY. WE HAVE
THE PRONGS UNDER JOHNSON AND CARVAJAL AND URGENCY IN CONDUCTING A SEARCH IS NOT
PART OF IT. I I BELIEVE THERE'S TESTIMONY FROM ONE OF THE OFFICERS THAT HIS
WILL THE TOLD HIM TO SEARCH THE BAG BEFORE BRINGING IT INTO THE STATION, I DON'T
KNOW -- I DON'T BELIEVE THERE'S ANY EXPLANATION FOR WHY THAT IS, I'D HAVE TO SPEC
PLATE THEY WOULD WANT TO BE CAUTIOUS ABOUT WHAT THEY'RE BRINGING INTO A CROWDED
TRANSIT HUSBAND. JUSTICE NORIEGA: IF THAT'S THE CASE, THEY OPENED
IT SORT OF FULL SUPPLY TO THE STREET MAN HANDLING THE OBJECTS INSIDE. THREE PEOPLE
HAD THEIR HANDS IN THE BAG WITH PEOPLE PASSING ON ALL SIDES OF THEM SO IN TERMS
OF SAFETY THAT DIDN'T SEEM LIKE IT WAS TAKEN INTO ACCOUNT IN THE WAY IT WAS
SEARCHED. WILLIAM P. COOPER-DAUB: AGAIN I'M SPECULATING ABOUT WHY THAT
HAPPENED. THERE'S TESTIMONY THAT WILL THE HAD INSTRUCTED THE OFFICER TO --
I DON'T KNOW EXACTLY WHY, THAT'S MY SPECULATION, BUT I DON'T THINK THE WAY, THE
TIMING OF THE SEARCH OR THE SCOPE OF THE SEARCH OR HOW EXACTLY IT'S CONDUCTED
WHERE IT'S CURTIS GARTRELL HAD I DON'T BELIEVE THAT EFFECTS THE QUESTION OF THE
ABANDON. JUSTICE NORIEGA: DOESN'T IT AFFECT THE QUESTION OF REASONABLENESS
IN TERMS OF THE TOTALITY OF THE SINCES. IF THE OFFICERS AT THE SCENE BEGAN
SEARCHING THE MOMENT THAT THE SUBJECT LEFT AND OTHER OFFICERS WERE CHASING ONE
WOULD TAKE THAT INTO ACCOUNT IN TERMS OF THEIR SPEAKER SPECULATIVE WHAT WAS REASONABLE
UNDER THE CIRCUMSTANCES. WILLIAM P. COOPER-DAUB: I THINK SINCE ABANDONMENT
IS AN ESTABLISHING QUESTION. WE GET INTO ALWAYS THE FRAMEWORK OF WHAT'S
REASONABLE. AS THIS COURT EXPLAINED IN JOHNSON AND CARVAJAL, THIS IS A QUESTION
OF STANDING NOT SIMPLY ON THE MERITS OF THE SEARCH. SO I DON'T -- I DON'T SEE
I THINK HOW IF THEY STARTED SEARCHING AT THE MOMENT HE LEFT RATHER THAN FIVE MINUTES
LATER -- FIVE MINUTES AFTER HE FLED THAT THAT WOULD MAKE A DIFFERENCE. I THINK
THEY DIDN'T -- I THINK I'M NOT SURE WHICH WAY THAT WOULD CUT. PARDON ME.
OVERALL I THINK THAT WE HAVE FROM JOHNSON AND CARVAJAL THAT DEFENDANT SIMPLY HAS
-- DEFENDANT'S CONDUCT AND THAT CAN BE WORDS, ACTIONS HAS TO DEMONSTRATE A KNOWING
VOLUNTARY RELINQUISH. THEN WE HAVE TO SHOW THERE WAS NOT ANY OTHER KNOWN OR
APPARENTLY OWNERS OF THE BAG. AND IN THIS CASE AS WE'VE SEEN -- WE'VE ACKNOWLEDGED
THERE IS THIS KIND OF POSTIE OF CASE LAW ON THIS. BUT THERE ARE CERTAINLY
OTHER CASES FINDING THAT THE DEFENDANT BY LEAVING AN ITEM BEHIND IN A PUBLIC
SPACING AND LEAVES IT CASES CONSISTENTLY HELD BOTH PUBLISHED AND UNPUNISHED THAT
THAT IS ABANDONED. JUSTICE PATTERSON: LET ME FOLLOW-UP ON THAT
LAST EXCHANGE, WE READ IN GENERAL THAT THE THAT REASONABLENESS IS A TOUCH STONE OF THE
FOR THE AMENDMENT APPEAR THE CONDUCT OF THE POLICE IS GENERALLY EVALUATED UNDER
A REASONABLENESS STANDARD. NOW, OBVIOUSLY THE THREE ELEMENTS, VERY FACTUAL
ELEMENTS THAT ARE SET FORTH IN THE CASE LAW AS TO ABANDONMENT, SHOULD WE READ THOSE
ELEMENTS WITH THE OVERALL PRINCIPAL APPLIED THAT THE POLICE CONDUCT MUST BE
REASONABLE. WILLIAM P. COOPER-DAUB: YES, YOUR HONOR, WHAT THE -- RIGHT,
YES, IT MUST STILL BE REASONABLE AND I THINK THAT'S REFLECTED BOTH WE'RE LOOKING
WHAT WOULD AN OBJECTIVELY REASONABLE OFFICER DO. IN THAT WAY REASONABLENESS
WORKS IT'S WAY INTO THE TEST. REASONABLENESS OF THE OFFICER'S CONDUCT IS
STILL CERTAINLY TOUCH TONE. CHIEF JUSTICE RABNER: ANY QUESTIONS ANYONE
ANYTHING YOU WOULD LIKE TO ADD. WILLIAM P. COOPER-DAUB: NO, YOUR HONOR. NO,
YOUR HONOR, FOR THOSE REASONS THE ATTORNEY GENERAL WOULD SIMPLY ASK THIS COURT TO
AFFIRM THE APPELLATE DIVISION. CHIEF JUSTICE RABNER: THANK YOU. MR.
BLUM BRIEF REBUTTAL. PETER T. BLUM: SO JUSTICE NOR ADD THE MRS. THE REASON
POLICE APPROACH I THINK ALSO ASKED THE A SIMILAR QUESTION TO THE ATTORNEY GENERAL
AND THE PROSECUTOR BROUGHT UP THE FARINICH I THINK I CAN TALK ABOUT FARINICH AND
HANDLE ALL THAT TOGETHER. SO FARINICH IS DISTINGUISHABLE FROM OUR SITUATION.
YOU'VE GOT TO REMEMBER IN THAT CASE THE POLICE KNEW AHEAD OF TIME WHAT WAS
FARINICH'S BAG, THE BAG HAD BURST OPEN IN MIAMI AND THEY KNEW THAT DRUGS WERE
IN IT. AND THEN WHEN THE POLICE APPROACHED FARINICH THEY IMMEDIATELY ASKED, YOU
KNOW, I WANT TO TALK TO YOU ABOUT THE BAG. FARINICH FLED. SO THAT'S THE SORT
OF SITUATION WHERE WE MIGHT HAVE A SITUATION WHERE YOU KNOW, THE FLIGHT COMBINED
WITH ALL THE CIRCUMSTANCES MIGHT INDEED HAVE SUGGESTED THAT YOU KNOW FARINICH
WAS RELINQUISHING THE BAG WITH THE INCIDENT NEVER TORY CLAIM IT. BUT IN OUR CASE
YOU KNOW, THE STOP HAD NOTHING TO DO WITH THE BAG, THERE WAS NO SUBSTANTIAL
SUSPICION ABOUT THE BAG, YOU KNOW, THE DEFENDANT HAD INDICATED THE INTENT TO
KEEP THE BAG SAFE AND THERE WAS NO SUBSTANTIAL REASON TO BELIEVE THAT THE
FLIGHT WAS CONNECTED TO THE BAG. SO I MEAN I THINK WE COULD SAY PERHAPS I STILL HAVE
DOUBTS AS TO WHETHER FARINICH IS GOOD LAW. BUT I THINK WE COULD LIMIT THIS
WHOLE IDEA THAT FLIGHT IS ABANDON. TO A SITUATION LIKE FARINICH BUT NOT A
SITUATION LIKE OURS. AND ALSO JUST QUICKLY ON SEARCH INTENT TO ARREST. YOU
KNOW, I WOULD URGE WE READ THE ARREST VERSUS BEGAN DECISION THERE'S A GREAT DECISION
BY THE JUSTICE ABOUT HOW THIS WHOLE IDEA HOW CLOSE IS CLOSE WHEN IT COMES TO PLACE
AND TIME. IT'S JUST A VERY DIFFICULT DISCUSSION, IT'S BETTER TO JUST TO LOOK
AT AT THE TIME YOU KNOW, THE INTRUSION I MEAN COULD THE TEST HAVE GRABBED THE
BAG. THAT'S MUCH EASIER RULE TO APPLY THAT YOU KNOW, IS CONSISTENT WITH THE
IDEA BEHIND SEARCH AND SEIZURE PROBATIONS. JUSTICE PATTERSON: AND THE
MOMENT YOU SUGGEST WE CONSIDER THAT ISSUE IS HAD THE BAG IS ACTUALLY SEARCHED.
PETER T. BLUM: RIGHT COULD HE GRAB HAD THE BAG IS ACTUALLY SEARCHED, RIGHT.
CHIEF JUSTICE RABNER: THAT YOU MR. BLUM. THANK YOU TO ALL COUNSEL WE ARE
WE'LL TAKE THE MATTER UNDER ADVISEMENT.