Judgment reversed on the law, plea vacated, motion to suppress granted and matter remitted to Genesee County Court for further proceedings on the indictment. Memorandum: In December
On January 30, 1994, at about 2:35 a.m., a Livingston County Deputy Sheriff received a radio dispatch concerning a robbery of a store in Pavilion, a town in Genesee County. The dispatch did not give a description of the robbers and did not mention a vehicle. It stated only that two males, one of whom wore a mask, had left the scene on foot. The Deputy was directed by his sergeant to take a post at the intersection of Routes 20 and 36. Soon thereafter, he observed a white vehicle proceeding along the highway. He followed the vehicle for approximately two miles but was unable to see the license plate number because it was covered with snow. After the vehicle pulled into the driveway of an abandoned house, he pulled in behind it, turned on his takedown lights and sent a radio dispatch for backup. A white female matching the description on the second flyer attempted to exit the vehicle from the driver’s side. He ordered her back into the vehicle. When other police officers arrived, the occupants of the vehicle were ordered out with their hands up; one officer had his gun drawn. The officers ordered the occupants, including defendant, to kneel in the snow. The police frisked and handcuffed the occupants, who were then taken to separate patrol cars for questioning. Upon searching the vehicle, the police found a gun and money bag. Miranda rights were given and defendant made a statement admitting the Pavilion robbery.
Following a suppression hearing, County Court denied the motion of defendant to suppress his statements and the physical evidence seized from the vehicle. Defendant then entered a plea of guilty to one count of robbery in the first degree.
On appeal, defendant contends that his statements and the physical evidence seized from the vehicle should have been suppressed as the unattenuated product of an illegal stop of the Freville vehicle and the subsequent arrest of defendant without probable cause. We agree.
Reasonable suspicion is “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). “The requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere ‘hunch’ or ‘gut reaction’ will not do” (People v Sobotker, 43 NY2d 559, 564; see, People v Cantor, supra, at 113). “Nor will good faith on the part of the police be enough to validate an illegal interference with an individual” (People v Cantor, supra, at 113).
We conclude that the police lacked reasonable suspicion that the driver or occupants of the vehicle had committed or were about to commit a crime. At the time the Deputy began following the vehicle, he had been informed only that two men had held up a convenience store in a neighboring county and had fled on foot. There was no mention of a vehicle used in connection with the robbery. Although the Deputy testified at the suppression hearing that he followed the vehicle because it matched the general description of the vehicle on the informational flyer about other recent convenience store robberies, he could not verify the license plate number of that vehicle and did not observe any Vehicle and Traffic Law violation, let alone any conduct indicative of criminal activity.
Furthermore, the stop was constitutionally invalid because it immediately escalated into a full-blown arrest, requiring probable cause (see, People v Johnson, 102 AD2d 616, 626, lv denied 63 NY2d 776). After the Deputy stopped the vehicle, he ordered the driver back into the vehicle. When backup officers arrived, they ordered the occupants of the vehicle to get out with their hands up and kneel in the snow. At least one of the officers had his gun drawn. The occupants of the vehicle were then handcuffed and placed in separate patrol cars. That conduct amounted to a full-blown arrest.
“Probable cause exists if the facts and circumstances known to the arresting officer warrant a prudent man in believing
We conclude that the police did not have probable cause to believe that the occupants of the vehicle had committed any crime, let alone the robbery of the Pavilion store. The radio dispatch did not mention any vehicle being involved in the robbery, nor was there any description of the robbers other than two males, one of whom was wearing a mask (see, People v Battaglia, 56 NY2d 558, revg on dissenting opn of Hancock, J., at 82 AD2d 389, 395-397). The police are not at liberty to arrest a suspect while they search for evidence sufficient to justify the arrest (see, People v Henley, 53 NY2d 403).
Defendant, as a passenger in the stopped vehicle, has standing to contest the stop of the vehicle and therefore to challenge any evidence seized as the fruit of the unlawful stop (see, People v Millan, 69 NY2d 514, 520; People v Matthew, 228 AD2d 260). Therefore, the physical evidence (gun and moneybag) seized from the vehicle, as well as defendant’s inculpatory statements to the police, must be suppressed as the fruit of the unlawful stop (see, People v Cantor, supra, at 114; see also, Wong Sun v United States, 371 US 471).
All concur except Hayes, J., who dissents and votes to affirm in the following Memorandum.