Justice Solomon continued in relevant part: In Johnson, the Court held that the defendant had not surrendered his standing to challenge the search of a bag solely because he had disclaimed ownership, given that the bag was in an apartment with five occupants and could have belonged to any one of them. 193 N.J. at 549-50. The Court observed that “the police might still have easily determined its owner.” Id. at 550. In Carvajal, the Court upheld the search of an unattended bag left on a bus. 202 N.J. at 218, 230. There, the bag was abandoned because it was “left in a public place or on a public carrier” with “no apparent owner,” and the “police did not search the bag until all apparent owners had disclaimed any possessory interest in the property.” Id. at 225 26, 229-30.
Here, no one disputes that defendant fled police to avoid a lawful arrest, knowing that “Spoon,” if such a person existed — the Court notes that the defense was unable to confirm “Spoon’s” identity — did not yet have possession of the suitcase. The act of fleeing to avoid a lawful arrest in a public place demonstrates defendant’s intent to place as much distance as possible between himself and the property left behind. When defendant ran from police in the heavily trafficked area on the sidewalk outside of Penn Station, without any indication that he intended to return, he abandoned the suitcase in a public place. And, unlike when there are a finite and fixed number of potential owners as in Carvajal and Johnson, the police cannot be expected to identify and canvass everyone at or near a major transportation hub to determine who, if anyone, might have a possessory interest in a bag deliberately left behind in a public place. Having thus concluded that the suitcase was abandoned and defendant is without standing to challenge its seizure and search, the Court does not reach the issue of whether police conducted a constitutionally valid search incident to arrest.
Another counter-point to the majority’s reasoning is that our court system is often inaccurate regarding the existence of an arrest warrant. Therefore, there is no guarantee that under similar circumstances, what occurred here would be a “lawful arrest.” Under the circumstances, it would be reasonable to require police to seek a telephonic (or in-person) search warrant from a judge.
