concurring:
My colleagues read this record to reveal a Fourth Amendment intrusion of the type recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). While I agree with the holding that there were “specific and articulable facts” sufficient to warrant a Terry stop, I also believe the facts known to the police officers provided probable cause to arrest.1 Nonetheless, my reading of the record leads me to conclude that the encounter prior to the display of an apparent weapon did not constitute an intrusion requiring constitutional justification.
Before appellee pulled what appeared to be a gun, the police officers had stopped their car behind appellee and his companion, stepped out and identified themselves. This street encounter does not amount to a “seizure,” which was defined in Terry, supra at 16, 88 S.Ct. at 1877, as “whenever a police officer accosts an individual and restrains his freedom to walk away.” Terry and its progeny2 upheld temporary restraints in certain street encounters where “specific and articulable facts, taken with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. at 1880. Nevertheless, the Court recognized in Terry that some contacts between the police and private citizens are not within the purview of the Fourth Amendment:
Obviously, 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.
Id. at 19 n. 16, 88 S.Ct. at 1879 n. 16.
The fact these police officers identified themselves as they approached did not, as of the instant appellee drew something from his pocket in an apparently hostile manner, restrain the liberty of appellee. Had appellee in fact pulled a gun on the officers, I would think it obvious that his freedom was not restrained. It seems equally clear that his producing what later appeared to be a syringe was an unrestrained act, by a suspect who was not yet restrained in the sense that constitutional justification is necessary.3
Surely it is not the intent of the court to imply that had the syringe actually been a gun, and the officer been killed, that it would find that appellee, although restrained solely by virtue of a show of authority, utilized only “residual liberty”4 to shoot the officer and successfully escape. Terry’s definition of a “seizure” requires restraint of the individual’s “freedom to walk away,” supra at 16, 88 S.Ct. 1868. Given that definition, it is impossible on these facts for a seizure to have occurred, and yet leave appellee the freedom to fire a weapon.
While it must be recognized that one should not measure events like these with stop-watch precision, Trilling v. United States, 104 U.S.App.D.C. 159, 179, 260 F.2d 677, 697 (1958) (Prettyman, J., concurring in part and dissenting in part), it seems to me unavoidable that we and the trial court must always look to whether the Fourth Amendment had yet come into play before a decision under it is made. That this entails some precision in time and event analysis is unavoidable.
*476Appellee argues that whether a show of authority occurred here is a factual question, on which the trial court implicitly ruled. It is not clear to me that such a finding was the basis for the trial court’s ruling that the “stop” was unreasonable. Moreover, if that were the case, I would think the ruling is without evidence to support it. See D.C.Code 1973, § 17-305(a). To equate the initial encounter here with a restraint of liberty occasioned by a show of authority would result in the elimination of all police-citizen contacts where the officers had no “specific and articulable” suspicions. This was not the intent of Terry, as Mr. Justice White recognized in his concurring opinion:
There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way. .
Id. at 34, 88 S.Ct. at 1886.
The New York Court of Appeals has rejected the argument that a police officer’s mere questioning of a person constitutes a show of authority. In People v. DeBour, 40 N.Y.2d 210, 217, 386 N.Y.S.2d 375, 381, 352 N.E.2d 562, 568 (1976), that court recognized the result of such an approach:
Were we to carry the defendant’s interpretations of . the Constitution to their logical extreme we would have to conclude that when the police possess a need or desire to initiate an encounter with a private individual they must be prepared to seize him or else do nothing. This approach is hardly reasonable.
Accord, Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); State v. Foster, 237 S.E.2d 589 (S.C.1977).
This court previously has ruled that police officers may ask questions of individuals without necessarily infringing their Fourth Amendment rights, even though the police lacked the specific and articulable facts and the rational inferences therefrom which would reasonably warrant a Terry stop. See United States v. Burrell, D.C.App., 286 A.2d 845 (1972); United States v. Lee, D.C.App., 271 A.2d 566 (1970); and Thompkins v. United States, D.C.App., 251 A.2d 636 (1969). To rule otherwise would unreasonably escalate a police officer’s initial contact with a citizen, still free to flee5 or to do violence, into one requiring justification under the Fourth Amendment before the protections of that writ have been infringed. See United States v. Lee, supra.
The Fourth Amendment protection against unreasonable seizures does not require the police to justify as an intrusion on liberty or privacy their approach to a person on the street before that person is subject to restraint through a show of authority. The immediate reach for and display of an apparent weapon is the antithesis of such subjugation.
. See Carey v. United States, D.C.App., 377 A.2d 40 (1977).
. See United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
. While we cannot know from this record what appellee intended by his actions, one might assume that his intent may have been to abandon the contraband in anticipation of a search. Evidence abandoned in response to an illegal arrest properly should be suppressed. Williams v. United States, 99 U.S.App.D.C. 161, 237 F.2d 789 (1956). However, that was not the situation here. Appellee was not yet restrained in the constitutional sense at the time he produced the syringe.
.Ante at 474, n. 3.
. Edwards v. United States, D.C.App., 379 A.2d 976 (1977).