(dissenting). Defendant was convicted, upon his plea of guilty, of attempted criminal possession of stolen property in the first degree and was sentenced to a one-year term of imprisonment.
This case arose out of an incident which occurred on May 9, 1982 when Police Officer Matthew Sanguiolo, who was on uniformed motor patrol, received a radio communication at approximately 12:30 a.m. advising him that a man, wearing a brown jacket, had been seen with a gun on the corner of 121st Street and Seventh Avenue. He and his partner arrived at that location shortly thereafter but did not find anyone who could have been the reported individual. They then paused to question a woman in the area and a man seated in front of 2027 Seventh Avenue, a partially gutted, semiabandoned hotel with a ground floor social club which was known for its drug activity. Although the officers failed to elicit any information from these persons, they remained on the scene.
Some 10 to 15 minutes later, the defendant was observed emerging from the social club carrying a packet of three- by six-inch white envelopes in his right hand and a black plastic bag in the other hand. When he glanced up and noted Officer Sanguiolo’s presence, he purportedly jumped back with a startled look and dropped the envelopes into the bag. On cross-examination, the officer conceded that he was unable to recall whether the *7shopping bag had handles or any markings or even what size it had been. He also did not remember if the defendant had been wearing a brown jacket at the time. At any rate, Officer Sanguiolo approached the defendant, inquiring as to what he had just placed in the bag. The defendant replied that he had not put anything there. The officer, unimpressed with the defendant’s answer, repeated the question, and the defendant again offered a denial. Officer Sanguiolo then directed the defendant to open the bag. The latter, however, did not comply so the officer opened the bag himself and looked inside, seeing several stacks of white envelopes imprinted with the words “New York Yankee Season Tickets.” The defendant became extremely nervous; he began to breathe heavily, his hands shaking. The officer asked him where he had obtained the tickets, and the defendant claimed to have discovered the bag in a lot and to have picked it up. Officer Sanguiolo expressed his disbelief as to the defendant’s account. Thereupon, the defendant stated that a friend had given him the tickets to sell and that they intended to share the proceeds. At this point, the defendant was placed under arrest.
Following a hearing in connection with the defendant’s motion to suppress, the court determined that based upon Officer Sanguiolo’s years of experience, his testimony that the area and the social club were known for drug-related activities, the late hour of the night, and defendant’s nervous behavior upon first spotting the officer, there was a sufficient predicate to make an initial noncustodial inquiry. Thereafter, the defendant’s furtive, nervous behavior and his obviously false responses to the officer’s questions justified the minimal intrusion involved in the examination of the bag’s contents by the police. Since these contents appeared so plainly to be stolen or unexplained, the court concluded, and the defendant’s story kept changing, there was probable cause for his arrest. However, the court did order the suppression of all statements made by the defendant after his arrest because of the failure to provide him with the requisite Miranda warnings.
In People v Howard (50 NY2d 583, 586), the Court of Appeals declared that: “An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or search the individual or his possessions, even though he ran away.”
*8The defendant herein was observed exiting from a building noted for drug activity. Yet, mere presence in the vicinity of a crime (which, in this instance, was highly speculative anyway), with or without envelopes in one’s hand, does not, by itself, constitute probable cause such as would support either a search or an arrest. (See, People v Monsanto, 52 NY2d 931.) There is certainly no indication that the defendant was the person described in the radio run, and, indeed, Officer Sanguiolo never claimed that the defendant was wearing a brown jacket. Similarly, there was absolutely no reason to believe that the defendant was armed or that the shopping bag contained a weapon. Thus, when Officer Sanguiolo first approached the defendant, he and his partner possessed no information which could reasonably have led them to conclude that the defendant was engaged in any sort of criminal activity. In that regard, the law is clear that before “the police may stop a person pursuant to the common-law right to inquire there must exist at that moment a founded suspicion that criminal activity is present” (People v De Bour, 40 NY2d 210, 215; see also, People v Harrison, 57 NY2d 470; People v Landy, 59 NY2d 369). However, even assuming that Officer Sanguiolo was warranted in questioning the defendant, “there was nothing that made permissible any greater level of intrusion.” (People v Howard, supra, p 590.)
The police were, under the circumstances of this case, confronted only by facts conducive to innocent interpretation. As the Court of Appeals stated in People v De Bour (supra, p 216): “We have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause * * * It is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand.” Moreover, the defendant’s supposed nervousness when he sighted the officers was, at most, ambiguous. (See, People v Howard, supra.) Since he had a constitutional right to decline to answer any police inquiries, Officer Sanguiolo was not authorized in using the defendant’s refusal to divulge the contents of the bag as a predicate for a search. “It merits little discussion but to note that, except in a few specified categorical instances, the Fourth Amendment prohibits all searches and seizures without the prior approval of a disinterested Magistrate” (People v DeSantis, 46 NY2d 82, 87, cert denied 443 US 912). None of these “few specified categorical instances” can be applied to the matter at issue here, and the People do not attempt to do so.
Instead, the People contend that the act of leaving a building which may have been the scene of drug transactions in the past, *9in conjunction with the defendant’s nervousness and his failure to respond truthfully to police questions (and he had a perfect right not to answer at all), provided the police with an adequate basis for a search of his shopping bag. While the People place great significance in the fact that the defendant was holding a stack of envelopes in his hand when he first came out onto the street, they were ordinary white envelopes, not glassine, and they were not being passed or exchanged. Surely, carrying plain white three- by six-inch envelopes is susceptible of innocent interpretation. These envelopes might easily have contained letters which the defendant was planning to mail, or payroll checks or any number of other items. Indeed, notwithstanding any testimony to the contrary by the arresting officer, white envelopes of the size involved here are simply not utilized as packaging for narcotics, and the possession of such envelopes is not consistent with the belief that drug-related activity is afoot.
The fact is, the officers here had no reasonable grounds to believe that the defendant had committed, or was in the process of committing, a crime until Officer Sanguiolo had already reached into the shopping bag and retrieved the envelopes bearing the words “New York Yankee Season Tickets”. However, it is almost too evident to necessitate mention that a search illegal at its inception cannot be validated by what it produces. (See, People v De Bour, supra.) Consequently, the defendant’s motion to suppress the physical evidence should have been granted.
Kupferman, J. P., and Kassal, J., concur with Sullivan, J.; Fein and Milonas, JJ., dissent in an opinion by Milonas, J.
Judgment, Supreme Court, New York County, rendered on September 21, 1982, affirmed.