(dissenting). I respectfully would dissent from the majority’s decision to reverse the trial court’s suppression of the evidence in this case.
Although defendant lacks standing to challenge the search of Seaver’s house on Fourth Amendment grounds, I recognize that courts have the power and duty to exclude on due process grounds evidence obtained by means which are shocking to the conscience. Rochin v California, 342 US 165, 172; 72 S Ct 205; 96 L Ed 2d 183 (1952). When *60police embark upon a purposeful illegality that results in obtaining relevant evidence, courts should not sanction that conduct by admitting such evidence at trial. Thus, if a defendant can establish that an illegal search is more than an innocent or negligent mistake and that the police acted in purposeful disregard of the law with the deliberate intention of building a case against the defendant, the trial court should exclude any product of such illegal action as a matter of public policy, and as a deterrence to future illegal action by the police.
In the instant case it cannot be determined from the record whether such misconduct occurred in the search of defendant’s car and the search of the Seaver house. Did Officer Szilagyi "invent” the story that he saw a glassine package containing white powder in order to justify issuance of a warrant to search, or did he honestly but erroneously believe that he saw what he described? This question can only be answered by determining the credibility of the witnesses involved. The trial court alone should make this determination after it has the benefit of testimony.
Accordingly, I would remand this cause to the trial court. On remand, the trial court should apply the standard set forth in Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978), to determine whether the police officer’s statement that he saw defendant carrying a glassine bag containing a white powdery substance was a "deliberate falsehood or reckless disregard of the truth” in light of the fact that such a bag was never found in subsequent searches of defendant’s person and his automobile. If that statement is found to be invalid, all evidence seized after the statement was made, including the defendant’s *61identity and prior Florida arrest, should be suppressed.
Likewise, if defendant establishes a purposeful illegality, the fruits of the search of the Seaver home, including the cocaine and narcotic paraphernalia seized therein, and Seaver’s testimony under grant of immunity should be suppressed.
I also am concerned that the stop of the defendant’s automobile by the state police trooper was simply a pretext stop used to obtain defendant’s identification and any other available information. This court was presented with no evidence which would substantiate the state police officer’s statement that the defendant made an illegal turn. No citation was issued to the defendant. The stop was made after authorities who had been observing the Seaver home and the defendant’s activities and movements radioed the state police that they wanted the defendant identified. I do not believe that the Terry-Whalen investigatory search and seizure of defendant’s identification was reasonable under the facts and circumstances known by police at the time of the automobile stop. Defendant’s identity was sought by police, and they used a specious traffic stop to discover that information. Terry and Whalen should not be expanded to permit such police activity.
I would remand for a Franks hearing in accordance with this opinion.