## Facts

- Police officer Charles Frisina arrested James McMurty in Manhattan on July 23, 1970, and charged him with possession of marijuana.
- Before trial, McMurty moved to suppress the marijuana, claiming it was obtained through an unlawful search and seizure.
- At the suppression hearing, Frisina testified that at about 8:30 p.m. he saw McMurty standing in a doorway at 677 Broadway; when McMurty noticed the patrol car, he stepped out and dropped a small plastic container from his hand.
- Frisina testified that he retrieved the container from the ground, believed it contained marijuana based on his experience, and then arrested McMurty; the prosecution argued the seizure was lawful because the marijuana had been abandoned.
- McMurty testified that he did not drop anything; he said the marijuana was in his pocket, that Frisina ordered him into a doorway, searched him, found the marijuana in his pocket, and then arrested him.
- The hearing record offered no independent witness or physical proof resolving whether the marijuana was dropped or taken from McMurty’s pocket; the outcome depended on which witness the court believed.
- The court noted the recurring use of “dropsy” testimony in narcotics cases—claims that a suspect “dropped” drugs upon seeing police—and warned that such testimony demands close scrutiny because it can function as an explanation designed to avoid suppression.

## Issues

1. Whether the People proved that the marijuana was lawfully obtained as abandoned property, rather than seized during an unlawful search of McMurty’s person.
2. Whether, on this record, the court should credit the officer’s “dropsy” account or the defendant’s account that the officer searched his pocket without probable cause.

## Decision

- The court granted McMurty’s motion to suppress the marijuana.
- The court rejected the People’s abandonment theory after finding the officer’s “dropsy” account not credible in light of the circumstances and the competing testimony.
- Crediting McMurty’s testimony, the court found that the officer took the marijuana from McMurty’s pocket after directing him into a doorway and searching him.
- Because the search occurred without probable cause and was not shown to fit any exception to the warrant requirement, the marijuana was the product of an unlawful search and had to be excluded.

## Legal Principles

- On a motion to suppress, the prosecution must establish the legality of the police conduct that produced the evidence.
- Property is treated as abandoned only when it is voluntarily discarded before any unlawful police intrusion; the People must show true abandonment, not a post hoc label attached to a seizure from the person.
- A search of a person generally requires a warrant or a recognized exception; a search incident to arrest requires a lawful arrest supported by probable cause.
- When a suppression hearing turns on credibility, the court must decide which account is more believable; an officer’s testimony is not accepted automatically simply because it comes from a police witness.
- Because “dropsy” claims can conveniently transform an illegal search into a claimed street-side recovery, courts may treat such testimony with special caution and evaluate it against ordinary expectations of human behavior.

## Conclusion

People v. McMurty held that the marijuana had to be suppressed because the court did not believe the officer’s claim that McMurty abandoned the drugs by dropping them; instead, the court credited McMurty’s testimony that the officer searched his pocket without probable cause, making the seizure unconstitutional and the evidence inadmissible.


People v. McMurty, 314 N.Y.S.2d 194 (1970)