(concurring).
I concur in parts two and three of the court’s opinion. I do not join in part one because I cannot accept the majority’s evaluation of the police conduct. While I agree that the officers acted reasonably, we should not refashion what was done in order to fit it to the frame of traditional analysis of arrests. The court skirts the problems these cases pose by accepting the prosecutor’s concession that an arrest took place when the car was first stopped, only to justify that “arrest” by stretching probable cause. Probable cause may be a plastic concept, but not for pressing into any and all molds.
The critical facts, as I see them, are these. Three Negro men committed a brutal robbery at 5:00 p. m., and were seen jumping into what was described as a 1953 blue Chevrolet. A police radio lookout at 5:20 alerted police officers to watch for them. Thereafter, a traffic policeman, some 3.7 miles from the scene of the crime, saw a blue 1954 Chevrolet occupied by four Negro males coming from that general direction. He called in his observation, which was broadcast. The car was sighted and followed by Officer Stone, who had heard both the original lookout and a supplement which described the suspects as young and wearing dark clothing and advised that a brown wallet had been stolen. Officer Stone and his partner trailed appellants’ car for some distance, apparently waiting for their superior, Detective Richardson, to get to the scene. Finally, as other police cars arrived, Officer Stone pulled appellants’ car to the curb, using his siren for about a block. On approaching the car, he told appellants to sit still and keep their hands in sight. In his testimony, he said he could not remember whether he had drawn his gun. He asked for and examined appellant Russell’s driver’s license. On returning it, he saw a brown wallet on the floor protruding from under the front seat. He asked whose it was, and when no one answered he went around to the other side of the car and seized it, giving it to Detective Richardson who searched it and found it to be the robbery victim's. Appellants were then arrested.
The court finds probable cause to arrest as of the time the car was stopped. Yet at that time all the police knew was that the car and its occupants were a very rough match to those involved in a robbery nearly four miles away from where the car was first sighted. It was rush hour,1 with traffic at its heaviest in a poor area of the city, where old cars are relatively numerous. There was nothing suspicious about the way the occupants of the car behaved. I am unwilling to say that any group of three or four Negroes who happened to be riding in an old Chevrolet on that day in a fifty square mile area can without more be searched, booked, and stigmatized by an arrest record regardless of whether they could explain the whole thing away if given an immediate chance. Yet all of these are permissible police actions, if there was probable cause for arrest.2
*313When we deal with arrests without warrant there is some scope for saying that events or conditions justified the police officers in exercising their discretion. As the majority aptly points out, probable cause depends on the “practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310 (1949). The standard is indeed that of “a reasonable, cautious and prudent peace officer” who must be judged in the light of his experience and training. Bell v. United States, 102 U.S.App.D.C. 383, 387, 254 F.2d 82, 86, cert. denied, 358 U.S. 885, 79 S.Ct. 126, 3 L.Ed.2d 113 (1958). But here the record is plain that the police did not intend to arrest these appellants when they were stopped.
Two officers testified at trial. Officer Stone, who first approached the car, was asked, “At this time if the people in the car had wanted to leave, would they have been able to leave?” He answered, “As far as I am concerned, they could. I had not placed them under arrest.” Detective Richardson, who made the formal arrest after examining the stolen wallet, was asked, “when you arrived on the scene were these men under arrest?” His reply was, “To my knowledge, no.” Of course, police testimony is not dispositive on the issue of when an arrest is made.3 While the matter was not probed at trial, it is fair to assume and for present purposes I am willing to assume that the officers intended to detain the car while they asked questions like “where have you been” and examined Russell’s driver’s license. What is clear from their testimony that appellants had not been placed under arrest, and hence were free to go, is that they did not feel they had sufficient basis for taking the occupants to the station house for booking at the time they pulled the appellants’ car to the curb. The doubts of the reasonable and prudent police officers who were on this scene augment and confirm my own.
The court says that at the time of the stop the police were “quite certain they had the right men.” This is not supported by the record. If they were so sure they had the right men, why would both officers testify that at the time of the stop the men were free to go? This is not a question of informal rather than formal arrest. The police simply did not know enough to justify arrest. Other policemen stopped and impounded at least one other old Chevrolet, because that car was first shown to Mr. Leigh, who witnessed the getaway. Athough not gone into at trial, there are hints that still other ears were stopped. To say that these officers stopping this car knew they had their men is to implant a certitude when to me the only thing that is certain is that the officers were by no means certain. In fact the only element of perhaps unusual policework, blocking off the car by police cars, apparently occurred by accident rather than design. Another car coming to the scene happened to round the corner just as Officer Stone was making the stop.
The real difficulty in this case, in my view, is that rigorous focus on the facts that I think are clear in the record requires us to do more than merely dip a toe in the water in setting out standards for detentions where there are no grounds for arrest.4 Investigation is too important and recurring a police function to have good policework commended only after judicial brushwork touches up the way situations are handled in the real world. Investigation is subject to its own types of abuses, but these should *314be guarded against as such and not dealt with by manipulating the already overused concepts of arrest and probable cause.
I do not think an arrest took place as a matter of law when the car was stopped. Nor do I think the legal situation affected by a concession proffered by the Government for tactical reasons.5 What the police did was stop a car to check-out what everyone concedes were suspicious circumstances. The occupants were no more arrested at that point than are the drivers who are stopped by a roadblock thrown up to prevent a kidnapper from fleeing with a child.6 A mere stop— though it also must have some justification in the facts — is not necessarily an “arrest” that triggers the requirement that the person be taken to a magistrate “as quickly as possible” as Rule 5 commands when an arrest is made. Certainly, if nothing had come of the matter, neither the police nor the persons stopped would ever have supposed there had been an arrest, and the law does not say otherwise. What the police did was to act reasonably to bring a situation under control ; they had no way of knowing whether the car would leave the jurisdiction, and once the occupants scattered it would be nearly impossible to reassemble them again. As Judge McGowan pointed out in Dorsey v. United States, 125 U.S.App.D.C. 355, 358, 372 F.2d 928, 931 (1967): “If policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations as they encounter them.”
Appointed counsel for the appellants have divided for tactical reasons on whether the stop constituted an arrest. Those who say it did lean on Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959) where the Supreme Court found an arrest “when the officers interrupted the two men and restricted their liberty of movement,” 361 U.S. at 103, 80 S.Ct. at 171. Henry is extended much too far when argued as a holding that every stop is an arrest. Henry turned on its particular facts,7 and the following year in Rios v. United States, 364 U.S. 253, 262, 80 S.Ct. 1431, 4 L.Ed. 2d 1688 (1960) the Court indicated that no arrest is involved when the detention of the person or vehicle involved is only what is incident to a brief on-the-street questioning for the purpose of clearing up suspicious circumstances. The same approach may underlie the distinction drawn in Miranda between custodial interrogation and general on-the-scene investigation.
I realize that this case was not a usual brief on-the-street detention, and that it is a hard case on its facts. Two items stand out — Officer Stone’s command that the occupants of the car sit still and keep their hands in sight, and the number of police cars on the scene, at least four. Whether there has been an arrest turns on whether there has been an imposition of custody, and this is a determination made after examining both the objective circumstances and the subjective feeling those circumstances are likely to evoke. Seals v. United States, 117 U.S.App.D.C. 79, 325 F.2d 1006 (1963), cert. denied, 376 U.S. 964, 84 S.Ct. 1123, 11 L.Ed.2d 982 (1964); Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961); Coleman v. United States, 111 U.S.App. D.C. 210, 295 F.2d 555 (1961) (en banc), cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962).
I am willing to assume that in this case, regardless of what the officers intended, the persons who were stopped supposed — and reasonably so — that they *315were not free to go until they responded to the officer’s queries (even if only to refuse to answer). There is reason for overriding concern with a person’s probable state of mind in a case where the issue is the admissibility of a statement,— because such a statement cannot be said to be truly voluntary unless his state of mind embraces an awareness that he is free to speak or not, Townsend v. Sain, 372 U.S. 293, 307-309, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Subjective elements have a lesser role in evaluating whether a stop constitutes an arrest. We are not dealing here with psychological gamesmanship staged in the backroom of the police station. As a society, we routinely expect police officers to risk their lives in apprehending dangerous people. We should not bicker if in bringing potentially dangerous situations under control they issue commands and take precautions which reasonable men are warranted in taking. That is particularly true when, as here, rush hour traffic conditions mean that any fight or flight will endanger the lives of bystanders who have not signed on to risk getting shot.
It is an unpleasant and doubtless anxiety-causing experience to feel that the police are telling you to stay put. As citizens in a free society, we are generally free to do as we please — within broad limits — and any limitations on our freedom must be closely scrutinized. Still, in the stop situation, I think it unwise to focus on whether the detained person feels “free to go.” As a realistic matter, there can be no casual disregard of on-the-street police questioning. People generally do not know and usually do not care whether they have a lawful right to walk away without regard for the pres-enee of the policeman. Usually they are perfectly willing to cooperate with the authorities. In other cases they would prefer to clear a matter up right away rather than seem suspicious. People who are stopped for some questions generally stay stopped until the police indicate they can go. If states of mind at the moment could be discerned, most people would say, I think, that while they were certainly not under arrest, neither were they free to go.
It cannot be a decisive inquiry whether the person involved was “free to go.” It requires too much of reasonable men that they try to choose between letting a car containing four possibly desperate and dangerous men leave the jurisdiction unquestioned or else stop it in the middle of rush hour without thought of the safety of themselves or others. If stopping them safely necessitates an arrest as a matter of law, we foster an anomaly because the police need more than suspicion to justify an arrest. It would erect barriers to investigation of precisely those crimes about which society-at-large is most concerned. On the other end of the spectrum, however, if detentions for interrogation are broadly upheld on the theory that the suspect could always have exercised a theoretical right to go, this may be too little protection against capricious interruption and investigative abuses.
In this context, it seems to me that the key question is whether the constraints applied were protective of the police and bystanders, or were custodial.8 In the overwhelming number of cases, the police do nothing more than walk or drive up and ask questions. That is no arrest.9 *316On the other hand, if the police approach a well-known pacifist with drawn guns, statements that they were in danger are simply not believable and the validity of the detention must be governed by standards controlling arrests. Obviously, the hard questions are in the middle, and can only be evaluated by looking, as in so many other Fourth Amendment questions, to the reasonableness of the police conduct. Commanding four robbery suspects to keep their hands in sight is eminently reasonable and does not, I think, automatically constitute custodial detention.
I do not think the cases of these appellants force us to face the hard question whether the law has crystallized to the point that a detention in the face of a specific refusal to answer questions and a request to go is necessarily an arrest, constitutionally permissible only when there is true probable cause.10
I join the majority in affirming these convictions because I think, as did the officers on the scene, that seeing the wallet stuffed under the floorboard of the front seat confirmed suspicion into probable cause sufficient to make the search reasonable. The grounds for suspicion were reasonable, and they justified the interruption of travel, but I do not think they, without more, conveyed a right to search the car. The police knew, however, that a brown leather wallet had been stolen in this robbery, and Officer Stone saw such a wallet in a highly unusual place while he was examining Russell’s driver’s license. He asked whose it was, and no one answered. This extra item it seems to me established probable cause for an arrest and justification for search of the automobile and the occupants.
The only other question of substance is whether the search and seizure are invalid because the arrest did not take place until afterwards, even though probable cause justifying it preceded. It seems to me that the basis of the search is made out by the existence of probable cause for arrest whether or not an arrest is made prior to the search.11
. Compare Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976 (1966) (car stopped at 4:30 A.M.).
. See generally Leagre, The Fourth Amendment and the Law of Arrest. 54 J. of Crim.L.C. & P.S. 393 (1963); *313United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Probable cause insulates the police from responsibility for false arrest, Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
. See, e. g., Seals v. United States, 117 U.S.App.D.C. 79, 325 F.2d 1006 (1963), cert. denied, 376 U.S. 964, 84 S.CVt. 1123, 11 L.Ed.2d 982 (1964); Kelley v. United States, 111 U.S.App.D.C. 396, 298 F.2d 310 (1961).
. Compare Brown v. United States, supra, note 1, 125 U.S.App.D.C. at 46 n. 4, 365 F.2d at 979 n. 4.
. Such a concession was accepted by the Court in Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1958). However, the Court went on to make clear that it thought an arrest took place on the facts of the case.
. Cf. Brinegar v. United States, 338 U.S. 160, 183, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (opinion of Justice Jackson).
. In Henry, the EBI was routinely investigating a theft from an interstate shipment of whiskey. When the agents stopped the car in which Henry was riding, they knew who was in it. In fact, they had no reason for stopping it other than to search at a time when there was clearly no probable cause.
. Compare Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534-535, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) where the Supreme Court held that the reason for searching is relevant in determining what constitutes probable cause justifying the search.
. A substantial number of cases recognize that there may be a brief on-the-street detention of a person or vehicle to clear up suspicious circumstances by asking questions, without having that detention constitute an arrest. See, e. g. United States v. Lewis, 362 F.2d 759 (2d Cir. 1966); Lipton v. United States, 348 F.2d 591 (9th Cir. 1965); United States v. Williams, 314 F.2d 795 (6th Cir. 1963); United States v. Bonanno, 180 F.Supp. 71 (S.D.N.Y.), rev’d on other grounds sub nom. United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960). See generally, Leagre, The Fourth Amendment and the Law of Arrest, 54 *316J. of Crim.L.C. & P.S. 393 (1963); Note, Police Power to Stop, Frisk, and Question Suspicious Persons, 65 Colum. L.Rev. 848 (1965).
. For a proposal permitting such brief detention, see A.L.I. Model Code of Pre-Arraignment Procedure § 2.02 (2), (3) (Tent. Draft No. 1, 1966). Perhaps the refusal to answer any questions, or to account for suspicious circumstances. could be enough to tip suspicion into probable cause, although this approach raises difficult constitutional questions. Perhaps some limited “forced” detentions can be based on less than “probable cause” which justifies searching or booking, at least where the person is detained for the minimum time to check-out his involvement vel non in a specific crime. Cf. Camara v. Municipal Court of City and County of San Francisco, supra, note 8; compare Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666 (1963). Or it may be that there is just no way of holding someone who reacts that way to police questioning.
. See United States v. Gorman, 355 F.2d 151, 159-160 (2d Cir. 1965), cert. denied 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966); People v. Simon, 45 Cal. 2d 645, 290 P.2d 531 (1955). A vehicle is not on the same plane as a home. The standard is assuredly higher for warrant-less search of a house without arrest than the probable cause needed for arrest. There must also be a showing of impracticability for obtaining a warrant. Ford v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965) (en banc). Accordingly search of a home not preceded by an arrest is not necessarily supported by showing probable cause for an arrest. See Lee v. United States, 98 U.S.App.D.C. 97, 232 F.2d 354 (1956). While the standard for search of an automobile does not dispense with a warrant where practicable, see Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1963), in a fast-moving situation where a warrant is obviously not practicable the existence of probable cause for an arrest also suffices to justify the search of the car. There is no occasion to consider to what extent the Constitution permits reasonable search of a vehicle as contrasted with a residence, even in the absence of probable cause for arrest. See Husty v. United States, 282 U.S. 694, 700, 51 S.Ct. 240, 75 L.Ed. 629 (1931); United States v. Di Re, 332 U.S. 581, 585, 68 S.Ct. 222, 92 L.Ed. 210 (1948).