SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1470-21

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CURTIS L. GARTRELL,

Defendant-Respondent.

________________________

Argued September 28, 2022 – Decided October 12, 2022

Before Judges Whipple, Mawla and Marczyk.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Essex County, 

Indictment Nos. 20-01-0058 and 20-01-0061.

Frank J. Ducoat, Special Deputy Attorney 

General/Acting Assistant Prosecutor Director argued 

the cause for appellant (Theodore N. Stephens II, 

Acting Essex County Prosecutor, attorney; Frank J. 

Ducoat, of counsel and on the briefs).

Alison Perrone, Deputy Public Defender, argued the 

cause for respondent (Joseph E. Krakora, Public 

Defender, attorney; Alison Perrone, of counsel and on 

the briefs).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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PER CURIAM

This is the State's appeal from an order granting suppression of evidence. 

We reverse.

 The record informs our decision. During the afternoon of November 6, 

2019, New Jersey Transit Police responded to a call that a physical altercation 

occurred on a Greyhound bus outside of Newark Penn Station. There, police 

spoke to defendant Curtis Gartrell about his role in the incident while on the 

sidewalk outside. Defendant had his blue, rolling suitcase beside him on the 

sidewalk while he spoke to police. Defendant provided his identification and 

spoke to the officers about his role in the altercation. 

Transit Police ran a background check for outstanding warrants. This took 

several minutes for the dispatch to complete. While waiting, defendant made 

and received several cell-phone calls. He explained to the officers that he was 

coordinating with someone to arrange his pickup from the station. He attempted 

to give instructions to the person on the phone as to his location, to be picked 

up. The police suggested that defendant direct his ride to Raymond Plaza West, 

and park across the street from where he was then located. Shortly afterwards, 

a white SUV arrived across the street, and defendant gestured to it, saying "I see 

you right there!" 
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The police then learned defendant had an active warrant. The warrant did 

not authorize a search of the bag. The officers told defendant he was under 

arrest and instructed him to place his hands behind his back. Defendant said 

that he would comply but asked to leave his bag and his wallet with his brother, 

who he implied was the driver of the SUV. The police did not directly respond 

to this request, stating "we're going to explain everything, but right now, you've 

gotta turn around, hands behind your back." 

While turning around, defendant glanced in the direction of the SUV and 

shouted "Spoon, can you get my clothes, bro?" Almost immediately after this, 

before police could cuff him, defendant fled on foot, leaving the bag behind on 

the sidewalk. The driver of the white SUV never responded to defendant's 

request, never got out of his car, approached the officers, or asked whether he 

could take the bag. 

Several officers pursued defendant and apprehended him a block away 

from their original location. Another officer remained behind to secure the bag, 

which was left on the sidewalk outside of Penn Station. 

After learning defendant was apprehended, two officers then performed 

what they termed a "search incident to arrest" of the suitcase on the sidewalk. 

At that point, defendant was in custody about twenty feet away, inside Penn 
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Station. The search uncovered two handguns wrapped in clothing. One was 

loaded with ten rounds in the magazine, the other was empty. The bag also 

contained eighty-six additional rounds (of which thirty-six were "hollow point" 

style bullets), 3.2 ounces of crystal methamphetamine, a gram of marijuana, and 

$2,465.10 in cash. 

On January 13, 2020, an Essex County grand jury indicted defendant. He 

was charged with third-degree possession of a controlled dangerous substance 

(crystal methamphetamine), N.J.S.A. 2C:35-10(a); second-degree unlawful 

possession of weapons, N.J.S.A. 2C:39-5(b); fourth-degree possession of armorpiercing bullets, N.J.S.A. 2C:39-3(f); fourth-degree resisting arrest by flight,

N.J.S.A. 2C:29-2; and two counts of second-degree possession of a firearm by 

a convicted felon, N.J.S.A. 22C:30-7(b).

Defendant moved to suppress evidence seized from the suitcase and the 

trial judge conducted an evidentiary hearing. Officers Adam Konopka and 

Thomas Dietze, frequently aided by review of body camera footage at the 

hearing, testified credibly according to the judge. 

The State opposed the motion and advanced two arguments: the bag was 

abandoned property at the time of the search, so defendant lacked standing to 

challenge; and that the search incident to arrest exception nevertheless justified 
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the search. The court found defendant did not abandon his luggage bag, as he 

did not knowingly and voluntarily relinquish his possessory or ownership

interest in the bag. The court continued: 

Defendant had a conversation with the police for 

several minutes about the altercation on the bus, which 

was completely unrelated to the contents of his 

suitcase. During the conversation, [d]efendant's 

suitcase was sitting directly behind him. Officers 

Konopka and Dietze both testified that they believed 

the suitcase belonged to [d]efendant. Further, after they 

advised [d]efendant they needed to arrest him on an 

outstanding warrant, he immediately communicated to 

them that he wished to first give his "clothes" to his 

brother, gesturing towards the blue luggage bag. After 

officers did not respond to his request and began to pin 

his arms behind his back, [d]efendant yelled in the 

direction [of] who he said was his brother, who was 

parked on the other side of the street in a white SUV, to 

come get his clothes. This white SUV was visible in 

the body-worn camera footage. . . . 

This suggests to the [c]ourt that [d]efendant did 

not intend to relinquish his interest in the property, but 

rather intended to maintain his interest or transfer his 

interest to his brother. . . . 

Defendant had his luggage in his possession for 

several minutes in the presence of police and only fled 

when officers turned him around to handcuff him, after 

having spoken to them for several minutes. This does 

not suggest to the [c]ourt that he voluntarily discarded 

or left behind his suitcase. Additionally, while the 

defendants in the other cases [the court has reviewed] 

did not objectively have any reason to believe they 

could come back later and find their suitcases 
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untouched, [d]efendant did have reason to believe that. 

He could reasonably believe that his brother, who was 

parked across the street and who he yelled and gestured 

to get his luggage, would in fact go and get his luggage 

for him, and that he could retrieve it from his brother 

later. . . . 

The [c]ourt does not speculate as to why 

[d]efendant fled from the police, but it is clear from the 

record that when he did, it was not because he wanted 

to discard the luggage or relinquish his interest in the 

property. Thus, for the reasons stated, the [c]ourt finds 

that [d]efendant did not abandon the blue luggage. 

Nor did the court find the search incident to arrest exception applicable:

[O]nce an arrestee has been arrested, removed, 

and secured elsewhere, the considerations informing 

the search incident to arrest exception are absent and 

the exception is inapplicable. . . . The considerations 

to the exception are to ensure police safety or to avoid 

the destruction of evidence. . . . Here, it is undisputed 

that [d]efendant fled and was thus arrested and secured 

near Edison Place and Alling Street, on a different 

street than Newark Penn Station. He was nowhere near 

the suitcase when it was being searched, and thus there 

was no need to ensure police safety or to avoid the 

destruction of evidence. Thus, the search incident to 

arrest exception does not apply. . . . 

This appeal followed.

The State raises the following issues on appeal:

POINT I

THE SEARCH OF DEFENDANT'S LUGGAGE BAG 

WAS CONSTITUTIONAL, AS BOTH A SEARCH OF 
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ABANDONED PROPERTY AND A SEARCH 

INCIDENT TO DEFENDANT'S LAWFUL ARREST.

A. THE SEARCH OF DEFENDANT'S 

LUGGAGE BAG WAS PERMISSIBLE BECAUSE 

DEFENDANT ABANDONED IT WHEN HE RAN 

FROM THE POLICE AND LEFT IT BEHIND.

B. THE SEARCH OF DEFENDANT'S 

LUGGAGE BAG WAS ALSO PERMISSIBLE AS A 

SEARCH INCIDENT TO A LAWFUL ARREST.

I.

When considering suppression motions, we "defer to the trial court's 

factual findings that are supported by sufficient credible evidence in the record 

and will not disturb those findings unless they are 'so clearly mistaken that the 

interests of justice demand intervention and correction.'" State v. Rivas, 251 

N.J. 132, 152 (2022) (quoting State v. S.S., 229 N.J. 360, 374 (2017)). However, 

we review legal conclusions drawn from those facts de novo. State v. Radel, 

249 N.J. 469, 493 (2022). At issue here is the legal status of defendant's luggage 

at the time of the search. This is a question of law, which is not undergirded by 

any factual dispute between the parties.

On appeal, the State contends the search was permissible because 

defendant's bag was abandoned at the time of the search. Specifically, the State 

asserts that by fleeing, defendant manifested no intention of returning and 
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coming back for the bag, which constituted abandonment. Defendant's 

counterargument rests on the statements he made to the police and the driver of 

the white SUV prior to fleeing, which he asserts established an enduring 

property interest in the bag that persisted even after his escape attempt. Since a 

property interest existed, defendant argues, the bag was not truly abandoned, 

and therefore the police were required to obtain a warrant prior to the search. 

The federal and New Jersey constitutions both provide for "the right of 

the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I 

¶ 7. If property was abandoned, however, the defendant lacks standing to 

challenge a search. State v. Johnson, 193 N.J. 528, 541 (2008). A person "lacks 

a constitutionally protected interest in property that has been abandoned." State 

v. Carvajal, 202 N.J. 214, 223 (2010). 

We consider three factors to determine abandonment. Property is 

"abandoned" when: 1) a person first has control or dominion over property; 2) 

he then knowingly and voluntarily relinquishes any possessory or ownership 

interest in the property; and 3) there are no other apparent or known owners of 

the property. Id. at 225 (citing Johnson, 193 N.J. at 549). Put another way, 

these factors determine "whether, given the totality of the circumstances, an 
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objectively reasonable police officer would believe the property is abandoned." 

State v. Brown, 216 N.J. 508, 531 (2014) (articulating the abandonment standard 

in context of real property). 

These factors distinguish between searches where property truly lacks a 

reasonably apparent owner, or has been jettisoned by a defendant in order to 

avoid association with contraband, from those situations where the police are 

using "abandonment" as a pretext for an otherwise unconstitutional search. See, 

e.g., State v. Ellis, 246 N.J. Super. 72, 76 (Law Div. 1990) (placing bags on the 

ground momentarily while speaking to police does not constitute abandonment). 

The "control" factor seeks to distinguish property which can reasonably be 

associated with someone from property with no apparent owner at all, in which 

case the other steps are unnecessary. Carvajal, 202 N.J. at 225 ("The clearest 

example would be an unattended bag on a subway platform or in a public park."). 

The "voluntary relinquishment" factor requires a defendant to freely decide to 

take some action to remove the association present in the first prong. Id. at 226. 

And the third "other apparent owners" factor ensures that the police cannot claim 

that an item is abandoned just because the first two factors are satisfied with 

regards to a single person, when there are other potential owners nearby. 

Johnson, 193 N.J. at 550. 
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Here, there is no dispute that "control" is satisfied. Defendant had his bag 

with him throughout this encounter with the police until he fled, and testimony 

established that the officers understood it to belong to him. Thus, we address 

whether 1) running away and leaving the bag behind, defendant "voluntarily 

relinquished" any possessory interest in the bag; and 2) whether defendant's 

relationship and communication with the person picking him up obligated the 

police to check with the driver prior to searching the bag. The inquiries are 

intertwined, because defendant's main argument that he did not "voluntarily 

relinquish" the bag is also tied to the presence of a third party, the SUV driver. 

II.

The Supreme Court of New Jersey has examined voluntary relinquishment 

in Carvajal, 202 N.J. at 229. There, the police received a tip that a passenger on

a bus would be carrying a large amount of heroin in his luggage. Id. at 218. The 

police questioned Carvajal, who fit the tip's description. Id. at 219. The officers 

then proceeded to have the other passengers retrieve their baggage in turn, 

leaving one bag unclaimed. Id. at 220. Carvajal disclaimed owning it.1 Ibid. 

The police then searched the bag, without a warrant. Ibid.

1

 The police also subjected the bag to a dog test before searching it, which 

rendered a positive result. Carvajal, 202 N.J at 220. 
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The Carvajal Court denied suppression, holding that the bag was 

abandoned. Id. at 230. The Court first reasoned generally that the police have 

a need to search property left in public places without an apparent owner. Id. at 

226. Then, turning to the abandonment factors, the Court examined whether the 

defendant had "voluntarily and knowingly" relinquished any interest in it by 

claiming that it did not belong to him when confronted with the lone remaining 

piece of luggage on the bus. Id. at 228. The Court upheld the trial court's finding 

that "defendant acted consistent with someone who had no ownership rights or 

interest in the bag" because Carvajal's statement disaffirming his ownership was 

"the product of an essentially free and unconstrained choice." Id. at 229 (quoting 

Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). Relinquishment, 

therefore, must be the result of some action a defendant chooses to take. Ibid.

This requirement has been specifically examined in the context of an 

escape attempt on foot, where luggage is left behind. State v. Farinich, 179 N.J. 

Super. 1 (App. Div. 1981), aff'd o.b. 89 N.J. 378 (1982). In Farinich, police 

received a tip that a piece of luggage at the airport contained contraband. Id. at 

4. When Farinich claimed the luggage from the baggage carousel, officers 

confronted him. Ibid. He punched one of them and fled on foot, leaving the 
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luggage behind. Ibid. Farinich was apprehended "some distance away" and the 

police proceeded to search his bag without a warrant. Ibid.

Farinich held that the act of fleeing from police can implicitly constitute 

abandonment. Id. at 7. No direct disavowal of ownership was required. Ibid. 

The court reasoned it would "be unreasonable to infer anything other than that 

defendants intended to place as much distance between themselves and the 

suitcases as possible." Ibid. "For obvious reasons," the court continued, "it is a 

fair inference that defendants had no desire ever to reclaim their belongings." 

Ibid. 

Moreover, when undertaking a criminal action, a person may not choose 

to leave property unattended in a public space and retain a constitutionally 

protected Fourth Amendment interest in it. State v. Burgos, 185 N.J. Super. 

424, 428 (App. Div. 1982). In Burgos, the defendant placed an aspirin tin on 

the ground, underneath a car. Id. at 426. He would speak to clients elsewhere, 

and then return to the tin and retrieve illegal drugs stashed inside, in order to 

sell them. Ibid. When the police observed this and searched the stash, Burgos 

objected on the basis that he had a protected Fourth Amendment interest in the 

tin, despite leaving it on the ground unattended. Ibid. 
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Burgos held "[w]hether or not appellant intended eventually to return and 

retrieve [discarded property] is irrelevant." Id. at 248 (quoting Smith v. United 

States, 292 A.2d 150, 151 (D.C. App. 1972)). The court continued: "the seizure 

took place on a public street and did not involve invasion of any zone of 

defendant's personal privacy, such as a home, office, or car." Ibid.

The trial court here distinguished Carvajal and Farinich on the basis that 

defendant told police that he wished to give his clothes to his brother. The court 

reasoned "while the defendants in [Farinich] did not objectively have any reason 

to believe that they could come back later and find their suitcases untouched, 

defendant [here] did have reason to believe that." The court concluded 

defendant could reasonably believe that the person in the car parked across the 

street "would in fact go and get his luggage for him, and that he could retrieve 

it" later. 

However, we conclude the question at this stage of the analysis is: Did 

defendant's request to leave his clothes with his brother (coupled with his 

shouting at "Spoon" to grab his clothes, and his earlier statements to officers 

arranging his ride from the station) alter the nature of his property interest in his 

bag at the moment he decided to flee arrest? Whether there was another apparent 

owner of the bag is a separate issue to be analyzed under the third factor. 
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Any communication with defendant's brother, inferred to be the driver of 

the white SUV, is immaterial in light of defendant's decision to "place as much 

distance as possible between himself and the bag as possible." The driver made 

no effort to retrieve the bag or talk to the police, did not exit his car, and was 

not definitively linked to defendant. 

Running from the police and leaving the bag behind were decisions 

defendant made of his own free will. He did not attempt to take the bag with 

him. Considering that defendant could not feasibly come back to the station to 

retrieve the bag while succeeding in his objective of evading capture, it is 

difficult to interpret the decision to run as anything but an attempt "to place as 

much distance between himself and the bag as possible . . . ." Farinich, 179 N.J. 

Super. at 7. 

Moreover, leaving property unattended in a public space can clearly 

constitute abandonment, especially if that property is left unattended to facilitate 

criminal activity. Burgos, 185 N.J. Super at 428. So, for defendant's argument 

to hold water, at least some transfer of the property must have occurred prior to 

leaving the luggage behind. See ibid. No such transfer occurred here.

As to the third factor –whether there was another apparent owner– we note 

even if voluntarily relinquished, property is still not "abandoned" if there are 
15 A-1470-21

other potential owners that a reasonable police officer should inquire with prior 

to search. Johnson, 193 N.J. at 550 (holding that property found in a home with 

multiple residents was not abandoned when only one occupant disavowed 

ownership); Carvajal, 202 N.J. at 229 (holding that, as all the other bags on the 

bus had been claimed, there were no alternative apparent owners). 

Neither the State nor defendant directly raises the issue of apparent 

ownership of third parties as a distinct category from voluntary relinquishment. 

However, because abandonment is broadly at issue, and the parties intertwine 

this analysis with the "voluntary relinquishment" standard, we address it and 

find it has no merit under the facts of this record. 

The SUV driver made no indication that he would claim the bag, or that 

the bag belonged to him. Defendant referred to the bag as "my clothes," which 

implies that the items did not belong to someone else. The police testified that 

they understood the bag to be defendant's property. 

Finally, an outcome in defendant's favor is not necessitated by Johnson. 

193 N.J. at 550. That case concerned police within a private home, where a 

finite number of people had obvious claims to the personal property contained 

within. Ibid. The events in the present case took place on a sidewalk outside a 

transit hub, an area where the police's interest in searching bags is much higher. 
16 A-1470-21

An objectively reasonable police officer, especially one assigned to a transit hub 

where bags left unattended present a threat to public safety, could easily 

conclude that a bag left behind after a police chase was abandoned, especially if 

no one came forward to claim it. Brown, 216 N.J. at 531. 

To the extent we have not addressed any remaining arguments, we are 

satisfied they are without sufficient merit to warrant further discussion in a 

written opinion. R. 2:11-3(e)(2). 

Reversed.