(concurring in part, dissenting in part).
I agree with the majority that the police order to stop all cars out after midnight if, as the testimony indicated, “we think they’re suspicious out late like that,” was an arbitrary order and that the stopping of Appellant’s car was illegal under the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, I disagree that it is necessary to remand the case to the District Court for the purpose of taking evidence as to when, or whether, an arrest occurred prior to the search of Appellant’s automobile. I would apply the “totality of circumstances test” enunciated by the Supreme Court in Schenckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), to determine whether Appellant voluntarily consented to the search of his automobile. United States v. Watson, 504 F.2d 849 (9th Cir. Mar. 20, 1974); United States v. Rothman, 492 F.2d 1260 (9th Cir., 1973). In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court held inadmissible statements claimed to have been freely given following an unlawful entry by six or seven officers into the defendant’s bedroom. The Court found that
“[u]nder such circumstances it is unreasonable to infer that Toy’s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.” 371 U.S. at 486, 83 S.Ct. at 417.
This suggests that circumstances could exist under which a voluntary consent *414could negate an unlawful entry. In balancing the circumstances involved in this case — armed officers physically larger than Appellant; the low degree of Appellant’s education and his previous confinements in a state hospital for the insane; the absence of any advice that Appellant had the right to refuse consent to the search; and Appellant’s testimony on the matter — I would find that Appellant had voluntarily consented to the search. At the hearing in the District Court, Appellant, on cross-examination, testified in the following manner:
Q Mr. Manning, you’re familiar enough with the law to know that you have the right not to let the man search your car without a search warrant ? Right ?
A Well, if I want to, I can.
Q You agreed to let him search the car? You knew you didn’t have to let him search your car ?
A Yes, sir.
The testimony does not reflect the use of any “inherently coercive tactics — either from the nature of the police questioning or the environment in which it took place.” Schneckloth v. Bustamonte, 412 U.S. at 247, 93 S.Ct. at 2058. Appellant, although he testified on this matter, gave no intimation that he felt he was under duress or was being coerced to cooperate. His statement that he knew he could refuse consent diminishes the significance of his lack of education and his previous hospitalization. I would agree that “arrest is but one factor, albeit a critical one, in determining whether or not the consent was voluntary.” United States v. Rothman, 492 F.2d 1260, 1264 n. 1 (9th Cir., 1973). However, Appellant’s concession seems to me to be clear. Thus, I would arrive at the same conclusion whether the facts constitute an unlawful arrest or an unlawful Terry-type investigative stop.
I also do not agree that a remand is necessary for any findings of fact relating to prosecutorial comments. The record demonstrates that the conduct of the prosecuting attorney during the trial was improper and prejudicial. On three occasions, reference was made to Appellant’s prior involvement in criminal acts not charged in the indictment. On one occasion, the prosecuting attorney asked Appellant:
“Well, now you examine this one right here and this one here, aren’t those both speckled birds? That’s what they’re known at in your trade, isn’t it, Mr. Manning, speckled birds ? ”
The Court sustained an objection to the phrase “in your trade,” but the jury was never instructed to disregard the statement. The second objection arose during the questioning of Appellant’s mother by the prosecutor:
Q Mrs. Shiflet, Dean Manning has been able to bootleg most of his life, hasn’t he ?
MR. QUILLEN: I’m going to object to that, if the Court please. I move for a mistrial because of it.
THE COURT: He may ask her what his occupation is. He can rephrase it.
Two other incidents occurred when Appellant was recalled to the witness stand:
Q You were there and you got 50 pills.
A I did not pay for no pills.
Q You didn’t pay for them, you got them though. You went up there to get them on a forged prescription from Dr. Lynch.
MR. QUILLEN: Your Honor, I object—
THE COURT: Sustained as to the forged. He may inquire of him if he got the pills at the drug store in Bulls Gap.
Q I’ll ask you Mr. Manning, if on Saturday, May 16th, 1970, at 4:30 p. m., if you did not appear in Steinson’s Drug Store in Bulls Gap, Hawkins County, Tennessee, and ask for 55 Oberdren capsules on a prescription from Dr. Lynch ?
*415A I went in there but I didn’t ask for no 50 pills.
Q You received a bag ?
A No, sir, I did not have it in my hand.
Q You didn’t have it in your hand? Dr. Stinson had it in his hand?
A Yes.
Q And that’s when you were arrested?
MR. QUILLEN: I object, if the Court please and move that it be stricken from the record.
THE COURT: Sustained as to the arrest.
Again, the jury was not instructed to disregard the statement by the prosecutor.
Coupled with this line of questioning was the prosecutor’s closing statement, quoted by the majority. In addition to these statements by the prosecutor, Appellant contends that the Court improperly permitted testimony about items found in Appellant’s car but not material to the case. These items were the “sex books” and bikini pants found in Appellant’s trunk and a pen gun found in the console of the car. The court overruled Appellant’s objections and, regarding the books and the pants, stated: “It’s for the jury to say whether they have a bearing on this particular ease.”
Regarding the cross-examination of Appellant, we have previously stated:
“It is clear that ordinarily on cross-examination a defendant may not be questioned as to whether he participated in unrelated specific acts of criminal conduct not resulting in a conviction, as such evidence has no relevancy to the issue of defendant’s guilt or innocence of the crime charged, and such evidence is likely to be extremely prejudicial.” United States v. Rudolph, 403 F.2d 805, 806 (6th Cir. 1968)
While the Court sustained Appellant’s objection, no instruction was given to the jury to disregard the questions. In Rudolph, supra, we reversed the conviction even though the jury had been given such an instruction:
“[w]e are of the opinion that the cautionary instruction did not remove the prejudice. It must be remembered that after the saber thrust, the withdrawal of the saber rUll leaves the wound.” 403 F.2d at 807
In the case before us, we have merely the court’s sustaining of the objection. I would find that insufficient to cure the prejudice to Appellant. Similarly, the question asked Appellant’s mother was also highly prejudicial. The reference to bootlegging had no bearing whatsoever on the charge against Appellant for possession of drugs. Upon Appellant’s objection, the Court merely required that the question be rephrased. This repeated reference to criminal acts not the subject of the trial was highly improper and a failure to give any cautionary instruction increased the possibility of prejudice.
In Rudolph, supra, even the cautionary instruction was not sufficient:
“The Government contends that the error was cured by the court’s instruction to the jury to disregard the question. While ordinarily the trial court has discretion to determine whether a cautionary instruction is sufficient to avoid granting a mistrial, we think that the question asked in this case was so clearly improper and prejudicial to the defendants that the harm could not be erased by any instruction which the court might give.” 403 F.2d at 806.
With regard to the statement by the prosecuting attorney at the close of the case, I find it to be a flagrant disregard for the high duty owed in prosecuting a case. The conduct of the prosecutor certainly does not comport with that duty as described by the Supreme Court in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). It is apparent to me that this conduct of the prosecutor was designed to improperly influence the jury. “That it was intended to prejudice the jury is suffi*416cient ground for a conclusion that in fact it did so.” Pierce v. United States, 86 F.2d 949, 953 (6th Cir. 1936). I find my conclusion substantiated by an out-of-court statement made by the prosecutor and overheard by defense counsel and related to the Court:
I have a further thing, too, I’d like to bring attention to before the Court before we go any further. A new motion for a mistrial for the reason, Dean Manning, from the indictment of this trial, has been denied a fair trial by the District Attorney General’s comments and that General Winstead, with his experience, well knew the things that he was doing were wrong. I was having lunch, and he’s here hearing what I have to say, he may correct me if I’m wrong, I was having lunch within earshot of his table at which time he was talking with some people, including his witness, Nash, and some others and he commented on how he had asked a question about this defendant buying some pills either at Bulls Gap or Rog-ersville and said the defense could object all they wanted to then, the Jury had already heard it. I present this as highly improper and for that reason, the Attorney General knew it was unfair, denying this defendant a fair trial and I renew my motion for mistrial.
THE COURT: Were any of the Jurors present when he made that statement ?
MR. QUILLEN: No jurors present that I knew of.
MR. WINSTEAD: I try my lawsuits in Court. I don’t want any trouble.
THE COURT: Gentlemen, I believe in freedom of speech, wherever people go.
MR. QUILLEN: What I’m getting at is, the Attorney General asked an improper question, knowing that it was improper, caring less how much we objected to it, he knew the damage had been done when the Jury heard the questions.
THE COURT: Gentlemen, when you raised a proper objection, the Court sustained your objection. The record will disclose that at different times, there were no objections in certain of the testimony. And the Court will properly instruct the Jury when an objection is made to this Court.
Regarding similar conduct by a prosecutor, we have previously said:
“To those with any breadth of experience in the trial of criminal cases it must be clear that suggestions, especially when often repeated, that a defendant has earlier been in trouble with the law, that he has elsewhere or previously been indicted, that he has been frequently detained and investigated by law enforcement officers, and that he is a fugitive from justice, are so prejudicial that no admonition from the court that they be disregarded, however promptly and forcibly made, may be safely relied upon to free the minds of jurors from the impression that the defendant is of bad character and capable of committing the crime charged. They may completely overthrow the presumption of innocence.
* * * -» *
It is quite true that the court ruled correctly upon all objections interposed by the defendants, but in most instances the ruling came after the mischief had been done, and it was clearly a case where the misconduct of the prosecutors was neither slight nor confined to a single instance, but so pronounced and persistent that the cumulative effect upon the jury cannot be disregarded as inconsequential. Berger v. United States, 295 U.S. 78, [85], 55 S.Ct. 629, 632, 79 L.Ed. 1314. As was said in that case: “The trial judge, it is true, sustained objections to some of the questions, insinuations and misstatements, and instructed the jury to disregard them. But the situ*417ation was one which called for stern rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.” Pierce v. United States, 86 F.2d 949, 952-953 (6th Cir. 1936).
Since the jury was given no instructions to disregard the improper comments, there can be little doubt that they had a prejudicial effect.
I would also find that the testimony referring to the “sex books” and bikini pants and the pen gun found in Appellant’s car was not relevant to the case and was prejudicial to Appellant. Relevant evidence “is evidence that in some degree advances the inquiry, and thus has probative value,” C. McCormick, Law of Evidence 319 (1954). Its purpose is “to prove or disprove some issue in the cause on trial. If proffered evidence does not tend to do either of these things, it has no place in the trial and is either immaterial or collateral to the inquiry.” Herzog v. United States, 226 F.2d 561, 565 (9th Cir. 1955). The general rule is that the relevancy or materiality of evidence is a matter to be decided in the discretion of the trial judge. Wilson v. United States, 250 F.2d 312, 325 (9th Cir. 1958). However, as the “sex books,” bikini pants and pen gun had no value in proving any issue before the court, and the chance was great that its admission would be prejudicial, I would find that the court abused its discretion in admitting the evidence. See United States v. Johnson, 254 F.2d 175, 176 (2d Cir. 1958).
Thus, I would hold that the reference to prior criminal acts and the admission of prejudicial immaterial evidence “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristo-foro, 416 U.S. 637, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). I would reverse the judgment of the District Court and remand the case with direction that the District Court grant the writ of habeas corpus to Appellant unless the State of Tennessee grants him a new trial within a reasonable time to be fixed by the District Court.