United States v. Catalano

CUMMINGS, Circuit Judge

(concurring).

I agree with the result reached. However, insofar as the Court’s opinion distinguishes between the 3 a. m. stoppage of the ear on the one hand and the subsequent detention of the appellants at the police station on the other, and then insulates the former from constitutional scrutiny, I am not in agreement. Not only must the officers’ actions be justified at their inception, but also they must be “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1967). The officers’ actions here were not akin to the brief intrusion upon personal security inherent in the “stop and frisk” sanctioned in Terry. In my view, the hauling of these suspects to the police station without a warrant was an illegal arrest, and that made the entire intrusion unlawful. Cf. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Burhannon, 388 F.2d 961 (7th Cir. 1968). But since the illegal intrusion did not produce any “fruit of a poisoned tree,” I concur in the af-firmance of the judgments.