It is my view that Criminal Term was correct in suppressing the physical evidence seized from the respondent and the statements made by him to the police. While the observations of the arresting officer *39may have been sufficient to create a reasonable suspicion in his mind that a crime was being committed, it is my judgment that they did not rise to the level of probable cause sufficient to justify the respondent’s arrest.
In People v McRay (51 NY2d 594, 601) the Court of Appeals articulated “the minimum showing necessary to establish probable cause” in cases involving arrests based on observations of suspected drug transactions. The court held that the passage of a glassine envelope, once viewed as a mere telltale sign of a heroin transaction, had become a hallmark of an illicit drug exchange which, when combined with certain additional circumstances or factors, might give rise to a finding of probable cause. Such circumstances were enumerated by the Court of Appeals (p 604) as (1) an exchange of money in return for the glassine envelope, (2) furtive or evasive behavior on the part of the participants, and (3) the exchange having taken place in an area rampant with narcotics activity. Once such a showing has been made, the minimum requirement is satisfied and it is a question for the fact-finding court to determine whether, under the circumstances of the case before it, probable cause for an arrest has been established.
Although it can be argued that the three additional circumstances or factors under McRay (supra) exist in the instant case, what is lacking here is the predicate telltale sign or hallmark with which these factors must be combined to establish probable cause. The majority would equate the hand-to-nose motion of a participant with the hallmark glassine envelope for the purpose of establishing the required predicate. There is in my mind no justification for this conclusion. The Court of Appeals in McRay (supra, p 602) deemed the glassine envelope to be a hallmark only after concluding that “time and experience have proven” no longer viable the formerly held belief that the exchange of a glassine envelope is as likely to signal innocent behavior as criminal conduct. It determined that the pervasiveness of drugs in our society has increased the awareness and probability that the passing of a glassine envelope signals an illicit drug transaction, given the infrequency of legitimate street encounters involving glassine envelopes. There is, however, no similar justification for concluding *40that sniffing also is a hallmark of illicit drug transactions. The hand-to-nose motion observed by the arresting officer in this case is a pattern of conduct which occurs as much, if not more, during innocent encounters as it does in criminal transactions and is too equivocal an act upon which to base a warrantless arrest (see People v McRay, 51 NY2d 594, 602, supra). This is particularly so at bar where the arresting officer concededly did not see any object pass. He testified that he simply assumed from the hand motions of the participants that an object was passed in exchange for what “appeared to be currency” (cf. People v Roman, 96 AD2d 953).
Under the circumstances, I vote to affirm.
Gibbons, J. P., and O’Connor, J. concur with Weinstein, J.; Brown, J., dissents and votes to affirm the order insofar as appealed from, with an opinion.
Order of the Supreme Court, Queens County, dated October 9, 1981, reversed insofar as appealed from, on the law and the facts, motion denied as to defendant Robert Bittner, and case remitted to the Supreme Court, Queens County, for further proceedings.