I am to affirm but solely on the ground that the defendant consented to the questioning.
As the majority notes, the Supreme Court chose "not to grapple with the legality of custodial questioning on less than probable cause” (Morales v New York, 396 US 102, 105-106) and thus remanded for further proceedings to determine whether there was probable cause or whether defendant voluntarily consented to be questioned. The majority also notes that upon remand there has been an affirmed finding of consent which is binding upon this court. That should be the end of the case. Once it has been found that the defendant voluntarily consented to speak with the police, any discussion regarding a police officer’s power to involuntarily detain a suspect for questioning, on less than probable cause, is irrelevant speculation and pure dictum.
Chief Judge Breitel and Judges Gabrielli, Jones and Cooke concur with Judge Jasen; Judge Wachtler concurs in a separate opinion in which Judge Fuchsberg concurs.
Order affirmed.