concurring in part and dissenting in part.
I agree with my colleagues that the judgment of the district court must be vacated and remanded. In my view, however, it was erroneous to direct a verdict on any aspect of this case, and not just on the defense of qualified immunity. I accordingly join in the majority opinion to the extent that it vacates the ruling of the district court as to qualified immunity, but respectfully dissent from that opinion insofar as it leaves undisturbed the balance of the district court’s directed verdict in behalf of plaintiffs. I would vacate the district court’s judgment in toto and remand for a new trial on all issues.
In saying this, I am of course aware that the Supreme Court has made it clear that a somewhat different standard applies to the issues of probable cause and qualified immunity. Thus, it is possible to find, as the majority does in this case, that a jury issue is presented as to qualified immunity, but not as to probable cause. I disagree, however, with the majority’s reading of the record in this case to reach that result.
It seems clear that the initial stop of the plaintiffs was a Terry stop, and I do not understand the majority to view the matter differently. The complaining witness testified that he suspected a burglary, remained in telephone contact with the police dispatcher, and pursued the vehicle in which the plaintiffs were apparently departing from Stamford. This scenario provided reasonable suspicion for a Terry stop. See 3 Wayne R. LaFave, Search and Seizure § 9.3(e), at 479 & n. 313 (1987 & Supp.1994) *651(collecting cases). Indeed, plaintiffs’ expert witness testified that the stop was justified.
The fact that the plaintiffs’ car was blocked by a number of police vehicles, and. that the police approached the stopped vehicle with guns drawn, does not change the analysis. In United States v. Perea, 986 F.2d 633 (2d Cir.1993), where “[g]overnment cars ... blocked [a] cab in front and back and on one side, and the agents approached the cab, some with guns drawn,” id. at 636, we nonetheless “note[d] our agreement with the district court’s ruling that the initial stop of the livery cab was not an arrest but rather a Terry stop.” These are obvious precautions to avert a high speed chase or a possible shootout, with all their attendant dangers to both the participants and the general public.
The majority maintains, however, that (1) the situation evolved into an arrest, (2) there was no probable cause for the arrest, and (3) both of these propositions are so clearly correct that they were properly taken from the jury. The conclusion that an arrest occurred is mandated, we are told, because of “(1) the numerous oppressive elements of the encounter between the police and the plaintiffs, (2) the limited evidence that there was a crime, and (3) the absence of any indication the plaintiffs were armed or dangerous.” Similarly, no jury could rationally find probable cause for an arrest, we are advised, because “all that was observed was one occupant of a vehicle that appeared to be of low value with what appeared to be a somewhat expensive item of personal property.”
The “oppressive” elements of the encounter involve, as the majority seems to acknowledge, fairly standard “felony stop” procedures. If there is a basis to detain a suspect, the detention does not become an arrest simply because the suspects are handcuffed. See Dempsey v. Town of Brighton, 749 F.Supp. 1215, 1223 (W.D.N.Y.1990), aff'd mem., 940 F.2d 648 (2d Cir.), cert. denied, - U.S. -, 112 S.Ct. 338, 116 L.Ed.2d 278 (1991). Moreover, “a person is not under arrest simply because he is placed in a police patrol car.” Id. (citing United States v. Parr, 843 F.2d 1228, 1231 (9th Cir.1988)).
In addition, the relative brevity of the detention argues against the conclusion that there was an arrest. See United States v. Sharpe, 470 U.S. 675, 688, 105 S.Ct. 1568, 1576, 84 L.Ed.2d 605 (1985) (“We reject the contention that a 20-minute stop is unreasonable when the police have acted diligently and a suspect’s actions contribute to the added delay about which he complains.”). The detention in this case might have been insignificantly brief but for the plaintiffs’ inability to respond to police commands, or provide either the name of the person who employed them for masonry work or the address at which it was performed. And when the plaintiffs provided the police with a telephone number that would resolve their identification, the person who answered the phone could not speak English.
Nor do I agree with the majority’s assessment of the evidence of (1) criminality, or (2) the prospect that the plaintiffs might be armed and dangerous. As to the latter, the police were fully justified in executing “felony stop” procedures that assume the possibility that persons reasonably suspected of a burglary are armed and dangerous. The alternatives are to forgo the Terry stop, or to execute it on the basis of necessarily limited information without taking “felony stop” precautions, and hope for the best. I don’t regard either option as a constitutional requirement.
The issue of the evidence of criminality coalesces with the question of probable cause. The majority regards this evidence as limited to observation of “one occupant of a vehicle that appeared to be of low value with what appeared to be a somewhat expensive item of personal property.” This apparently refers to what the complainant knew, in which event the assessment disregards the complainant’s testimony that: (1) his mother lived very near the dead end street from which the plaintiffs’ vehicle emerged; (2) the complainant had been brought up in that neighborhood; (3) he knew of a number of recent burglaries in the neighborhood by cars bearing New York license plates; (4) he knew the plaintiffs were not residents of the neighborhood; and (5) the fact that they were driving a station wagon, rather than a *652workman’s truck, dissuaded him from believing that they had been working in the neighborhood.
Of course, all this information cannot be attributed to the police, for there is no evidence that they were privy to it. There is evidence, however, that very shortly after the plaintiffs were detained, they provided, as an exculpatory explanation for their presence on the dead end street, the claim that they were building a wall at an address on the street that they could not specify for an employer whom they could not name. These improbable assertions, especially viewed in the context of the initial complaint, are strongly conducive to a finding of probable cause. Cf. United States v. Moreno, 897 F.2d 26, 31-32 (2d Cir.1990).
In any event, after being provided with this implausible account, the police promptly investigated the neighborhood of the alleged burglary and interviewed the complainant. As a result, the plaintiffs were released in a matter of minutes thereafter.
The majority opinion does not specify precisely when, in its view, an arrest occurred. A reasonable jury could conclude, however, that the plaintiffs’ apparent inability to explain their presence in the neighborhood, together with the complainant’s report of a suspected burglary, resulted in a police perception of probable cause very early in the course of the plaintiffs’ detention. Alternatively, a reasonable jury could conclude that the Terry stop did not evolve into an arrest during the quite limited period when the plaintiffs were detained and the police undertook an investigation that resulted in the plaintiffs’ release. I accordingly disagree with my colleagues’ ruling that both of these issues were properly taken from the jury.
The observations of the Supreme Court in Sharpe seem especially apt for this occasion:
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished .... The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.
897 F.2d at 686-87 (citations omitted).
In my view, both the district court ruling on liability and the majority opinion in this court constitute unwarranted exercises of the sort of 20-20 hindsight that Sharpe disparages. I would vacate and remand for a trial of all the issues in this case.