dissenting.
I disagree with that part of the majority opinion which holds that Officer Nuccio’s frisk of defendant was not justified.
In addition to the facts already set forth it is important to note that defendant was stopped by Nuccio about a block away from where he lived. Nuccio, according to defendant’s companion, was aware that defendant lived nearby and therefore questioned defendant’s explanation that he had ducked behind the tree only because he intended to urinate. Defendant’s implausible explanation for his conduct is, in my view, additional support for Nuceio’s suspicion that defendant had engaged in, or was about to engage in, criminal conduct. Furthermore, Nuccio testified that the area he was patrolling was a high crime area where he had previously effected over one hundred arrests. When all of these facts are added to Nuccio’s knowledge that defendant had been convicted of weapons-related offenses in the past, I am of the view that “a reasonably prudent person would be warranted in the belief that his or her safety or that of others was in danger.” State v. Lund, 119 N.J. 35, 45, 573 A.2d 1376 (1990). In determining the reasonableness of the officer’s conduct in these circumstances I am mindful of an observation made by this court in State v. Ransom, 169 N.J.Super. 511, 405 A2d 411 (App.Div.1979):
A police officer is not required by his occupation or the Constitution of the United States to take unnecessary risks in the performance of his duties or to refrain from the taking of “necessary measures to determine whether the person is in fact carrying a weapon [or the neutralizing of a] threat of physical harm.” Id. at 522, 405 A.2d 411, quoting from Terry v. Ohio, 319 U.S. 1, 24, 88 S.Ct 1868, 1881, 20 L.Ed.2d 889 (1968).
The officer’s conduct must also be “measured by the temper and tempo of the times;” fully aware that police officers patrolling our highways alone at night have been the victims of criminal assaults. *517State v. Kennedy, 134 N.J.Super. 454, 458-59, 341 A.2d 685 (App.Div.1975).
Although the Supreme Court in State v. Thomas, supra, held that the pat-down search in that case did not meet the objective standard of reasonableness, it suggested that the outcome might have been different had the officer known that the defendant was armed during his prior arrest.
The tip alleged that defendant was in possession of an unidentified illegal drug. Therefore, defendant was not suspected of the violent criminal activity that would justify an “automatic” search. Further, the information had not indicated that defendant was armed, and Officer Williams testified that he had no recollection of defendant being armed at his prior arrest. There was no evidence of any kind adduced at the suppression hearing suggesting a basis for an objectively reasonable suspicion that defendant was armed.
[ 110 N.J. at 684, 542 A.2d 912 (Citations omitted, emphasis added).]
Furthermore, the Court cited with approval State v. Collins, 479 A.2d 344 (Me.1984), a case in which the Maine Supreme Court upheld a pat-down search of a suspect whom the police knew had a prior weapons conviction.
Thus, I believe our Supreme Court would reject the rationale of United States v. Hairston, supra, and State v. Giltner, supra, cases upon which the majority relies to support its conclusion that “Nuecio’s knowledge of defendant’s prior record was insufficient, on this record, to convert defendant’s furtive movement to an indicator that he was armed and dangerous.”
In conclusion, I would affirm the judgments of conviction under review in all respects.