Opinion
July 12, 1985
Appeal from the Monroe County Court, Celli, J., Kennedy, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and Green, JJ.
Judgment unanimously reversed, on the law and facts, defendant's motion to suppress granted, and indictment dismissed. Memorandum: Defendant, convicted of criminal possession of a weapon, third degree, appeals from the court's holding after a hearing on remittal ( see, People v. Castrechino, 105 A.D.2d 1089) that the search of the car in which he was a passenger was proper and that therefore the weapon found in the trunk was admissible against him. We reverse. The hearing record reveals no showing of probable cause to arrest. While the arresting officer testified that he was provided with a description of the suspects and told that they were wanted in connection with a sex offense, the prosecution did not provide "the description upon which the police acted and sufficient evidence to make its own independent determination whether the person arrested * * * reasonably fit that description" ( People v. Dodt, 61 N.Y.2d 408, 415) nor did it supply the basis for the police belief that the suspects sought had committed a crime ( see, People v. Bouton, 50 N.Y.2d 130, 135-136). Therefore, the search of the passenger compartment (which produced items which, it is argued, gave police probable cause to search the trunk) cannot be upheld as incident to a lawful arrest ( see generally, People v. Gokey, 60 N.Y.2d 309, 312; People v. Smith, 59 N.Y.2d 454, 458). The record does not establish that the items found in the passenger compartment were in plain view.