Defendant appeals from a judgment convicting him on a plea of guilty to attempted criminal possession of a weapon in the third degree in satisfaction of an indictment charging him with criminal possession of a weapon in the third degree, and sentencing him as a predicate felon to a term of lti to 3 years.
The issue is the propriety of the denial of defendant’s motion to suppress.
By its affirmance, the majority today rules that the purchase of a gun holster, at 7:30 p.m. in a novelty store engaged in the sale of such items on 42nd Street between Seventh and Eighth Avenues in Manhattan, is a suspicious circumstance entitling the police to stop and detain the purchaser to inquire as to the purpose of the purchase, no matter how innocent or innocent appearing the purchaser may be.
I disagree. The motion to suppress should have been granted.
Two witnesses testified at the suppression hearing. Detective Fougere, an experienced officer, testified that on January 8, 1977, at about 7:30 p.m., while dressed in civilian clothes on duty in a police taxicab at 42nd Street, between Seventh and *676Eighth Avenues, in the Borough of Manhattan, he observed defendant looking at merchandise on display in the window of a novelty store located across the street from where the officer’s vehicle was parked. He observed that defendant paid particular attention to items on a top shelf in the display window, where Fougere knew that gun holsters were usually exhibited. As defendant entered the store, Fougere crossed 42nd Street and observed defendant from outside of the store’s entrance. He watched as Samuels purchased a small gun holster, and left the store carrying the purchase in a paper bag in his left hand. Fougere and his partner, Detective Reck, followed defendant along 42nd Street to Eighth Avenue, at which point he stopped defendant and said: "Police. May I ask you a question? Why did you buy the holster?” Fougere testified Samuels did not respond, but instead put his right hand inside the right pocket of his winter coat. Samuels’ right hand had previously been at his side, according to the detective, who also observed Samuels was not wearing gloves. The officer directed defendant to take his hand out of his pocket. When Samuels did not immediately comply, Fougere grabbed Samuels’ hand through the outside of the coat. Feeling what he believed to be a gun in Samuels’ hand, Fougere directed defendant: "Get your hand out of your pocket, or I’ll break your head.” Fougere reached into the pocket and pulled out a loaded .25 caliber automatic revolver. He thereupon placed defendant under arrest. The weapon was a flat gun, smaller than the size of a man’s hand.
Defendant’s account differed significantly. He stated he had gone to the novelty shop after picking up his wife’s camera in another store, where he had bought film and flash cubes. In the novelty store, he purchased a small brown suede holster. Although Fougere did not recall whether defendant was holding another brown paper bag larger than that containing the holster, defendant offered at the hearing a receipt from the Robin Camera Company evidencing defendant’s receipt of the camera, film and flash cubes. Defendant testified that when he left the store he was carrying the bag containing the holster in his left hand and the bag containing the camera, flash cubes and film under his left armpit. His right hand was in the pocket of his winter coat. While walking west on 42nd Street toward Eighth Avenue, he was stopped by three officers. Another officer, not Fougere, asked defendant what he had purchased in the store. Defendant replied that he bought *677a holster, whereupon that officer asked defendant if he had a gun. When defendant responded in the negative, Fougere directed him to take his hand out of his pocket. He complied with this request, but Fougere nevertheless patted him down, finding the gun. The officer took the weapon from his pocket and placed defendant under arrest after throwing him into a nearby telephone booth.
The suppression Justice recognized that the purchase of the holster was not itself illegal, but found it did furnish Fougere with "an 'articulable reason’ to inquire.” The suppression Justice accepted Fougere’s account and found that when Samuels "failed to answer * * * and placed his right hand into his coat pocket, it was reasonable to suspect that the purchaser of a holster might also be in close possession of a gun nearby to be accommodated by such holster.” The court also found that defendant’s failure to take his hand out of his pocket at Fougere’s direction justified the seizure of the hand, which led to discovery of the gun. The court concluded that Fougere’s actions were reasonable under the circumstances to ensure his own safety, finding that he acted upon a "reasonably grounded suspicion” that defendant was in possession of a gun and that the "seizure * * * provided probable cause to believe that a crime was being committed in the officer’s presence.”
I disagree. Assuming Fougere’s account of the events, I find no basis for the officers’ stop and detention of Samuels based solely on Fougere’s observations that Samuels had purchased a holster. The Legislature has not seen fit to proscribe the purchase of gun holsters. Such purchase was not a crime. Plainly, Fougere proceeded on no more than a vague or unparticularized hunch, "the product of mere whim, caprice, or idle curiosity.” (People v Ingle, 36 NY2d 413, 420.)
The majority sustains as proper the conduct of Fougere as either a minimal intrusion to request information or within the officer’s common-law right to inquire, the first and second levels of intrusion approved in People v La Pene, the companion case to People v De Bour (40 NY2d 210). On the sliding scale of justifiable police intrusion, the first level authorizes a minimal intrusion to approach to request information where there is "some objective credible reason”, although not necessarily indicative of criminal conduct. The second level, the common-law right to inquire, somewhat more intense than the first level "is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in *678that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of forcible seizure” (People v De Bour, supra, p 223). The third level sanctions a forcible stop and detention encompassed within CPL 140.50 (subd 1), where the officer entertains a reasonable suspicion that a person has committed, is committing or is about to commit a felony or misdemeanor. The statutory right includes the right to detain and the corollary right to frisk if the officer reasonably suspects himself to be in physical danger. (CPL 140.50, subd 3.)
In assessing the reasonableness of the actions of the police officer, and hence their legality "we must consider whether or not the action of the police was justified at its inception and whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible.” (People v Cantor, 36 NY2d 106, 111; People v De Bour, supra, p 222.) It is useful first to examine whether the circumstances warranted the second level of intrusion, the common-law right to inquire. Was there "a founded suspicion that criminal activity is afoot” (People v De Bour, supra, p 223), justifying the interference with defendant to gain an explanation as to why he purchased the holster? According to the officer, the only reason for the stop was that he observed defendant purchase a gun holster, plainly not a crime in this State. I find no basis for the conclusion of the suppression court that a person who purchases a holster can be reasonably expected to have a gun nearby to accommodate it. The purchase was made openly in a public store, a novelty store, which admittedly sold products other than holsters, or guns. Other than the purchase, there is nothing in the record which was in any way suspicious so as to call the officer’s attention to defendant in the first instance. For all Fougere knew, defendant could have been a collector of guns or holsters. The purchase, concededly legal, did not furnish the officer with a justifiable basis to stop and inquire.
Nor may the stop be justified under the first level of intrusion, which authorizes an approach "to request information * * * when there is some objective credible reason for that interference not necessarily indicative of criminality” (People v De Bour, supra, p 223). Such an intrusion contemplates a request by the police for general information, such as a person’s name and address, or appropriate identification, or information to aid in investigating a crime. There was no such *679inquiry here. Where, as here, the inquiry is focused upon defendant’s conduct, justification for the detention must be found at the second level of intrusion, the common-law right to inquire. Fougere’s inquiry was directed at specific actions on the part of defendant, to wit, why he had purchased the holster and whether or not he had a gun. To attempt to sustain such inquiry as a mere informational inquiry as does the majority would sanction arbitrary detentions by law enforcement officials despite the absence of objective evidence to warrant a "reasonable suspicion” of "criminal activity”.
The rationale of the majority would authorize a similar police inquiry of every customer outside every novelty store in the 42nd Street area. Plainly, such police action would not pass constitutional muster, even though, as Fougere testified, 42nd Street between Seventh and Eighth Avenues is classified by the police as a high-crime area. The purchase of a holster in a novelty store, early in the evening at 7:30 p.m. by a Black man, wearing a winter outer coat, is insufficient to justify police action stopping and detaining the purchaser to inquire as to the reason for the purchase. "An individual’s right to walk the public streets without fear and annoyance should not be circumscribed by permitting the police to stop and interrogate him on the basis of a 'hunch’, that will be wrong as often as it is correct.” (People v Moore, 62 AD2d 155, 157.) Mere purchase of a holster does not give rise to reasonable suspicion of criminal activity as to authorize the police in detaining defendant to seek information as to why the purchase was made. There being no right to stop and inquire, the subsequent frisk and search were unlawful.
Moreover, even assuming Fougere’s account of what transpired, I find no reasonable basis to authorize the seizure of defendant’s hand through the outside of the coat.
The mere placement of one’s hand in one’s pocket, or keeping it there, without more, does not create a suspicion that an individual is armed. (People v Bernard, reported with People v Prochilo, 41 NY2d 759, 762-763; People v Santiago, 64 AD2d 355, 361.) There was no visible evidence of a gun, no outline, or bulge, and no conduct, other than the equivocal purchase of the holster, suggesting the presence of a weapon.
As stated in People v Santiago (supra, p 361): "Before an officer 'places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search *680for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.’ (People v Sibron, 392 US 40, 64; People v Stewart, 41 NY2d 65, 69; see, also, People v Sterling, 63 AD2d 210.)”
No such facts are shown here. Nor is there any testimony on which such inference could be founded. Surveillance of defendant may have been warranted. Detention, search and seizure was not. (People v Batista, 68 AD2d 515.)
There was no objective evidence to justify the officers in stopping defendant even to inquire. To hold otherwise is to ascribe an element of criminality to conduct which the Legislature has not seen fit to proscribe. Defendant was doing nothing which was in any way suspicious. He purchased a holster, which he had every right to do. He was carrying it in a plain paper bag, walking toward Eighth Avenue, when he was stopped and detained by officers, who inquired as to his reason for making the purchase. Nor is there any testimony that the officers were in any way fearful or apprehensive for their own safety. In effect, the majority holds that a citizen, observed purchasing an object which he has every right to purchase, may nevertheless be stopped by an officer, who may question him as to the contents of a bag he is carrying and his reasons for the purchase.
Such holding ignores the requisite standard, which requires "a balancing of the legitimate interests of the defendants against the reasonableness and appropriateness of the police action.” (People v Prochilo, supra, p 761.)
Accordingly, the judgment, Supreme Court, New York County (Leonforte, J., at suppression hearing; Silbowitz, J., at plea and sentence), rendered October 3, 1977, should be reversed, on the law, the motion to suppress granted and the indictment dismissed.
Kupferman, J. P., Birns and Ross, JJ., concur with Lupiano, J.; Fein, J., dissents in an opinion.
Judgment, Supreme Court, New York County, rendered on October 3, 1977, affirmed.