(dissenting). In my opinion, the order being appealed herein should be affirmed.
The defendant was indicted on March 8, 1982 for the crimes of criminal possession of a weapon in the third degree and criminal possession of stolen property in the second degree as the result of an incident which occurred on January 13, 1982. At approximately 2:00 p.m., Police Officer Edward Hart and his partner, Detective Melan, arrived at 217 Fordham Street on City Island in The Bronx in response to a report concerning a stolen, trailer. Located at this address is an auto body shop owned by the defendant. On the establishment’s lot, just beyond the paved sidewalk, the officers observed a trailer which matched the description of the stolen vehicle. After examining the trailer, Officer Hart ascertained that the license plates were missing and that the identification plate had been removed. The trailer, which was parked and unattached to a tow vehicle, could not be moved due to a heavy snow accumulation. Officer Hart thereupon decided to investigate further.
The front door of the body shop was closed. A side door, situated some 35 to 40 feet from the trailer, was also closed but unlocked. Officer Hart knocked and, receiving no answer, pulled the door open and proceeded inside. Immediately upon entering, he noticed the defendant, who was sitting on a paint can in the rear of the room. The defen*147dont was wrapped in a blanket which covered his head, and he was talking into a standard pay telephone box. The telephone was resting on the floor and was connected by wires from the back of the instrument to the wall. It was missing a cash box. Officer Hart informed the defendant that he was under arrest for theft of services and advised him of his Miranda rights. When the officer questioned him about the trailer, the defendant claimed to own it. The defendant then walked over to a wall safe, purportedly to fetch the registration for the vehicle. According to Officer Hart, when the defendant opened the safe, inside in plain view were four boxes of bullets.
The officer asked for the whereabouts of the gun, and defendant denied having one. Officer Hart asserted that he “looked in the immediate area for a place where a gun could be secreted and I satisfied myself that there wasn’t a gun right there. At that time he produced, he handed me the registration, and I asked him again where the gun was. I was a little insistent about it, and again he stated to me there is no gun in the place.” In the course of his examination of the vicinity, Officer Hart spotted an overhead door some five feet from the safe. The defendant explained that he stored his tools and equipment in there. The officer inquired as to whether the defendant was certain that the gun was not inside, and the defendant replied, “No, you can look for yourself”. The defendant opened the door, and the two men entered into a back room where there was another safe. After having directed the officer to the safe, the defendant turned around and tossed a paper bag back into the other room. The bag landed with a heavy thud. Officer Hart, presuming it to contain a gun, retrieved the bag and discovered three bombs inside.
The hearing court, in a determination announced from the Bench, granted the motion to suppress “all property seized in those premises subsequent to the officer entering into a back room of those premises.” In its view, the police lacked probable cause to conduct a search of the back room. The People herein appeal from that ruling. Although the defendant argues that the search of the trailer and the entry and search of his premises were also unlawful, the defendant has not cross-appealed from that portion of the *148hearing court’s decision which was adverse to him. Consequently, this opinion will only concern itself with whether the court properly suppressed the three bombs.
Assuming that Officer Hart’s entry into the auto body shop was authorized, then the officer validly placed the defendant under arrest for theft of services. Having provided the defendant with his Miranda warnings, it was appropriate for Officer Hart to question him about the allegedly stolen trailer and the tampered pay telephone. It will also be assumed here that the defendant voluntarily opened the safe in order to procure the registration for the vehicle and that the boxes of bullets were inside in plain view. Since the record in this case does not contain an adequate fact finding, the foregoing sequence of events can only be implied from the hearing court’s ultimate decision to suppress only the property seized after the officer went into the back room. Thus, the instant analysis has now reached the point where Officer Hart noticed the bullets and, accordingly, inquired into the existence of a gun. Defendant, who was now under arrest, denied possessing a gun. Whereas the defendant was alone, Officer Hart was accompanied by another police officer. There was no indication that the defendant was armed or that the police officers were in any physical danger. The mere presence of bullets certainly does not constitute the exigent circumstances necessary to support a warrantless search, and, indeed, the People do not assert such a theory. (See Mincey v Arizona, 437 US 385; McDonald v United States, 335 US 451; People v Adams, 53 NY2d 1.)
The People argue instead that the defendant consented to Officer Hart’s entrance into the back room. The hearing court’s determination, as well as the evidence introduced at the suppression hearing, belie that contention. Officer Hart repeatedly asked the defendant whether he had a gun and, in fact, badgered him on the subject. The defendant’s declaration that “you can look for yourself” does not mean that the officer was given license to conduct a full-scale search for the purported weapon. While it is true that a warrantless search is proper when it is based upon a valid consent (Schneckloth v Bustamonte, 412 US 218; People v Adams, supra), the prosecution has clearly failed to meet *149its “heavy burden of proving the voluntariness” of the alleged consent. (People v Gonzalez, 39 NY2d 122, 128.) Moreover, defendant’s conduct in the back room did not “attenuate the taint”, as claimed by the People. What occurred at this time was brief and spontaneous and the direct result of the officer’s impermissible entry into the back room. In that connection, People v Boodle (47 NY2d 398) is distinguishable. Consequently, the order of the Supreme Court, Bronx County, should be affirmed.
Sandler, J. P., and Silverman, J., concur with Sullivan, J.; Milonas and Fein, JJ., dissent in an opinion by Milonas, J.
Order, Supreme Court, Bronx County, entered on October 20, 1982, reversed, on the law and the facts, and the motion denied.