United States v. Robert Blackman, Marvin Hinsey, Kenny Thompson, Salathiel Calvin Thompson

*1579 EISELE, Senior District Judge,

concurring in part and dissenting in part:

I agree with much of what has been said by my colleagues in the majority, namely that appellants’ Batson 1 claims are without merit; that appellants’ prosecutorial misconduct and “Bahamian deposition” arguments are without merit; that appellant Blackman’s sentencing argument is without merit; and that the evidence was sufficient to sustain appellant Kenny Thompson’s convictions. Accordingly, I join in Parts I, III and IV of the majority’s opinion. I also agree (although for reasons somewhat different from those of the majority) that the district court properly denied appellants’ motion to suppress, at least as that motion related to appellants Blackman, Hinsey and Kenny Thompson, and I therefore agree with the majority that those appellants’ convictions should be affirmed. Unlike the majority, however, I am forced to conclude that the district court erred in denying the motion to suppress as to appellant Salathiel Thompson, and in so far as Part II of the majority’s opinion is inconsistent with this conclusion, I respectfully dissent. Further, since this error was not harmless, I must also dissent from the majority’s conclusion that Salath-iel’s convictions should be affirmed.

It is, of course, clear (and undisputed by the majority) that appellants were seized, within the meaning of the Fourth Amendment, after they 'Voluntarily” acquiesced in the officers’ “request” that they exit the Thompsons’ apartment, and were each then physically restrained. 2 See California v. Hodari D., 499 U.S. 621, 625 , 111 S.Ct. 1547, 1550 , 113 L.Ed.2d 690 (1991) (“[A] seizure occurs “when the officer, by means of some physical force or show of authority, has in some way restrained the liberty of a citizen.’ ”) (citation and emphasis omitted). It is also conceded 3 that the officers did not have probable cause to arrest appellants until after their initial detention, i.e., until Salathiel made statements incriminating both himself and the other appellants. See Maj. op. at 1574, 1575-76, 1577. What is subject to dispute, however, is whether appellants were under arrest at the time of their initial detention, which would have necessarily required probable cause (which was coneededly then lacking), or whether appellants’ initial detention constituted, in the eyes of the law, a *1580 Terry 4 or investigatory stop, which would have only required “reasonable suspicion” of wrongdoing (which I agree existed at the time of those seizures, see Maj. op. at 1576). In contrast with the majority, I believe that appellants’ initial seizures fell into the former category.

In order to understand the reasons for my disagreement with the majority, it will be useful to recount the events surrounding appellants’ seizures.

The record indicates that immediately pri- or to appellants being “asked” to exit the apartment, the apartment was surrounded by some ten to twelve FBI agents (each armed and wearing an FBI raid jacket), and that the street in front of the apartment was blocked off by several marked and unmarked law enforcement vehicles. An FBI agent then announced over a loudspeaker: “[T]his is the FBI, we would like the occupants in this particular unit of this particular residence to come out the front door one by one.” A second FBI agent then shouted: “FBI, please come out, keep your hands above your head as you come out one at a time[!]” Immediately thereafter, Blackman ran out the back door with his hands in the air, at which point an FBI agent shouted: “FBI, stop[!]” Blackman complied, and he was immediately taken into custody, handcuffed, and taken to the front of the apartment and forced to lay down on the ground. Soon thereafter, the remaining three appellants exited through the front door, at which time they were all immediately taken into custody, handcuffed and placed on the ground. Salathiel then asked: “[W]hat is this about?”, and was told by an FBI Agent: “[T]his is involving a bank robbery of First Union Bank back in July.” Salathiel agreed to talk about that robbery, and after having been read his Miranda 5 rights, he made statements incriminating himself and the other appellants. The FBI agents then decided they had enough information to “formally” place appellants under arrest, and, incident to those arrests, they conducted a “protective sweep” of the Thompsons’ apartment, discovering incriminating evidence (a 9mm. handgun). Appellants were then taken to the FBI’s offices, and after interrogation in compliance with Miranda, each appellant ultimately confessed. 6

In contrast to the majority, I believe that appellants were placed under arrest immediately after they left the apartment. Whether an appellant’s detention was an investigatory stop or a full-blown arrest is a question of law subject to de novo review. See United States v. Diaz-Lizaraza, 981 F.2d 1216, 1220-22 (11th Cir.1993). This Court has previously stated that “[i]n determining ‘when’ a person is arrested, we ask at what point, ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed he [she] was not free to leave.’” United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.1989) (quoting United States v. Hammock, 860 F.2d 390, 393 (11th Cir.1988)); see also United States v. Vargas, 643 F.2d 296, 298 (5th Cir. Unit B. Apr. 1981); 7 2 John Wesley Hall, Jr., Search and Seizure § 22:3 at p. 87 (2d ed. 1993). Strictly speaking, this particular formulation of the standard for determining whether an arrest has occurred is not a completely accurate statement of the law, for, as the majority correctly points out, “an investigatory stop is not an arrest despite the fact that a reasonable person would not believe he is free to leave.” Maj. op. at 1576 (citing United States v. Hastamorir, supra, 881 F.2d at 1556 ) (emphasis omitted). This is so because even during an investigative stop, which by definition is not an arrest, it would be clear to a reasonable person so detained that he was not free to leave during the stop. See 2 LaFave, supra, § 5.1(a) at 393 (1994 Supp. at *1581 135). It appears that this Court’s unfortunate articulation of the “reasonable person/free to leave” test for judging arrests resulted from collapsing the Royer-Menden- hall 8 standard for judging when a “seizure” occurs into the test governing when such a seizure qualifies as an arrest. 9 See United States v. Hammock, swpra, 860 F.2d at 393 (stating that an arrest occurs when “ ‘a reasonable person would have believed he was not free to leave.’ ”) (quoting United States v. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877 (Stewart & Rehnquist, JJ., concurring)). Of course, whether a seizure has occurred and whether an arrest has occurred are separate and distinct inquiries, the latter class of detention being a subset of the former. See 2 LaFave, supra, § 5.1(a) at 392-93; Richard A. Williamson, The Dimensions of Seizure: The Concepts of “Stop” and “Arrest”, 43 Ohio St.L.J. 771, 802-17 (1982) (hereinafter “Williamson”). So, what is the appropriate standard for judging whether an arrest has occurred, as opposed to a mere investigatory stop?

Unlike the majority, I am not ready to abandon the “reasonable person” standard for judging when a detention ripens into a full-blown arrest. I have no quarrel, however, with the majority’s observation that “[n]o brightline test separates an investigatory stop from an arrest,” and that consequently the question whether a seizure constitutes an arrest is one that can only be answered on a case-by-case basis in light of “all the circumstances.” Maj. op. at 1576.

In my view, an arrest occurs whenever a reasonable person ‘“would have understood the situation to constitute a restraint on freedom of movement of the degree ... [ordinarily] associate® with [a] formal arrest.’ ” United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir.1988) (quoting United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir.), cert. denied, 488 U.S. 924 , 109 S.Ct. 306 , 102 L.Ed.2d 325 (1988)); see George E. Dix, Nonarrest Investigatory Detention in Search and Seizure Law, 1985 Duke L.J. 849 , 927 (hereinafter “Dix”); accord Berkemer v. McCarty, 468 U.S. 420, 441 , 104 S.Ct. 3138, 3151 , 82 L.Ed.2d 317 (1984) (a person is “in custody” for Miranda purposes when he is “subjected to the restraints comparable to those associated with a formal arrest”). Stated another way, the inquiry is simply whether a reasonable person would have believed that he was “under arrest” (as that term is commonly understood) at the time of his seizure. United States v. Patterson, 648 F.2d 625, 632 (9th Cir.1981); see generally Williamson, supra, 43 Ohio St.L.J. at 815-16. Thus, if the circumstances surrounding a seizure would be viewed by a reasonable person as indicating that he would not be free to leave for an indefinite, or for an extended period of time, then that person has been placed under arrest. See 1 Wayne R. La-Fave & Jerold H. Israel, Criminal Procedure § 3.8 at 297 (1984) (“[A] stopping differs from an arrest not in the incompleteness of the seizure but in the brevity of it.”); cf. United States v. Sharpe, 470 U.S. 675, 684-86 , 105 S.Ct. 1568, 1574-75 , 84 L.Ed.2d 605 (1985) (noting that an investigative stop implies a “temporary” detention, typically of short duration); Terry v. Ohio, supra, 392 U.S. at 26, 88 S.Ct. at 1882 (noting that an arrest implies “future interference with the individual’s freedom of movement” beyond that attendant with an investigative stop); United States v. Mosquera-Ramirez, 729 F.2d 1352, 1356 (11th Cir.1984) (recognizing this temporal distinction between arrests and investigative stops). It is not the actual length of time of the detention that is the key here, but, rather, whether a reasonable person would perceive, while detained, on the basis of the totality of the circumstances (including, very importantly, the actions and representations of the seizing officers, see United States v. Brunson, 549 F.2d 348, 358 (5th Cir.), cert. denied, 434 U.S. 842 , 98 S.Ct. 140 , 54 L.Ed.2d 107 (1977)), that he is “under arrest” as commonly understood, in that he is likely to be detained for an indefinite or extended period of time. An arrest can oe- *1582 cur in an instant. An officer can put his hand on a person and state that that person is “under arrest.” See United States v. Moreno, 897 F.2d 26, 31 (2d Cir.), cert. denied, 497 U.S. 1009 , 110 S.Ct. 3250 , 111 L.Ed.2d 760 (1990); cf. California v. Hodari D., supra, 499 U.S. at 626 , 111 S.Ct. at 1550-51 (At common law, “[a]n arrest require[d] either physical force ... or, where that was absent, submission to the assertion of authority.”). An arrest can also occur in an instant, as here, even if the officers do not use that magic phrase. 10 Cf. United States v. Setzer, 654 F.2d 354, 357 (5th Cir. Unit B. Aug. 1981), cert. denied, 459 U.S. 1041 , 103 S.Ct. 457 , 74 L.Ed.2d 609 (1982).

It may be argued that the standard of “a reasonable person believing he is under arrest” will have its own difficulties, see Dix, supra, 1985 Duke L.J. at 929-31, but I submit that the common man or woman in this country, using common sense, understands this concept. Ordinarily, when a highway patrolman stops and detains a person for speeding, that person would not reasonably believe he or she is under arrest. See Pennsylvania v. Minims, 434 U.S. 106, 109-12 , 98 S.Ct. 330, 332-34 , 54 L.Ed.2d 331 (1977) (police ordering a driver out of a vehicle following a traffic stop does not result in an arrest). Similarly, if an officer stops a person on the street and states: “I just want to ask you some questions,” that person would not, at that moment, reasonably believe that he or she is under arrest. See Florida v. Rodriguez, 469 U.S. 1, 5-6 , 105 S.Ct. 308, 310-11 , 83 L.Ed.2d 165 (1984) (such an encounter is not even a “seizure” under the Fourth Amendment). But if an armed officer, wearing a raid jacket, violently seizes a person, forces him to the ground, and places him in handcuffs (or other restraints), would not that person reasonably believe he was under arrest? Of course he would. Cf. United States v. Tookes, 633 F.2d 712, 715 (5th Cir. Unit B. 1980). The difference, I suggest, is that in the first two examples the totality of the circumstances would lead the person detained to believe that his detention would be brief, whereas in the last example there is nothing in the situational context that would lead him to reasonable believe that he would soon or very shortly be permitted to leave and go on about his business.

In harmony with our prior decisions, I agree that when weighing the various factors that may distinguish an investigative stop from an arrest, e.g., the number of officers present, the officers’ show of force, and the use of physical restraints, see United States v. Hammock, supra, 860 F.2d at 393 , such an inquiry must, in the end, be guided by “ ‘common sense and ordinary experience.’ ” United States v. Hastamorir, supra, 881 F.2d at 1556 (quoting United States v. Espinosa-Guerra, 805 F.2d 1502, 1509 (11th Cir.1986)) (further citation omitted). And in my “common sense” view, when an individual is directed to leave his house (or that of a friend) by the police, is then immediately handcuffed by armed officers, and is forced to lie down on the ground in the presence of almost a dozen FBI agents wearing raid jackets, in a neighborhood that has been cordoned off by marked and unmarked police vehicles, such a person could not reasonably believe that he would, soon or shortly, be free to leave, and, therefore, he would reasonably believe that he has been subject to an arrest, rather than a mere investigatory stop. 11 See United States v. Hawkins, 59 F.3d 723, 727 (8th Cir.1995) (suspect under arrest when removed from his bedroom and handcuffed in the hallway); United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir.1984) (suspect under arrest when ordered to exit *1583 his house by several police officers who had surrounded his house), cert. denied, 471 U.S. 1061 , 105 S.Ct. 2126 , 85 L.Ed.2d 490 (1985); United States v. Williams, 630 F.2d 1822 , 1324 (9th Cir.) (same under similar facts), cert. denied, 449 U.S. 865 , 101 S.Ct. 197 , 66 L.Ed.2d 83 (1980); see also Oliveira v. Mayer, 23 F.3d 642, 645-46 (2d Cir.1994) (suspect under arrest when he was handcuffed by armed officers after being told to exit his vehicle), cert. denied, - U.S.-, 115 S.Ct. 721 , 130 L.Ed.2d 627 , and cert. denied, — U.S. -, 115 S.Ct. 722 , 130 L.Ed.2d 627 (1995); United States v. Anderson, 981 F.2d 1560, 1565-66 (10th Cir.1992) (same under similar facts); United States v. Del Vizo, 918 F.2d 821, 824-25 (9th Cir.1990) (same); United States v. Gentry, 839 F.2d 1065, 1070 (5th Cir.1988) (same). While I agree that an arrest does not necessarily and automatically result only from the use of physical restraints (e.g., handcuffs), United States v. Hastamorir, supra, 881 F.2d at 1557 ; United States v. Kapperman, 764 F.2d 786 , 790 n. 4 (11th Cir.1985), or only from the officers’ show of force (e.g., drawing their weapons), United States v. Roper, 702 F.2d 984, 988 (11th Cir.1983), it cannot, in my view, be seriously doubted that these factors, when used in conjunction, would ordinarily lead a reasonable person to believe that he is under arrest, cf. 2 LaFave, supra, § 5.1(a) at 390-91; 3 id. § 9.2(d) at 366-67, especially when such a seizure follows directly on the heels of an official directive, or even a “request,” to leave the sanctuary of one’s home. Indeed, there was nothing qualitatively different in the nature of appellants’ detention at the moment they were first seized than when they were “formally” placed under arrest. The only distinction that existed was that the officers subsequently developed probable cause to support the arrests (which fact, of course, cannot be bootstrapped to somehow alter or justify the nature of the initial seizures). Thus, under the majority’s view, an arrest here, under the Fourth Amendment, would only occur when the police recite the magic words, “You are now under arrest,” or perhaps after the passage of a considerable period of time. Such a result is plainly inconsistent not only with the precedent of the Supreme Court, Dunaway v. New York, 442 U.S. 200, 212-13 , 99 S.Ct. 2248, 2256-57 , 60 L.Ed.2d 824 (1979) (whether a suspect was told that he was “under arrest” is irrelevant to determining whether he was, in fact, under arrest), but with the decisions of our Court as well. When it is clear, as in the present case, that the officers have resorted to such restrictive seizures of individuals (handcuffing them at gunpoint) in order to investigate their suspicions of prior criminal activity, we have recognized that the detention of the suspects is sufficiently serious to constitute an arrest requiring probable cause, even if the officers did not formally advise the suspects that they were “under arrest” (or even if the officers did not intend to effect a “formal” arrest). 12 United States v. Diaz-Lizaraza, supra, 981 F.2d at 1221-22; see also United States v. Vargas, supra, 643 F.2d at 298 . I simply find it difficult to understand how the majority could conclude that a reasonable person would not believe that he was under arrest if he were subjected to a seizure under the circumstances of this ease.

*1584 Having concluded that appellants, on the undisputed facts, were, as a matter of law, under arrest at the time of their initial seizures, I must also conclude that those arrests were unlawful, in that it has been conceded that those seizures were not supported by probable cause. See United States v. Hastar morir, supra, 881 F.2d at 1556 (arrest must be supported by probable cause); United States v. Espinosa-Guerra, supra, 805 F.2d at 1506 (same). Thus, it follows that any evidence obtained as a result of appellants’ unlawful seizures must be suppressed as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471 (1963). Following his initial seizure, i.e., arrest, Salathiel made various statements incriminating himself and the other appellants, and, in so far as those statements relate to the government’s case against Salathiel, those statements should have been suppressed. 13 Likewise, since it was only those statements that gave rise to the probable cause necessary to sustain Salathiel’s (and the other appellants’) arrest, and thereby support the “protective sweep” of the apartment 14 and his detention at the FBI’s offices, Salathiel was entitled to the suppression of any evidence discovered from the apartment (the .9mm handgun), see United States v. Satterfield, 743 F.2d 827, 843-47 (11th Cir.1984), cert. denied, 471 U.S. 1117 , 105 S.Ct. 2362 , 86 L.Ed.2d 262 (1985), as well as his later confession. Taylor v. Alabama, 457 U.S. 687 , 102 S.Ct. 2664 , 73 L.Ed.2d 314 (1982); Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975).

While I recognize that the government had other evidence linking Salathiel to these crimes (namely fingerprint evidence 15 and eyewitness testimony placing him at the scene), this evidence, though strong, was not overwhelming, and Salathiel’s confession was obviously a critical piece of the government’s case against him. Therefore, I cannot conclude that the erroneous admission of Salath-iel’s confession was harmless. See United States v. Gomez, 927 F.2d 1530, 1536-39 (11th Cir.1991). Accordingly, I conclude that Salathiel’s convictions should be reversed. To the extent the majority’s opinion is inconsistent with this conclusion, I respectfully dissent.

.Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

. The majority accepts the lower court’s finding that appellants’ exited the apartment voluntarily. Maj. op. at 1576-77, n. 4. Under our precedents, I doubt seriously whether a person’s exiting his home (or that of a friend) at the direction of the FBI can be deemed to be a voluntary act. See United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir.1986) (a defendant’s opening his door at the direction of the FBI is not a voluntary act, but is rather a submission to a claim of lawful authority). I likewise doubt whether the FBI’s "request" that appellants exit the apartment can be viewed as anything other than an order made under color of authority. Cf. 3 Wayne R. LaFave, Search and Seizure -A Treatise of the Fourth Amendment § 8.2(a) at 180 (2d ed. 1987) (hereinafter “LaFave”). In any event, since it is not disputed that appellants were seized immediately upon exiting the apartment, I find it unnecessary to deal with this issue head on. So, for purposes of this dissent, I accept the majority’s view that appellants left the apartment voluntarily.

. In light of the entire record, it is not immediately apparent why the government made this concession. Nevertheless, it has, and we must therefore deal with the issues raised on that basis.

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

. Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

. Like the majority, I have no difficulty concluding that appellants’ stationhouse confessions were obtained in harmony with their Fifth and Sixth Amendment rights. See Maj. op. at 1577-78.

.In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all decisions of the prior Fifth Circuit decided prior to October 1, 1981.

. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983); United States v. Menden-hall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980).

. I note that this Court is not the only one to have fallen prey to this type of error. See, e.g., United States v. Benjamin, 995 F.2d 756, 759 (7th Cir.1993); United States v. Maez, 872 F.2d 1444, 1450 (10th Cir.1989).

. And, of course, if an arrest has in fact occurred, it cannot be “erased” by a later statement or acknowledgement that the person seized is free to go. See Hayes v. Florida, 470 U.S. 811, 816 , 105 S.Ct. 1643, 1647 , 84 L.Ed.2d 705 (1985).

. The Seventh Circuit has recently commented that "[t]he last decade ‘has witnesses a multifaceted expansion of Terry ' " and in the context of distinguishing between arrests and investigatory stops, "[f]or better or for worse, the trend has led to the permitting of ... measures of force more traditionally associated with arrest than with investigatory detention." United States v. Tilmon, 19 F.3d 1221, 1224-25 (7th Cir.1994) (quoting United States v. Perdue, 8 F.3d 1455, 1464 (10th Cir.1993)). This trend is unfortunate, as it may suggest that the judiciary has not been as vigilant as it should be in guarding against the erosion of our constitutional rights.

. In arguing for a contrary conclusion, the majority places great weight on the fact that, at the time of appellants’ initial seizures, the officers subjectively intended only to question them (rather than arrest them). Maj. op. at 1576. Accepting that the officers’ account of their intentions was true, their subjective intent is nevertheless irrelevant to the "reasonable person” inquiry, since there is absolutely no evidence to suggest that appellants were ever apprised of the officers' subjective intentions. See Michigan v. Chesternut, 486 U.S. 567 , 575 n. 7, 108 S.Ct. 1975 , 1979 n. 7, 100 L.Ed.2d 565 (1988) (citing authorities).

The majority also places great weight on the fact that the officers’ actions were necessary to protect their safety (given that appellants were suspected armed bank robbers). Maj. op. at 1576-77. I too share this concern. However, in the context of a Terry stop, officers are ordinarily permitted only to take the least intrusive steps reasonably necessary to protect themselves, see Florida v. Royer, supra, 460 U.S. at 500 , 103 S.Ct. at 1325-26 (opinion of White, J.); Wayne R. Lafave, Seizures Typology: Classifying Detention cf the Person to Resolve Warrant, Grounds, and Search Issues, 17 Mich.J.L.Reform 417, 434-36 (1984); cf. United States v. Diaz-Lizaraza, supra, 981 F.2d at 1221, and under the facts of this case I see no reason why the officers' concern that appellants were armed could not have been abated by a simple Terry frisk, rather than the severe measures they chose to employ.

. Of course, since the remaining appellants lack standing to challenge Salathiel’s illegal seizure, United States v. Powell, 929 F.2d 1190, 1194-96 (7th Cir.), cert. denied, 502 U.S. 981 , 112 S.Ct. 584 , 116 L.Ed.2d 609 (1991); 4 LaFave, supra, § 11.3(a) at 282 (1994 Supp. at 68), they were not entitled to the suppression of those statements. United States v. Payne, 447 U.S. 727 , 100 S.Ct. 2439 , 65 L.Ed.2d 468 (1980). Since those statements gave rise to the probable cause necessary to sustain their arrests, and as no evidence was obtained from those appellants during the period surrounding their illegal seizures, it follows that all the evidence that was later obtained was properly admitted against those appellants. United States v. Walker, 535 F.2d 896, 898-99 (5th Cir.), cert. denied, 429 U.S. 982 , 97 S.Ct. 498 , 50 L.Ed.2d 592 (1976).

. Such a protective sweep may only be conducted following a lawful arrest based on probable cause, provided the officers have reasonable suspicion to believe that danger lurks within the residence. Maryland v. Buie, 494 U.S. 325 , 110 S.Ct. 1093 , 108 L.Ed.2d 276 (1990); United States v. Hromada, 49 F.3d 685, 690 (11th Cir.1995).

.The record does not indicate whether Salathiel’s fingerprint exemplars were obtained as a result of his illegal arrest, in which case the government’s fingerprint evidence would have to be excluded, Davis v. Mississippi, 394 U.S. 721 , 89 S.Ct. 1394 , 22 L.Ed.2d 676 (1969), or whether they were obtained from an independent source, and were hence admissible. See United States v. DeSimone, 660 F.2d 532, 542-43 (5th Cir. Unit B. Nov. 1981), cert. denied, 455 U.S. 1027 , 102 S.Ct. 1732 , 72 L.Ed.2d 149 and cert. denied, 456 U.S. 928 , 102 S.Ct. 1976 , 72 L.Ed.2d 444 (1982).