I concur in affirmance. There is a clear line of distinction between this case and People v. Stein, 265 Mich. 610 (92 A.L.R. 481). In the Stein Case the officers stopped the car and made the arrest and search on suspicion alone, based upon an act of Stein done without knowledge that the officers were approaching and, therefore, containing no hint of menace nor evidence of concealment of criminal goods from them. It was such an act as an innocent person would be likely to do. In view of the presumption that people are law-abiding until the contrary appears, the circumstances, *Page 387 as they were related by the officers, disclosed ground for nothing more than a very remote suspicion that the act was not innocent. Constitutional rights cannot rest upon so insecure a foundation as what has been spoken of as an officer's "hunch."
Here, the officers had not only the right but had the duty to stop the car because of the obscured license plate and want of tail light. They could have arrested the driver and searched the car, People v. Davis, 247 Mich. 536, but, of course, could not have searched the person of defendant, a passenger. However, when the officers appeared and defendant knew they were taking some sort of action against the car and its occupants, he began to fumble in his coat pocket. The act could have been entirely innocent but was hardly to be expected of a passenger. His continuing to fumble after the car, had been stopped and the officers were gathered about it was so much a departure from ordinarily expected conduct of an innocent person that it justified the officers in construing it as a possible threat or an attempt to dispose of a criminal weapon. To one officer it appeared so plainly a threat that he called out a warning to the others. The officers did not need to wait until defendant had drawn a gun and begun to shoot before they made up their minds that something was wrong. People v.Licavoli, 245 Mich. 202. I think defendant's conduct, after he knew the officers were interested in the car, afforded reasonable grounds for belief by them that he was unlawfully armed and a just fear that prompt arrest was necessary to prevent the commission of a greater felony.
POTTER, NORTH, and WIEST, JJ., concurred with FEAD, J. *Page 388