The controlling authorities on the issues presented are United States v Ceccolini (435 US 268) and United States v Crews (445 US 463). The applicable rules developed in these decisions strongly indicate that the defendant’s motion to suppress should be granted with regard to the pretrial identifications and otherwise denied.
Ceccolini involved the admissibility of the testimony of a witness discovered through a Fourth Amendment violation during an investigation into the defendant’s suspected involvement in illegal gambling. Many months later, the defendant was called before the Grand Jury and testified with regard to the subject matter of the investigation. The witness, whose possession of relevant information had become known through the Fourth Amendment violation, gave testimony that resulted in the defendant’s indictment for perjury. The Supreme Court held that the testimony of this witness was properly admitted into evidence because the connection between the lawless conduct of the police and the discovery of the challenged evidence had become so attenuated as to dissipate the taint.
*253In the court’s opinion (per Mr. Justice Rehnquist), the following was said (at pp 274-275): "An examination of these cases leads us to reject the Government’s suggestion that we adopt what would in practice amount to a per se rule that the testimony of a live witness should not be excluded at trial no matter how close and proximate the connection between it and a violation of the Fourth Amendment. We also reaffirm the holding of Wong Sun, supra, at 485, that 'verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case is no less the "fruit” of official illegality than the more common tangible fruits of the unwarranted intrusion.’ ”
The opinion went on to consider the special nature of the exclusionary issue presented by live-witness testimony and concluded as follows (at p 278): "In short, since the cost of excluding live-witness testimony often will be greater, a closer, more direct link between the illegality and that kind of testimony is required.”
Contrary to the implication of this court’s opinion, Ceccolini made it clear that the exclusionary rule does apply to the testimony of live witnesses derived by a Fourth Amendment violation, with the qualification that a closer causal link to the illegal conduct will be required before such testimony is excluded.
In Crews, the defendant, already a suspect, was illegally arrested for the purpose of taking his photograph to exhibit to the victim. The defendant was released after his photograph was taken. When the complaining witness identified his picture from a photograph array, the defendant was rearrested and again identified in a lineup.
The trial court denied the defendant’s motion to preclude an in-court identification, but granted the motion to suppress the pretrial identifications. The Circuit Court of Appeals reversed the conviction, holding that it was error to allow the courtroom identification. The Supreme Court reversed in turn, holding that the in-court identification was not constitutionally impermissible and reinstated the conviction.
In the course of Mr. Justice Brennan’s opinion, he observed, with evident agreement, that the intervening photographic and lineup identifications were "conceded to be suppressible fruits of the Fourth Amendment violation”. United States v Crews (supra, p 472). When the varied opinions in Crews are considered in the light of Ceccolini, it is not difficult *254to understand the basis on which the court sustained the in-court identification although in agreement with the trial court’s suppression of the pretrial identifications.
The pretrial identifications were suppressed because they represented an exploitation of the Fourth Amendment violation that occurred when the defendant in Crews was unlawfully arrested. The in-court identification was found admissible on the basis of a quite separate principle, derived from the rule embodied in Ker v Illinois (119 US 436) and Frisbie v Collins (342 US 519) and most clearly set forth in the concurring opinion of Mr. Justice White (at pp 478-479):
"We held in Frisbie v. Collins, supra, at 522, 'that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction’ unlawfully. A holding that a defendant’s face can be considered evidence suppressible for no reason other than that the defendant’s presence in the courtroom is the fruit of an illegal arrest would be tantamount to holding that an illegal arrest effectively insulates one from conviction for any crime where an in-court identification is essential. Such a holding would be inconsistent with the underlying rationale of Frisbie from which we have not retreated. * * *
"The fact that respondent was present at trial and therefore capable of being identified by the victim is merely the inevitable result of the trial being held, which is permissible under Frisbie, despite respondent’s unlawful arrest.”
Mr. Justice Powell explicitly agreed with this analysis in his separate concurring opinion. And although the opinion of Mr. Justice Brennan differed from the concurring opinions in giving significance to the fact that the defendant was suspected before the unlawful arrest (a qualification subscribed to by only three Justices of the court) his conclusion also rested significantly on the applicability of the Ker—Frisbie doctrine. (See p 474, and n 20.)
It is an obvious and serious error to regard the opinions in Crews as in any way standing for the proposition that the exclusionary rule does not apply to the testimony of live witnesses derived from a Fourth Amendment violation. As already seen, the applicability of the exclusionary rule to such testimony had been clearly affirmed by the Supreme Court in United States v Ceccolini (supra), and there is no intimation in Crews of a disposition to depart in any respect from that principle. The decision in Crews rests explicitly on the limited *255ground, derived from the Ker—Frisbie line of cases, that inherent in the jurisdiction of a court to try a defendant unlawfully arrested is the right of a witness, whose testimony is otherwise untainted, to come to court and identify such a defendant at trial.
In the light of these authorities, the immediate issue presented with regard to the pretrial identifications is whether, in the classic formulation of the United States Supreme Court in Wong Sun v United States (371 US 471, 488) "the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
The relevant facts are few. In the aftermath of the robbery that occurred in Bronx County on October 4, 1976, an alarm was issued with the serial number of a gun stolen during its commission. The defendant and others were arrested by Suffolk County police officers on December 17, 1976, in possession of that gun and other weapons in a police action later determined judicially to be unlawful and resulting in the suppression of the seized weapons. The Suffolk County police communicated the fact of the seizure of the gun and the identity of the arrested persons (including the defendant) to the police officers in charge of the robbery investigation. A photographic folder including a picture of this defendant taken from police files was exhibited to the victims of the robbery and he was identified as a participant. This was followed shortly thereafter by a lineup identification.
The hearing minutes disclose no explanation for the several months delay that occurred before the folder was submitted to the victim. The most reasonable inference is that the delay was occasioned by the preoccupation of the investigating officers with other criminal investigations. In any event, the record is clear that no photographs were exhibited to the victims between the date the information concerning the Suffolk County arrest was received and the photographic identification described above.
Nothing in these events supports the conclusion that the challenged evidence was derived "by means sufficiently distinguishable to be purged of the primary taint.” (Wong Sun v United States, supra, p 488.) Nor does the requirement set forth in Ceccolini (435 US 268, 278, supra) of "a closer, more direct link between the illegality” and live-witness testimony indicate a different result under these facts.
*256The facts here do not remotely approach the totality of circumstances that led the Supreme Court in Ceccolini to find attenuation, notwithstanding the strenuous effort in the opinion of this court to suggest a parallel.
Nor do I find at all persuasive the argument that attenuation occurred because the defendant’s picture used in the photographic display was already in the police files and so "untainted.” It makes little sense to say that the fortuitous presence of that photograph attenuates the connection between the Fourth Amendment violation and the defendant’s identification, although such attenuation presumably would not have occurred if the witness, without the intervening photographic identification, had identified the defendant directly in a lineup. The reliance in this connection on Bynum v United States (274 F2d 767, cert den 379 US 908) is wholly misplaced, as is clearly disclosed by an examination of the underlying facts in the first Bynum opinion (262 F2d 465). Bynum had been arrested without probable cause and fingerprinted after he had been identified as a suspect in the robbery for which he was ultimately convicted. The court held in substance that fingerprints taken during the period of unlawful detention were not admissible in evidence but that other fingerprints in the possession of the authorities were properly admitted. The relevance of this authority to the issue here eludes me.
Notwithstanding the foregoing, I fully share with the court a sense of disquiet at the application of the exclusionary rule to live-witness testimony where a defendant’s connection with a crime was discovered as an accidental by-product of police action in another county later determined to constitute a Fourth Amendment violation. This court’s opinion is entirely sound in the view that the deterrent effect of the exclusionary rule here is minimal in relation to its far-reaching impact on criminal law enforcement. A question of large importance is presented.
Where a defendant’s connection with a crime is discovered through a Fourth Amendment violation, the application of the exclusionary rule to live-witness testimony has more far-reaching consequences than where, as in Ceccolinithe violation results in the discovery of a particular witness. The practical effect may be to confer on the defendant immunity from prosecution.
The potential significance of the issue is underlined when it *257is considered that the ground assigned in Crews for permitting the in-court identification, which relied on the Ker—Frisbie principle that a court has jurisdiction to try an unlawfully arrested defendant, may not be available where the Fourth Amendment violation is unrelated to an unlawful arrest. Thus, the possibility is presented that an unjustified police intrusion into a person’s home, oifice or vehicle, which unexpectedly discloses evidence linking the defendant with a host of major crimes, may result in a sweeping grant of immunity from prosecution. Where the police action, as here, is wholly unrelated to the crimes in question and the discovery of the evidence unexpected, the consequences of applying the exclusionary rule to resulting live-witness testimony are extremely disturbing and difficult to justify.
Accordingly, I think it would make sense to exempt from the exclusionary rule live-witness testimony where a defendant’s connection with a crime or crimes is the unexpected» byproduct of a Fourth Amendment violation in the course of a wholly separate investigation. However, I am aware of no present authority that sanctions such a limitation.
To the extent to which Crews speaks to the issue, it would appear to suggest the contrary. The opinion of Justice Brennan clearly discloses that at least three Justices of the Supreme Court were influenced, at least in part, to sanction the in-court identification because of the circumstance that the defendant was already a suspect before the unlawful arrest occurred. The approach taken in the concurring opinions did not require the other Justices to address this question. But nothing in Crews as a whole, or in any other authority called to my attention, supports the kind of limitation on the exclusionary rule that would seem to me the only possible basis for sustaining the result reached by this court.
One circumstance in this case presents an issue not resolved by the Supreme Court in Crews. The several opinions were phrased in terms of the right of a witness to make an in-court identification of a defendant notwithstanding the claim that the defendant had been arrested unlawfully. Not before the Supreme Court, and thus not squarely addressed, was whether the same principle would apply where, in addition to the defendant’s unlawful arrest, physical evidence had been unlawfully seized which led directly to defendant’s identification.
In a footnote on page 479, Mr. Justice White expressed his disagreement with what he perceived to be an implication in a *258part of Mr. Justice Brennan’s opinion supported by a majority of the court that a different result would have followed in Crews if there had been a separate Fourth Amendment violation. Whether or not Mr. Justice Brennan intended to imply such a view, there can be no doubt that the reliance on the Ker—Frisbie doctrine in each of the opinions in Crews leaves unresolved the rule to be applied where the defendant relies on a Fourth Amendment violation other than one involving an unlawful arrest.
In this case, however, the seizure of the gun was incident to the defendant’s unlawful arrest. Believing that the policy underlying the Ker—Frisbie principle, as developed in Crews, reasonably applies to this situation, I agree that the defendant’s motion to suppress his in-court identification should be denied.
For reasons previously stated at length, I believe that defendant’s motion should be granted to the extent that it seeks to suppress the pretrial identifications.
Birns, J. P., Sullivan and Silverman, JJ., concur with Ross, J.; Sandler, J., dissents in part in an opinion.
Order, Supreme Court, Bronx County, entered on October 19, 1979, reversed, on the law, and defendant’s motion denied.