The opinion
Cohalan, J. (dissenting).
The case of Hill v California ( 401 US 797 ), relied upon in part by the majority, is distinguishable. There the police had probable cause to arrest Hill and search his premises. In his absence from his apartment they entered and arrested another man, despite his protestations, in the reasonable belief that he was Hill; and as an incident to the arrest, they conducted a search of the premises.
The distinguishing factor at bar is that the woman accomplice accompanied the police in their search for Wade and promptly informed them that Nimmons (who was with Wade at the moment of arrest) was the wrong man. In my judgment Nimmons was entitled to the order of suppression.
Titone and Suozzi, JJ., concur with Hawkins, J.; Cohalan, J., dissents and votes to affirm the order with a memorandum.
Order of the Supreme Court, Kings County, entered October 19, 1976, reversed, on the law and the facts, and motion to suppress physical evidence denied.