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. *15This 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.