(dissenting). This appeal raises the sole question of whether the evidence obtained was the product of an illegal search. The defendant, Mark E. Russum, was convicted for criminal possession of a dangerous drug. While passing defendant’s auto, police officers noticed a tail light was out and, after stopping him, properly performed a routine inspection of the defendant’s vehicle and found a defective rear light and two unsafe tires. The officers testified at a suppression hearing that they then directed the defendant to open his trunk in order to check the rear light defect and inspect the spare tire and discovered 14 plastic bags of marijuana.
The majority concludes that this was not an illegal search but commendable police action in performance of a required duty. I cannot agree. While the police officers had a duty towards the traveling public to see that the existing defects on defendant’s vehicle were remedied as promptly as possible, this did not supply the proper authority absent consent for them to enter into defendant’s trunk. It is well settled that the police are not authorized to conduct a search each time a motorist is stopped for an ordinary traffic violation (People v. Marsh, 20 N Y 2d 98, 100). The then applicable provisions of the Vehicle and Traffic Law (§ 375, subd. 35, added by L. 1970, ch. 573, eff. Jan. 1, 1971, and §§ 301 and 376-a, subd. 3) grant no authority to law enforcement officials to open the trunk of a vehicle for routine inspection purposes in connection with a traffic violation. It should be noted that prior statutory authority for a law enforcement officer’s inspection of a vehicle’s tires referred specifically to “ visual inspection of tires mounted on vehicle ” (Vehicle and *509Traffic Law, § 375, subd. 35, par. [b], repealed by L. 1970, ch. 573, eff. Jan. 1,1971).
The trial court did not find consent by the defendant for the opening of the trunk or the ensuing search. Contrary to the cases relied upon by the majority, there was no evidence that this was an emergency or the kind of distress which will excuse nonconsensual police entry (People v. Gallmon, 19 N Y 2d 389, cert. den. 390 U. S. 911), nor is the contraband admissible because inadvertently discovered while in “plain view” since that doctrine requires prior legitimate justification, not present under the circumstances here, for the intrusion (see Coolidge v. New Hampshire, 403 U. S. 443, 466). The matter could have been readily resolved by the officers requesting defendant Bus-sum to produce his spare tire for their inspection after which they could have taken whatever action they believed warranted under the circumstances to protect the public. Such course would at the same time have fully protected defendant’s constitutional rights.
The majority position, in my view, opens wide an avenue to possible abuse of constitutional guarantees on the countless occasions that citizens are stopped for traffic violations, if the only circumstance needed to be present for police to have a privilege to enter a motorist’s vehicle is the existence of an equipment defect. Such would deny citizens their right to be secure against unreasonable searches and seizures guaranteed them (U. S. Const., 4th Amdt.; N. Y. Const., art I, § 12), particularly when it is recognized that the principal object of the Fourth Amendment is the protection of a citizen’s privacy (Warden v. Hayden, 387 U. S. 294, 304).
Accordingly, I dissent and vote to suppress the evidence.
Goldman, P. J., Wither and Motile, JJ., concur with Del Vecohio, J.; Cardamons, J., dissents and votes to reverse judgment and grant motion to suppress, in an opinion.
Judgment affirmed.