Opinion
June 15, 1970
Appeal by the People from an order of the Supreme Court, Westchester County, dated November 19, 1969 (erroneously referred to in the notice of appeal by the date of February 18, 1969), which, after a hearing, granted defendant's motion to suppress certain evidence and to dismiss the indictment. Order reversed, on the law and the facts, and defendant's motion denied. In our opinion, although the search warrant authorized the seizure of narcotics, and nothing else, and although only a small and unindictable quantity of narcotics was unearthed on the officers' search in pursuance of the authority granted to them by the search warrant, nevertheless, their simultaneous discovery of weapons which constituted contraband, the mere possession of which was a crime, served as a legal predicate for defendant's arrest and the use of the contraband as evidence against him ( Harris v. United States, 331 U.S. 145; 154; Abel v. United States, 362 U.S. 217, 235, 237, 238; Sibron v. New York, 392 U.S. 40, 77 [concurring opinion by Mr. Justice HARLAN]). An officer, armed with a warrant, is not restricted to seizing only those items listed in the warrant, but also may seize unlisted items which constitute instrumentalities of crime ( People v. Hendricks, 45 Misc.2d 7, 11-12; People v. Reinhardt, 42 Misc.2d 45, 50-51). Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.