652 F.

2d 244

UNITED STATES of America, Plaintiff-Appellee,

v.
Jan W. JACKSON, Defendant-Appellant.
No. 756, Docket 80-1423.

United States Court of Appeals,

Second Circuit.
Argued Feb. 3, 1981.
Decided June 15, 1981.

Wesley L. Taylor, Jr., Buffalo, N. Y., for defendant-appellant.

Cheryl S. Fisher, Asst. U. S. Atty., W. D. N. Y., Buffalo, N. Y. (Richard
J. Arcara, U. S. Atty., W. D. N. Y., Buffalo, N. Y., of counsel), for
plaintiff-appellee.
Before WATERMAN, MANSFIELD and MESKILL, Circuit Judges.
MESKILL, Circuit Judge:

Jan Jackson appeals from a judgment of conviction for bank larceny in

violation of 18 U.S.C. 2113(b) (1976) entered in the United States District
Court for the Western District of New York, Curtin, Ch. J. Appellant pled
guilty following the denial of his motion to suppress certain evidence, reserving
his right to challenge on appeal the denial of his suppression motion. He was
sentenced to a prison term of nine years.

Appellant drove the getaway car in a holdup of a branch of the Manufacturers

and Traders Trust Company (M & T Bank) in Buffalo, New York on March 4,
1980. After he was apprehended, a search of the car's trunk revealed a revolver,
M & T Bank wrappers and appellant's accomplice, Edward Dixon, who had
actually robbed the bank.1 Appellant argues that the search of the trunk and his
arrest were illegal and that therefore the evidence discovered in the trunk and
any statements made subsequently should be suppressed. We affirm Judge
Curtin's denial of the suppression motion.

BACKGROUND
3

The evidence viewed in the light most favorable to the government, as it must
be in reviewing the denial of a motion to suppress, United States v. Oates, 560
F.2d 45, 49 (2d Cir. 1977); see United States v. Vital-Padilla, 500 F.2d 641,
642-43 (9th Cir. 1974); United States v. Walling, 486 F.2d 229, 236 (9th Cir.
1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1427, 39 L.Ed.2d 479 (1974), is as
follows.

About 10:00 a. m. on March 4, 1980, the M & T Bank alarm sounded in the
17th precinct house of the Buffalo, New York, Police Department. It took
Detective Sergeant Coyle and his partner, Detective Morrison, about one
minute to drive to the bank on the corner of Hertel Avenue and Parkside
Avenue. Coyle entered the bank and received a description of the robber as a
black male in his twenties with a medium "afro," approximately six feet tall,
weighing 150 pounds, and wearing a light brown coat, matching hat and a grey
sweater. He also learned that the robber had gone north on Parkside Avenue on
foot about twenty seconds before Coyle arrived. Coyle relayed the information
to Detective Young who joined him at the bank, and together with Detective
Morrison they drove their unmarked car slowly north on Parkside Avenue
looking for the robber. Morrison drove, with Coyle riding in the passenger seat
and Young sitting in the rear. After the detectives had proceeded a short way,
Young yelled to Morrison to turn the car around because he had seen someone
who might be a suspect in the bank robbery. Young had observed a Dodge
Coronet stopped in traffic, heading south on Parkside and thus from the vicinity
to which the robber had fled. Young testified that the driver of the Coronet
appeared to be a black male in his twenties with a medium afro and a tan coat.
The Dodge was stopped in traffic near the bank and Young thought it was
suspicious that the driver kept staring straight ahead, deliberately ignoring the
commotion caused by the many police cars near the bank. The officers radioed
a short description of the Dodge and its driver and asked that it be stopped for
investigation. By the time they turned around, a maneuver which had to be
accomplished in heavy traffic, the Dodge was already at least two to three
hundred feet ahead of them. They finally lost sight of the Dodge about threequarters of a mile from the bank. Fortunately, another squad car almost
immediately radioed that they had spotted the Dodge and pulled it over at a
street corner about two miles from the bank. Coyle and his companions
proceeded directly to the scene and found the driver already outside his car
conversing with the officers.

Coyle approached the driver and asked him his name and where he was coming
from. The driver said his name was Jan Jackson and that "he was coming from

Hertel Avenue, dropping his mother off." (Tr. 8). This response probably
aroused Coyle's suspicion, since Coyle knew that Jackson had not dropped
anyone off when he drove down Parkside past Hertel. Coyle did notice,
however, that Jackson did not entirely fit the description of the robber.
Although the driver was a black male in his twenties with a medium afro and
was about six feet tall, he was about fifty pounds heavier than the described
thief, and significantly, his clothing differed from that of the reported robber.
Appellant's coat, which had looked tannish from a distance, appeared on closer
examination to be a light grey tweed; his sweater was green instead of grey; he
was not wearing a tan hat. Coyle wondered if Jackson had changed his clothes,
as do many robbers immediately after a holdup. He circled Jackson's car
looking for clothing and other clues. As he passed the trunk, he noticed that its
lock had been punched out and was missing. At the same time, he heard a noise
which "sounded like it was in the trunk, like a tire fell, movement in the trunk,
a thump." (Tr. 20). After hearing the thump, Coyle asked Jackson how he got
into his trunk and Jackson replied that he did not get into his trunk. Judge
Curtin found that by this time, Coyle had probable cause to search the trunk.
6

More police had arrived and several officers joined Coyle in what proved to be
a considerable effort to open the trunk. After initial attempts to jimmy the lock
with a screwdriver proved unavailing, one of the officers spotted a wriggling
finger inside the lock hole. An officer's shouted order ended the finger's efforts
to push the screwdriver aside and the trunk came open. In the trunk was
Edward Dixon, a black male in his twenties wearing a grey sweater, a light tan
coat, and a matching hat atop a medium afro. A frisk yielded a revolver and
some bank slips from an M & T Bank. Jackson and Dixon were then arrested
for the bank robbery. Later that day at police headquarters, both men
confessed.

DISCUSSION
7

On this appeal, Jackson claims that the evidence discovered in the trunk and his
subsequent confession were fruits of an illegal arrest and search. If, as Jackson
claims, the evidence and confession were so derived, then they would indeed
have to be excluded. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9
L.Ed.2d 441 (1963). Our review of the events surrounding the stop and
subsequent search, however, does not reveal any unlawful conduct.2 We
therefore affirm for the reasons stated below.

A. The Legality of the Stop

8

At the outset, we agree with the appellant that there was no probable cause to

arrest the driver of the Dodge Coronet at the time that that vehicle was stopped.
The government contends, however, that the detention was an investigative
stop for which probable cause was not necessary. See Adams v. Williams, 407
U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). An investigative stop is legal only if it is
reasonable under the Fourth Amendment. Brown v. Texas, 443 U.S. 47, 50, 99
S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Terry v. Ohio, supra. In determining
the reasonableness of a Terry stop, a reviewing court must examine both "the
basis for the stop and the degree to which the stop restrains the individual."
United States v. Vasquez, 638 F.2d 507, 520 (2d Cir. 1980). We examine these
factors in turn.
1. The Basis for the Stop
9

The Supreme Court has approved investigative stops of automobiles based

upon an officer's "reasonable suspicion" that criminal activity is afoot. Terry v.
Ohio, supra. As the Supreme Court has explained:

10

In Terry this Court recognized that "a police officer may in appropriate
circumstances and in an appropriate manner approach a person for purposes of
investigating possibly criminal behavior even though there is no probable cause
to make an arrest." The Fourth Amendment does not require a policeman who
lacks the precise level of information necessary for probable cause to arrest to
simply shrug his shoulders and allow a crime to occur or a criminal to escape.
On the contrary, Terry recognizes that it may be the essence of good police
work to adopt an intermediate response. A brief stop of a suspicious individual,
in order to determine his identity or to maintain the status quo momentarily
while obtaining more information, may be most reasonable in light of the facts
known to the officer at the time.

11

Adams v. Williams, supra, 407 U.S. at 145-46, 92 S.Ct. at 1922-1923 (citations

omitted). The police must, however, be "aware of specific articulable facts,
together with rational inferences from those facts, that reasonably warrant
suspicion" that the suspect is engaged in criminal activity. United States v.
Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607
(1975). The decision to order an investigative stop of the Dodge meets this
objective test because Coyle and his companions were aware of a number of
facts which reasonably warranted the suspicion that the driver of the Dodge
was the bank robber.

12

Detective Young's initial observation revealed that the age, race, hairstyle, and
coat color of the driver all appeared to match the description of the robber.

Although closer observation of Jackson during the investigative stop indicated

that he was not wearing the exact clothing ascribed to the robber, Judge Curtin
properly found that Young had reasonably believed that the driver fit the
description of the robber. Furthermore, the Dodge was coming from the
direction in which the robber had fled on foot less than five minutes before.
And finally, the driver acted suspiciously, strangely intent upon ignoring the
tumult created by the police activity near the bank. All these factors created a
reasonable suspicion that the driver was linked to the robbery. See United
States v. Brignoni-Ponce, supra, 422 U.S. at 884-85, 95 S.Ct. at 2581-2582;
United States v. Hall, 557 F.2d 1114, 1116-17 (5th Cir.), cert. denied, 434 U.S.
907, 98 S.Ct. 308, 54 L.Ed.2d 195 (1977); United States v. Santana, 485 F.2d
365, 368 (2d Cir. 1973), cert. denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d
490 (1974). Thus, it was entirely appropriate for the Dodge to be pulled over
for an investigation.3
2. The Reasonableness of the Restraints
13

Appellant argues that the restraints imposed during the stop of his vehicle
exceeded the bounds of an investigatory stop, contending that such conduct is
permissible only in the context of a legal arrest. Therefore, appellant argues,
since the detention was neither a legal Terry stop nor a legal arrest, the
confession must be suppressed. We find this contention to be without merit.

14

To convince us that an illegal arrest, and not a Terry stop, occurred, appellant
relies heavily on the fact that one of the two officers who made the stop drew
his gun as his partner approached Jackson's car.4 But we do not find it
unreasonable for a policeman to draw his gun when he approaches a car whose
driver may be an escaping armed bank robber. Although the drawing of a
weapon may be a significant factor in determining whether a suspect is under
arrest, it is not dispositive of the issue. See United States v. Oates, supra, 560
F.2d at 57; United States v. Beck, 598 F.2d 497, 501 (9th Cir. 1979). In this
case, although Officer Smardz had his revolver out of its holster, ready in case
of trouble, nothing in the record indicates that he ever pointed it at Jackson. Cf.
United States v. Vasquez, supra, 638 F.2d at 522 (arrest did not occur until the
moment when officers leveled their guns at the occupants of the car). He
returned the gun to its holster as soon as his partner's frisk of Jackson ensured
that he was not armed. More important, an officer who decides to draw his gun,
like an officer who decides to frisk a suspect, "need not be absolutely certain
that the individual (he approaches) is armed; the issue is whether a reasonably
prudent man in the circumstances would be warranted in the belief that his
safety or that of others was in danger." Terry v. Ohio, supra, 392 U.S. at 27, 88
S.Ct. at 1883. This belief that the suspect may be armed and dangerous "can be

predicated on the nature of the criminal activity involved." United States v.

Oates, supra, 560 F.2d at 62. An officer approaching a suspected bank robber
could reasonably infer from the nature of the crime that the suspect may well
be armed and dangerous. Indeed, in this case, the subsequent search of Dixon
yielded a revolver. Under these circumstances, Smardz and his partner were
fully justified in the measures taken to protect themselves.
15

To allow such protective measures to transform an investigative stop into an

arrest would create a dangerous dilemma for the police officer in those
situations, like this one, where suspicion does not rise to the level of probable
cause. If the officer approaches a suspected robber with his gun still in his
holster, he increases the risk that he will be shot. If, on the other hand, he
protects himself by drawing his gun, he increases the risk that a court will set
the criminal free by construing his action as an illegal arrest. We decline to
impose such a Hobson's Choice on our law enforcement personnel. Sadly, it is
as true today as when Terry was decided that:

16
Certainly
it would be unreasonable to require that police officers take unnecessary
risks in the performance of their duties. American criminals have a long tradition of
armed violence, and every year in this country many law enforcement officers are
killed in the line of duty, and thousands more are wounded.
17

Terry v. Ohio, supra, 392 U.S. at 23, 88 S.Ct. at 1881.

18

Having rejected the argument that Smardz's drawn gun shows that Jackson was
under arrest, we see no significant differences between the police conduct here
and the conduct which occurs in any investigative stop. For example, there is
no showing that Jackson was handcuffed or told that he was under arrest.
Instead, the record shows that Jackson was detained but a few minutes waiting
for Coyle to arrive and continue the investigation. Coyle, of course, had every
right to ask Jackson his name and what he had been doing, for "the right to
interrogate during a 'stop' is the essence of Terry and its progeny." United
States v. Oates, supra, 560 F.2d at 63. Probable cause to search the trunk
developed almost immediately after Coyle's arrival and, at that point, Jackson
obviously had to be detained until the police determined if there was indeed
someone hiding in the trunk. Our examination of the police conduct thus
reveals that the restraints on Jackson's freedom were reasonable in light of the
basis which the officers had for making the stop.

3. Effect of Smardz's Belief

19

The only remaining question concerning the legality of the stop is whether

Smardz's subjective belief that his partner had placed Jackson under arrest soon
after the frisk is sufficient to convert an otherwise valid Terry stop into an
arrest. Because the objective conduct of the police was consistent with an
investigative stop, we decline to find that an arrest occurred solely because of
Smardz's subjective belief. Objective rather than subjective factors govern the
propriety of both stops and arrests. United States v. Oates, supra, 560 F.2d at
58; United States v. Vital-Padilla, supra, 500 F.2d at 644. See Terry v. Ohio,
supra, 392 U.S. at 21, 88 S.Ct. at 1879 ("it is imperative (when assessing the
propriety of stops and arrests) that the facts be judged against an objective
standard"). United States v. Oates, supra, supports our reasoning. In that case
the accused, Oates, was removed by several police officers from a line of
passengers who were waiting for an airplane. He was taken to an airport office
for questioning. In the office, additional evidence was developed against him
and he was formally arrested. Oates claimed that he had been under arrest from
the moment that he was removed from the line of passengers. The government,
however, claimed that Oates initially had been subjected to an investigative
stop and that the arrest had not occurred until he was in the office. An analysis
of the objective factors convinced our Court that the government was correct.
Oates urged, however, that "crucial importance" should be given to the
subjective beliefs of one of the investigating officers who apparently had
decided to arrest Oates even before he was removed from the line. Applying an
objective standard, we ruled that even if that officer thought that his fellow
officers were arresting Oates, "this subjective belief ... would not affect the
validity of the detention instituted independently by (his fellow officers) if all
the circumstances, viewed objectively and apart from what (the officer may
have thought), disclose that the detention was a stop and not in fact an arrest."
Id. at 58 (citations omitted). Similarly, in this case Smardz's belief that Jackson
was under arrest does not change our conclusion, based upon the objective
actions taken, that Jackson was subjected only to an investigative stop prior to
the opening of the car trunk. It follows from this conclusion that Jackson was
not arrested until after Dixon was found in the trunk and that Jackson's arrest
was therefore legal.B. Probable Cause to Search the Trunk
20

The general rule, of course, is that warrantless searches are unconstitutional.

Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-2032,
29 L.Ed.2d 564 (1971). But the Supreme Court has long recognized the need to
permit some warrantless searches of vehicles because of their mobility and the
ease with which evidence hidden in them may be removed. See Carroll v.
United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925).
Thus, the warrantless search of the car's trunk was legal only if the police had
probable cause to believe that the vehicle contained evidence of a crime.
Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419

(1970); Carroll v. United States, supra, 267 U.S. at 153, 45 S.Ct. at 285.
21

We have no difficulty agreeing with Judge Curtin's finding that Coyle had
probable cause to search the trunk. A number of objective facts indicated that
evidence of the holdup was in the trunk. First, there were the facts which had
initially created Coyle's suspicion that Jackson was involved in the bank
robbery: the driver of the Dodge generally matched the description of the
robber and had acted suspiciously while driving past the bank. Additional facts
developed once Coyle arrived at the scene of the stopped car and continued the
investigation. Jackson's answer to Coyle's query about what he had been doing
was unconvincing. Although he said that he was coming from Hertel Avenue
after dropping his mother off, the officers had seen him drive right past Hertel
Avenue without dropping anyone off.5 After Coyle got a good look at Jackson,
he discovered that, except for Jackson's clothing and weight, he fit the
description of the robber quite closely. Jackson's height, age, race, and hairstyle
all fit the description. At this point, it was entirely reasonable to look into and
around Jackson's car for the clothing worn by the robber. See United States v.
Vasquez, supra, 638 F.2d at 521 ("each action taken (by police) was reasonable
in light of what had gone before"). While Coyle was passing the trunk, he
noticed that the lock had been punched out and he heard a thump "like a tire
fell, movement in the trunk." Coyle's testimony on this point is corroborated by
a remark in Dixon's confession which shows that he was trying to hide the
stolen money in the wheel well at about the time that Coyle was near the trunk.
After hearing the thump, Coyle asked Jackson how he got into his trunk and
Jackson gave the incredible response that he never did. We do not hesitate to
conclude, as did Judge Curtin, that by the time Jackson made this reply, if not
earlier, there was probable cause to search the trunk.6 Therefore, since the
search of Jackson's trunk was legal, the fruits of that search Dixon's presence in
the trunk, the items in his possession, and the subsequent confessions of both
men were admissible into evidence.

CONCLUSION
22

We conclude that the police had reasonable suspicion to pull over appellant's
car and that in so doing they did not unreasonably restrain him. The initial
apprehension was therefore a valid investigative stop and not an illegal arrest.
During the course of that investigatory stop, facts developed which gave the
officers probable cause to search the trunk, after which point the police had
probable cause to arrest the suspects.7 Thus, the evidence discovered in the
trunk and the confessions derived therefrom were not products of an illegal
arrest or search. We therefore affirm the denial of appellant's motion to
suppress.

23

Affirmed.
MANSFIELD, Circuit Judge (dissenting):

24

I dissent. Even assuming that the police had sufficient specific and articulable
facts at the outset to provide them with a reasonable suspicion justifying a
Terry-type investigatory stop of Jackson, which is questionable, the record is
clear beyond doubt that instead of merely making such a stop they immediately
arrested Jackson without probable cause. Their later warrantless search of the
car trunk was the fruit of that unlawful arrest. If constitutional rights are to
mean anything, the evidence uncovered as a result of their unlawful arrest of
Jackson must be suppressed, even though the effect may be to release a
wrongdoer. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9
L.Ed.2d 441 (1963).

25

We should not attempt to avoid the impact of the exclusionary rule through the
subterfuge of characterizing an unlawful arrest as an investigative stop. To do
so imperils our own integrity and undermines public confidence in the rule of
law, which must be applied regardless how the chips may fall in a particular
case. The words of the Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct.
1684, 6 L.Ed.2d 1081 (1961), are pertinent:

26

"There are those who say, as did Justice (then Judge) Cardozo, that under our
constitutional exclusionary doctrine '(t)he criminal is to go free because the
constable has blundered.' People v. Defore, 242 N.Y. (13), at 21, 150 N.E.
(585), at 587. In some cases this will undoubtedly be the result. But, as was
said in Elkins (v. United States), 'there is another consideration the imperative
of judicial integrity.' 364 U.S. (206), at 222 (80 S.Ct. 1437, at 1447, 4 L.Ed.2d
1669). The criminal goes free, if he must, but it is the law that sets him free.
Nothing can destroy a government more quickly than its failure to observe its
own laws, or worse, its disregard of the charter of its own existence. As Mr.
Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438,
485 (48 S.Ct. 564, 575, 72 L.Ed. 944) (1928): 'Our Government is the potent,
the omnipresent teacher. For good or for ill, it teaches the whole people by its
example.... If the Government becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto himself; it invites anarchy.' "
(Footnote omitted). 367 U.S. at 659, 81 S.Ct. at 1693-1694.

27

The proof that Jackson was unlawfully arrested without probable cause is
overwhelming and uncontroverted. Officer Smardz testified that he and his
partner, Holycross, pulled over Jackson's car and with guns drawn immediately

ordered him out of it. After Holycross placed Jackson against his car and patted
him down, while Smardz kept his gun out, Jackson was moved away from his
own car and over to the police car. All of these actions took place before
anyone's attention had been drawn toward Jackson's trunk. At the suppression
hearing, Officer Smardz was asked, "(A)t the time that Mr. Jackson was taken
by your partner over to the police car, was Mr. Jackson under arrest at that
time?" As a law enforcement official well versed in the technique of making an
arrest, he responded with an unequivocal "Yes." He also testified that he
believed his partner had formally placed Jackson under arrest. No other officer
testified that Jackson was arrested at some later time. Throughout Smardz's
examination, he exhibited no awareness that the radio order to stop Jackson's
car had been unsupported by probable cause, or that he was supposed to have
detained Jackson by means less intrusive than an arrest. When asked who gave
him the authority to arrest, he merely replied, "Nobody. He was a suspect in a
bank holdup."
28

That there was an immediate arrest of Jackson before any search rather than
merely an investigative stop is further confirmed by all of the other evidence.
Before any attempt was made to open the trunk, Jackson's car was literally
surrounded by police. Police witnesses admitted that between five and ten cars
and between a dozen and twenty-five officers1 were spaced around Jackson's
car, while he was kept away from the car, before the call came to search his
trunk. This conduct alone has been properly held to be an arrest, not an
investigative stop. See United States v. Beck, 598 F.2d 497, 501 (9th Cir. 1979)
(where nine officers, without drawing guns, ordered a taxi off the road and
surrounded passengers, show of force was sufficiently intrusive to constitute an
arrest); United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974) (arrest
occurred when the car was surrounded by officers issuing orders at gunpoint).
As we observed in United States v. Vasquez, supra, 638 F.2d at 520, "(I)f
probable cause is lacking, the intrusion must be no greater than the
circumstances require." The siege of an individual by a large number of police
cars and officers is inconsistent with the sense of restraint that is essential to the
legitimacy of any investigative stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968); Dunaway v. New York, 442 U.S. 200, 99 S.Ct.
2248, 60 L.Ed.2d 824 (1979); United States v. Vasquez, supra, 638 F.2d at
520-21.

29

Furthermore, Detective Young, who spotted Jackson in traffic in the first place
and was armed with a description of the robbery suspect, acted in complete
disregard for Jackson's rights as an individual whom there was no probable
cause to arrest. Young formulated the requisite reasonable suspicion for a Terry
stop and radioed the order to stop Jackson's car based only on Jackson's race,

his extremely general resemblance to the description given of the robber, the
direction of his car's movement, and his impassiveness as he drove by the bank
during the post-robbery commotion. When Young and his partner, Sergeant
Coyle, reached the scene of Jackson's detainment, Coyle at once noticed that
Jackson was wearing different clothes from those reported to have been worn
by the robber and was at least 50 pounds heavier than the robber had been
described to be. Young did not thereupon even bother to approach Jackson to
ask him any question, ascertain his identity, or determine whether he fitted the
description of the man he was seeking, as might have been expected of an
officer executing a temporary detention. Instead, he admitted,
30immediately went to the driver's door of the '69 Brown Dodge Coronet and
"I
crawled into the front seat and began to feel under the front seat and under the
dashboard for weapons or possible evidence from the hold up, the bank hold up."
31

This unlawful search took place before any attention had been directed toward
the trunk. The warrantless search of portions of a car's interior that are not in
plain view is clearly unconstitutional unless its occupant has been arrested
under the authority of either a valid warrant or probable cause, which was not
the case here. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26
L.Ed.2d 419 (1970); United States v. Ocampo, 650 F.2d 421 (2d Cir. 1981).
Young's actions, which incontestably would have violated Jackson's Fourth
Amendment rights if he had been only stopped under the authority of Terry,
reinforce the conclusion that Jackson was subjected to an arrest rather than an
investigative stop.2

32

The majority misconstrues established law in refusing to view the openly

visible drawing of police guns as relevant to the determination of whether
Jackson was arrested or merely subjected to an investigative stop. When we
declined to hold that the drawing of a gun automatically transformed a stop into
an arrest in United States v. Vasquez, supra, relied upon by the majority, we did
so in explicit reliance on the arresting officer's testimony that his drawn gun
was undetectable by the person he stopped, "at his side, not outstretched or
otherwise in evidence." Id. at 522. We then proceeded to hold, in accordance
with the usual and appropriate approach to the impact of drawn guns, that "the
arrest did not occur before the officers leveled their guns at the Mesas and
ordered them out of their car." Id. See also United States ex rel. Walls v.
Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct.
2099, 23 L.Ed.2d 745 (1969) ("In the instant case the arrest, for purposes of
constitutional justification, occurred at the moment Officer Johnson ordered
relator out of the truck at gunpoint"); United States v. Oates, supra, 560 F.2d at
57. (In finding detention not to be an arrest, we noted that "while not

dispositive, it is significant that here, unlike the situation in United States v.

Lampkin, 464 F.2d 1093, 1094 (3d Cir. 1972), a case upon which appellant
relies, Customs Security Officers Fromkin and DeAlfi did not approach Oates
and Daniels with their guns already drawn"). Application of these principles to
Jackson's detention demonstrates conclusively and inescapably that he was
under arrest when ordered out of his car by an officer with a drawn gun. I
cannot join in the majority's groundless assumption that Officer Smardz hid his
gun from Jackson's view and thereby avoided making an arrest at gunpoint.
The record is entirely to the contrary. Smardz admitted that with gun drawn he
ordered Jackson out of his car.
33

I am sympathetic to the majority's solicitousness for policemen who approach a

possibly dangerous suspect without probable cause to arrest him. But while
officers are allowed to take certain limited steps to protect themselves from
unnecessary risks, Adams v. Williams, supra, 407 U.S. at 148, 92 S.Ct. at 1924,
this protection must be narrowly circumscribed in order to ensure that a
person's right to be free from excessive police intrusion is not unduly abridged.
Id. The drawing of a gun by the police plainly represents a substantial intrusion
upon an individual's autonomy and peace of mind. Since the line between an
investigative stop and an arrest is defined according to the degree of
intrusiveness of the police activity, the use of a drawn gun of necessity becomes
at least strongly relevant if not dispositive in determining the appropriate
characterization of a detention.

34

The majority similarly misreads United States v. Oates, supra. There we did not
find that the arresting officer's belief that a suspect has been arrested was
irrelevant in determining whether the suspect had in fact been arrested. Rather,
we addressed only the question of whether the presence of probable cause is
determined at the time when an officer first decides he will arrest a suspect or
at the time when he actually places the suspect under arrest. We unsurprisingly
held no more than that the legitimacy of an arrest is measured from the moment
of arrest rather than from the time when the arresting officer thinks he has
probable cause to make an arrest, saying:

35

"Appellant strenuously argues that what is of crucial importance here is the

subjective intention of Agent Hammonds, reached before requesting assistance
from the Customs officers but unexpressed to any of them, to arrest Daniels and
Oates. Hammonds' belief, however, that he had sufficient probable cause at this
point to support an arrest, even assuming arguendo that belief to be wrong, and
his intention to act upon that belief, are of no consequence here. What controls
here is not what Hammonds subjectively intended to do but what he did." Id. at
58.

36

Here, by contrast, Officer Smardz did not testify that he formed the intention of
arresting Jackson in the future. He swore that Jackson was under arrest from
the time he drew Jackson out of his car with his gun out of its holster. The
Oates holding in no way undermines the legitimacy of Smardz's belief or
judicial reliance upon it.

37

Improper police activities will occasionally lead to discovery of probative

inculpatory evidence of crime, as happened here. But we have long recognized
that such post-arrest discoveries of evidence may not be invoked to justify
unconstitutional police activity. See Wong Sun v. United States, supra, 371
U.S. at 484, 83 S.Ct. at 415 ("That result would have the same essential vice as
a proposition we have consistently rejected that a search unlawful at its
inception may be validated by what it turns up"). By deterring police
misconduct, this rule serves to guard the innocent against unwarranted police
intrusion as well.

38

No amount of legerdemain by the majority can transform what was plainly an

arrest in this case into a mere investigative stop. I cannot agree with the
majority that an individual who is seized at gunpoint by an officer who later
testifies that he was performing an arrest, who is drawn out of and away from
his car and who is then surrounded by up to 10 police cars and 25 police
officers and subjected to a warrantless search of interior sections of his car that
are not in plain view, all before probable cause for a search even arguably
arises, has experienced only "a brief stop ... in order to determine his identity or
to maintain the status quo momentarily." Adams v. Williams, supra, 407 U.S. at
146, 92 S.Ct. at 1923; see also Henry v. United States, 361 U.S. 98, 103, 80
S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). Proper adherence to the principles of
restraint enunciated in Terry v. Ohio and Adams v. Williams and in many cases
thereafter mandates reversal here.3

Dixon did not join this appeal, although he moved below for the suppression of
his confession and the fruits of the search. He pled guilty to bank robbery in
violation of 18 U.S.C. 2113(a) (1976) and was sentenced to a term of nine
years

Young conducted a search of the front seat of Jackson's car. The legality of this
search was not determined below and need not be decided here because it did
not yield any evidence against Jackson

The officers who responded, Smardz and his partner, had the same right to stop
the Dodge as did Coyle and his companions. Whiteley v. Warden, 401 U.S.

560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971). Under the
circumstances here, pulling the Dodge over was an intermediate response that
was "the essence of good police work." Adams v. Williams, 407 U.S. 143, 145,
92 S.Ct. 1921, 1922, 32 L.Ed.2d 612 (1972)
4

Nothing in the record reveals how the police indicated to Jackson that he
should pull over. Therefore, we cannot evaluate the reasonableness of the
manner in which this was done. Presumably, Jackson's defense counsel would
have brought out at the suppression hearing any facts favorable to his client

Judge Curtin did not base his finding of probable cause to search the trunk on
this statement by Jackson. He did not think that Coyle could necessarily
conclude that Jackson was lying about dropping his mother off because
Jackson's statement might only have meant that he had dropped his mother off
somewhere near Hertel Avenue. Nevertheless, we believe that his somewhat
suspicious reply to Coyle enhances the strength of Judge Curtin's conclusion
that Coyle's reasonable suspicions about Jackson were sufficient to justify the
investigative stop

It is, of course, irrelevant that probable cause arose in the course of an

investigatory stop which was originally based on reasonable suspicion. United
States v. Oates, supra, 560 F.2d at 63. Indeed, even if Coyle had already
planned to search the trunk before probable cause arose, the search would be
lawful because, at the moment that the search began, there was probable cause
to search it. United States v. Oates, supra, 560 F.2d at 57-58; United States v.
Laird, 511 F.2d 1039, 1040 (9th Cir. 1975) (per curiam)
It makes no difference that an important fact establishing probable cause was a
noise. Probable cause can be established by a suspicious sound as it can be by a
suspicious smell or appearance, see, e. g., United States v. Cantu, 548 F.2d
1243, 1244 (5th Cir. 1977) (per curiam) (smell of marijuana creating probable
cause); United States v. Laird, 511 F.2d 1039, 1040 (9th Cir. 1975) (per
curiam) (same). In United States v. Butler, 533 F.2d 221, 223 (5th Cir. 1976),
narcotics officers relied upon the sound of a blender to help establish probable
cause to conduct a warrantless search of a hotel room. The officers suspected
that the blender had been used to cut cocaine or heroin.

We believe that our dissenting brother misreads the record as to the sequence of
events and the time that elapsed between the stopping of the Dodge and the
sound of the thump

Sergeant Coyle stated that his car and four others had arrived at the scene of
Jackson's detention when he heard the thump in the trunk, and that more
arrived thereafter. Officer Croft remembered 10 cars and 25 officers. Officer

Smardz estimated that five cars had drawn up, with 10 or a dozen officers, by
the time attention was drawn to the trunk
2

The opening of the trunk, which resulted in the discovery of the actual bank
robber, is itself also not free from constitutional uncertainty. The trial court and
the majority have both accepted Officer Coyle's testimony that he opened the
trunk after hearing a thump. Yet two other police officers, Smardz and Croft,
stated without contradiction that an order came over the radio to search the
trunk. This order was plainly not supported by probable cause. To the extent
that the order formed the basis for the search of the trunk, the search was
unconstitutional. The admitted presence of this order places a shroud of doubt
over the claim that a thump provided the initial stimulus for the search
The government has apparently conceded that if the arrest was illegal its
illegality fatally tainted Jackson's confession. I therefore need not resolve
whether I consider such a result mandated under the facts of this case by the
Supreme Court's ruling in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45
L.Ed.2d 416 (1975)