who dissents in a memorandum as follows: I respectfully dissent and would reverse the order of the suppression court which denied defendant’s motion to suppress evidence seized by the police.
Both in his brief and at oral argument, defendant conceded that the automobile was lawfully stopped and that the oc*595cupants were lawfully removed. He does not complain about the length of his detention or about the fact that he was forced to kneel on the ground, away from the vehicle, with his legs crossed behind him. The only issue presented is the propriety of the search of the vehicle after he had been removed, frisked, and detained. Therefore, no extended discussion of the facts is required here.
To begin, the police may not search a vehicle simply because its driver committed a traffic infraction (Knowles v Iowa, 525 US 113; People v Marsh, 20 NY2d 98) nor does the fact that a driver may have committed reckless driving, a misdemeanor under the Vehicle and Traffic Law, grant authority for the search of the vehicle (People v Howell, 49 NY2d 778; People v Troiano, 35 NY2d 476).
The Court of Appeals, in People v Torres (74 NY2d 224 [1989]), stated: “The need here, as one commentator has noted, was ‘only to find implements which could be reached by the suspect during the brief face-to-face encounter, not to uncover items cleverly concealed and to which access could be gained only with considerable delay and difficulty’ (1 La Fave & Israel, Criminal Procedure § 3.8 [e], at 309; see also, People v Smith, 59 NY2d 454, 458). In this instance, for example, the suspects had already been removed from the car, a permissible intrusion if there was reasonable suspicion of criminality in light of the need to protect the detectives’ safety (Pennsylvania v Mimms, 434 US 106; People v McLaurin, 70 NY2d 779). Further the suspects had been patted down without incident. At that point, there was nothing to prevent these two armed detectives from questioning the two suspects with complete safety to themselves, since the suspects had been isolated from the interior of the car, where the nylon bag that supposedly contained the gun was located. Any residual fear that the detectives might have had about the suspects’ ability to break away and retrieve the bag could have been eliminated by taking the far less intrusive step of asking the suspects to move away from the vicinity of the car (see, 1 La Fave & Israel, op. cit., at 310)” (at 230).
The Court went on to state that there might be circumstances in which facts revealed or information gathered after the stop “lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers’ safety sufficient to justify a further intrusion.” (Id. at 231 n 4.) The Court at the same time rejected the theory that a search would be justified on the basis “that harm could occur after the investigation is terminated and the suspect is permitted to reenter his vehicle” (id.).
*596In People v Carvey (89 NY2d 707), the Court sustained the intrusion into a vehicle when the defendant was seen wearing a bulletproof vest. The Court held that the wearing of such a vest “demonstrates its owner’s readiness and willingness to use a deadly weapon” (at 712). The wearing of the vest combined with the defendant’s bending down and hiding something beneath the car seat as the police approached formed the predicate for the police action there at issue.
The Court reiterated that “ ‘a reasonable basis for suspecting the presence of a gun’ ” was insufficient to justify intrusion into the vehicle once the defendant had been removed from the car and frisked (at 711 [emphasis in original]). It went on to emphasize “the likelihood of a weapon in the car must be substantial and the danger to the officer’s safety ‘actual and specific’ ” (id.).
The “escalating evasive action by the driver,” cited by the majority as justifying the search, spanned a distance of less than half a block from the place where the officers first turned on the flashing lights of their unmarked car. The speed of the auto in which defendant was a pass eager was estimated by the police officers to be 5 to 7 miles per hour. Although the majority concludes that this “evasive action” was for the “evident purpose of providing sufficient time * * * to secrete a weapon,” this conclusion was not evident to either of the officers, neither of whom so testified.
In this case, the officers did not testify that they perceived any danger to themselves from a weapon in the automobile, much less that any such perception of danger was “substantial” and “actual and specific.” One of the officers testified that he approached the automobile with a drawn gun because he believed the car was stolen. He searched the automobile to “make sure he did not secrete any weapons.” One officer testified that defendant’s left arm was on top of the back of the back seat and that he could see his left hand. He further testified that he could not see the defendant’s right arm or any movement which would indicate that his right arm was moving.
The other officer testified that he did not see defendant’s arms, but saw his shoulders turn as defendant turned towards the center of the car and looked down at the seat of the automobile.
The suppression court, in its decision, specifically stated that it did not rely upon any statement made by defendant, after he was removed from the car, in reaching its conclusion.
The evidence reveals a complete failure to satisfy the criteria set forth in People v Torres (supra) and People v Carvey (supra). The motion to suppress should have been granted.