Neither suspicious, nor equivocal behavior alone, justifies a search (People v. Brown, 24 N Y 2d 421; People v. Corrado, 22 N Y 2d 308), and the fact that defendant was actually in possession of narcotics does not change the illegal search into a legal one, because a search is bad or good when it starts and it is not made good by what is found. It clearly appears in this record that the defendant was not under arrest when the plastic bag was produced from the defendant’s waistband and, therefore, the search cannot be defended as an incident to a lawful arrest. The cases cited in the dissent are not in point and they present factual situations unlike the facts in the case at bar.
The dissent calls attention to the fact that the Trial Judge expressly stated that he believed the testimony of the police *338officer. As a matter of fact, we also believe it. But we conclude, as did the trial court, that, on the officer’s own testimony, there was no probable cause to arrest, although there may have been suspicion. “ A search, not authorized by consent or a search warrant, is deemed reasonable only if conducted as 1 incident to a lawful arrest ’ (People v. Loria, 10 N Y 2d 368, 373; see, also, Beck v. Ohio, 379 U. S. 89; Rios v. United States, 364 U. S. 253, 261-262; Henry v. United States, 361 U. S. 98,100), and to effect such an arrest the‘arresting officers must have ‘ reasonable cause for believing ’ that a crime has been committed and that the person arrested is the party responsible ”, (People v. Malinsky, 15 N Y 2d 86, 91.)
We share the same frustration which is apparent in the dissent, but the arguments advanced therein are better addressed to those who have it within their power to change the existing law. It is the function of this court to construe, apply and enforce the law as it exists and as settled by precedents of higher courts, even though the result reached may not meet with popular approval, nor even our own approval. Therefore, although the conclusion reached by the dissent might be a desirable one from the view of law enforcement, the fact is that we cannot make our own rules as cases come along. Until a change in the law is made by the higher courts, we are bound by the law as it exists now, and if it results in guilty persons escaping punishment, that is unfortunate, but, beyond our power to remedy, unless we were to treat binding precedents with disdain.
The order appealed from should be affirmed.