United States v. Robert S. Wylie, A/K/A Bobby S. Wylie

SPOTTSWOOD W. ROBINSON, III, Circuit Judge,

dissenting in part:

With much of Judge McGowan’s able opinion for the court I am essentially in accord. Officer Franck’s sidewalk encounter with appellant began as a non-coercive, non-trespassory investigative inquiry that appellant could indulge or ignore at will. 1 So long as the confrontation retained those attributes, the Fourth Amendment was not implicated in the least. 2 When, however, appellant was asked to accompany the officer back to the bank, a new element emerged, for appellant could hardly have felt free to do otherwise. 3 That restraint summoned a test by the principles articulat *72 ed in Terry; 4 with the admissibility of ensuing incriminations hanging in the balance. 5 With all of these propositions I fully agree.

I must part company with the court, however, when it concludes that Terry requirements were met in this case. In my view, the justification urged for the return trip to the bank — appellant’s inability to produce identification 6 — does not pass muster under the Fourth Amendment. 7 If I am correct, the resulting encroachment upon appellant’s liberty was illegal, and demanded suppression of the evidentiary discoveries it made possible.

I. THE IMPOSITION OF THE DETENTION

All agree that by the time appellant was arrested, Officer Franck had derived probable cause therefor from developments following their return to the bank. And, among the members of the court, it is common ground that probable cause for appellant’s arrest did not accrue until after they had left the sidewalk. 8 But, as Terry made clear, the reach of the Fourth Amendment is not limited to constraints rising to the stature of formal arrests; even a relatively brief street-stop may fall within its compass, 9 and accordingly must be adequately justified. 10 The threshold questions here are whether there was a constitutionally cognizable detention on the sidewalk and, if so, at just what point it occurred.

A. The Governing Principles

In Terry the Court observed, “[sjtreet encounters between citizens and police officers are incredibly rich in diversity.” 11 A factor often contributing to variegation— and one invariably separating the constitutionally permissible from what may be constitutionally forbidden — is the degree of impediment to the citizen’s freedom of action. “Obviously,” the Court declared, “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 12 So long as the citizen is free to disregard or terminate the contact and go his way as he pleases, the Fourth Amendment interposes no obstacle to a policeman’s mere effort at conversation. 13 And as we ourselves have observed,

[ejncounters vary in the degree of intrusion; plainly there is a difference between an order to stop and give identification and a command to remain in a certain place for questioning for as long as twenty minutes. 14 And although some degree of restraint and constraint may be present whenever police officers confront citizens to ask questions, 15 such encounters differ in their potential *73 for intimidation and abrasion. Delineation of the Fourth Amendment limitations on police investigative activity must proceed with sensitivity to these differences. 16

Ofttimes the boundary between voluntary and involuntary on-street colloquy with police officers is elusive. 17 Many people at bottom will think twice before spurning an importuning policeman. This is not to suggest that that circumstance alone makes one inexorably a captive, 18 for if it did no police-citizen investigative contact would ever withstand scrutiny. It is to say that the line of demarcation lies at the point of some different and larger restraint.

In the quest for greater precision in this regard, we may profitably take a page from history. Bodily detention within the contemplation of the Fourth Amendment has traditionally been viewed as a consequence not simply of particular police conduct but also of its expectable impact upon the mind of the detainee. 19 And as we have heretofore proclaimed, “ ‘the test must not be what the [detainee] himself thought, but what a reasonable man, innocent of any crime, would have thought had he been in the [detainee’s] shoes.’ ” 20 That declaration was made in the context of a skirmish culminating in what was alleged to be an arrest, but logic dictates its applicability for purposes of determining whether a detention of potentially less magnitude has taken place. Indeed, that is the criterion by which the local police themselves abide. 21

*74 B. The Imposition Here

With these considerations in mind, I approach the confrontation of appellant by Officer Franck on the sidewalk outside the bank. For a while, it lacked any significant indicium of duress other than whatever may be inherent in any face-to-face meeting between a citizen and a police officer. Certainly the officer’s opening inquiry— “Sir, may I talk to you for a moment?” 22 —did not on its face suggest that appellant was compelled to do so. Nor did appellant’s spontaneous response — “Okay” 23 —indicate anything other than a willingness to cooperate. During most of the ensuing conversation, there was no exertion of official authority, no hint of force, and no frisk or other encroachment upon bodily integrity. So long as these circumstances endured, there was little or no likelihood that one innocent of crime would reasonably have felt unable to walk away whenever he chose.

There did, however, come a time at which the prevailing conditions changed radically. That was when Officer Franck asked appellant to return to the bank. “[WJould you mind coming back inside the bank with me?”, 24 the officer put it; there “we will talk to the manager, and if everything is okay[] you can go.” 25 Like my colleagues, 26 I think it clear that, against the backdrop of the interrogation proceeding it, an innocent person in that situation would reasonably have taken the officer’s utterance not as a mere supplication, but as a command. 27 And the officer’s proposition, as framed, unmistakably implied that appellant’s liberty of movement was no longer unencumbered, but had become dependent upon such resolution of the officer’s suspicions as might be made inside the bank. 28 From that point onward appellant was under restraint, 29 and justification therefor became imperative.

II. THE PRECONDITIONS TO NON-ARREST DETENTION

Only if appellant’s involuntary sojourn at the bank was lawful could the incriminating evidence gleaned therefrom validly serve as a predicate for his conviction. 30 Fruit of an unconstitutional seizure cannot *75 be utilized affirmatively to establish guilt on the part of its victim, 31 and this prohibition bars physical items uncovered, 32 utterances made 33 and conduct observed 34 during the course of the illegal intrusion. Since the discoveries prompting appellant’s ultimate arrest — and, crucially, the incidental seizure of the bank statement — came solely in consequence of the in-bank internment and interrogation to which he was subjected, 35 the justification proffered therefor must be scrutinized in the light of governing Fourth Amendment principles. 36

A. Terry v. Ohio

Every police detention unconsented to is subservient to that Amendment’s strictures on seizure of the person. 37 An arrest — a taking into custody incidental to a charge of crime — calls for probable cause, 38 “defined in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’ ” 39 A temporary restraint for investigative inquiry requires adequate justification, though somewhat weaker and different in character. It was in Terry that the Supreme Court set the standards by which hindrances of that nature are to be measured.

Terry recognized that there are occasions upon which police need to inquire into ostensible criminal activity in the absence of probable cause supporting an arrest. 40 “[A] police officer,” the Court said, “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.” 41 At the same time, Terry preserved the individual’s Fourth Amendment freedom from unreasonable governmental encroachment upon the privacy of his person, 42 and made clear its purpose to exclude evidence gained thereby in order to discourage lawless police con *76 duct. 43 These ends are assured by two requirements laid down by the Court. One is that, “in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” 44 The other is that “the stop and inquiry must be ‘reasonably related in scope to the justification for their initiation.’ ” 45 As we ourselves have put it, “[sjtops as well as arrests must satisfy the Fourth Amendment’s requirement of reasonable cause commensurate with the extent of the official intrusion.” 46

Justification authorizing an investigative street-stop marks the point of accommodation for competing interests in personal privacy and crime detection, 47 no less than probable cause does for an arrest. 48 No wonder, then, that it is of a very special character: “unusual conduct which leads [the officer] reasonably to conclude in light of his experience that criminal activity may be afoot . . . .” 49 And in evaluating the occasion for the stop, “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure . ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” 50 For “[ajnything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result [the Supreme] Court has consistently refused to sanction.” 51

B. Applications of Terry

The distinction, then, is between reasonable grounds for a suspicion — objective facts in light of which the stop appears reasonable — that will support a stop, and intuition, hunch, or mere subjective suspicion that will not. 52 This is well illustrated by one of two incidents before the Supreme Court in *77 Sibron v. New York. 53 A policeman kept Sibron under continuous surveillance for eight hours as he conversed successively with a number of known addicts. The officer did not overhear any of their conversations nor did he see anything pass between them. The Court refused to accept those circumstances as a basis for an investigative stop. “So far as [the officer] knew, they might . . . ‘have been talking about the World Series.’ 54 The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security.” 55

The constitutional necessity for objectively- and reasonably-founded suspicion for a stop is further illustrated by Brignoni-Ponce, 56 wherein the Court delineated the power of the Border Patrol to halt automobiles in areas near the Mexican border and inquire into the citizenship and immigration status of the occupants. As posed by the Court, “[t]he only issue presented for decision [was] whether a roving patrol may stop a vehicle in an area near the border and question its occupants when the only ground for suspicion is that the occupants appear to be of Mexican ancestry,” 57 and that issue the Court resolved in the negative. Properly justified, such a procedure would be unobjectionable; “because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border,” the Court held “that when an officer’s observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the ear briefly and investigate the circumstances that provoke suspicion.” 58 Since, however, “[r]oads near the border carry not only aliens seeking to enter the country illegally, but a large volume of legitimate traffic as well,” the Court recognized that “[t]o approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Boarder Patrol officers.” 59 Consequently, the Court was

not convinced that the legitimate needs of law enforcement require this degree of interference with lawful traffic. . [A] requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border area from indiscriminate official interference. Under the circumstances, and even though the intrusion incident to a stop is modest, we conclude that it is not “reasonable” under the Fourth Amendment to make such stops on a random basis. 60

Moreover, the Brignoni-Ponce Court continued, “[f]or the same reasons that the Fourth Amendment forbids stopping vehicles at random to inquire if they are carrying aliens who are illegally in the country, it also forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they *78 may be aliens.” 61 So, tracking Terry, the Court proclaimed that “[e]xcept at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country”; 62 and that standard had not been met:

In this case the officers relied on a single factor to justify stopping respondent’s car: the apparent Mexican ancestry of the occupants. We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens. At best the officers had only a fleeting glimpse of the persons in the moving car, illuminated by headlights. Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens. The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens. 63

Very similar to these decisions is our own in Montgomery, 64 Police officers saw Montgomery drive through a residential area twice, whereupon they followed him around the block and stopped him. Montgomery had observed all relevant traffic and speed laws, and the officers knew of nothing reflecting adversely upon him. Their suspicions were nonetheless aroused by “the manner in which he was encircling the area”; 65 “it seemed unusual that he would be encircling like that. There was really no business places around.” 66 One of the officers became more skeptical when he “observed [Montgomery] appeared [sic] to be watching us in the rear view mirror and looking around.” 67 We concluded that these events did not “giv[e] rise to a founded suspicion of wrongdoing.” 68 We said:

[G]ood faith, accompanied only by inarticulate hunch, is not enough for even the temporary “seizure” of a stop. And that is all that appears on this record. The officers saw [Montgomery] some four or five minutes after they originally noticed him, concluded that he had driven around the block, pulled their marked police car behind him and noted that [Montgomery] watched them in his rear view mirror and looked around. This may have been reason for an officer to become suspicious enough to keep an eye on [Montgomery]. But it can hardly be deemed to be an objective indicator of reasonable suspicion of criminal conduct. There are perfectly legitimate reasons for circling a block, perhaps looking for an address in an unfamiliar neighborhood, or for a parking space close to the address sought, or waiting to meet a friend when parking at or near the location is unavailable. 69

* * * if. * *

The inarticulate hunch, the awareness of something unusual, is reason enough for officers to look sharp. Their knowledge and experience identify many inci *79 dents in the course of a day that an untrained eye might pass without any suspicion whatever. But awareness of the unusual, and a proper resolve to keep a sharp eye is not the same as an articulated suspicion of criminal conduct. [Montgomery’s] acts, as reported, were too innocuous to warrant the intrusion of a temporary seizure for questioning. 70

Reverting to the case at bar, the question immediately becomes whether, in the totality of the circumstances of his encounter with Officer Franck, appellant’s right to personal integrity was violated by what constitutionally amounted to an unreasonable seizure when he was required to go back to the bank for what eventuated as an extended interrogation. The reasonableness of this course of action turns on the facts, viewed objectively, 71 and the central inquiry is whether the officer was “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted] that intrusion.” 72 Applying Terry criteria to the facts here, I cannot accept the inferences purportedly underpinning the detention to which appellant was subjected. 73

III. EVENTS LEADING TO THE DETENTION

The chain of circumstances culminating in appellant’s downfall is recounted in the record by Officer Franck himself. He was the only witness at the hearing on appellant’s motion to suppress the evidence uncovered after he was brought back to the bank. The officer’s testimony on the motion was admitted by stipulation at the ensuing nonjury trial, and the facts to which he testified, as distinguished from the impressions that he derived from those facts, have not been challenged. The events recited herein, then, are as related by the officer at the suppression hearing.

A. The Officer’s Observations

From the moment he first laid eyes on appellant, Officer Franck felt that something was odd. It all began one afternoon as the officer commenced a tour of duty inside the bank and spotted appellant 25 feet away 74 awaiting his turn at a teller’s window. The officer’s attention was drawn to appellant “because he was the only person in the bank that didn’t look right in the bank.” 75 Appellant “had a good looking *80 jacket on” 76 and “was dressed fairly modestly,” 77 though “his pants were kind of shaggy.” 78 Still, to the officer “[h]e didn’t appear to be right inside the bank. ” 79

As appellant stood in line, Officer Franck noticed that he held a piece of blue paper in his hand. The officer did not know what the paper really was but assumed that it was a check. 80 So, when appellant handed the paper to the teller, and after examination the teller returned it to appellant with an unelucidated reference to a “bank official,” 81 Officer Franck thought he was watching an effort to cash a check. 82 “What I saw in his hand looked like a check,” 83 he said; “[i]t was Tuesday afternoon. I thought it was an unusual time for somebody to be cashing their pay check.” 84 As we know, appellant received no money from the teller, a circumstance that the officer deemed not necessarily criminal, but “unusual.” 85

As appellant left the window, he saw Officer Franck for the first time. “We had eye contact for three to five seconds. Maybe six seconds,” 86 the officer related; “[h]e turned away. From that time on, he avoided any kind of looking at me at all.” 87 After speaking briefly to a bank official, 88 and as Officer Franck “started moving toward him, . . . [appellant] started walking fast out of the bank, not at the same pace he had been moving” 89 — so fast, the officer declared, that “when I went after the man, I had to trot to catch up with him on the sidewalk.” 90

It was then that Officer Franck intercepted appellant on the sidewalk. “I stopped him,” the officer explained, “because I thought he was trying to cash a check, and it didn’t seem right to me that a man that was trying to cash a check would walk out of the bank without his check being cashed.” 91 Appellant unhesitatingly honored Officer Franck’s request for a chat. 92 He waited while the officer obtained a form from his scooter and entertained questions while the officer recorded his answers on the form. 93 Asked his name, appellant said “William Witherspoon”; 94 he also supplied an address 95 and a relative’s telephone number, 96 and the officer had no objective basis for doubting any of that information. 97

Appellant told the officer that he had no identifying document other than a withdrawal slip that he had filled out in the bank in order to obtain money from his savings account. 98 At the officer’s suggestion, he handed over the slip, upon which was written the same name he had previously *81 given 99 and, as the officer was later to testify, he “realized that it was a withdrawal slip, yes, sir.” 100 Appellant explained that he had mistakenly put his checking-account number instead of his savings-account number on the slip, and thus was unable to effect a withdrawal. 101 Notwithstanding, the officer shortly thereafter subjected appellant to restraint with the proposal that they go back to the bank for further investigation. 102

One may comb the officer’s detailed narrative of the developments forerunning appellant’s in-bank detention for “specific and articulable facts . . . reasonably war-rantpng] that intrusion” 103 but the effort, I submit, is doomed to failure. To begin with, to stand in line for a bank teller’s handling of what appears to be a check is certainly no oddity. The officer had never seen appellant prior to that day; 104 he did not know whether he was a customer of the bank; 105 indeed, he “[djidn’t know a thing about him.” 106 Nor was there anything exceptional about appellant’s attire, as described by the officer, 107 to attract a bystander’s special attention. Officer Franck’s impression that appellant “was the only person in the bank that didn’t look right in the bank” 108 was no more or less than a subjective hunch of the first order. 109

Somewhat more palatable is the officer’s mistaken belief that the blue slip in appellant’s hand was a check. 110 But the notion that it is “unusual” for a person to cash his pay check on a Tuesday afternoon 111 strikes me as absurd. People cash checks at banks all the time; a better place to do so is difficult to imagine. And the officer’s extrapolation from a blue slip to a check thence to a pay check 112 hardly qualifies as a gem of deduction. I cannot indulge a higher rating to Officer Franck’s impression that the fact that the check was not cashed was “unusual.” 113 A check-cashing effort may founder from any number of difficulties, and the teller’s window is a likely place for discovering them. I find it difficult to believe that reasonable-minded people would perceive anything peculiarly criminal about “a man that was trying to cash a check [who] walk[s] out of a bank without his check being cashed.” 114

Much the same must be said for the “eye contact,” and the subsequent “avoid[ance]” of such contacts, to which Officer Franck attached importance. 115 Many if not most of us would consider a glance of three to six *82 seconds 116 at a uniformed policeman 117 some distance away 118 enough for any one afternoon. The officer’s concern over this aspect of the encounter is akin to a recently-spurned assertion that a driver trailed by a marked police car “appeared to be watching us in the rear view mirror and looking around.” 119 We dismissed that impression with the admonition that “[t]o consider mirror glance as enough for a seizure, however temporary, is to accept the adequacy of ‘inarticulate hunches.’ ” 120 Pedestrains, no less than “[d]rivers[,] simply do take notice that the police are nearby,” 121 and then adore or ignore them as they please.

Moreover, the “eye-contact” episode bears the unmistakable earmark of a hopeless dilemma for appellant. By Officer Franck’s own description, after the first sighting nothing transpired that objectively could have augured the likelihood that appellant would have gazed at the officer again. After the transaction at the cashier’s window aborted, appellant walked toward the bank officer and then out through the door. Had he turned for one more look at Officer Franck, he would have left himself open to the ever-suspicious policeman’s hunch — as did the driver in the case just mentioned — that appellant was giving him a “furtive” glance.

There was also appellant’s brisk exit from the bank, with Officer Franck “trot[ting]” after him. 122 It may suffice merely to observe that when a patron’s business with a bank is at least temporarily at end there is little or no occasion to tarry. To boot, one departing may not unnaturally walk through an exit faster than he previously did in point-to-point movement inside a bank. And it is hardly surprising that Officer Franck had to “trot” in order to catch up with appellant on the sidewalk since the officer was some distance away when he started. 123 But lest it be thought that appellant’s exit had implications as a possible flight from the officer, a few additional remarks are in order. Flight may, of course, have significance in particular contexts, 124 but always there are “dangers inherent in unperceptive reliance upon flight as an indicium of guilt,” 125 and it is never a “reliable indicator of guilt without other circumstances to make its import less ambiguous.” 126 The short journey from the bank’s interior to the sidewalk outside could hardly be deemed flight in any event, 127 and surely any temptation to do so is removed *83 when it is recalled that appellant unhesitatingly honored the officer’s request to halt and thereafter cooperated fully throughout the stop. 128 These contemporaneous circumstances unmistakably negate any different import that otherwise might be thought to follow.

B. The Lack of Documentary Identification

This brings us to the episode on the sidewalk, and to Officer Franck’s unfruitful call upon appellant for documented personal identification. My colleagues and I are as one in the view that prior to that call the officer did not have sufficient ground to impose any kind of restriction on appellant. 129 What we disagree over is the significance, in the totality of the circumstances, of appellant’s inability to produce the required documentation. 130 What now follows is my assessment of that branch of the case.

When the subject of identification arose, Officer Franck was under the erroneous impression that appellant had attempted to cash a check in the bank. So, his admitted lack of identifying documents “[r]ight away . struck [the officer as] funny”; 131 “[w]hy,” he asked himself, “does a man go to a bank to cash a check without some sort of identifieation[?]” 132 But the officer’s underlying supposition was promptly dispelled. Appellant explained that his purpose had been to withdraw funds from a savings account, and handed the blue withdrawal slip to the officer as proof. 133 The officer examined the slip, recognized it as the one he had seen in the bank and realized just what it was. 134 Thus the theory that until then had so firmly welded the officer’s attention on appellant — a check-cashing mission in the bank — suddenly evaporated.

Nonetheless, Officer Franck, in his own words, “proceeded to ask [appellant] why he didn’t have any identification when he was in the bank.” 135 He then was told that *84 appellant had mistakenly written his checking account number on the slip. 136 Still, to the officer, “everything was funny”:

I know my checking account number, and I know my savings account number in my bank. I know they are not alike.

I started asking questions. The questions were general questions, but everything was funny.

I asked him — I said, “Mr. Witherspoon, would you mind coming back inside the bank with me, and we will talk to the manager, and if everything is okay, you can go.” 137

This I read as a statement that the situation seemed “funny” to Officer Franck because appellant apparently could not distinguish between checking and savings account numbers, an approach, I submit, that succumbs to Terry’s requirement of objective unreasonableness. 138 It simply defies experience as well as logic to argue that one is likely to be a criminal just because he cannot remember or differentiate between his bank account numbers. Officer Franck was, however, to voice another concern:

I never saw him present any I.D. at the teller’s window. When I asked him for I.D. outside [the bank], he stated that he didn’t have any. That was another thing that got me to wondering why a man would go into a bank without I.D.

I have been in a bank, and they won’t accept my badge and I.D. card. I have to have a driver’s license, too. 139

And the court echoes much the same theme:

[I]t is unusual for an individual to attempt to withdraw money from a personal savings account without being prepared to display some evidence that he owns or controls the account — a savings passbook or bank account identification card, if not additional identification as well— and, in light of what he had observed in the bank, Officer Franck could reasonably have suspected, when the only identification appellant was able to produce was the disputed transaction slip itself, that he had attempted to withdraw money from someone else’s account. 140

Both the officer and my colleagues, I think, presume entirely too much. By far the most reasonable deduction from Officer Franck’s in-bank observations and appellant’s lack of identification was that a bank customer had forgotten to bring along data, including identification, needed to consummate his mission; that he had tried to improvise by recalling his account number; and that, having been informed by the teller that his memory was faulty, he had given up and started home.

Everyday experience teaches that we often fall short in even the most elementary precautions for any number of commonplace events. We get caught in showers without umbrellas or raincoats; we get involved in vehicular collisions with seat belts unfastened; and we lock ourselves out of our homes. Of a piece with these mental slips are not infrequent aberrations in docu-mental preparations for the transactions we contemplate. We arrive at supermarkets without our wallets, at shopping centers without our credit cards, and at performances without our pre-purchased tickets; we even drive our cars blissfully unaware that we have neglected to bring along our operator’s permits and registration cards. Who among us, including those who pride themselves for care and forethought, has not at some time or another undergone such a lapse? I daresay that appellant, for all Officer Franck knew, could have been but one of a countless number who, for any of many reasons, has arrived at a bank teller’s window for a savings withdrawal without any kind of identification whatsoever.

So long as man remains as fallible as he is in almost every endeavor imaginable, I *85 cannot accept the episode in suit as the extraordinary event my colleagues believe it was. Much less can I conceive of it as an objective portent of crime in a Nation that does not — or, until today’s decision, did not — require its citizens to carry identification. 141 To an unbiased observer knowing no more than Officer Franck, the simple lack of a passbook, bank card or other documentation of personal identity or account-ownership is all too easily attributable to carelessness, absent-mindedness or sheer ignorance of the mechanics of withdrawal. 142 Moreover, appellant’s inability to produce evidence of that sort is too bland a circumstance to connote criminality objectively. If, as my colleagues gratuitously assume, savings withdrawals at the National Bank of Washington are conditioned upon presentation of a particular type of such document, 143 an inability to do so expectably would result merely in the bank’s refusal to permit the sought-after withdrawal. 144 That consequence hardly comports with the sophistication normally associated with criminals who prey on banks.

The Terry standards defining permissible stops based on ostensible criminality from observed facts bear repeating. Before a stop may be imposed, “the facts available to the officer at the moment of the seizure,” viewed objectively, 145 must be such as would “ ‘warrant a man of reasonable caution in the belief[ ]’ that the action taken was appropriate[.]” 146 Obviously, any inference of criminality becomes weaker as, in terms of ordinary experience, the possibility of innocent explanation looms larger. And even when the circumstances call for some amount of investigation, “the stop and inquiry must be ‘reasonably related in scope to the justification for their initiation.’ ” 147 That one converses with a succession of addicts does not reasonably give rise to an inference that he is engaged in narcotics traffic. 148 That one apparently of Mexican ancestry occupies an automobile near the Mexican border does not warrant an infer *86 ence that he is an alien illegally in the country. 149 That one circles a residential area with an eye for the presence of policemen does not logically generate an inference that he is a would-be burglar. 150 In none of these instances did the circumstances respectively appearing justify an investigative stop. 151 I say that the mere fact that one who applies for a savings withdrawal without the necessary credentials on his person is not so singular as to imply fairly and objectively an effort to defraud the bank, or to support a detention for further inquiry in that regard. 152

In my view, then, appellant’s Fourth Amendment “right . . . to be secure in [his] person[] . . . against unreasonable . . . seizure[ ]” 153 was infringed when Officer Franck escorted him back into the bank. In so concluding, and despite my difficulties with the officer’s course of reasoning, I intend no impugnation of his sincerity. His testimonial performance symbolizes, for me at least, the dedicated policeman endeavoring conscientiously to do his job as best he can, but constitutionally speaking that is beside the point. “If subjective good faith alone were the test, protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects’ only in the discretion of the police.” 154

IV. CONCLUSION

Most assuredly, the court’s holding in this case offers no haven for the absent-minded. At bottom, it means that one must always remember to carry personal identification when setting out for the bank. It means, too, that one must never forget to bring along his checkbook, his passbook or whatever else customarily facilitates the transaction in mind. Otherwise, given the court’s broad authorization of intrusive and embarrassing investigation, a forgetful bank customer seeking only to conduct legitimate business could be halted and interrogated on the spot. I would not expect difficulties of that sort to be limited only to those who have occasion to frequent banks.

To be sure, policemen must have leeway to investigate crime, incipient or ongoing. But the fundamental question is whether the Constitution indulges as much room as my colleagues yield, and I for one believe that it does not. Terry effected a careful balance between the needs of policework and personal privacy. The balance remains true only so long as each interest is maintained and protected in its own proper sphere. Today’s decision upsets that balance by setting, albeit undesignedly, a trap for the absent-minded innocent. Those who view that with equanimity if not enthusiasm could benefit from what we ever so recently said,

[a]ny decision that holds a “stop” to be an unlawful intrusion on privacy invites hy *87 perbolic opposition on the ground of unreasonable interference with police officers who were only acting reasonably in coping with criminals. Of course those who come into court are criminals. The other citizens who were stopped and delayed in their pursuits were not charged and so the cases do not erupt in court.

Doubtless more crimes would be solved if all persons were subject to unrestricted police authority to stop and identify. Why not, it might be argued, since the innocent will have nothing to hide? If one is not sensitive to the implications for an open society, no amount of comment can explicate. 155

. Discussed infra Part 1(B).

. Discussed infra Part 1(A).

. Discussed infra Part 1(B).

. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

. Discussed infra Part II.

. See Majority Opinion (Maj.Op.) at note 6, discussed infra Part IV.

. Discussed infra Part III.

. See Maj.Op. following note 5.

. “It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio, supra note 4 , 392 U.S. at 16 , 88 S.Ct. at 1877 , 20 L.Ed.2d at 903 . See also United States v. Brig-noni-Ponce, 422 U.S. 873, 878 , 95 S.Ct. 2574, 2578 , 45 L.Ed.2d 607, 614 (1975).

. Discussed infra Part II.

. Terry v. Ohio, supra note 4 , 392 U.S. at 13 , 88 S.Ct. at 1875 , 20 L.Ed.2d at 901 .

. Id. at 19 n.16, 88 S.Ct. at 1879 n.16, 20 L.Ed.2d at 905 n.16.

. Coates v. United States, 134 U.S.App.D.C. 97, 100 , 413 F.2d 371, 374 (1969).

. Citing, in a footnote at this point, American Law Institute, Model Code of Pre-Arraignment Procedure, § 110.2(1) (Official Draft No. 1, 1972) (street-stop not exceeding 20 minutes authorized under certain circumstances).

. Citing, in text at this point, Allen v. United States, 129 U.S.App.D.C. 61 , 390 F.2d 476 (1968).

. United States v. Coates, 161 U.S.App.D.C. 334, 338, 495 F.2d 160, 164 (1974) (footnotes omitted).

. “Whether police have left the channel of ‘investigation’ and run onto the shoals of ‘custodial interrogation’ cannot be determined by reference to some chart clearly designating the various lights, bells, buoys and other channel markers.” Allen v. United States, supra note 15, 129 U.S.App.D.C. at 63-64 , 390 F.2d at 478-479 .

. As we have had occasion to note, United States v. Coates, supra note 16, 161 U.S.App. D.C. at 338 n. 5, 495 F.2d at 164 n. 5, the constraint frequently accompanying police-citizen encounters has not been decisive of the question whether consent to a search is voluntary. See Schneckloth v. Bustamome, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).

. See, e. g., Kelley v. United States, 111 U.S. App.D.C. 396, 398, 298 F.2d 310, 312 (1961); Coleman v. United States, 111 U.S.App.D.C. 210 , 218, 295 F.2d 555, 563 (en banc 1961), cert. denied, 369 U.S. 813 , 82 S.Ct. 689 , 7 L.Ed.2d 613 (1962).

. Coates v. United States, supra note 13, 134 U.S.App.D.C. at 99 , 413 F.2d at 373 , quoting United States v. McKethan, 247 F.Supp. 324, 328 (D.D.C.1965), aff’d, No. 20,059 (D.C.Cir. Oct. 6, 1966) (unpublished order.) See also Yam Sang Kwai v. INS, 133 U.S.App.D.C. 369, 372 , 411 F.2d 683, 686 , cert. denied, 396 U.S. 877 , 90 S.Ct. 148 , 24 L.Ed.2d 135 (1969); Bailey v. United States, 128 U.S.App.D.C. 354 , 363, 389 F.2d 305 , 314 (1969) (concurring opinion); Kelley v. United States, supra note 19, 111 U.S.App.D.C. at 398 , 298 F.2d at 312 .

. Metropolitan Police Department General Order 304-10 categorizes non-arrest citizen-encounters as either “contacts” or “stops.” A “contact” is “[c]onduct by an officer which places him in face-to-face communication with an individual under circumstances in which the individual is free to leave if he wishes,” and “may be initiated by an officer when he reasonably believes that investigation of a situation is justified.” Id. pt. 1(A). Thus “[t]he standard for police-citizen contacts is not ‘probable cause,’ ‘reasonable suspicion,’ or any other specific indication of criminal activity.” Id. The order emphasizes that

[pjersons “contacted” may not be detained against their will or frisked. They may not be required to answer the officer’s questions or in any way respond to the officer if they choose not to do so. The officer may not use force or coercion to attempt to require citizens to stop or respond. If they refuse to cooperate, they must be permitted to go on their way, however, if it seems appropriate under the circumstances, they may be kept under surveillance.

Id. pt. 1(2) (emphasis in original). A “stop,” on the other hand, “is the temporary detention of a person for the purpose of determining whether probable cause exists to arrest that person . ,” and “occurs whenever an officer uses his authority to compel a person to halt, or to keep him in a certain place, or to require him to perform some act (such as walking to a nearby location where the officer can use a radio, telephone, or call box).” Id. pt. 1(B). As the order makes clear, “[i]f a person is under a reasonable impression that he is not free to leave the officer’s presence, a ‘stop’ has occurred.” Id.

. Transcript of Hearing on Motion to Suppress (Tr.) 13.

. Tr. 13.

. Tr. 15.

. Tr. 15.

. Maj. Op., 186 U.S.App.D.C. at--, 569 F.2d at 69.

. Compare Jackson v. United States, 118 U.S. App.D.C. 341, 343, 336 F.2d 579, 581 (1964); Kelley v. United States, supra note 19, 111 U.S.App.D.C. at 398 , 298 F.2d at 312 .

. I am advertent to Officer Franck’s testimony that “if [appellant] had turned and walked away from me, then, as long as I have been a policeman, I know 1 couldn’t have stopped him. He could have kept right on going. . . Tr. 15; see also Tr. 24. The decisive factor, however, is the effect of the officer’s “request” upon appellant’s state of mind, and not the officer’s uncommunicated assessment of what it was. See text supra at notes 19-21. As the District Court aptly observed, Officer Franck’s statement bore “all indicia of authority. Who disobeys a policeman?” Tr. 29.

. The circumstances leading to this conclusion also negate any idea of consent to the return trip to the bank. Consent presupposes an absence of compulsion, including that induced by the appearance of lawful authority, Schneckloth v. Bustamonte, supra note 18, 412 U.S. at 233 , 93 S.Ct. at 2051 , 36 L.Ed.2d at 866 ; Gatlin v. United States, 117 U.S.App.D.C. 123, 130 , 326 F.2d 666, 673 (1963); Nelson v. United States, 93 U.S.App.D.C. 14, 18, 21-22 , 208 F.2d 505, 509, 512-513 , cert. denied, 346 U.S. 827 , 74 S.Ct. 48 , 98 L.Ed. 352 (1953), and, when urged in support of an act otherwise violative of Fourth Amendment rights, must be convincingly demonstrated. Judd v. United States, 89 U.S.App.D.C. 64, 67 , 190 F.2d 649, 652 (1951); Gibson v. United States, 80 U.S.App.D.C. 81, 83 , 149 F.2d 381, 383 , cert. denied, 326 U.S. 724 , 66 S.Ct. 29 , 90 L.Ed. 429 (1945); Nueslein v. District of Columbia, 73 App.D.C. 85, 89 , 115 F.2d 690, 694 (1941).

. Wong Sun v. United States, 371 U.S. 471, 484 , 83 S.Ct. 407, 415 , 9 L.Ed.2d 441, 453 (1963); United States v. Montgomery, 182 U.S. App.D.C. 426, 429, 561 F.2d 875, 878 (1977); Bailey v. United States, supra note 20, 128 U.S.App.D.C. at 357, 389 F.2d at 308.

. See cases cited supra note 30.

. E. g., Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 , 40 S.Ct. 182, 183 , 64 L.Ed. 319, 321-322 (1920).

. E. g., Silverman v. United States, 365 U.S. 505, 512 , 81 S.Ct. 679, 683 , 5 L.Ed.2d 734, 739 (1961).

. E. g., McGinnis v. United States, 227 F.2d 598, 603 (1st Cir. 1955).

. Compare, e. g., Wong Sun v. United States, supra note 30, 371 U.S. at 484-485 , 83 S.Ct. at 415-416 , 9 L.Ed.2d at 453-454 (unlawful entry invalidates subsequent arrest and seizure of evidence).

. “[T]he right of the people to be secure in their persons . . . against unreasonable . . seizures, shall not be violated . . .” U.S.Const. amend. IV. “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference, unless by clear and unquestionable authority of law.” Terry v. Ohio, supra note 4 , 392 U.S. at 9 , 88 S.Ct. at 1873 , 20 L.Ed.2d at 898-899 , quoting Union Pac. R.R. v. Botsford, 141 U.S. 250, 251 , 11 S.Ct. 1000, 1001 , 35 L.Ed. 734, 737 (1891).

. See note 9 supra.

. E. g., Gerstein v. Pugh, 420 U.S. 103, 111 , 95 S.Ct. 854, 862 , 43 L.Ed.2d 54, 64 (1975).

. Id., quoting Beck v. Ohio, 379 U.S. 89, 91 , 85 S.Ct. 223, 225 , 13 L.Ed.2d 142, 145 (1964).

. 392 U.S. at 20 , 88 S.Ct. at 1879 , 20 L.Ed.2d at 905 .

. Terry v. Ohio, supra note 4, 392 U.S. at 22 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906 . As the Court later had occasion to remark,

[t]he 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.

Adams v. Williams, 407 U.S. 143, 145-146 , 92 S.Ct. 1921, 1923 , 32 L.Ed.2d 612, 616-617 (1972) (emphasis supplied) (citations omitted). See also United States v. Brignoni-Ponce, supra note 9, 422 U.S. at 881 , 95 S.Ct. at 2580, 45 L.Ed.2d at 616-617 .

. Terry v. Ohio, supra note 4, 392 U.S. at 9 , 88 S.Ct. at 1873 , 20 L.Ed.2d at 898-899 .

. Id at 12, 88 S.Ct. at 1875 , 20 L.Ed.2d at 900-901 . See also text supra at notes 30-35.

. 392 U.S. at 21 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906 (footnote omitted). “This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” Id. at 21 n.18, 88 S.Ct. at 1880 n.18, 20 L.Ed.2d at 906 n.18 (citations omitted). That is because “[t]he scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular . . . seizure in light of the particular circumstances.” Id. at 21 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906 (footnote omitted).

. United States v. Brignoni-Ponce, supra note 9, 422 U.S. at 881 , 95 S.Ct. at 2580, 45 L.Ed.2d at 617 , quoting Terry v. Ohio, supra note 4, 392 U.S. at 29 , 88 S.Ct. at 1884 , 20 L.Ed.2d at 910 .

. Young v. United States, 140 U.S.App.D.C. 333, 336 , 435 F.2d 405, 408 (1970).

. Terry v. Ohio, supra note 4, 392 U.S. at 9-13 , 88 S.Ct. at 1873-1875 , 20 L.Ed.2d at 898-901 .

. Gerstein v. Pugh, supra note 38, 420 U.S. at 112 , 95 S.Ct. at 863, 43 L.Ed.2d at 64 .

. Terry v. Ohio, supra note 4, 392 U.S. at 30 , 88 S.Ct. 1884 , 20 L.Ed.2d at 911 . See also United States v. Coates, supra note 16, 134 U.S.App.D.C. at 338 & n.3, 495 F.2d at 164 & n.3. Metropolitan Police Department General Order 304 — 10 (1973) both incorporates and elucidates the Terry criteria. While the prerequisite for a police-citizen “contact is not probable cause, reasonable suspicion, or any other specific indication of criminal activity,” id. pt. 1(A), a “stop” is authorized “[i]f an officer reasonably suspects that a person has committed, is committing, or is about to commit any crime,” id. pt. 1(B)(1) (emphasis in original). “Reasonable suspicion” is defined as

more than a hunch or speculation on the part of the officer, but less than the probable cause necessary for arrest. Reasonable suspicion is a combination of specific and articu-lable facts, together with reasonable inferences from those facts, which, in light of the officer’s experience, would justify a reasonable officer in believing that the person stopped had committed, was committing, or was about to commit a criminal act.

Id. pt. 1(B)(2).

. Terry v. Ohio, supra note 4, 392 U.S. at 21-22 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906 .

. Id. at 22 , 88 S.Ct. at 1880 , 20 L.Ed.2d at 906 .

. American Law Institute, Model Code of Pre-Arraignment Procedure, Proposed Official Draft Part IA § 110.2(6), at 282 (1975).

. 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968).

. Sibron v. New York, supra note 53, 392 U.S. at 62, 88 S.Ct. at 1902, 20 L.Ed.2d at 934, quoting the trial judge.

. Id.

. United States v. Brignoni-Ponce, supra note 9.

. 422 U.S. at 876 , 95 S.Ct. at 2578, 45 L.Ed.2d at 614 .

. Id. at 881 , 95 S.Ct. at 2580, 45 L.Ed.2d at 616-617 .

. Id. at 882 , 95 S.Ct. at 2581, 45 L.Ed.2d at 617 . A different conclusion would mean that “Border Patrol officers could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road, without any reason to suspect that they have violated any law.” Id. at 883 , 95 S.Ct. at 2581, 45 L.Ed.2d at 617 .

. Id. (footnote omitted).

. Id. at 884 , 95 S.Ct. at 2581-2582, 45 L.Ed.2d at 618 .

. Id. (footnote omitted).

. Id. at 885-887 , 95 S.Ct. at 2582-2583, 45 L.Ed.2d at 619-620 (footnotes omitted).

. United States v. Montgomery, supra note 30.

. 182 U.S.App.D.C. at 429 , 561 F.2d at 878 .

. Id.

. Id.

. Id. at 431, 561 F.2d at 880 .

. See further in this connection text infra at notes 119-121.

. United States v. Montgomery, supra note 30, 182 U.S.App.D.C. at 430-431 , 561 F.2d at 879-880 .

. See text supra at note 50.

. See text supra at note 44.

. The restraint imposed upon appellant was exacerbated by the fact that he was compelled to forgo the sidewalk and accompany Officer Franck back into the bank for further investigation. While my colleagues treat this as an innocuous extension of the on-street stop, I am troubled by the limitation that the Supreme Court associated with permissible investigative activities of the Border Patrol in United States v. Brignoni-Ponce, supra note 9. There the Court held that, on reasonably-based suspicion that a particular vehicle may contain illegal aliens, an officer may stop it briefly to inquire into the citizenship and immigration status of the occupants, and may call for explanation of suspicious circumstances, 422 U.S. at 881-882 , 95 S.Ct. at 2580-2581, 45 L.Ed.2d at 616-617 , but, since “the stop and inquiry must be ‘reasonably related in scope to the justification for their initiation,’ ” see text supra at note 45, “any further detention . . . must be based on consent or probable cause.” Id. at 882, 95 S.Ct. at 2580, 45 L.Ed.2d at 617 . Since, however, I conclude that Officer Franck lacked justification to restrain — as distinguished from approach — appellant for questioning — at any time, on the sidewalk or elsewhere — I do not reach the question whether appellant’s rights were violated by his removal to the bank, or whether there was “an investigative ‘seizure’ upon less than probable cause for purposes of ‘detention’ and/or interrogation.” Terry v. Ohio, supra note 4, 392 U.S. at 19 n.16, 88 S.Ct. at 1879 n.16, 20 L.Ed.2d at 905 n.16.

. Tr. 9.

. Officer Franck testified:

My attention was drawn to him because he was the only person in the bank that didn’t look right in the bank. He had a good looking jacket on, but his pants were kind of shaggy. He was dressed fairly modestly. He didn’t appear to be right inside the bank, to me.

Tr. 9-10.

. See note 75 supra.

. See note 75 supra.

. See note 75 supra.

. See note 75 supra.

. Tr. 9.

. Tr. 11.

. Tr. 9, 22, 25.

. Tr. 22.

. Tr. 22.

. Tr. 16.

. Tr. 22.

. Tr. 22. See also Tr. 12.

. Tr. 23.

. Tr. 12.

. Tr. 12. See also Tr. 23.

. Tr. 25. The officer added, “[a]nd he didn’t have any I.D. with him.” The court then asked, “[y]ou didn’t know he didn’t have any I.D. until you stopped him out on the- sidewalk?” Tr. 25. The officer responded, “I never saw him present any I.D. at the teller’s window.” Tr. 25.

. Tr. 13.

. See Maj.Op. at note 2.

. Tr. 13.

. Tr. 13-14.

. Tr. 14.

. See Tr. 8, 10, 17.

. Tr. 14.

. Tr, 14.

. Tr. 17.

. Tr. 14.

. Tr. 14-15. Just prior thereto, Officer Franck radioed in the name “William Wither-spoon” for a check on outstanding warrants, but did not await a response. Tr. 19-20.

. See text supra at note 44.

. Tr. 8.

. Tr. 8.

. Tr. 10.

. See text supra at note 75.

. See text supra at note 75.

. See United States v. Hostetter, 295 F.Supp. 1312, 1316 (D.Del. 1969); Baker v. State, 478 S.W.2d 445, 446, 449 (Tex.Crim.App. 1972). I recognize that “in determining whether the officer acted reasonably in [the] circumstances, due weight must be given ... to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Terry v. Ohio, supra note 4, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909. See also, e. g., United States v. Hall, 174 U.S. App.D.C. 13, 15, 525 F.2d 857, 859 (1976); United States v. Davis, 147 U.S.App.D.C. 400, 403 , 458 F.2d 819, 822 (per curiam 1972). But in the end the question is whether “the facts available to the officer at the moment of the seizure . . ‘warranted] a man of reasonable caution in the belief that the action taken was appropriate[ ].” See text supra at note 50.

. See text supra at notes 80, 83.

. See text supra at note 84.

. See text supra at note 84.

. See text supra at note 85.

. See text supra at note 91.

. See text supra at notes 86-87.

. See text supra at note 86.

. At the time, Officer Franck was in uniform and wearing his helmet. Tr. 7.

. Tr. 9.

. United States v. Montgomery, supra note 30, 182 U.S.App.D.C. at 429 , 561 F.2d at 878 .

. Id. at 430-431, 561 F.2d at 879-880 , quoting Terry v. Ohio, supra note 4, 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.

. United States v. Montgomery, supra note 30, 182 U.S.App.D.C. at 431 , 561 F.2d at 880 .

. See text supra at note 90.

. Tr. 9, 12, 23.

. “With cautious application in appreciation of its innate shortcomings, flight may under particular conditions be the basis for an inference of consciousness of guilt.” Bailey v. United States, 135 U.S.App.D.C. 95, 100 , 416 F.2d 1110, 1115 (1969) (footnote omitted). See also, e. g., the cases cited id. at 99 n.29, 416 F.2d at 1114 n.29.

. Id. at 99 , 416 F.2d at 1114 (footnote omitted). See also Wong Sun v. United States, supra note 30, 371 U.S. at 483 n.10, 83 S.Ct. at 415 n.10, 9 L.Ed.2d at 452 n.10; Alberty v. United States, 162 U.S. 499, 511 , 16 S.Ct. 864, 868 , 40 L.Ed. 1051, 1056 (1896); Hinton v. United States, 137 U.S.App.D.C. 388 , 391, 424 F.2d 876, 879 (1969).

. Hinton v. United States, supra note 125, 137 U.S.App.D.C. at 391, 424 F.2d at 879 (footnote omitted).

. “The term ‘flight’ is often misused for ‘departure.’ Departure from the scene after a crime has been committed, of itself, does not warrant an inference of guilt. . . For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.” State v. Sullivan, 43 N.J. 209 , 203 A.2d 177, 192 (1964), cert. denied, 382 U.S. 990 , 86 S.Ct. 564 , 15 L.Ed.2d 477 (1966).

. See text supra at notes 92-101.

. Maj. Op., 186 U.S.App.D.C. at -, 569 F.2d at 69.

. It cannot be said that appellant refused to identify himself — a circumstance that in particular contexts might bear significance. Compare Model Penal Code § 250.6 (1962); Metropolitan Police Department General Order 304-10 pt. 1(B)(4)(d) (1973). Appellant gave Officer Franck a name and a savings withdrawal slip bearing that name — albeit a false name, but the officer had no way of knowing that it was false. All concerned have viewed the matter as one of inability to produce documentation of identification, and so do I.

. The officer’s testimony in this regard is as follows:

I asked the man if he had any identification. He said, "No, I don’t have any identification.”

Right away it struck me funny. Why does a man go into a bank to cash a check without some sort of identification.

I asked him again, “Are you sure you don’t have any identification.” He said, “No. All I have is the withdrawal slip.” I asked him what he was doing in the bank. He said, “I have a withdrawal slip.” I said, “A withdrawal slip from where, sir?” He said, “I was going to withdraw some money out of my savings account.”

I said, “May I see that, sir, for some identification.” He took the brown envelope out of his pocket and presented me with the blue slip of paper that I had previously seen inside the bank. And on the blue slip of paper was the name William Witherspoon that I, therefore, transferred down to this card.

And I proceeded to ask him why he didn’t have any identification when he was in the bank. He said that he went into the bank and made a mistake. He tried to get some money from his savings account, and he had the checking account number down there.

I know my checking account number, and I know my savings account number in my bank. I know they are not alike.

I started asking questions. The questions were general questions, but everything was funny.

I asked him — I said, “Mr. Witherspoon, would you mind coming back inside the bank with me, and we will talk to the manager, and if everything is okay, you can go.” Tr. 14-15.

. Tr. 14.

. Tr. 14.

. Tr. 14-15.

. Tr. 14.

. Tr. 15.

. Tr. 15.

. See text supra at note 50.

. Tr. 25.

. Maj. Op., 186 U.S.App.D.C. at -, 569 F.2d at 69.

. See Wainwright v. City of New Orleans, 392 U.S. 598, 604 , 88 S.Ct. 2243, 2248-2249 , 20 L.Ed.2d 1322, 1325-1326 (1968) (Warren, C. J., dissenting). And because identification might be useful to almost anyone on almost any day, policemen will no doubt read the majority opinion as labeling “suspicious” in Terry terms everybody unable to produce identification on request. The decision is thus tantamount to a requirement that all citizens carry identification at all times, and present it to police officers when called upon to do so. Imagine the uproar by our citizens — who by and large value their privacy and their individuality — had Congress attempted to enshrine such a proposition in legislation.

. At most, Officer Franck’s observations of appellant’s activities inside the bank presented an occasion only to keep an eye on him, and reason to watch closely is not necessarily reason to effect a detention:

The inarticulate hunch, the awareness of something unusual, is reason enough for officers to look sharp. Their knowledge and experience identify many incidents in the course of a day that an untrained eye might pass without any suspicion whatever. But awareness of the unusual, and a proper resolve to keep a sharp eye, is not the same as an articulated suspicion of criminal conduct. United States v. Montgomery, supra note 30, 182 U.S.App.D.C. at 430 , 561 F.2d at 879 .

. Since the record is silent on the methodology of savings withdrawals at the National Bank of Washington, we are completely in the dark as to whether its savings customers must present a passbook, an account card or any other documentation whatever. It is known, however, that banks generally have long relied heavily if not exclusively upon the customer’s signature as proof of the genuineness of an order to pay funds from a particular account. Consequently, personal identification or other evidence of account-ownership may not be nearly as vital to a withdrawal transaction as my colleagues believe. And if it is the signature rather than indicia of other types that is vital, one’s lack of documentation while undertaking a savings withdrawal would not be unusual at all.

. The important consideration for Terry purposes, of course, is not what the bank’s practice actually is, but what Officer Franck knew or reasonably believed it to be. Officer Franck candidly admitted, however, that he had no knowledge or information whatever in that regard. Tr. 7.

. See text supra at note 50.

. See text supra at note 50.

. See text supra at note 45.

. See text supra at note 55.

. See text supra at note 63.

. See text supra at note 69.

. See Part 11(B). Those cases demonstrate that it is not enough that the presence of the factor in question makes it more likely that criminality is afoot than when the factor is absent. Terry teaches that there must be no likely nonsuspicious explanation. Terry v. Ohio, supra note 4, 392 U.S. at 22-23, 88 S.Ct. at 1880-1881, 20 L.Ed.2d at 906-907. And Brignoni-Ponce reemphasizes the danger of allowing police to “seize” persons on the basis of factors, like ancestry and lack of identification, that less rather than more often are hallmarks of criminality. See text supra at notes 56-63.

. I am mindful that relevant events are to be appraised as a whole rather than singly, e. g., Terry v. Ohio, supra note 4, 392 U.S. at 22-23, 88 S.Ct. at 1880-1881, 20 L.Ed.2d at 906-907; United States v. Davis, supra note 109, 147 U.S.App.D.C. at 402 , 458 F.2d at 821 , and re-sultantly that appellant’s lack of identifying documents must be indulged any significance that antecedent factors might afford. But I am unable to see how Officer Franck’s nebulous forerunning impressions — appellant’s attire, his disdain of repeated “eye contacts” and his lively exit from the bank, see Part 111(A) supra —could succeed in imparting a cast of criminality to a circumstance so readily explainable and naturally acceptable as just another instance of human absent-mindedness.

. See note 36 supra.

. Beck v. Ohio, supra note 39, 379 U.S. at 97 , 85 S.Ct. at 229 , 13 L.Ed.2d at 148 , quoted in Terry v. Ohio, supra note 4, 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906.

. United States v. Montgomery, supra note 30 561 F.2d at 887 , 182 U.S.App.D.C. at 438 .