After the defendant’s suppression motion was denied, he pleaded guilty to the crime of possession of weapons and dangerous instruments and appliances as a misdemeanor. This appeal involves an aspect of the agonizing problem which often troubles the courts, to wit, whether to allow a defendant whose guilt is clear to go unwhipped of justice because the arresting officer has breached his constitutionally protected rights against unreasonable searches and seizures.
THE FACTS
The defendant was arrested soon after midnight on September 13, 1970 by Jesse Carter, an off-duty New York City Housing Authority patrolman, who was in his private automobile and on his way home from the movies with a woman companion. As he was driving by an unfenced parking lot in Queens, he saw the defendant and another man, some 15 or 20 feet away, crouched behind an automobile parked in the partly deserted lot. Other cars were also parked in the lot. Although the car behind which the defendant and his companion were crouched was between them and Patrolman Carter, the officer could see the whole upper part of the defendant’s body. Patrolman Carter testified that the defendant "had his hands up” and that he saw an object in his hands but could *295not see what it was. He also testified that he also saw the defendant’s companion place an object into his rear pants pocket, but he did not know what that object was. Patrolman Carter then pulled his car into the parking lot, turned off his lights, and parked it almost two car lengths away from the defendant and his companion. He then turned on his car headlights, drove his car right up to the defendant, stopped his car, and got out, facing the defendant. He had his pistol in his hand and said "freeze, police officer”, and told the defendant to place his hands on his, Carter’s, car. He testified that when he did this he still did not know what the object was that he had seen in the defendant’s hand. He then testified that he thereafter saw the defendant drop the object in his hand to the ground. When he retrieved it, Patrolman Carter found it to be a loaded gun. He then searched the defendant and found six additional bullets in his pocket.
THE DECISION UNDER REVIEW
The Criminal Term, in denying the defendant’s suppression motion, ruled that Patrolman Carter was properly investigating the suspicious activities of the defendant and his companion when he approached them and identified himself to them as a police officer. It went on to say that, as he did so, the defendant dropped an object to the ground at his feet and that when Patrolman Carter picked it up he found it to be a loaded gun, as a result of which he arrested the defendant. The Criminal Term therefore found that the arrest of the defendant was proper and that, consequently, the ensuing search, which disclosed six more rounds of ammunition in the defendant’s pocket, was also proper.
THE LAW
If the facts were as the Criminal Term stated them, that Patrolman Carter arrested the defendant only after he found that the object he had seen in the defendant’s hand was, in fact, a gun, the correctness of its denial of the motion to suppress would be beyond question. However, Patrolman Carter’s testimony was that when he turned on his headlights and limned the defendant in them and got out of his car, his gun in hand, and told the defendant, "freeze, police officer”, he did so without knowledge that either the defendant or his companion were armed and that his only ground for thus proceeding was that he had seen them crouching behind a parked car, *296the defendant with an unknown object in his hand. Clearly, therefore, at the moment that Patrolman Carter pointed his gun at the defendant and ordered him to "freeze”, the latter was being "physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action” and he had therefore been "seized within the meaning of the Fourth Amendment” (People v Cantor, 36 NY2d 106, 111). As the Court of Appeals there said (p 111): "This is true whether a person submits to the authority of the badge or whether he succumbs to force.” Clearly, because of the police officer’s gun, the defendant was then "deprived of his freedom of movement” (p 111) and was under arrest at that very moment, a moment when the police officer as yet had no probable cause to believe that a crime was being committed.
In People v Cantor, the court said (pp 112-113): "Before a person may be stopped in a public place a police officer must have reasonable suspicion that such person is committing, has committed, or is about to commit a crime (CPL 140.50). Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand. (Compare Schwartz, Stop and Frisk: A Case Study in Judicial Control of the Police, 58 J. Crim. L.C. & P.S. 433, 445 with La Fave, 'Street Encounters’ and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich. L. Rev. 40, 70.) To justify such an intrusion, the police officer must indicate specific and articulable facts which, along with any logical deductions, reasonably prompted that intrusion. Vague or unparticularized hunches will not suffice (Terry v. Ohio, 392 U. S. 1, supra; Wong Sun v. United States, 371 U. S. 471, 479). Nor will good faith on the part of the police be enough to validate an illegal interference with an individual (e.g., Terry v. Ohio, supra; Henry v. United States, 361 U. S. 98, supra; Hill v. California, 401 U. S. 797; Smith v. County of Nassau, 34 N Y 2d 18).”
Here, "the record is barren of any objective evidence evincing criminal activity” (People v Cantor, supra, p 113), for, at the time Carter arrested the defendant at gunpoint, he had no knowledge that the defendant’s behavior was "dangerous to the safety of the police or others (Warden v. Hayden, 387 U. S. 294)” (People v Cantor, supra, p 113). The officer frankly conceded that at the time when, gun in hand, he ordered the defendant to "freeze”, he had no notion what the object in the *297defendant’s hand was; nor did he know that it was a gun until he saw it at the defendant’s feet.
In Cantor the court also said (pp 113-114): "Turning to the common-law authority of the police to make investigative inquiries, we note that this authority does not give the police a license to violate the Constitution (cf. People v. Rivera, 14 N Y 2d 441, 448 [Fuld, Ch. J., dissenting]). The common-law power to inquire does not include the right to unlawfully seize. The minimum requirement for a lawful detentive stop is a founded suspicion that criminal activity is afoot (e.g., United States v. Ward, 488 F. 2d 162; United States v. Bugarin-Casas, 484 F. 2d 853, cert. den. 414 U. S. 1136). Our court has consistently limited this power when it has been exercised solely on the basis of vague suspicion or as a means of harassment (see, e.g., People v. Stokes, 32 N Y 2d 202; People v. Schanbarger, 24 N Y 2d 288; Sibron v. New York, 392 U. S. 40).”
Here, Patrolman Carter’s testimony was that he saw the defendant and another man crouching behind a car and that the defendant had an object in his hand. Beyond that fact, Patrolman Carter had no ground for suspicion. The object might have been a tire iron for fixing a flat tire. By itself it was no basis for "a founded suspicion that criminal activity” was "afoot”. The defendant and his companion took no evasive action when Patrolman Carter’s car entered the lot and parked near them. In brief, Patrolman Carter had neither probable cause nor a founded suspicion of criminal activity afoot when he seized the defendant. Therefore, the motion to suppress should have been granted. I reach this conclusion with a great deal of reluctance since I am not unaware that cases such as the instant one raise serious problems for the courts, and even more serious ones for the police officers involved. Here, subsequent events demonstrated beyond the slightest doubt the correctness of the arresting officer’s course of conduct. Had he failed to have his gun drawn and to order the defendant to "freeze”, he might well have been a victim of the guns of his armed arrestees. However, constitutionally protected Fourth Amendment rights cannot be dispensed with solely because the results of an unreasonable search and seizure, made without probable cause, demonstrate that the person whose constitutional rights have been infringed was in fact armed with illegal weapons. The fact that the subject of the improper search and seizure, the defendant, was in fact *298armed with a loaded weapon, and had extra ammunition for the weapon in his pocket, cannot serve to validate either his arrest without probable cause or the subsequent search of his person. While it goes against the grain to say to the arresting officer, whose life may well have been at stake, especially if he had failed to take the precaution of having his gun in hand when he ordered the defendant to freeze, that the fact that he acted on bald suspicion without sufficient prior evidence of the defendant’s wrongdoing to constitute probable cause makes it necessary to suppress the product of the seizure and search, I must so vote. To do otherwise would be to fail to carry out my duty to support and defend the Constitution.
I am cognizant of the fact that both the highest court of our State and the Supreme Court of the United States have applied to police officers a somewhat different standard than that applied to ordinary citizens in determining what constitutes probable cause to sustain an arrest. In Brinegar v United States (338 US 160, 175-176), Justice Rutledge said:
"Since Marshall’s time * * * it [probable cause] has come to mean more than bare suspicion: Probable cause exists where 'the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U. S. 132, 162.
"These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.” In People v Valentine (17 NY2d 128), the court declared that the standard of probable cause, as it applies to police, is that which would be probable cause to a reasonable, cautious, prudent police officer.
*299Applying that statement here, I find that the arresting officer, based upon his own testimony, did not have, at any time prior to his arrest of the defendant, reasonable ground to believe that the defendant or his companion was armed or that they were otherwise engaged in any criminal activity. For all he knew, they may have been engaging in perfectly proper activity. He had no grounds for believing "criminal activity” was "at hand” (People v Cantor, 36 NY2d 106, 113, supra). He did not "indicate specific and articulable facts which, along with any logical deductions, reasonably prompted” his intrusion on the defendant in a public place (p 113). The fact that his hunch as to the defendant turned out to be right cannot serve to establish the necessary probable cause, although it did turn out to have secured his safety (see Sibron v New York, 392 US 40, 63; Henry v United States, 361 US 98, 103; Johnson v United States, 333 US 10, 16-17). The law has not yet reached the stage where the proof of the pudding is in the eating.
As a court of law, we are bound to safeguard constitutionally protected rights against invasion when a police officer proceeds on no more than a "vague suspicion”, even though the object of that invasion is a most despicable character. Our claim to uniqueness among the Nations of the world is our deep commitment to constitutionalism which, in a case such as this, requires a recognition of and respect for individual rights and liberties. We may not traduce our principles because their observance results, in an individual case, in freeing a guilty defendant (cf. People v Sanchez, 38 NY2d 72).
Rabin, Acting P. J., Hopkins and Christ, JJ., concur with Martuscello, J.; Shapiro, J., dissents and votes to reverse the judgment, grant the motion to suppress evidence, and dismiss the indictment, with an opinion.
Judgment of the Supreme Court, Queens County, rendered October 9, 1974, affirmed.