Carro, J. P., and Rosenberger, J., dissent in a memorandum by Rosenberger, J., as follows: While I agree with the majority that the officer had a common law right to inquire based on his observations of the defendant, and that his reasonable suspicion that he and his partner were in danger of physical injury authorized him to frisk the defendant (People v De Bour, 40 NY2d 210), I disagree with the majority’s conclusion regarding the propriety of the ensuing search.
The officer testified that after he frisked the defendant’s pocket and felt small, hard, loose objects, he was certain that it did not contain a gun or a knife. After the frisk, however, the defendant attempted to run, at which time the officer grabbed him by the shirt and pulled him part way into the patrol car by holding him in a headlock. Although the officer was not sure whether he searched the defendant’s pocket and retrieved the crack vials immediately after the frisk or after the defendant attempted to run, the Supreme Court found as fact that the officer reached into the defendant’s pocket after the frisk.
Of course, much weight is to be accorded the determination of the hearing court with its peculiar advantage of having seen and heard the witness (People v Prochilo, 41 NY2d 759). Once the officer grabbed the defendant’s pocket and felt nothing that he believed to be a weapon, his fear for his safety was no longer a factor and the further search of the pocket was improper (Sibron v New York, 392 US 40; People v Roth, 66 NY2d 688; People v Brockington, 176 AD2d 743; People v Montero, 149 AD2d 628; People v Robinson, 125 AD2d 259, appeal dismissed 69 NY2d 1014; People v McGriff, 99 AD2d 818).
Assuming, arguendo, that the vials were seized after the defendant attempted to run, the seizure was still improper. Placing the defendant in a headlock and pulling him through the patrol car amounted to an arrest, justified only if based on probable cause (People v Cantor, 36 NY2d 106). The defendant’s attempted flight, after the frisk failed to reveal a weapon, did not give rise to probable cause. The actual contents of the pocket were as yet unknown and the defendant had a constitutional right to walk away (People v Howard, 50 NY2d 583, cert denied 449 US 1023; People v Carter, 163 AD2d 320, lv denied 76 NY2d 938). Since the search preceded the arrest, the Supreme Court properly granted the defendant’s motion to suppress (Sibron v New York, supra).