I agree that there should be an *635affirmance of the order which granted defendant’s motion to suppress and dismissed the indictment.
In my view, taking into account that the police were responding to a radio run concerning a 911 report of a burglary in progress, the officer was justified in proceeding with utmost caution, particularly considering all of the circumstances, the area, the location of the incident and the time of day. When the police arrived on the scene, what they observed confirmed the accuracy of the report in terms of the position of the defendant on the fire escape. However, there was nothing else to indicate that there actually was a burglary in progress. The fact that the defendant was standing on the fire escape, smoking, albeit at 4:30 A.M., did not, in and of itself, give rise to a founded suspicion that criminal activity was afoot so as to justify the actions taken by the officer before any inquiry had been made. Thus, while I find the situation warranted great care, the type of response, consisting of a frisk following a gunpoint seizure before any inquiry had been made, was improper under the circumstances.