¶1dissents in a memorandum as follows: In my opinion the judgment herein should be reversed and the motion to suppress granted.
¶2On April 15, 1982, at approximately 9:15 p.m., uniformed Police Officers William Johnson and James Brenneisen were on motor patrol when they received a radio report that a short black male wearing a plaid jacket was waving a pistol in front of West 165th Street and Anderson Avenue in The Bronx, a high crime area. The officers proceeded to that location and observed the defendant, a short black man with a plaid jacket, sitting on a parked automobile. There was no one else present in the immediate area. The officers exited their vehicle with their guns drawn and approached the defendant, who began to walk away at a brisk pace. Officer Johnson bolstered his gun and ran after the defendant, catching up with him before he had gone very far. The officer grabbed the defendant, returned him to the parked car, put the defendant’s hands on the car and performed a frisk of his person. During this time a backup unit with two other police officers arrived at the scene.
¶3In the meantime, Officer Brenneisen had noticed a soft, thin brown leather or vinyl carrying case resting next to where the defendant had been standing and where he was then being frisked. Without inquiring as to the ownership of the bag or its contents, the officer picked up the case by its two handles, pulling them apart. This caused the bag to open, thereby revealing the existence of a gun lodged inside among various work papers. Officer Brenneisen informed his partner of the discovery, and the latter placed the defendant under arrest. The defendant exclaimed that the bag belonged to him and that he *574had found the gun. In response to this declaration, Officer Johnson advised the defendant to refrain from making any further statements until he had been given his rights.
¶4The radio transmission concerning a short black male wearing a plaid jacket clearly provided a sufficient predicate upon which to make an initial noncustodial inquiry. (People v Landy, 59 NY2d 369; People v Harrison, 57 NY2d 470; People v Benjamin, 51 NY2d 267; People v De Bour, 40 NY2d 210.) Regardless of whether or not the officers also possessed the requisite reasonable suspicion to believe that the defendant had committed or was about to commit a crime such as would support a frisk for weapons, they lacked any probable cause whatever to search his bag. The officers certainly made no claim of having seen or felt a bulge in the bag prior to its being opened, nor did they have any information that it contained a weapon. Although the majority contend that the bag was readily accessible to the defendant, the People make no such assertion. At the time that the search of the bag took place, there were four police officers on the scene, the defendant was being detained “on the car”, and he was certainly not in any position to reach for the carrying case. In fact, this would have been impossible since Officer Brenneisen had already picked up the carrying case prior to, or contemporaneously with, the defendant’s frisk, and there was not the slightest necessity to search the bag for the protection of the officers. (See, People v Smith, 59 NY2d 454.)
¶5As for the prosecution’s argument that the defendant had abandoned his property, this allegation is not only inconsistent with common sense but with the District Attorney’s own statement to the jury that it “would be absolutely ridiculous” to say that a bag would not still be yours if “you were walking down the street … and you put the bag down a moment to tie your shoes” or “you are sitting on a car” and you have a bag on the ground. A person does not abandon a briefcase filled with work papers simply by moving away from it momentarily. (See, People v Caldwell, 53 NY2d 933.) As the Court of Appeals held in People v Howard (50 NY2d 583, 593): “Whether there was an abandonment is partly a matter of property law but essentially a question of constitutional law. There is a presumption against the waiver of constitutional rights. It is the People’s burden to overcome that presumption by evidence of ‘ “an intentional relinquishment or abandonment of a known right or privilege” ’ (Brookhart v Janis, 384 US 1, 4; Johnson v Zerbst, 304 US 458, 464; People v Whitehurst, 25 NY2d 389, 391). The proof supporting abandonment should ‘reasonably beget the exclusive inference of the throwing away’ (Foulke v New York Cons. R. R. Co., *575228 NY 269, 273, quoted with approval in United States v Cowan, 396 F2d 83, 87).”
¶6In that regard, the defendant’s walking about six feet away from the parked car against which he had been sitting in response to the officers’ approach with drawn guns can hardly be considered to “ ‘reasonably beget the exclusive inference of the throwing away’ ” referred to by the Court of Appeals. To the contrary, he still claimed ownership of the bag after the gun had been discovered in it.
¶7The People also suggest that the weapon was found in plain view, and the majority adopt the position that the bag, having no zipper or snap, simply “opened” to reveal defendant’s gun. However, this theory is contradicted by Officer Brenneisen’s testimony that he placed one hand on each handle and pulled apart the handles of the bag. There is no indication whatever that the gun was visible until the officer, after having picked up the carrying case, opened it and looked inside.