I would affirm the order granting suppression.
The preliminary issue is whether the circumstances leading to the discovery of the weapon found upon the defendant arose from an unreasonable intrusion upon defendant’s right of privacy. The basic question is whether the police had sufficient cause to stop the vehicle in the first instance. If they did not, any subsequent search or frisk was not authorized. The predicate for police action must be facts sufficient to justify a stop and an inquiry. A stop is less intrusive than an arrest and thus does not require probable cause, but at least requires reasonable suspicion (Terry v Ohio, 392 US 1; People v Harrison, 57 NY2d 470, 476; see CPL 140.50, subd 1). Taking the officers at their own word, it is plain that the vehicle was stopped because it was “a late model Toyota * * * with three young male blacks in it, and the car bearing rental plates.” The officers thought the occupants were under 25, which they erroneously believed was the minimum age for rental of a vehicle.
However, it is clear that there was no operation of the vehicle, while the officers had it under observation, which would justify the stop. The fact that it was not near the gas pumps at the time it was observed is not unusual. The vehicle may have been stopped in order for its occupants to make an inquiry, or it may have already been filled up with gas and was ready to depart. One of the officers testified the vehicle “was at the pumps. I don’t recall whether he had gotten gas.”
That the officers believed that a rental vehicle could not be operated by someone under the age of 25 is hardly a lawful basis for a stop. Yet these were the motivations which impelled the officers to make a U-turn for the purpose of stopping the vehicle for inquiry. The fact that the vehicle under observation “was jerking” or “jerked forward” twice and was “moving out in a hesitant manner” *402as it turned out of the station could result from a variety of reasons unrelated to the commission of a crime and not warranting a stop or inquiry. It provided no ground for suspicion or for a stop, albeit “there’s a lot of stolen cars and a lot of stolen property sold at that gas station”.
At this point, the officers’ intention to stop the vehicle was clear and was without lawful basis. The fact that the vehicle then pulled out of the gas station and turned into a parking lane and then into a driving lane was not the basis for the stop. There was not even an inquiry concerning this procedure, nor was a summons issued to the driver for this infraction, if there was an infraction (Uniform Vehicle Code, § 11-604, subd [d]; § 11-605, subd [b]).
The suppression Justice did not credit the testimony of the officers that the vehicle had been stopped for any such violation. Indeed, the officers themselves did not so testify.
Although the degree of suspicion required to justify a stop is minimal and need not reach the level of probable cause (People v Ingle, 36 NY2d 413, 415), there must be some articulable fact providing reasonable suspicion that the individual being stopped is engaged in criminal acts (People v Harrison, 57 NY2d 470, 476, supra). A stop is a limited seizure of the person and requires, at the minimum, reasonable suspicion. There was no lawful basis for the stop. Since there was no lawful basis for the stop, there was no authority to require the driver, the defendant and the third occupant to get out of the car (see Pennsylvania v Mimms, 434 US 106; People v Harrison, 57 NY2d, at pp 475, 476).
People v Roman (74 AD2d 589, revd on other grounds 53 NY2d 39), relied upon by the majority, is not to the contrary. In that case, the vehicle was a new car “extremely dirty and had extensive damage to the left front side, from the wheel to the bumper”. The left front tire had red markings similar to those on spare tires on rental vehicles and the car had a “rental plate”. The officers had never seen a rental vehicle in such condition. The vehicle was being driven into an area known for “dumping cars”. Moreover, when the vehicle was stopped, the driver admitted he had no operator’s license and told the officers that his license had been revoked. The conviction stub portion which he produced contained numerous convictions.
*403Everything the officers observed in that case was suspicious. Not so here, unless we are to hold that suspicion sufficient to authorize a stop arises whenever three young men are sitting in a vehicle which bears rental license plates, in a gas station in broad daylight, albeit the gas station is known for dealing in stolen property. The circumstances did not warrant the stop.
To justify the stop, there must be some articulable facts which initially or during the course of the encounter establish a reasonable suspicion that the person is involved in criminal acts or poses some danger to the officers (People v De Bour, 40 NY2d 210, 216; People v Carrasquillo, 54 NY2d 248, 252).
Even if the stop was warranted, the police procedure thereafter was unjustified. The requirement that the driver and the two passengers, including the defendant, step out of the vehicle, had no lawful basis. There was no suspicious act indicating either criminality or danger to the officers. As stated in People v Marsh (20 NY2d 98,101), “the Legislature never intended to authorize a search of a traffic offender unless, when the vehicle is stopped, there are reasonable grounds for suspecting that the officer is in danger or there is probable cause for believing that the offender is guilty of a crime rather than merely a simple traffic infraction.”
The majority opinion suggests that the driver, the defendant and the other passenger were all placed under arrest prior to the time the gun was found on the defendant. The record does not support this conclusion. It is clear that the arrest occurred after the gun was found. Prior to that there was no evidence of any reason to suspect that the police were in danger of physical injury. They determined that in order to pursue their inquiry concerning the rental status of the vehicle, further investigation would be made at the police precinct. For that purpose, it would be necessary to transport the driver and the passengers to the police station in a police vehicle. Departmental policy required a frisk or search before placing the subjects of the inquiry into the police vehicle.
As stated in People v Howington (83 AD2d 756), “While we do not question the soundness of that policy as applied *404to one lawfully in custody, it may not be employed as justification to search a person impermissibly seized without probable cause for the purpose of transporting him to police headquarters for further interrogation (see Dunaway v New York, 442 US 200, 216).”
The passengers in a vehicle stopped for a traffic infraction may not be ordered out of the vehicle or searched, absent some suspicion directed at them (People v Marin, 80 AD2d 541). The police conceded that defendant had engaged in no suspicious activity, and had posed no danger to them. Defendant’s behavior, at most “equivocal and suspicious” because of the inadequate explanation by the driver as to the source of the vehicle, was “unsupplemented by any additional behavior or circumstances” involving defendant which might have “rais[ed] ‘the level of inference from suspicion to probable cause’ ” to justify the search (People v Brown, 32 NY2d 172, 174).
The majority opinion suggests that there was probable cause to support the arrest of the driver which would warrant the police in patting down the defendant prior to transporting him to the precinct. Even the police took no such position. They did not claim to have made an arrest until after the search of the defendant. As the suppression court found, there was no basis for the stop and no basis for an arrest prior to the finding of the gun on the defendant. The fact that the gun was found does not warrant the stop or the search.
Neither the late model condition of the vehicle, the rental plates nor the age or physical appearance of the occupants offered any objective legal basis to support the reasonableness of the stop in the first instance.
It is notable that the driver and the other passenger were neither summoned nor arrested. It was never demonstrated that the vehicle had been stolen or was being operated without permission.
The order appealed from should be affirmed.
Sandler, J. P., and Ross, J., concur with Lynch, J.; Fein and Kassal, JJ., dissent in an opinion by Fein, J.
Order, Supreme Court, New York County, entered on July 9, 1982, reversed, on the law and the facts, and the motion to suppress denied.