An examination of this record leads us to the conclusion that the search and seizure herein were illegal and in violation of the constitutional rights of the defendants-appellants.
The defendants were indicted for a violation of subdivision 2 of section 481 of article 20 of the New York State Tax Law which forbids the criminal possession and transportation of untaxed cigarettes. They were convicted upon their pleas of guilty to a violation of this law as a misdemeanor.
Prior thereto the defendants moved for an order of suppression and contended that the search and seizure, which led to the prosecution, were illegal and in violation of their constitu*136tional rights. This motion was denied and the guilty pleas followed.
It is established law that, while the person who claims to be aggrieved by an illegal search and seizure has the burden of proof, nevertheless, as was stated by the Court of Appeals in People v Berrios (28 NY2d 361, 367):
“The People must, of course, always show that police conduct was reasonable * * * the People are nevertheless put to 'the burden of going forward to show the legality of the police conduct in the first instance’ [citing case].”
Applying these rules to the case at bar, it is difficult to find that the search here was incidental to a lawful arrest, which is the only ground upon which the search and seizure could rest, since there was no search warrant.
Pursuant to the above, the People did go forward with their proof in an attempt to justify the search and seizure. The only witnesses produced by the People were three police officers and an examination of their testimony discloses confusion, contradictions, uncertainty and conflicting versions of what took place. Did the police have valid legal evidence upon which to base the arrest or did they arrest first and then get the evidence later? It is difficult to say from the record. Perhaps the difficulty in this case can be understood if we quote the court’s language found at page 144 of the record:
“the court: * * * I asked one of the officers which came first the chicken or the egg, and I indicated on the prior testimony he testified that he placed DeStefano under arrest and then he proceeded to search.
mr. aidala: He changed.
the court: He changed back and said they first searched and then placed him under arrest.” In any event, whether one accepts one version or the other, the result should be the same, the motion to suppress should have been granted because of the failure to establish the requisite probable cause.
We are led to this conclusion in great measure by the decision in People v Garafolo (44 AD2d 86). In that case the defendant also was charged with possession of untaxed cigarettes and convicted therefor and, as in the case at bar, the same questions were brought up for review on that appeal. (1) Whether there was sufficient credible evidence to conclude that there existed reasonable cause for the defendant’s initial arrest and (2) whether the subsequent search of his garage *137was in violation of the Fourth Amendment. By a divided court it was found that the initial arrest was illegal and everything which followed thereafter, such as the entry into the garage and the finding of the cigarettes therein, violated the constitutional rights of the defendant.
In the course of the majority’s opinion we find observations which are unquestionably applicable to the case at bar. At pages 88 to 89 of the opinion the court said: "We refuse to credit testimony which has all appearances of having been patently tailored to nullify constitutional objections. * * * Obviously, Murphy could not have observed from the public sidewalk the lack of a tax stamp on individual packs of cigarettes contained in cartons and encased in unopened boxes in the back of an unlighted garage. It is only slightly less unbelievable that he made a similar observation through a convenient tear in a carton in an open bag as he passed the defendant on the street some two to four feet from him.” Later, at page 89, the court said: "This is not a case of seizing contraband in open view * * *. Here, a search was necessary before it could be determined that these cigarettes were unstamped and untaxed.”
The case of Henry v United States (361 US 98) considered a similar legal question to that which is raised in the case at bar, although it did not involve untaxed cigarettes. In that case Federal officers were investigating the theft of whiskey from an interstate shipment. On the basis of a vague tip possibly connecting the defendant with an interstate theft, the officers observed the defendant and another come out of a tavern, enter an automobile and drive, by a circuitous route, to an alley alongside of residential premises, at which point the automobile was brought to a stop. The defendant left the car, went into the building and returned to the automobile with some cartons and drove away. The officers attempted to follow, but lost the automobile. Later they again saw the car at the tavern and the same pattern was repeated. This time, when the defendant left the alley, the officers stopped the automobile, searched the cartons and found, not stolen whiskey, but stolen radios. The (Supreme Court held that no probable cause existed.
Insofar as the case at bar is concerned, we should also remember that, prior to the time of the arrest, most of the observations were made from a truck which was about 55 feet from the entrance to the garage. The same is true as to the *138observations testified to by Officer Santiago just before the arrest of these defendants. At this point one is prompted to ask, why did the police fail to apply for a search warrant? (People v Spinelli, 35 NY2d 77.)
It was not until Officer Rivers went to the open trunk of the Chevrolet, opened a large box with a knife, saw its contents, and then learned that the packs did not contain the proper New York State tax stamps. At that time, according to the police claim, the arrest of the defendants was finalized, yet there is testimony in the record, by the police, that, prior thereto, the defendants could not have left the scene if they had wanted to do so because they were, in effect, seized by the police. It is obvious that the defendants were in custody before the official arrest was made and before it was definitely ascertained that the box found in the trunk of the Chevrolet contained untaxed cigarettes.
As was said in People v Cantor (36 NY2d 106, 111-112): "Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment * * *. Here the defendant was deprived of his freedom of movement when he was encircled by three police officers as he stood alongside his car which was blocked by the police vehicle. At that moment he could not have proceeded on his way, therefore he was seized.”
Under the circumstances disclosed by the record the police might well have had the right to question the defendants as to their activities. (People v Rosemond, 26 NY2d 101.) That is exactly what should have been done in this case instead of taking them into custody without such questioning. (Ringel, Searches and Seizures, Arrests and Confessions, ch 19.)
We realize that these cases involving searches and seizures can become very complicated and very difficult, but, because of what is above stated, we conclude that the motion to suppress should have been granted and the indictment dismissed. We are not remanding the case to the Criminal Term for further hearing on the issue of whether or not the arrest was lawful because there is no claim, nor any intimation by the People, that they have any further information which would justify the arrest.
Accordingly, the judgments should be reversed, on the law, and the indictments dismissed.