concurring and dissenting.
I concur in Part I and the reversal and remand for a new trial. In addition, however, I would hold that the trial judge erred in denying the suppression motions.
I.
The evidence proved that Demetris Thomas was arrested without probable cause when he was detained by Officer Scotting. “[A]t some point in the investigative process, police procedures can qualitatively *862and quantitatively be so intrusive with respect to a suspect’s freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth Amendments.” Hayes v. Florida, 470 U.S. 811, 815-16 (1985). The majority opinion recognizes that Thomas was seized. The evidence in this case proved, however, that, without probable cause, the police detained Thomas to a degree that was the functional equivalent of an arrest.
Terry and its progeny . . . created only limited exceptions to the general rule that seizures of the person require probable cause to arrest. Detentions may be “investigative” yet violative of the Fourth Amendment absent probable cause. In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest.
Florida v. Royer, 460 U.S. 491, 499 (1983) (citations omitted). In determining whether an arrest has occurred, “[t]he only relevant inquiry is how a reasonable person in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442 (1984).
The evidence proved that following the assault on the victim in her apartment, Officer Scotting began checking the area in the vicinity of the apartment. He testified that while he was checking the area, he received a description of the suspect as a “black male, five foot seven to five foot nine with slight mustache.” As Scotting approached a motel to make an inquiry of the clerk, he saw Thomas come from an area behind the motel and walk toward the motel’s office. Scotting did not stop Thomas or ask him any questions. Scotting said he went into the motel office and asked whether the clerk had seen a man “running toward the back of the motel.” Thomas, who lived nearby, entered the motel office and asked the clerk to call a taxi cab to take him to work. Scotting testified that he observed that Thomas wore a white pullover shirt with an orange stripe across the chest. He also noted that Thomas wore black stone washed jeans and black hightop tennis shoes. Although Scotting testified at trial that he thought it suspicious that Thomas was there, he also testified that he did not approach Thomas or examine Thomas’ face to check whether he had a slight mustache. Indeed, when Scotting arrived at the motel he saw no reason to stop Thomas, even though he was searching for a suspect. Thomas was not *863suspicious to him. Although Scotting testified that he did not stop Thomas, he testified that when he left the motel after Thomas made his request, Thomas was gone.
The motel clerk testified that between 4 and 5 a.m. she saw ten or twelve police cars down the block from the motel. She testified that a policeman later came into her office and asked if she had seen a “tall black male wearing a Christmas tree-looking shirt.” Scotting testified, however, that he did not have a description of the suspect’s clothing when he went to the motel. The notes he used at trial also indicate that he had no clothing description when he went to the motel. He denied telling the clerk that he was looking for a tall black male, and he could not recall asking about clothing or a “Christmas tree shirt.”2 The clerk testified that Thomas was in the motel talking to her about calling a taxi cab at the same time the officer arrived. The clerk said that before she could respond to the officer, his radio came on and he left. She said the officer saw Thomas in the motel but did not question him.
The clerk further testified that after she called the taxi cab, Thomas left the lobby and waited outside the motel. She saw him standing near *864the motel until his taxi cab arrived. She also testified that when the taxi cab arrived, “a police car pulled in front of the cab and one behind the cab and a policeman walked over to [Thomas] and grabbed his arm and they walked him over to the police car.”
Scotting testified that after he left the motel he received no additional description of the suspect. He further testified that as he searched the area he saw Thomas by an apartment building adjacent to the motel and near a telephone. Scotting said he drove over to Thomas and stationed himself in Thomas’s path as the taxi cab arrived and that Thomas walked toward his police vehicle. Scotting said that at that time he felt Thomas was a suspect because of his suspicious presence and his physical characteristics. Scotting testified that he stopped Thomas, advised him that they were “looking for someone in the area,” made him put his hands on the police car, and searched him. He said Thomas protested but then agreed to go to a showup.
Scotting’s notes related only that Scotting “approached the suspect and took him into custody.” His notes do not state that Scotting asked Thomas to go to the victim’s house or that Thomas volunteered to go. The notes state, “I proceeded to him and placed him in the back seat of my unit and transported [him].” Scotting testified that after he told Thomas he was looking for a black male fitting Thomas’s description and asked Thomas to put his hands on the car for a search, Thomas protested. His notes state that “at the time of the apprehension Mr. Thomas stated to me ‘Are you guys grabbing the first black guy you see?’ ” Scotting could not recall putting handcuffs on Thomas. He testified, however, that Thomas was in custody and was under apprehension. He explained: “When I put handcuffs on someone, put them in the back seat of the car, tell them they are under arrest that’s an apprehension.” He believed that he had probable cause to arrest Thomas because of Thomas’s physical description. However, when he stopped Thomas he had received no clothing description that he could recall.
Thomas testified that he lived near the motel and was trying to get a taxi cab to get to work. He testified that he entered the motel office at the same time Scotting did, and he asked the clerk to call a taxi cab. While he was waiting near the motel for the taxi cab, another officer approached him and asked him whether he had seen a man with a Christmas tree shirt. Indeed, the notes Scotting took immediately after the incident state that another officer had stopped a man and released him.
*865Thomas said that when the taxi cab arrived, Scotting stopped him, asked for his identification, and told him to put his hands on the car. He said Scotting then searched him, put handcuffs on him, and put him in Scotting’s automobile.3 Thomas said that Scotting then told him that he was taking him somewhere for an identification.
The evidence does not support a finding that this was an investigative detention. “The mere fact that [Thomas] was not told he was under arrest, was not ‘booked,’ and would not have [been arrested] if the [showup] had proved fruitless, while not insignificant for all purposes, obviously do not make [Thomas’s] seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny.” Dunaway v. New York, 442 U.S. 200, 212-13 (1979); see also London v. State, 540 So. 2d 211, 213 (Fla. Dist. Ct. App. 1989).
The officer did not make any inquiries of Thomas. Scotting’s notes state that he “parked [his] police unit and approached the suspect taking him into custody.” Scotting testified:
I asked him to come over by my police unit, which is within a foot or two of where we were, and advised him we were looking for a black male fitting his general description. I didn’t advise him of anything else. I asked him to put his hands on the car for a weapon search.
Thomas protested, stating, “What are you just grabbing the first black guy you see?” Scotting searched him, put handcuffs on him, and put him in the back seat of the car. The notes contain no reference to a discussion or to a request that Thomas go to a place to be identified as a participant in a crime. The notes merely state, “I then transported Mr. Thomas to the crime scene.” In response to the question, “He was in custody and was under apprehension?” Scotting said, “Yes.” He further stated that “[a]n apprehension is when I have actually put my hands on you and advised you that you are under arrest.”
Thomas testified that the officer did not speak to him, except to ask for identification and then ordered him to place his hands on the car. He said Scotting then searched him and handcuffed him. Scotting’s *866notes do not indicate that Scotting spoke to Thomas before searching him and putting handcuffs on him. Officer Scotting and Thomas agree that Thomas protested, saying, “What are you guys doing grabbing the first black guy that you see.” Thomas also testified that after he was handcuffed and put in the car, Scotting said, “I just want you to go somewhere with me.” Thomas testified that he was not asked to consent to the procedure and did not consent.
Conduct can constitutecan arrest. It is not necessary for the police to use the word “arrest.” In one case, an officer was found to have arrested the suspect when he “pushed [a suspect] against the wall and told him not to move.” United States v. Moreno, 897 F.2d 26, 31 (2d Cir.), cert. denied, 497 U.S 1009 (1990). Thomas was not questioned briefly when he was stopped so as to suggest an investigation. He was told to put his hands on the car, he was searched, he was handcuffed, and he was not informed that he could leave. This was the functional equivalent of an arrest. See United States v. Hatfield, 815 F.2d 1068, 1071 (6th Cir. 1987).
The officer’s conduct also had the effect of making any later consent involuntary. When Scotting stopped Thomas, he told Thomas that Thomas was suspected of committing an unspecified crime. Thomas was told to put his hands on the car and he was searched. Even though Thomas verbally protested, he was handcuffed. Thomas testified that he was put in die back of Scotting’s car and told that he was being taken to another location for an identification. Although Thomas denied giving consent to being transported, Scotting said that Thoi. consented to be transported. Even if Thomas consented to be transported, he did so after protest and while handcuffed. Moreover, Scotting never told Thomas that he was free to leave. Thus, at the time Scotting said Thomas consented, Thomas was subjected to “a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity.” Royer, 460 U.S. at 502.
The evidence does not prove a free and voluntary consent. “[T]he State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Id. at 497. When the uniformed officer told Thomas he was suspected of criminal activity, he made no inquiry concerning Thomas’s purpose for being on the street, asked no other questions to dispel his suspicions, searched Thomas, handcuffed Thomas, and asked Thomas to go with him to another location without telling Thomas that he was *867free to leave, any consent obtained was not freely and voluntarily given. If Thomas consented, that consent was given only after he had protested the intrusion upon his liberty, after he was handcuffed, and after he was put within the confines of the police vehicle. Although Thomas may have agreed to be transported after being handcuffed and placed in the police car, “the detention to which he was then subjected was a more serious intrusion on his personal liberty than is allowable on mere suspicion of criminal activity.” Id. at 502. Thus, “the consent was tainted by the illegality [of the seizure] and was ineffective to justify the [further detention].” Id. at 507-08.
III.
Thomas also contends that the identifications were tainted by overly suggestive procedures. The evidence supports that contention.
“The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 U.S. 293, 302 (1967) (footnote omitted). On appeal, we must determine whether under the totality of the surrounding circumstances the confrontation “was so unnecessarily suggestive and conducive to irreparable mistaken identification that [Thomas] was denied due process of law.” Id.; see also Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1960).
The evidence proved that the police presented Thomas alone to Harris while Thomas was handcuffed in a police car and after telling Harris that they had caught the culprit. “It is hard to imagine a situation more clearly conveying the suggestion to the witness that the one presented is believed guilty by the police.” United States v. Wade, 388 U.S. 218, 234 (1967). Exigent circumstances did not exist. See Stovall, 388 U.S. at 302. The circumstances were such that the police did not have to show Thomas singly to the victim. They could have used identification procedures that were not suggestive. “Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the [showup] rather than of the person actually seen, reducing the trustworthiness of subsequent lineup or courtroom identification.” Simmons v. United Slates, 390 U.S. 377, 383-84 (1968). See also Moore v. Illinois, 434 U.S. 220, 224-25 (1977).
Moreover, prior to the preliminary hearing, the police told the victim that the suspect who was being presented in court had confessed to *868the crime. The Supreme Court has condemned this type of conduct’, stating, “[t]he chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that [the person in the showup] committed the crime.” Simmons, 390 U.S. at 383.
Persons who conduct the identification procedure may suggest, intentionally or unintentionally, that they expect the witness to identify the accused. Such a suggestion, coming from a police officer or prosecutor, can lead a witness to make a mistaken identification. The witness then will be predisposed to adhere to this identification in subsequent testimony at trial.
Moore, 434 U.S. at 224-25.
Later, at the preliminary hearing, another identification procedure was employed that was not only tainted by the previous suggestive showup, but was itself also unnecessarily suggestive. The victim was asked to identify her assailant in a courtroom where Thomas was the only person dressed in jail garb, standing a few feet away next to his lawyer.
The pervasive suggestiveness of the identification procedures far outweighs the factors generally recognized in Neil v. Biggers, 409 U.S. 188, 199-200 (1972), that are used to determine reliability of the identification.
“The trial [that] determine[d] the accused’s fate [was] not . . . that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness — ‘that’s the man.’ ”
Moore, 434 U.S. at 225 (quoting United States v. Wade, 388 U.S. 218, 235-36 (1967)). Harris’ opportunity to see and know her assailant was not so clear and certain as to outweigh the significant taint of the suggestive procedures.
The Commonwealth’s evidence at the suppression hearing was doubtful in several respects. At the suppression hearing the officer testified using two and a half pages of notes that were designated as Commonwealth’s Exhibit 3. He testified as follows:
Q. Officer Scotting, the notes you used to refresh your recollection, when did you prepare those notes?
A. As soon as I took Mr. Thomas back to the scene and I was notified he was to be transported.
Q. Have you made another set of notes with respect to the same transaction?
A. I don’t understand.
Q. Did you make another set of notes that were in connection with the same time that you apprehended Mr. Thomas?
A. I don’t recall. These are the notes that came out of my notebook, and I don’t recall right at this moment whether I duplicated these for the detective or whether I just rehandwritten them. Sometimes our copier machine doesn’t work. These are the notes I write on the scene. These are my notebook paper.
Later a detective informed the court that Officer Scotting had given him another set of notes which were a page and a half in length and marked Commonwealth’s Exhibit 4. Scotting then admitted that Exhibit 4 had been written at the scene and that he had prepared Exhibit 3 at some later time to “give me an overall view of what’s going on.” The notes marked Exhibit 3 were prepared at the detective bureau after Thomas had been delivered to the police department. One set of notes states that Scotting was told that the suspect was seen wearing a woman’s red and white night shirt. The other contains no reference to that description.
The victim who was allowed to view Thomas at her residence also stated that Thomas was handcuffed while he was in the automobile. The trial judge, implicitly found he was handcuffed, stating:
I will grant you that usually putting somebody in the back of a police car with handcuffs on is tantamount to arrest.