dissents and votes to reverse the judgments appealed from, on the law and the facts, to grant those branches of the defendant’s omnibus motion which were to suppress physical evidence and oral statements to the police, and to dismiss the indictments, with the following memorandum: I must dissent. The arresting officer conceded at the suppression hearing that until he reached into the defendant’s *383sweatshirt pouch and seized what proved to be approximately 20 pieces of jewelry wrapped in a handkerchief he had no information that any crime had been committed. Because the legality of the arrest depends upon the validity of the underlying search and seizure, there is only one pivotal question raised by this appeal: whether the arresting officer was justified in seizing the evidence. In my opinion he was not justified.
Apart from the officer’s concession that probable cause did not exist prior to the time he confiscated the jewelry, the evidence adduced at the suppression hearing demonstrates that, until the moment of confiscation, the officer possessed, at most, only a "reasonable suspicion” that the defendant was about to commit a crime. Assuming its existence, reasonable suspicion gave rise to a justification to "stop” the defendant and to demand his name, address and an explanation of his conduct (CPL 140.50 [1]). The hour and location of the "stop” in this case may even have justified conducting the authorized limited inquiry after giving an order to "freeze”, with his gun drawn (see, People v Chestnut, 51 NY2d 14, cert denied 449 US 1018). However, after receiving that order, and complying, the defendant made no furtive or threatening gestures so as to justify any greater level of intrusion by the police officer. Moreover, the defendant’s negative response to the officer’s inquiry does not constitute a sufficient predicate for the search and seizure (cf., People v Howard, 50 NY2d 583, cert denied 449 US 1023). The only possible justification for the "pat down”, the subsequent search of the defendant’s sweatshirt pouch, and the seizure of its contents, would be a reasonable belief on the part of the officer that he was in danger because defendant was armed (Terry v Ohio, 392 US 1; CPL 140.50 [3]). There is no evidence that a justification existed here (cf., People v McNatt, 65 NY2d 1046; People v Vullis, 131 AD2d 616; People v Robinson, 123 AD2d 796; People v Kugler, 122 AD2d 955).
"In the case of [a] self-protective search for weapons, [the police officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous” (Sibron v New York, 392 US 40, 64). Moreover, once the reasonable basis for the officer’s fear abates, so does the basis for further intrusive conduct (People v Roth, 66 NY2d 688). In this case, the radio transmission to which police were responding contained no mention of a weapon (cf., People v Larkins, 116 AD2d 194, lv denied 67 NY2d 1054) and the only mention of a weapon during the course of the suppression hearing was when, on cross-examination, the officer was *384asked if he had any indication that the defendant had one. The officer responded "[j]ust the observance of the bulge”.
The "bulge” the arresting officer observed apparently bore no outward appearance of a weapon (cf., People v Prochilo, 41 NY2d 759; People v Wiley, 110 AD2d 590). But assuming "just [its] observance” constituted a "particular fact” from which the officer reasonably inferred that the defendant was armed so as to justify a "pat down”, there is no evidence to support a claim that the results of the "pat down” justified an increase in the level of intrusion to invasion of the defendant’s clothing and taking what to the touch was not a weapon but "a bulge” or a "hard ball” (cf., People v Rivera, 14 NY2d 441, 447, cert denied 379 US 978). The officer himself did not claim he believed the "hard ball” to be a weapon and he did not advance the notion that by invading the defendant’s clothing he acted to protect his safety (see, Sibron v New York, 392 US 40, 64-65, n 21, supra; People v McNatt, supra). His "search” therefore, should have ended prior to that invasion (see, People v Roth, supra).
The hearing court should have suppressed the tangible evidence as the product of an unlawful search. The defendant’s statements to the police, the product of and tainted by the arrest premised on the unlawful search, should also have been suppressed (see, Dunaway v New York, 442 US 200; People v Milaski, 62 NY2d 147). I would reverse the judgments appealed from, and, since there is no indication that any untainted evidence exists, dismiss the indictments.