I would affirm the judgment.
I disagree with my colleagues in this matter. At the outset it is significant to state that we are apparently all in agreement that the police do possess a common-law right to make inquiry into what they deem to be suspicious activity. That right, as noted by the majority, is qualified in that it must find its genesis in articulable facts which may be considered by a police officer; a mere "gut” feeling will not suffice. I would, however, add a most important qualification. The assessment of such articulable facts is a subjective judgment which should be left to the field officer who is in the best position to properly determine the situation. In this respect we must, to a certain minimal extent, at least, defer to the officer’s instincts. It is my opinion that the facts of this case, as accurately recounted by the majority, did provide the arresting officers with more than sufficient reason to suspect that some criminal activity was afoot, to continue surveillance of the subjects as they did for a time, to come alongside of the defendants’ vehicle and to attempt to make inquiry.
After Cascio drove into the White Castle parking lot and initially pulled alongside of the unmarked police vehicle, as Mr. Justice Shapiro noted, he immediately moved to a deserted area. While it is true that Cascio was unaware that the occupants of that vehicle were police officers, and that this act alone is susceptible of an innocent interpretation, the incident occurred on Monday, June 21, 1976, at 1:00 a.m., in effect a Sunday night, in the parking lot of an opened restaurant; Cascio did not enter the restaurant or appear to transact any business therein or which was related thereto. Cascio showed something which was in the trunk of his automobile to the individual who joined him. It appeared that they exchanged *190money and then drove away together. In my opinion the totality of these observations would give cause to the prudent, experienced police officer to believe that a need for inquiry existed. Although it may be argued that Cascio’s behavior was susceptible of an innocent interpretation, persons do not ordinarily carry on legitimate business transactions under these circumstances.
Though Cascio would have had a perfect right to keep his business private, if it were in fact legitimate, he did not have to pull away to a deserted area; the observations of the police officers raised questions as to the propriety of these activities, giving rise to the officers’ common-law right of inquiry. It is clear that they were not motivated by a simple hunch or mere intuition.
The fact that these officers did not exercise this right immediately by stopping the defendants in the parking lot does not in any way vitiate such right. Indeed, in the recently decided case of People v Andino (60 AD2d 633), we reversed an order of suppression upon an appeal by the People, holding that where there were clear grounds for suspicion based upon observations of defendants by police officers, such officers proceeded properly when they continued their investigative surveillance of the defendants in their own vehicle after defendants entered an automobile and drove off. We stated (p 633), specifically, that "[reasonable suspicion was not dissipated by defendants’ evasive driving; rather, reasonable suspicion was enhanced.”
Thus, in the case at bar, defendants’ flight through a red light at highly excessive speeds after the police had identified themselves and asked them to submit to inquiry gave the arresting officers additional grist for their mill. Such identification was made while both cars were relatively still and next to each other and was apparently acknowledged by Cascio. To assume that the defendatns were running for their lives or to evade thieves just is not warranted from the facts. The police clearly identified themselves and Cascio offered no testimony at the suppression hearing to justify a finding that this was not true or that he and Fasone were not aware of the identity of their pursuers. To make a contrary assumption is to give Cascio the benefit of a doubt which, upon the facts presented, he is clearly not entitled to. Furthermore, there is no evidence of a threat of any kind emanating from the police vehicle toward that occupied by Cascio which would justify his imme*191diate flight through a red light and the high speed chase which ensued.
It would appear that the activity of the defendants clearly justified a search of the trunk of the vehicle after they were apprehended (see People v Lewis, 26 NY2d 547, 552). If, however, there is any doubt in this respect, Cascio’s spontaneous outburst to the officers, to get his cousin out of the car and that there was "grass” in the trunk, gave them complete license to make the seizure.
Furthermore, in my opinion, assuming, arguendo, that the police observations in the parking lot did not present a situation of justifiable inquiry, the outcome is unchanged. Once Cascio fled through a red light at a high rate of speed after the police had identified themselves, the officers had a right to pursue him. The ensuing chase, at speeds of up to 100 miles per hour, which terminated in an automobile collision in which there were injuries, gave the police officers further cause to persist. Upon subduing the defendants, the police could properly have impounded the vehicle and, under the circumstances, the contraband would have been lawfully discovered in the course of an innocent police inventory and would have been admissible against Cascio (see People v Fitzpatrick, 32 NY2d 499, cert den 414 US 1033; People v Butler, 44 AD2d 423, 429 [opn by Munder, J.]; People v Robinson, 36 AD2d 375, 377 [opn by Shapiro, J.]).
This case differs wholly, I believe, from People v Sobotker (43 NY2d 559), upon which the majority places great reliance. There the defendants had done nothing more than drive their car slowly down a block, taking time to look into several bars as they passed them, when the police stopped them and pulled them over. That activity, unlike the activity observed in this case, is certainly susceptible of any one of a multitude of innocent interpretations. Certainly the law as espoused in Sobotker, quoted by the majority, supports the action taken by the police in the instant matter, where the activity observed in the parking lot was such as to reasonably and properly create a good deal of suspicion. Furthermore, Sobotker has little or no relevance to the instant case where the search, seizure and arrest may be sustained solely upon the activity of Cascio following the time the police identified themselves to him, a situation not present in Sobotker.
Accordingly, I would affirm the judgment of conviction.
*192Damiani and O’Connor, JJ., concur with Shapiro, J.; Martuscello, J. P., dissents and votes to affirm the judgment, with an opinion.
Judgment of the Supreme Court, Queens County, rendered September 21, 1977, reversed, on the law and the facts, motion to suppress granted, plea vacated, and case remitted to Criminal Term for further proceedings on the indictments.