(dissenting):
Of recent years, it has become almost standard practice in the defense of criminal prosecutions to avoid trials on the merits by moving to suppress incriminating evidence on the ground, real or imagined, that it was obtained by an unreasonable search or seizure. In all too many cases —of which I am afraid this is one — the effect of suppression orders is to free the *753guilty and subject police officers on night patrol to additional hazards.
Despite growing challenges by learned jurists and law enforcement experts to the exclusionary rule, we recognize that where Fourth Amendment rights are asserted we are bound by Supreme Court constructions1 of this constitutional provision. But it is certainly not the obligation of appellate courts to extend the application of the exclusionary rule beyond the scope of these decisions, particularly in situations where the impact on law enforcement is damaging.
As I know that my colleagues agree with these general propositions and in this case have been at pains to consider the leading decisions of the Supreme Court before deciding to overrule the trial court’s denial of the motion to suppress, it is with reluctance that I express my disagreement with the majority. I do so only because I deem that the facts developed by the testimony of the arresting officers do not warrant the conclusion that the Supreme Court’s pronouncements in Terry, Harris, and Coolidge, compel us to find a Fourth Amendment violation.
The basic holding in Terry is that a policeman may stop a person whose conduct he appraises as suspicious — even though it is lawful — for interrogation, and then before putting any questions to him, frisk him for weapons if the officer believes that he is armed and dangerous. Apparently the mere observation of the suspicious conduct which justifies the stop also provides the requisite “articulable fact” for justifying the officer for entertaining such a belief, because in Terry the suspect frisked was a stranger to the policeman. Nor was there any evidence of a suspicious bulge in the suspect’s clothing or any gesture on his part suggestive of concealing or reaching for a weapon.
The majority opinion views the presence of appellant in an unlighted car parked in a dark alley at 3:30 in the morning as falling short of an “articulable” fact from which an inference of potential criminal activity could be drawn, except the possibility of a parking violation. This misses the point, for as Terry emphasizes, conduct does not have to be unlawful to bring it into the category of “suspicious” and hence a proper subject for police investigation. Common experience, I submit, reveals that the presence of a lone man late at night in an unlighted car parked in a quiet residential street — to say nothing of an alley — is not an occurrence that usually would pass unnoticed. A passerby happening upon such a person might well be somewhat startled. The purpose of the solitary occupant is susceptible of a wide variety of conjectures. Conceivably he is at the wheel of a getaway car awaiting the emergence of a housebreaking confederate. He might be casing the neighborhood for projected burglaries, or planning an ambush for a robbery victim. His presence to be sure might be due to a number of less sinister reasons, e. g., the occupant of the car could be a detective on “stake-out” duty; or a neighbor or social visitor overcome by sleep or sudden illness. In any event, a prudent resident of the neighborhood, and certainly a trained policeman, might well conclude that the phenomenon merits investigation.
Thus I find it difficult to fault the police officer in this particular case for asking appellant to get out of his car and answer questions. It should be remembered that in Terry, the “articulable” suspicious circumstances merely consisted of two men —later joined by a third — loitering in front of a store and occasionally looking into its display window. Such behavior can scarcely be deemed susceptible of more sinister inferences than that of appellant’s here.
Once it is recognized that the incident which attracts the officer’s attention is *754suspicious enough to permit a stop, the Terry decision — as I have pointed out — allows the officer to make a limited weapons search for his own protection. Nothing in that opinion, however, suggests that such search must be confined to the clothing of the suspect. Obviously, if the officer suspects that the man he is about to question may have concealed a weapon in a readily accessible spot, e. g., a brief case, an adjacent drawer, a nearby car, where he can pick it up and use it, he is equally justified in taking appropriate protective measures. In this instance, the officer did have some reason for entertaining such a suspicion. He testified that when his headlights hit the windshield of appellant’s car and illuminated the interior, he saw its occupant bending over as if he were fumbling with an object on the floor. Granted that he could not see appellant’s hands or the lower part of his arms, He must have seen something to make him apprehensive, otherwise he would scarcely have summoned another squad car to the scene. Thus the officer’s description of what he had perceived in his brief glimpse of appellant as he approached can hardly be deemed an afterthought on the witness stand to explain why he later instructed his fellow officer to go back to the car and turn his flashlight on the floor.
Despite the eventual discovery of the gun, it might be argued that none of the police was in any danger while the occupant of the automobile was standing at the front bumper with the officer who had first come upon him, and therefore protective action was unnecessary. Such view fails to take into account the temporary character of the situation. As the interview at the front of the car had provided no grounds for arresting appellant, the first policeman was faced with the prospect of having to terminate the temporary detention and allow appellant to return to the car, thereby exposing himself to a possible deadly shot if his suspicion that the occupant of the car had concealed some lethal obj ect turned out to be correct.
These circumstances were entirely different from those preceding the warrant-less search of automobiles disapproved in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), or authorities controlling in this jurisdiction e. g., Mayfield v. United States, D.C.App., 276 A.2d 123 (1971), where the possible contents of the car posed no danger to the officers — the driver of the car having no access to it while in custody at a police station. Coolidge is also distinguishable on two other grounds: (1) the officers had opportunity to apply for a warrant to search the car — a factor not present here, and (2) contraband was not involved. These differences were deemed of crucial importance by the Court of Appeals for the Third Circuit in a recent case, United States v. Menke, 468 F.2d 20 (1972).
Moreover, the officer who discovered the gun testified that such object would have been in plain view had he flashed his light through the window rather than opening the door. State v. Jones, 267 So.2d 559 (La.Sup.Ct., 1972); Commonwealth v. Haefeli, 279 N.E.2d 915 (Mass.1972). And because reasonable prudence in protecting his fellow officer justified his looking into the car, the officer had a right to be in the position he was when the gun came into his sight. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). As appellant himself had left the door on one side of the car open, he can scarcely complain of the officer’s facilitating his scrutiny of the car’s interior by opening the opposite door. In any event, as I view the matter, an even more extensive search to foreclose appellant’s opportunity to avail himself of an accessible weapon when he returned to his car would have been justified.
. Some of these comments and considerations are summarized in Chief Justice Burger’s dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 413, 415, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).