Opinion
August 19, 1991
Appeal from the Supreme Court, Kings County (Douglass, J.).
Ordered that the judgment is affirmed.
On October 10, 1988, at approximately 7:30 P.M., the defendant was arrested after he had been observed throwing a black vinyl bag to the ground. The defendant had thrown the bag to the ground as he was walking along the street in one direction toward a waiting police officer, and as he was looking over his shoulder toward a second police officer who was then approaching him from the opposite direction. Immediately after having dropped the bag, the defendant, his head turned backwards, bumped into the first officer, who then placed him under arrest.
On appeal, the defendant argues, among other things, that his arrest was not supported by probable cause, since it was based on nothing more than his presence in an area known to be the site of narcotics-related transactions. He asserts that the evidence discovered inside the black vinyl bag approximately 90 seconds after his arrest must, therefore, be suppressed.
We may assume, without necessarily deciding, that the search and subsequent seizure of the defendant's bag cannot be justified as having been incident to a lawful arrest (cf., United States v Chadwick, 433 U.S. 1; People v Gokey, 60 N.Y.2d 309; People v Smith, 59 N.Y.2d 454; People v Ruffin, 133 A.D.2d 425). However, the search and seizure of the bag are justifiable pursuant to a different exception to the warrant requirements: the doctrine which permits warrantless searches of abandoned property (see, Abel v United States, 362 U.S. 217; Hester v United States, 265 U.S. 57; see also, People v Howard, 50 N.Y.2d 583, cert denied 449 U.S. 1023; People v Braithwaite, 172 A.D.2d 548; People v Kosciusko, 149 A.D.2d 620).
Pursuant to this doctrine, property which has been abandoned by its owner may generally be searched by the police, provided that the abandonment itself was not provoked by illegal police conduct (see, People v Leung, 68 N.Y.2d 734; People v Howard, supra; People v Braithwaite, supra). In the present case, the defendant's decision to abandon his property cannot be attributed to any illegal police conduct. The defendant had apparently not even noticed the presence of the officer toward whom he was walking, and the officer whom he had apparently observed was not pursuing him at the time that the abandonment occurred (cf., California v Hodari D., 499 US ___, 111 S Ct 1547). Moreover, as the area had been the site of narcotics-related transactions, either officer would have been authorized to not only approach the defendant, but also to question him (see, People v De Bour, 40 N.Y.2d 210; People v Hopkins, 163 A.D.2d 416; People v Balanco, 158 A.D.2d 367; People v Braithwaite, supra).
We have examined the defendant's remaining contention and find it to be without merit. Bracken, J.P., Kooper, Miller and O'Brien, JJ., concur.