It has long been well settled that border searches may be made without probable cause and without real or even “ mere ” suspicion, and that such routine detention and inspection is not deemed an unreasonable search (United States v. Guadalupe-Garza, 421 F. 2d 876, 878; Henderson v. United States, 390 F. 2d 805, 808). The routine search of travelers crossing an international border is justified in the interest of national self-protection (Carroll v. Untied States, 267 U. S. 132, 154).
Such a routine, evenhanded and at random search is not present in this case. The record reveals and the People do not dispute that the search here was not predicated upon any kind of suspicion, but solely upon the presence of antidraft literature present on the shelf of the back seat of the automobile. The customs inspector admitted that to his knowledge there was nothing *438illegal about the draft literature. Counsel for the defendants argued at the suppression hearing that the search “ on its face is a violation of the First Amendment ”. The defendants presented their versión of the facts in this case in an affidavit to which they attached the transcript of the preliminary hearing. The People took no issue with defendants’ presentation of the facts and have failed to create a factual question on any material issue. Therefore, the findings made by the trial court that this search was ‘ ‘ predicated upon the defendants ’ exercise of their rights under the First Amendment ’ ’ were appropriate and well supported on this record. Thus, this search must be construed to have been not routine but selective and purposeful. The marijuana recovered was the fruit of this unpermitted action and was properly suppressed (Wong Sun v. United States, 371 U. S. 471).
Further, such searches, if permitted, will cause immediate and irreparable injury to the right of freedom of speech. It has been long recognized that free expression is of transcendent value to all persons, not merely to those seeking to protect their rights, and because the full exercise of the First Amendment freedom is a fragile right sensitive to suppression, the hazard of its loss or substantial impairment is critical (Baggett v. Bullitt, 377 U. S. 360; Dombrowski v. Pfister, 380 U. S. 479, 486; Wolff v. Selective Serv. Local Bd., 372 F. 2d 817, 822).
While it may be necessary to re-emphasize the authority and responsibility of customs inspectors at our borders, nevertheless they must exercise their important and vital duties consistent with fundamental constitutional safeguards guaranteed all citizens and not in abrogation of constitutional rights (cf. Tinker v. Des Moines School Dist., 393 U. S. 503, 507). It is precisely because this search violated defendants’ constitutional rights that the evidence obtained thereby must be suppressed (Weeks v. United States, 232 U. S. 383, 392). That is, the evidence (marijuana) obtained by the Government’s own wrong, may not be used at all (Silverthorne Lbr. Co. v. United States, 251 U. S. 385, 392).
The majority would permit the People to justify the selective search on a theory not presented to the trial court. On oral argument in this court the People for the first time contended that the customs inspector singled out defendants for a secondary inspection to determine whether their antidraft literature violated a Federal statute prohibiting the importation of treasonous literature. In my view the People had ample opportunity to meet the First Amendment argument at the suppression hearing where the contention they have now raised could have been *439explored in factual detail. The First Amendment argument was clearly and unequivocally presented at the suppression hearing by defendants’ counsel on at least two separate occasions. The District Attorney had an opportunity to respond then and a further opportunity to submit any relevant contention in the period of time between the suppression hearing in July, 1969 and County Court’s memorandum of May, 1970. The District Attorney made no claim that he was unfairly surprised by the introduction of the First Amendment argument. Under these circumstances the general rule that an appellant is confined to questions, issues and theories which were litigated before the trial court clearly applies. (Brown v. Brown, 34 A D 2d 727; Highland Development Corp. v. State of New York, 23 A D 2d 705; 10 Carmody-Wait 2d, New York Practice, §§ 70:300, 70:414, 70:415.)
The order appealed from should be affirmed.
Witmer, Moule and Henry, JJ., concur with Del Vecchio, J. P.; Cardamone, J., dissents in an opinion.
Order reversed and motion denied.