(dissenting). I concur in Justice Carro’s dissent, but would add the following.
I agree that the stop of the taxicab was plainly without lawful basis. The equivocal testimony of the police officers as to the speed of the taxicab and that it may have passed the red light as an explanation for stopping the cab, coupled with their admission that they tend to stop taxicabs occupied by young Hispanics or blacks in dark clothes, as part of their anticrime duty, suggests that the latter was the real reason for the stop of the vehicle.
Their plain purpose was to check the passengers despite the absence of any suspicious conduct by them or by the driver. That this was the purpose of the police is made clearly evident by the limited attention they paid to the taxicab driver who swore that he was neither speeding nor passing a red light. The police obviously had no concern with him.
Their reliance on the claimed suspicious conduct of the passengers has a hollow ring. It is suggested that because the passengers turned around to observe the approach of the police, the passengers were somehow engaged in suspicious activity warranting further inquiry. It is notable that in order to get the taxicab driver to stop, the plain-clothes police officer told one of the passengers (the one not convicted) to tell the driver to stop. Without any further inquiry, the police forthwith ordered the passengers out of the cab and frisked each of them, without any basis. The majority contends they have no cause to complain because no contraband was found upon them. I respectfully disagree (see, People v Le Grand, 110 *260AD2d 539, 544 [Fein, J., concurring]). Having found nothing on the passengers, the police then began the search of the interior of the passenger compartment, in which they finally found the zippered envelope containing the gun.
The entire pattern of police behavior clearly violated the 4th Amendment restriction against "unreasonable searches and seizures”, as Justice Carro has carefully pointed out.
The majority concludes that defendants were not entitled to a hearing on the issue of suppression since as taxicab passengers they had no standing because they had no legitimate expectation of privacy in the passenger compartment. I suggest that Rakas v Illinois (439 US 128), on which the majority relies, deals only with a passenger automobile and not a taxicab. Indeed, footnote 16 (439 US, at p 149) notes, in distinguishing Rios v United States (364 US 253), that "Rios had hired the cab and occupied the rear passenger section.”
Moreover, there was no activity upon which to base the stop which "is justified only when conducted pursuant to 'nonarbitrary, nondiscriminatory, uniform’ highway traffic procedures, or when there is specific cause or, at least, reasonable suspicion that a motorist is about to violate a law.” (People v Sobotker, 43 NY2d 559, 563.) There was lacking "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand” (People v Cantor, 36 NY2d 106, 112-113). There was merely a " 'hunch’ ” or " 'gut reaction’ ” (People v Sobotker, 43 NY2d, at 564).
The modus operandi of the police was characterized by aggressive action taken at the expense of the constitutional rights of these defendants. It is our obligation to protect those rights, albeit a gun was found. On this record, it appears that the stop and seizure were based on who the defendants appeared to be, and the fact that they were stopped in a so-called "high crime area”. This was part of a police pattern ignoring the fundamental constitutional principle that neither consideration warranted the police action.
The majority suggests that our function is to decide each case on its own merits. I agree. However, the only "merits” here were that a gun was discovered. That is not sufficient. Our function under the circumstances is to recognize that in vindicating the rights of these defendants, albeit they were found guilty of possession of a gun, we vindicate the rights of all.
As Justice Stevens has noted, dissenting in Moran v Burbine *261(475 US —, —, 106 S Ct 1135,1149-1150), "Justice Frankfurter [dissenting in United States v Rabinowitz, 339 US 56, 69] similarly emphasized that it is 'a fair summary of history to say that the safeguards of liberty have been forged in controversies involving not very nice people.’ And, almost a century and a half ago, Macaulay [in 1 History of England, at 482] observed that the guilt of Titus Oates could not justify his conviction by improper methods: 'That Oates was a bad man is not a sufficient excuse; for the guilty are almost always the first to suffer those hardships which are afterwards used as precedents against the innocent.’ ”
A continuing erosion of the ability of victims of unconstitutional searches and seizures to obtain a remedy for the invasion of their rights destroys the constitutional guarantee both with respect to the innocent as well as the guilty.
Obviously, courts are called upon to decide whether evidence should be excluded only when a search has been "successful”. However, with all due respect, what we often overlook is that the standards we follow in determining what governmental conduct is reasonable, in searches and seizures directed at persons who are found guilty, should apply equally as well to those who are innocent. We have no evidence as to the number of individuals who are subjected to such searches and then released because nothing is found. Our concern should also be for their rights.
"However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness” (Miller v United States, 357 US 301, 313).
In deciding this case, the majority invites law enforcement officials to proceed in a manner which invades the constitutional rights of not only the defendants convicted here, but of all of us.
Kupferman, J. P., and Asch, J., concur with Sullivan, J.; Carro, J., dissents in an opinion in which Fein, J., concurs; Fein, J., also dissents in a separate opinion.
Judgment, Supreme Court, New York County, rendered on April 5, 1985, affirmed. The case is remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).