(dissenting). I respectfully dissent. I disagree with
the majority that the police lacked reasonable suspicion that the occupants of the vehicle had committed or were about to commit a crime. Further, I disagree with the majority that the police lacked probable cause to believe that the occupants of the vehicle, including defendant, had committed any crime.
I agree with the majority that there was a de facto arrest of defendant and his companions at the time that they left the vehicle and were handcuffed. Thus, probable cause was required (see, People v De Bour, 40 NY2d 210, 216-217). Based upon all of the information available to the police at the time that defendant and his companions vacated their vehicle and were placed under arrest, the police had probable cause to believe that there was criminal activity afoot.
*837At that time, the police knew that there had been a robbery at a nearby small-town convenience store by two masked men. From background information obtained during the investigation of a series of armed robberies of small-town convenience stores in the past three months, the police were aware that several of them had occurred during the early hours of the morning, just as the instant robbery had been committed. They also had compiled a flier with a picture of a white vehicle and a female accomplice that may have been involved in those robberies. They were also in possession of identification evidence from one of the store clerks who had been robbed and who gave a description of physical characteristics of one of the robbers that matched the physical description of defendant.
Shortly after the instant robbery at about 2:35 a.m. on January 3, 1994, a Livingston County Deputy Sheriff was detailed to the intersection of Routes 20 and 36, a point five miles from the Pavilion store that had just been robbed. The Deputy had in his possession the flier containing a picture of a white vehicle and a female that had been compiled during the ongoing investigation. After the Deputy had been positioned at the intersection for about 20 minutes, he noticed a white vehicle that matched the description of the vehicle in the flier going through the intersection, and he followed it for a couple of miles. He noticed that the vehicle was driving erratically, stopping from time to time along the road. Although he did not intend to ticket the vehicle for a motor vehicle violation, once the vehicle left the highway and turned into a long driveway leading to a vacant house in a sparsely populated area, he followed the vehicle to a point where it stopped. After the Deputy activated his takedown lights, a woman attempted to exit the vehicle from the driver’s seat, and the Deputy ordered her to return to the vehicle. His observation was that the woman resembled the picture of the woman in the flier. Subsequently, when other officers arrived following the Deputy’s request for backup, the occupants were ordered out of the vehicle and were eventually searched and handcuffed, the vehicle was searched and the parties were formally placed under arrest.
Based upon all of the circumstances, including the time of day, the area where the vehicle eventually stopped, its proximity to the scene, some five miles from the Pavilion store that had been robbed, and the information gathered from the flier, there was probable cause to believe that the occupants of the vehicle were involved in the robbery of the Pavilion store. (Appeal from Judgment of Genesee County Court, Morton, J. — ; Robbery, 1st Degree.)
Present — Lawton, J. P., Hayes, Callahan and Boehm, JJ.