Opinion
July 29, 1974
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered July 5, 1973, convicting him of possession of untaxed cigarettes, upon his plea of guilty, and imposing sentence; and from an order of the same court entered July 5, 1973, denying defendant's motion for suppression of evidence seized from his person, his auto, and his home. Judgment and order reversed, on the law and the facts, and in the interest of justice, and the indictment dismissed. We agree with the District Attorney's concession that there was no probable cause for arrest and that the search incident thereto was unreasonable and illegal. The evidence seized should have been suppressed. An arrest cannot be justified by what a search reveals; it must be valid at its inception, and evidence seized pursuant to an arrest without probable cause must be suppressed ( People v. McCarthy, 14 N.Y.2d 206; People v. Loria, 10 N.Y.2d 368). Gulotta, P.J., Hopkins, Martuscello, Shapiro and Christ, JJ., concur.