Acting upon information from a confidential informant, relayed by an agent for the Department of Taxation and Finance, that the defendant was selling untaxed cigarettes, Paul Murphy of the Special Investigations Bureau, in plainclothes, followed the defendant *90to a single-car garage and observed him unlock the door and was able to see cartons of cigar quently counted at over 1,400 cartons). The defendant emerged carrying a brown paper bag and locked the door. He walked to a nearby house, failed to obtain an answer and proceeded to return to the garage. Murphy and the defendant met. At that point, the two were three to four feet apart. The brown paper bag the defendant was carrying was open and, as Murphy demonstrated to the trial court, the bag was being held so that he could see inside. Packages of cigarettes were unprotected by any carton covering and Murphy saw only the distinctive North Carolina decal, with which he was familiar, indicating the defendant’s failure to comply with the tax laws of this State. The defendant was then placed under arrest. enter. The defendant omitted
In our opinion, Murphy’s testimony could well be credited by the trier of the facts and warrants the conclusion that there was probable cause to arrest the defendant for the illegal sale of cigarettes. Murphy’s subsequent entry into the garage was not to search for contraband but to seize that which had already been seen. Law enforcement officials are not required to shut their eyes to readily visible evidence of crime and nothing in the Constitution inhibits the seizure of such evidence (People v. Swanberg, 22 A D 2d 902, mod. on other grounds 16 N Y 2d 649; People v. Manzi, 38 Misc 2d 114). The conclusion that the cigarettes in the garage were contraband went beyond mere speculation and was based on reasonable grounds. Murphy had observed an inordinate number of cigarette cartons in the garage and the cigarettes in the brown paper bag which the defendant brought out of the garage were untaxed. Upon Murphy’s lawful entry into the garage, the firearm, which had not been adequately concealed, was observed and seized.
Accordingly, we would affirm the judgment.
Gulotta, P. J., Shapiro and Christ, JJ., concur in Per Curiam opinion; Latham and Benjamin, JJ., dissent and vote to affirm, with an opinion.
Case remanded to the Criminal Term for a further hearing and a report to this court on the issue of whether or not the initial arrest was lawful and determination of appeal held in abeyance in the interim.