(dissenting). A serious question is presented as to the legality of a search resulting in the seizure of two rings in the possession of one Nancy Burgess apprehended by the police while in the company of defendants shortly after the commission of the burglary charged. The seizure of the rings as the result of the forced epaptying of the handbag of defendants’ female companion and their identification by the victims of the burglary as property taken from their home provided an essential link in the People’s circumstantial proof of defendants’ participation in the crimes charged. The arresting officer, Officer Calabrese, made it clear that no one was placed under arrest when the car in which the woman and the defendants were riding was stopped, and that she was not placed under arrest until after she had emptied her purse at the police station. People v. Rivera (14 N Y 2d 441) cited by the trial court and relied on by the People, makes clear the distinction between a frisk to detect a concealed weapon and a full search of the person. While in Rivera the court upheld the right of an officer to stop and frisk where reasonable police inquiry was indicated, it pointed out that a further search of the person would require sufficient evidence of a committed crime to justify an arrest or that it be incident to a lawful arrest, citing Harris v. United States (331 U. S. 145).
Here no arrest was made prior to the search and seizure of the items of jewelry in the possession of Miss Burgess. There was only a detention to permit further police inquiry as to possible criminal activity.
As to whether the officer had probable cause to make an arrest prior to discovery of the rings, such cause would have to relate to a crime other than a traffic infraction to justify a search. (People v. Marsh, 20 N Y 2d 98.) Prior to discovery of the rings and their identification by the owner there had *210been no fact of any kind brought to the attention of the police identifying the defendants with the burglary and the identification of the individual defendants at the scene of the crime was not made until the following day. As stated in People v. Albright (32 A D 2d 878) quoting Sibron v. New York (392 U. S. 40, 63): “ It is axiomatic that an incident search may not precede an arrest and serve as part of its justification.”
Nor was there probable cause for an arrest on a stolen car charge. The only relevant fact known to the officers when they brought the defendants into the police station for further investigation was the inability of the driver to produce a driver’s license or the car registration. Inquiry of the owner of the car did not result in any complaint that it was stolen, and no charge of car theft was laid. There being no probable cause for arrest at the time of the search resulting in the seizure of the rings, such search was unlawful and the evidence should have been suppressed.
The People challenge the standing of defendants to complain of the alleged unlawful search of Miss Burgess.
The general rule is as stated in People v. Cefaro (21 N Y 2d 252) and cases cited therein that “ a stranger has no standing to assert that evidence in another’s house or premises has been seized unlawfully against the owner or tenant of the premises ”, and as phrased in Jones v. United States (362 U. S. 257, 261): “In order to qualify as a 1 person aggrieved by an unlawful search and seizure ’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.”
Here, however, each of the defendants and in fact all of the occupants of the car detained for investigation were persons against whom the search of Nancy Burgess was directed and were victims of the search and seizure. Not only was the search directed at evidence by which the police sought to implicate her, but also at evidence implicating those in her company, and the fact of the immediate association of the defendants with her at the time of their apprehension provided the basis for receiving the evidence seized against the defendants as proof of their possession of the stolen articles.
A very similar factual situation is presented in United States ex rel. Coffey v. Fay (344 F. 2d 625 [C. A. 2d]). There the court held a search to be lawful as incident to a lawful arrest, but overruled the contention of the State that the relator Coffey *211lacked standing to object to the lawfulness of the search and seizuré. The court held (pp. 628-629):
“ According to the rule which governs standing to suppress evidence in a federal prosecution, the defendant must be ‘ aggrieved by [the] unlawful search and seizure.' Fed. R. Crim. P. 41 (e). This rule ‘ applies the general principle that a party will not be heard to claim a constitutional protection unless he “ belongs to the class for whose sake the constitutional protection is given.” ’ Jones v. United States, 362 U. S. 257, 261, 80 S. Ct. 725, 731, 4 L. Ed. 2d 697 (1960). Because the rule is thus rooted in basic constitutional principle, the same test presumably governs standing to suppress evidence in a state prosecution. ‘In order to qualify as a “person aggrieved by an unlawful search and seizure ” one must have been a victim of a search or seizure, one against whom the search was directed * * V Ibid.
“ The arrest and search of Coffey and DeNormand was triggered by information that Coffey had the proceeds of the burglary and would be attempting to dispose of them in DeNormand’s company. The two men .were arrested while driving in Coffey’s car and were simultaneously searched on the sidewalk immediately following the arrest. At the trial both the prosecutor and the Judge told the jury that in assessing Coffey’s guilt, it might weigh his' physical proximity to the stolen jewels at the time of his arrest.
‘ ‘ We hold that under these circumstances the search which brought the stolen jewels to light was ‘ directed against ’ Coffey as well as DeNormand. More precisely, we hold that the State may not arrest, search, and prosecute a defendant on the theory that he is in possession of stolen property, and then object that the property was actually found on the person of a companion when the defendant moves to prevent use of the property as evidence against him. ’ ’'
Similarly in the case at bar the discovery of the stolen rings as the result of the search of the person of defendants’ companion apprehended in close physical proximity to the defendants is relied upon by the People as establishing possession of the stolen property not only by the woman searched but also the defendants as well.
I believe that determinative of the issue of standing, on the facts before us, is the holding of the Supreme Court in Jones v. United States (362 U. S. 257). The defendant there charged with having “ purchased, sold, dispensed and distributed ” narcotics, had been barred from challenging a search which revealed *212the presence of narcotics on premises where he was present, because of his failure when making his motion to suppress to allege that he had a ‘ ‘ possessory interest in the premises searched greater than the interest of an invitee or guest The court held (pp. 263-264): “ Petitioner’s conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41 (e).”
People v. Estrada (23 N Y 2d 719) does not conflict with the rule laid down in Jones v. United States, and United States ex rel. Coffey v. Fay (supra). In Estrada where the defendant was found not to have been a person aggrieved by a search no charge was made of possession by the defendant of the narcotics seized at the time of the search of a third person. Rather, proof of prior possession by defendant of the same narcotics was made by identification of the package found in the search as the same package in the earlier possession of the defendant.
The guilt of the defendants having been established bv the inference the jury was asked to draw and properly could draw that possession of the stolen rings by Nancy Burgess was also possession by her immediate associates, the defendants, the People cannot now assert that the seizure was from her possession alone characterizing the defendants as strangers to the search with no standing to complain of it.
The seizure of the rings having been unlawful, their reception in evidence on the trial constituted reversible error. The judgments should be reversed on the law and a new trial granted.
Gabrielli, Mottle and Bastow, JJ., concur with Del Vecchio, J. P.; Marsh, J., dissents and votes to reverse on the law and grant a new trial, in opinion.
Judgments affirmed.