Opinion
Argued April 1, 1964
Decided May 7, 1964
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, J. IRWIN SHAPIRO, J.
Louis P. Jacobs and Louis Raybin for Alfred James Gary, appellant.
Josephine D. Greene and Anthony F. Marra for remaining appellants.
Frank D. O'Connor, District Attorney ( Harvey B. Ehrlich of counsel), for respondent.
Judgments affirmed.
Concur: Chief Judge DESMOND and Judges DYE, VAN VOORHIS, BURKE, SCILEPPI and BERGAN. Judge FULD dissents in the following opinion:
The police officer who arrested the defendants, acting solely on suspicion and unchecked information from an unknown informant, had no reasonable or probable cause for effecting their arrest. The seizure of the articles (received in evidence) may not, therefore, be justified as an incident to lawful arrest. The requisite probable cause must, of course, exist at the time of the arrest, for it is fundamental that the search or seizure attending an arrest is not rendered permissible by what later investigation uncovers. (See, e.g., Henry v. United States, 361 U.S. 98, 103; People v. Loria, 10 N.Y.2d 368, 373; People v. O'Neill, 11 N.Y.2d 148, 153; People v. McCarthy, also decided today, 14 N.Y.2d 206; People v. Scalegnio, also decided today, 14 N.Y.2d 744.)
The judgments of conviction appealed from should be reversed.
Judgments affirmed.