Lawrence, J. dissents and votes to reverse the judgment, on the law, grant that branch of the defendant’s omnibus motion which was to suppress physical evidence, dismiss the indictment, and remit the matter to the County Court, Westchester County, for the purpose of entering an order in its discretion pursuant to CPL 160.50, with the following memorandum decision, in which O’Brien, J. concurs.
*763At the suppression hearing, Detective Joseph Radzinski testified that on April 7, 1989, at approximately 10:50 p.m., he and his partner, both in civilian clothes, were patrolling in an unmarked police vehicle in a section of the City of Mount Vernon allegedly known for its drug activity. Detective Radzinski observed the defendant pick a metal box, commonly known as a "Hide-A-Key” box, from a steel grate attached to a storefront window of a plumbing store. Radzinski testified that on two prior occasions he had been involved in cases where Hide-A-Key boxes had been found containing crack cocaine or other narcotics although such boxes were not the bases of the prior arrests. As Detective Radzinski, with his police shield prominently displayed on a chain around his neck, and his partner exited their vehicle, the defendant looked in their direction, appeared to become alarmed, and ran into the grocery store next to the plumbing store. Detective Radzinski and his partner pursued the defendant into the store. Inside, the defendant handed the box to one William Palmer, who then ran to the rear of the store, with Detective Radzinski in pursuit. Upon reaching the rear of the store, Palmer flung the box to the ground. Detective Radzinski retrieved the box, looked inside, and observed 17 vials which contained what appeared to be crack cocaine. The defendant and Palmer were thereafter placed under arrest. Subsequently, after the joint suppression hearing, the charges against Palmer were severed. Palmer was later acquitted after a nonjury trial.
Contrary to the majority’s holding, I find that the police officer’s observations of the defendant’s conduct were insufficient to establish a "lawful basis” for the pursuit and seizure of the defendant. While a different result might be warranted under California v Hodari D. (499 US —, 111 S Ct 1547), in my view, People v Howard (50 NY2d 586, 590, cert denied 449 US 1023), which was decided on State constitutional grounds, governs the instant case (see also, People v Bennett, 170 AD2d 516). The evidence was insufficient to establish that a Hide-A-Key box was a " 'hallmark’ ” (People v McRay, 51 NY2d 594, 605) of drug activity (cf., People v Leung, 68 NY2d 734 [a three-by five-inch brown or manila envelope which appeared to resemble "three dollar bags” used in drug transactions]; People v McRay, supra [glassine envelope]; People v Kosciusko, 149 AD2d 620 [sandwich-size plastic bag]). As noted, Detective Radzinski testified that on only two occasions prior to the incident had a Hide-A-Key box been found containing narcotics and he further admitted that such boxes had also been found without contraband and he "guess[ed]” that a person *764"could even hide keys in them, like they were intended”. In addition, there was no evidence that the defendant was previously connected in any way with illegal drug activity, or that the box taken by the defendant had been previously used for the storage of narcotics, or that it contained narcotics on the night in question, or that the defendant’s taking of the box was illegal. Thus, while there may have been a "basis for questioning defendant * * * there was nothing that made permissible any greater level of intrusion” (People v Howard, supra, at 590). "Moreover, the defendant’s flight upon being approached by the officers did not give rise to probable cause justifying arrest * * * nor did it give rise to a reasonable suspicion justifying actual or constructive restraint” (People v Bennett, supra, at 516-517; see also, People v Howard, supra, at 592; People v Grant, 164 AD2d 170; cf., People v Leung, supra; People v Grimsley, 156 AD2d 714; People v Kosciusko, supra). Finally, contrary to the majority’s contention, the defendant’s handing of the box to Palmer did not constitute an abandonment of the box since the hearing testimony clearly established that the box was discarded as " 'a spontaneous reaction to a sudden and unexpected confrontation with the police’ ” (People v Bennett, supra, at 517, quoting People v Boodle, 47 NY2d 398, 404, cert denied 444 US 969), and the defendant did not "purposefully divest himself of possession of the” box (People v Howard, 50 NY2d, at 593, supra; cf., People v Leung, supra, at 736-737; People v Boodle, 47 NY2d 398, 404, supra; People v Wider, 172 AD2d 573; People v Kosciusko, supra, at 621-622).
In light of my determination on the suppression issue, I need not address the defendant’s other contentions.