(dissenting). Although it is well recognized that the tests applied to the validity of warrantless automobile searches are not as rigid as those applied to immovable premises, it is nevertheless fundamental that such a search must be incidental to a lawful arrest, supported by probable cause, or following closely in time and place an observation by the police of items of contraband in plain view when the police were in a lawful position to obtain such a view. None of these elements existed in the present case. It is clear that the search was not conducted incidental to a lawful arrest, because the officer testified that he did not place the defendants under arrest until after discovering the marijuana in the trunk of the automobile.
Nor did the tip supplied by the unidentified informant furnish probable cause for a search, for although the reliability of the informant was conceded, it is also necessary to demonstrate that his information was reliable under the second prong of the two-pronged test laid down in Aguilar v. Texas (378 U. S. 108) and adopted by the Court of Appeals in People v. Wheatman (29 N Y 2d 337, 344, app. on other grounds 31 N Y 2d 12). There was no showing here of a factual basis for the informant’s information. At best, the information was the mere conclusion of the inf armant, who did not even indicate that he had observed the activities of the defendants or that he spoke with personal knowledge. It is also significant that the informant failed to identify the type of drugs alleged to be in the defendants’ possession. “ For all that appears, the source here merely suspected, believed or concluded that there were narcotics in [defendants’] possession” (Aguilar v. Texas, supra, pp. 113-114). There is no basis for judging the persuasiveness of the facts relied on to show probable cause. Mr. Justice Staley, in concluding that the reliability of the informant was established, points to the fact that a can of mace was observed in open view on the floor of the car.1 In my opinion, this factor is irrelevant. The informant had not indicated that a can of mace might be found, and mace is in no way suggestive of marijuana or other drugs. Therefore, its presence in no way verifies or substantiates the accuracy of the tip which was actually given. I also find that McCray v. Illinois (386 U. S. 300) is not controlling. In that case, the officers * ‘ described with specificity 1 what the informer actually said, and why the officer thought *169the information was credible. ’ * * * The testimony of each of the officers informed the court of the ‘ underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the * * * information [was] “ reliable ” ’ (McCray v. Illinois, supra, p. 304). In the present case, there is no such testimony, but only as noted, the mere unsupported conclusion of the informen. It must therefore be concluded that the informant’s tip did not establish probable cause to stop and search the defendants’ vehicle.
This brings me to consideration of whether there was a lawful observation by the officer of contraband in plain view such as would justify a further search. Although I have determined that there was no probable cause for stopping the vehicle and the officer did not pretend to have done so for the purposes of a routine traffic check, I will nevertheless deal with this issue as if such a check might have been the proper purpose for the stop. When the officer stopped the car, he asked the driver, Joseph Caputo, to produce his driver’s license and registration, which was done. The officer checked the license plates, and found nothing amiss. Up to this point, the officer had observed no contraband or other suspicious material, nor was there anything suspicious about the behavior of the defendants, who were the sole occupants of the vehicle. Hence, there was no valid or lawful reason for any further detention of the defendants. Nevertheless, the officer retained the license and registration and directed the defendant James Caputo, the passenger, to get out of the car. It was at this point that he observed a set of scales, a can of mace, and a box of ammunition in “ plain view ”. Of course, it is well settled that contraband in “ plain view ” may be seized and in some circumstances may justify a further search, but it is equally clear that this rule is not without qualification, for it has repeatedly been said that only where the officer “ has a right to be in the position to have that view” will the seized items be admitted info evidence because they are not the products of an illegal search. (Harris v. United States, 390 U. S. 234, 236.) Here, the officer may have rightly been where he was, but he had no right to improve his view by improperly directing the displacement of an obstacle, albeit a human obstacle. In no sense can the officer’s observation of the mace and ammunition be said to have been fortuitous, as it might have been had James Caputo stepped out of the car voluntarily, revealing the items in question (cf. People V. Battle, *17012 N Y 2d 866; People v. Scianno, 20 A D 2d 919, 920). At the moment the officer ordered James Caputo out of the ear, which he no longer had a right to do nor any reason for doing it, thereby creating a view which had previously been closed to him, an illegal search commenced, and any extension of that search was equally invalid.
Mr. Justice Staley is of the opinion that “ the totality of the circumstances ” justified the search. I cannot agree, sincé it is clear that from the moment the officer received the tip until the moment he opened the trunk of defendants’ car, he had no probable cause for conducting such a search, nor did any justifying circumstances arise, except perhaps as a result of the officer’s improper actions, until the final act, and, of course, the discovery of contraband cannot validate an otherwise unlawful search.
I cannot agree with Presiding Justice Heblihy’s opinion that the officer would have been derelict in his duties had he not stopped the automobile. In my view the officer was derelict in failing to ascertain such facts as would have established the reliability of the informant’s information.
I, therefore, vote to affirm the decision of the County Court which granted defendants ’ motion to suppress the evidence.
Mahst, J., concurs with Staley, Jb., J.; Heblihy, P. J., concurs in a separate opinion; Gbeehblott, J., dissents and votes to affirm in an opinion in which Cooke, J., concurs.
Order reversed', on the law and the facts, and motions to' suppress evidence seized from the automobile, denied.
. Whether or not the police officer was rightfully in a position to .ofotaiti this open view is a question I shall deal with subsequently.