
    The People of the State of New York, Respondent, v. Benjamin Anderson, Appellant.
    Argued January 21, 1969;
    decided February 20, 1969.
    
      
      Lewis B. Oliver, Jr., and Anthony F. Marra for appellant.
    I. The evidence was illegally obtained and the motion to suppress should be granted. II. The officer did not have probable cause to arrest appellant. (Terry v. Ohio, 392 U. S. 1; Sibron v. New York, 392 U. S. 40; Henry v. United, States, 361 U. S. 98.) III. Section 180-a of the Code of Criminal Procedure has no application to this case. (People v. Corrado, 22 N Y 2d 308; People v. Scalegnio, 14 N Y 2d 744; Terry v. Ohio, 392 U. S. 1; People v. Peters, 18 N Y 2d 238; People v. Lakin, 21 A D 2d 902; People v. Taggart, 20 N Y 2d 335.) IV. There was no “ abandonment ” of the key case. (Foulke v. New York Cons. R.R. Co., 228 N. Y. 269; United States ex rel. Robinson v. Fay, 239 F. Supp. 132; People v. Moore, 11 N Y 2d 271; United States v. Festa, 192 F. Supp. 160; People v. D’Ambrosio, 28 A D 2d 1130; People v. Chitty, 40 Misc 2d 580; Rios v. United States, 364 U. S. 253; People v. Gonzales, 31 Misc 2d 486.)
    
      Eugene Gold, District Attorney (Carl S. Wolfson of counsel), for respondent.
    I. The motion to suppress was properly denied. II. What is presented for review here is either the abandonment of property or its attempted clandestine discarding by defendant and the ultimate retrieving of it by the police officer. Once property is abandoned, there is no need for probable cause to exist in order for a police officer to take that property into his possession and observe its contents. (People v. D’Ambrosio, 28 A D 2d 1130; Harris v. United States, 370 F. 2d 477, 390 U. S. 234; People v. Battle, 12 N Y 2d 866; People v. Eisenberg, 22 N Y 2d 99; People v. Lytton, 257 N. Y. 310; People v. Becker, 215 N. Y. 126; People v. Atlas, 183 App. Div. 595, 230 N. Y. 629; People v. Entrialgo, 19 A D 2d 509,14 N Y 2d 733; People v. Peters, 18 N Y 2d 238; People v. Rivera, 14 N Y 2d 441.)
   Per Curiam.

The People concede that before the police officer opened the tin box and discovered the glassine envelopes of heroin, there wns no probable cause to make an arrest and, therefore, the search cannot be sustained on the ground that it was incident to a lawful arrest. Accordingly, the only basis upon which the search could be sustained is, as the People contend, that the defendant abandoned the evidence seized. The police officer testified that the defendant “ dropped a tin box ” just prior to the police officer’s making contact with the defendant’s hand. Considering the testimony of the police officer most favorably to the People, it is our opinion that this proof is insufficient, as a matter of law, to constitute an abandonment. There is no proof that the defendant threw it away or attempted to dispose of it in any manner which might have manifested the requisite intention to abandon. Moreover, the police •officer’s testimony reveals that he picked up the box so soon after it had been dropped that it is impossible to determine whether or not the defendant, if given the opportunity, would have picked up the box himself. Absent any such proof, the seizure of the tin box under the circumstances of this case cannot be sustained.

Accordingly, the judgment appealed from should be reversed, the motion to suppress the evidence should be granted, and the information dismissed.

Bergan, J. (dissenting).

The proof is undisputed, and the determination of the fact-finder has been affirmed, that, as the policeman approached defendant, the latter dropped a tin box. This was before the officer touched the defendant’s hand or body. The policeman immediately picked up the box, and when he did so he found it contained heroin.

It is not possible to hold as a matter of law that this was not an abandonment of the box. The undisputed evidence is that the defendant physically dropped the box before the policeman came in contact with him. There was, therefore, no “search”. This evaluation of undisputed events was within the fact-finding jurisdiction of the trial court and the Appellate Term. This court has no jurisdiction to alter that evaluation. Probable cause is here irrelevant. The policeman did not need probable cause to approach defendant or to pick up the box. Thereafter, he had adequate probable cause to make the arrest.

The judgment should be affirmed.

Chief Judge Fuld and Judges Burke, Soileppi and Breitel concur in Per Curiam opinion; Judge Beegan dissents and votes to affirm in a separate opinion in which Judges Keating and Jasen concur.

Judgment reversed, etc.  