Opinion
February 20, 1990
Appeal from the County Court, Orange County (Bryne, J.).
Ordered that the order is affirmed.
Contrary to the People's contentions, the mere presence in an automobile of a vial in which no powdery substance or residue is discernible, does not, without further indicia of illegal narcotics-related activity, constitute probable cause to arrest the occupants and search their automobile (cf., People v Goggans, 155 A.D.2d 689; see also, People v McRay, 51 N.Y.2d 594). Further, the hearing court's finding that the arresting officer could not, under the circumstances presented, have reasonably mistaken an automobile heat cushion for a plastic bag containing a controlled substance, is supported by the record and will not be disturbed on appeal. Having had the advantage of hearing and seeing the witnesses first hand, the hearing court's determination is to be accorded great weight on appeal (see, People v Prochilo, 41 N.Y.2d 759; People v McEachin, 148 A.D.2d 551, 552), and it should be upheld unless it is clearly erroneous (see, People v Gordon, 150 A.D.2d 487; People v Armstead, 98 A.D.2d 726; see also, People v Matias, 137 A.D.2d 625, 626; People v Trulio, 135 A.D.2d 758, 759). Mollen, P.J., Brown, Kooper and Miller, JJ., concur.