United States v. Tyrone B. Diggs, United States of America v. Garrett J. Keys, United States of America v. Percy Floyd, (Two Cases)

JUSTICE, District Judge

(dissenting).

Although the information contained in the majority’s statement of facts is highly suggestive of appellants’ guilt, very little of it was available to the special agents at the time they conducted their armed approach to appellants’ automobile.1 The record unmistakably shows that, at the time he learned that a bank robbery had occurred, Special Agent Berry had only the following information concerning the appellants: (1) Diggs, whom he had arrested two weeks previously for bank robbery, had been released on bail. (2) Diggs’ red-over-white Cadillac had been used to transport traveler’s checks in the previous robbery. Further, Berry believed Floyd to have been responsible for the robbery of the same bank involved here, some four years previously. Nevertheless, when Special Agent Berry learned that a bank had been robbed in Northwest Washington, he immediately hypothesized that Floyd and Diggs were responsible. Proceeding directly to an area in *1325Northeast Washington where he knew Floyd and Diggs to “hang out”, Berry and his partner waited for their suspects to show up in Diggs’ red-over-white Cadillac automoble.

In the interval elapsing between his departure from the FBI office and his approach on the Cadillac occupied by the appellants, Special Agent Berry received little information to support his intuition that either Floyd or Diggs, or both, were involved in the robbery. In the five or more radio transmissions he and Special Agent Mowery listened to, one robber was apparently described, initially, as (1) between six feet, two inches and six feet, four inches in height, and (2) was finally described as six feet tall. The three police reports described the second robber, successively, as (1) “tall”, (2) six feet in height and, again, (3) as six feet. The contemporaneous FBI radio reports, however, stated that the second robber measured approximately five feet, eight inches. Mowery recalled (and the transcript of the Police transmissions indicated) that the shorter robber was first represented as being six feet tall, but that this description was “refined” in later reports, so as to portray him as five feet, eight inches in height. Berry recollected, on the other hand, that “from the first transmission, one was tall and one was short, a Mutt and Jeff type of description.” Berry further testified that he knew Floyd to be shorter than five feet, eight inches.2

When the Cadillac appeared, carrying three passengers, the driver began to park. The special agents pulled alongside the Cadillac, as it had “just about practically stopped”. Drawing their guns before leaving their automobile, the special agents approached the Cadillac, told the driver to turn off the ignition, and ordered the occupants to keep their hands in sight. It is patent from the record that only the driver, Diggs, was clearly visible at the time the special agents came alongside the appellants’ automobile. Moreover, Berry recognized Floyd only as the agent exited from his own automobile with drawn gun, for, as previously discussed, the ambiguous radio reports had not provided additional information sufficiently accurate to identify the appellants. While reports correctly described the getaway car as a green Chevrolet, Berry testified that he was not misled by this description, since he had expected the robbers to change cars. Referring to Floyd and Diggs, Berry stated: “If they came back there in that car, I was going to stop them . ” Finally, it should be noted that neither agent testified to any suspicious activity on the part of Diggs or the other occupants of his automobile, as they drew near the agents and Diggs started to park his vehicle. It is against this factual background, then, that this case must be analyzed.

As one commentator has stated the problem, the “protean variety” of the situations with which the fourth amendment deals

is mindboggling; each situation bristles with considerations and demands that are “not easily quantified and, therefore, not easily weighed one against the other”, and it seems “too dogmatic” and improperly insensitive to the practical complexities of life to categorize or pigeonhole situations for the purpose of enforcing a discipline of rules upon the richness of events. But if some discipline is not enforced, if some categorization is not done, if the understandable temptation to be responsive to every relevant shading of every relevant variation of every relevant complexity is not restrained, then we shall have a fourth amendment with all of the character and consistency of a Rorshach blot.

Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 375 (1974) (hereafter Amsterdam).

One of the most formless areas that the Supreme Court has sought to define *1326is the reasonableness of the conduct of law enforcement officers when confronting individuals on the streets. In Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1949), the Court held that the stopping of a car containing suspected thieves was an “arrest”, which was completed “when the officers interrupted the two men and restricted their liberty of movement.”3 *Subsequent to Henry, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court sanctioned a “carefully limited search. of the outer clothing” of a suspect, when “a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous,” Id., at 30, 88 S.Ct. at 1884 (italics added); i.e., a “stop and frisk” based on “reasonable grounds.”

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), a police officer seized a gun from the waistband of a person who sat in his parked car in a “high-crime” area at 2:15 a.m. In upholding the seizure, which was based on an informant’s tip, the Court deemed it a “reasonable investigatory stop,” citing Terry4

Terry, it is said, creates three categories of street encounters between the law enforcement officer and the individual: simple conversation, which is always permissible; “investigatory stops”, which require reasonable suspicion of criminal activity; and “arrests”, requiring probable cause. Any attempt to expand this number, or to “recognize simply the principle that increasing degrees of restraint require increasing amounts of justification” must run aground on the fact that “any number of categories, however shaped, is too few to encompass life and too many to organize it manage-ably.” Amsterdam, supra, at 376-377.

In my view, the facts of this case demonstrate neither probable cause for an arrest nor reasonable suspicion of criminal activity under the doctrines of Terry and Adams, respectively; hence, I agree with the majority that a characterization of the agents’ actions, either as an arrest or as a “forcible stop”, is unnecessary to the decision of this case.5

*1327Special Agent Berry apparently formed an instantaneous and fixed expectation upon first hearing of the bank robbery; he testified: “. . .if they were the robbers, I expected them to come over that hill in that white Cadillac.” Transcript, at 85. Although it is manifest that Special Agent Berry was correct in his reckoning, the odds which he computed could only have been assessed by him.6 It would have been logically impossible for the necessary infer*1328enees to have been “drawn by a neutral and detached magistrate”, Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1947).7 There was no informer, no tip, and no description of the automobile or its occupants which matched Diggs as he drove up in the Cadillac. The site of the stop was approximately eight miles from the bank which had been robbed; a minimum of thirty-five minutes had elapsed since the robbery; and the occupants of the automobile were not engaging in any unusual activity. Moreover, since Diggs’ car was coming to a stop, the exigencies appear to have been minimal. There was no indication (as there was in Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968)) that a burglary (or any other crime) was imminent, or that the suspected perpetrators of the offense were likely to escape (as in Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305 (1967)).8 Further, the arrest of appellants was clearly “predicated on [Special Agent Berry’s] personal observations and information,” so that any “corporate information” possessed by the law enforcement agencies would have no bearing on probable cause.9 See: Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833 (1966). In sum, no probable cause to support a warrantless seizure of the appellants was demonstrated by the government.

Since probable cause to arrest the appellants did not exist under the circumstances of this case, the next inquiry must be whether the special agents had “constitutional grounds to insist on an encounter, to make a forcible stop,” of appellants. Terry v. United States, 392 U.S. at 32, 88 S.Ct. at 1885 (concurring opinion of Harlan, J.). See: Williams v. Adams, 436 F.2d 3035 (2d Cir. 1970) *1329(Friendly, J., dissenting), reversed by en banc vote without further argument, 441 F.2d 394 (2d Cir. 1971), in turn reversed, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Thus we are called upon to determine: (1) whether there was unusual conduct on the part of appellants, observed by the special agents, which lead them reasonably to conclude, in light of their experience, that criminal activity might be afoot and that the appellants might be armed and dangerous, Terry v. Ohio, 392 U.S. at 30, 88 S.Ct. 1868; or (2) whether the special agents obtained information as to specific and articulable facts, supplied by another person or persons, which reasonably lead them to the same conclusions. Id., at 21, 88 S.Ct. 1868; Adams v. Williams, 407 U.S. at 147, 92 S.Ct. 1921. “Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result [the Supreme Court] has consistently refused to sanction.” 10 Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at 1880.

It is unquestioned that, during the entire time the appellants were under the observation of the special agents prior to their being seized by the latter, the appellants’ conduct was completely innocent in its outward aspects. It follows that the seizure of appellants was not warranted under the Terry doctrine.

The information upon which the officers acted in making their seizure of the appellants was restricted to that known to Special Agent Berry and to that obtained from radio transmissions from the F.B.I. and the Washington police. As already detailed, Berry’s personally obtained information concerning appellants was wholly insufficient to identify them as the perpetrators of the bank robbery; thus, his naked hunch that the appellants were the robbers, combined with the contradictory and confusing descriptions of the robbers received from the radio broadcasts, could not reasonably have served to cast any substantial suspicion on the appellants.

In Adams v. Williams, Justice Rehnquist, speaking for the majority, said:

Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. 407 U.S. at 147, 92 S.Ct. at 1924.

In my opinion, the deficient nature of the information possessed by the special agents mandated further investigation by them before they undertook to seize appellants at gunpoint. As stated in Terry, the issue is “whether in all the circumstances of this on-the-street encounter, [the appellants’] right to personal security was violated . . .” 392 U.S. at 9, 88 S.Ct. at 1873. I would hold that, in the absence of such additional information as would have cast a reasonable suspicion on appellants, the precipitate actions of these special agents violated the fourth amendment’s injunction that: “[t]he right of the people to be secure in their persons against unreasonable searches and seizures, shall not be violated . . .” (Italics added.)

To my mind, the action of the majority in upholding the seizure and the subsequent search in issue here is extreme in its implications; that, though not intended as such, their decision on this point is the judicial equivalent of “burning down the barn to kill the rats in it.” I suggest that, if the people are to con*1330tinue to enjoy their right to personal security, as confirmed by the fourth amendment, the judiciary must exercise restraint when considering “the careful balance that Terry sought to strike between a citizen’s right to privacy and his government’s responsibility for effective law enforcement”, Adams v. Williams, 407 U.S. at 154, 92 S.Ct. at 1927 (Marshall, J., dissenting). I maintain that we must recognize that “[i]t is better . that the guilty sometimes go free”, Henry v. United States, 361 U.S. at 104, 80 S.Ct. at 172, than to adopt a constitutional standard which will make it probable that “innocent citizens [will] be stopped, searched, and arrested at the whim of police officers who have only the slightest suspicion of improper conduct.” Adams v. Williams, 407 U.S. at 162, 92 S.Ct. at 1931 (Marshall, J., dissenting).

Thus, I urge that the evidence obtained by the special agents after the accomplishment of their invalid seizure of appellants was “tainted” and, therefore, not admissible against the appellants at the trial of their case. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Sibron v. United States, 392 U.S. 40, 67-68, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968).

The Voir Dire Issue

The majority has correctly pointed out that, once the trial judge indicated he would not permit the proposed question regarding potential racial prejudice to be asked, appellant’s trial counsel made no effort to preserve the issue. The record does not reflect whether it was the form or the subject matter of the question which the court found to be objectionable. In the absence of an objection, the court was deprived of a final opportunity to reconsider the question tendered by defense counsel or to entertain an alternative question relating to racial prejudice. However, in King v. United States, 124 U.S.App.D.C. 138, 139, 362 F.2d 968, 969 (1966), this court held that

the judge’s refusal to put counsel’s question to the jurors was plain error affecting substantial rights. Such errors may be noticed although they were not brought to the attention ■ of the court. Rule 52(b) F.R.Crim.P.

In King, counsel had gone so far as to withdraw his requested question.11 In any event, the majority here rests its holding on the merits, not upon a waiver theory.

The majority opinion suggests that since appellant’s counsel did not exhaust his peremptory challenges, it “might be assumed that Floyd took his chances with the jury as selected.” The majority’s reliance on Frazier v. United States, 335 U.S. 497, 506, 69 S.Ct. 201, 93 L.Ed. 187 (1948), seems inapposite, however. I cannot agree that a criminal defendant should be charged with consenting to the composition of a jury, when he was deprived of an opportunity to elicit the very information which he deemed to be necessary for a reasonably informed utilization of his peremptory challenges.12

It cannot be doubted that we are dealing with a right that is of utmost importance to the integrity of the jury system, for the opportunity to ascertain potential *1331racial bias of veniremen is basic to the fundamental fairness of our system. Chief Justice Hughes observed in Aldridge v. United States, 283 U.S. 308, 315, 51 S.Ct. 470, 473, 75 L.Ed. 1054 (1931) that, “[n]o surer way could be devised to bring the process of justice into disrepute” than to “permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred.”

The import of the majority’s decision today — that only when a criminal defendant establishes that the potential for racial bias is accentuated by the circumstances of his particular case is he entitled to inquire into the veniremen’s racial prejudices — does not seem to me to be in line with the spirit of the Supreme Court’s holdings in Aldridge and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Nor have other circuits imposed this requirement.13 Moreover, in United States v. Robinson, 154 U.S.App.D.C. 265, 270, 475 F.2d 376, 381 (1973) (which was decided after Aldridge and Ham), Judge Leventhal, writing for the Court, discussed voir dire examination, as follows:

When the matter sought to be explored on voir dire does not relate to one of those recognized classes, it is incumbent upon the proponent to lay a foundation for his question by showing that it is reasonably calculated to discover an actual and likely source of prejudice, rather than pursue a speculative will-o-the-wisp.

Racial bias is one of those “recognized classes” of matters which, as the court thus implied, does not require a special foundation, as a condition precedent to the right to make inquiry.

Justice Marshall, dissenting from the denial of certiorari in Ross v. Massachusetts, 414 U.S. 1080, 1082-1083, 94 S.Ct. 599, 601, 38 L.Ed.2d 486 (1973), commented as follows:

Nonetheless, on remand, the Massachusetts court read our decision in Ham as limited by the particular circumstances of that case — the trial of a civil rights worker in the South. The State court found that petitioner, unlike Ham, was not likely to be a “special target for racial prejudice” and, therefore, that the trial judge did not err in refusing to make the requested inquiry.
This distinction is supported by neither logic nor precedent.
* * * * * *
The Aldridge Court was not concerned with whether petitioner was unpopular in the community — a special target of prejudice — but rather with the potential racial “bias of the partic*1332ular jurors who are to try the accused.” [283 U.S.] at 314 [51 S.Ct. 470]. The Court did not rely on any particular circumstances to justify its requirements other than the fact that “the possibility of such prejudice [against Negroes] is [not] so remote as to justify the risk in forbidding the inquiry. Ibid. Nor did the Court purport to limit its holding to any region because the “question is not . the dominant sentiment of the community . . . ” Ibid.

Naturally, the denial of certiorari in Ross is not in the nature of an affirmance, and is certainly not binding on us.14 See, e. g., Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-919, 70 S.Ct. 252, 94 L.Ed. 562 (1950). However, in my judgment, this pronouncement by Justice Marshall is an exceedingly persuasive interpretation of the AldridgeHam doctrine and — there having been no clear retreat by the Supreme Court from the Aldridge-Ham doctrine — should be the position taken by this Court. The majority’s citation to one sentence from Hamling v. United States, 418 U.S. 87, 140, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1973) (in which potential religious bias was the subject of the requested jury inquiry), as an expression of support for its interpretation of Aldridge and Ham is not convincing. It should be recalled that, in Hamling, the district court “asked questions similar to many of those submitted by petitioners . . .” Id. at 139, 140, 94 S.Ct. at 2918. In the instant case, it is undisputed that no questions were propounded involving potential race prejudice.15

I share the majority’s concern about mandating a new trial on this issue; defense counsel was indeed lax in pressing her request for inquiry into potential jury bias. But a reading of the Supreme Court’s holdings in Aldridge and Ham, this Circuit’s decisions in King v. United States, supra, and United States v. Robinson, supra, and the rulings of other Circuits on this subject makes it plain that we should not require a showing that a criminal defendant is a “special target of prejudice” before permitting his inquiry into jury bias.16 While the trial court should be free to exercise its broad discretion over the form and number of questions to be asked, it should not be permitted to preclude inquiry into racial bias when a criminal defendant evidences a desire to satisfy himself in this regard.

I respectfully dissent.

. Agents of the F.B.I. “may . . make arrests without warrant . . for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” 18 U.S.C. § 3052 (1969). The requirement of “reasonable grounds” is equivalent to the Fourth Amendment’s requirement of “probable cause.” Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

. Of course, no description of Diggs was included in the reports since, as the “getaway man”, he did not enter the bank.

. 361 U.S. at 103, 80 S.Ct. at 171. There is a wide gap between the above definition of an arrest and that given in Brinegar v. United States, 165 F.2d 512 (10th Cir. 1948):

To constitute an arrest there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.

165 F.2d at 514, quoting from Jenkins v. United States, 161 F.2d 99, 101 (10th Cir. 1947). While Henry is still viable, Sibron v. United States, 392 U.S. 40, 67, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968), neither Terry nor any of its progeny have significantly bridged this gap. In Terry the Court held that a “stop and frisk”, although a seizure, was not an “arrest”, even though the stop clearly “interrupted the [three] men and restricted their liberty of movement.” At the same time, however, the Court in Terry went “out of its way to avoid defining an arrest in terms which include the traditional element of a purpose to charge.” Amsterdam, citing Terry, 392 U.S. at 16, 26, 88 S.Ct. 1868. In any event, as will be made clear below, I do not believe that the holding in this case should turn on a technical definition of the word “arrest.”

. 407 U.S. at 146, 92 S.Ct. 1921. It would appear that the police conduct in Adams fits more neatly into the “stop and frisk” mold of Terry than does the “dramatic excitement of drawn guns” herein presented. Weed v. United States, 340 F.2d 827, 829 (10th Cir. 1965).

. Assuming, arguendo, that it is necessary to determine whether the agent’s conduct constituted an “arrest”, it should be emphasized that:

[T]his is a decision on the rights of individuals and the duties of government, and not an abstract exercise in definition. In dealing with words there is always a temptation to allow them to become separated from their objective correlatives in the everyday world, and to treat them as if they have, or ought to have, one single simple meaning, unaffected by the contexts in which they occur and divorced from the world of things and events which give them their content and justification.' * * * “Arrest” is just such a word * * *.

United States v. Bonanno, 180 F.Supp. 71, 77 (S.D.N.Y.1960).

Thus, rather than relying on a mere definition to determine whether a “stop” or an “arrest” *1327has transpired, the scope of the intrusion in question on the individual’s reasonable expectation of personal security under the Fourth Amendment is and should be one of the principal considerations. Terry, supra, 392 U.S. at 17, 88 S.Ct. 1868, n. 14. In this connection, it should be taken into account strongly that, when an officer of the law stops an individual at gunpoint, a substantial danger immediately arises not only to the person of the individual stopped, but also to any bystanders and, indeed, to the officer himself.

It is obvious from all the facts in this case that the special agents’ conduct in drawing their guns constituted “the ancient instinct of a peace officer to bring the apparent transgressor to stand — i. e. to place him in an effective state of arrest.” United States ex rel. Robinson v. Fay, 239 F.Supp. 132 (S.D.N.Y. 1965), aff'd in open court (2d Cir. July 26, 1965), cert. denied, 382 U.S. 997, 86 S.Ct. 583, 15 L.Ed.2d 484. Special Agents Berry and Mowery both testified at the hearing on the motion to suppress that, if the appellants had attempted to leave the car or to drive away in it, the agents would not have let them do so. Transcript at 14, 88. While it is settled that the test of whether an arrest occurred is not what the arrested person thought at the time, it seems clear that a reasonable man, confronted with police orders delivered at the point of a gun would consider himself “arrested”. Coates v. United States, 134 U.S.App.D.C. 97, 413 F.2d 371 (1969). Nor is the intention of the officers involved dispositive of the arrest issue, where the “seizure” involved is a substantial one. U. S. v. Jones, 352 F.Supp. 369 (S.D.Ga.1972), affd., 481 F.2d 1402 (5 Cir. 1973). The significance of the drawn guns is further demonstrated by those cases in which the government sought to sustain the stopping of an automobile by investigating officers on less than probable cause. While most courts have put their stamp of approval on such stops, based on the lesser standard allowed by Terry (see e. g., United States v. James, 147 U.S.App.D.C. 43, 452 F.2d 1375 (1971); Young v. United States, 140 U.S.App.D.C. 333, 435 F.2d 405 (1970); Note, Nonarrest Automobile Stops: Unconstitutional Seizures of The Person, 25 Stan.L.Rev. 865, 870 n. 30 (cases cited) (1973); but see United States v. Bright, 471 F.2d 723 (5th Cir. 1973) cert. denied, 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148, the result has been different where guns were drawn to accomplish the stop. See United States v. Strickler, 490 F.2d 378 (9th Cir. 1974); United States v. Troutman, 458 F.2d 217 (10th Cir. 1972). The same resolution has been reached where automobiles were not involved. United States v. Lampkin, 464 F.2d 1093 (3rd Cir. 1972). But see United States v. Richards, 500 F.2d 1025 (9th Cir. 1974) (Hufstedler, dissenting, relied on Strickler, supra, in characterizing the conduct as an arrest. 500 F.2d at 1030). Thus, most courts apparently gag at the concept of a gunwielding “stop” based on anything less than probable cause.

“Focusing the inquiry squarely on the dangers and demands of the particular situation” at hand, and “in light of all exigencies of the case”, Terry, supra, 392 U.S. at 18, 88 S.Ct. at 1878, fn. 15, I conclude that an arrest occurred when the special agents leveled their pistols at the appellants.

. This may not have been the case, as the testimony adduced at the Motion to Suppress hearing contained at least one significant gap. When Berry was questioned on cross-examination as to the basis for his “hunch”, the following exchange occurred:

Q. Yes. All right. And this suspicion was based upon your knowledge that Floyd had been released from the penitentiary and was in the Washington, D.C., area at the time, and that he had in the past been involved in bank robberies; and that during the month of January of the same year, you had occasion to be involved in an arrest of Tyrone Diggs regarding another bank robbery in the District of Columbia area?
A. That’s correct. And I knew that — do you want some more?
Q. Yes, I would like to know exactly what was in your mind. That’s what the Court has to rule on.
MR. ADELMAN: Your Honor, I object to these speeches.
MR. DIETZ: I am just trying to get the information, your Honor.
THE WITNESS: I forgot what I was going to say.
MR. DIETZ: You were about to volunteer something.
THE WITNESS: Yes, I know that. I was trying to think of what particular item I was going to mention.
THE COURT: Well, you have answered the question, Mr. Berry.
THE WITNESS: All right.
Transcript at 66-67.

. Berry testified that his basis for driving to the 2200 block of M Street was:

More than a hunch. As I said, I had developed them as suspects. I was heading out there, not knowing they were the ones who had robbed the bank, but on the chance that they were. Transcript at 53.

Special Agent Berry’s general belief that Floyd and Diggs were bank robbers could not, of course, provide probable cause for their arrest. Plazola v. United States, 291 F.2d 56, 59 (9th Cir. 1961); overruled on other grounds, Diaz-Rosendo v. United States, 357 F.2d 124, cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83.

. Although the majority relied on Bailey, “[pjerhaps definitively, [to] terminate further present treatment” of the search and seizure issue, I find it clearly distinguishable from the present case.

In Bailey, four police cars stopped an automobile containing four black males who were suspected of having just assaulted and robbed a pedestrian. An officer “approached appellant’s car, apparently with his gun in hand, and ordered the occupants to sit still and keep their hands in plain sight.” 389 F.2d at 307. In an opinion by Judge Wright, the majority, citing Henry, supra, accepted the government’s concession that the arrest was complete when the officer approached the car and found that probable cause for an arrest was then present. Judge Leventhal, in a concurring opinion which accurately anticipated the holding in Terry, distinguished Henry on the ground that:

In Henry, the FBI 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. 389 F.2d at 314, n. 7. (Italics added.)

Judge Leventhal found that, although there was no probable cause for an arrest, the investigative stop of the car was reasonable in light of the fact that it was leaving the jurisdiction and “once the occupants scattered it would be nearly impossible to reassemble them again.” 389 F.2d at 314. Here, as in Henry, (1) the agents knew who they were looking for, and (2) the stop did not serve to relieve an exigent situation — the appellants were returning to the place where they “hung out”, not fleeing from the jurisdiction. In addition, the stop in Bailey was predicated on specific and articulable facts (i. e., that three black suspects were driving away from the scene of the assault and robbery in a 1954 blue Chevrolet), while the basis for the stop in the instant case was only the surmise of Special Agent Berry and vague, conflicting descriptions of the suspects from radio broadcasts.

. The transcript of the Motion to Suppress hearing does not reflect any “corporate information” which was not broadcast to Special Agents Berry and Mowery over their radio.

. “This demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880, n. 18, citing numerous cases.

As the defendants argued below:

But when an officer takes it upon himself, based on a hunch, based on good police work and good detective work to do what he did, then at the time he makes that stop, he has to have probable cause, because hunches come in bunches, but it doesn’t always make you a winner.

Transcript at 105.

. The question in King which the trial court refused to permit was:

Would any member of the jury be prejudiced by the fact that the complaining witness is white and the defendants are Negro?

. In United States v. Bear Runner, 502 F.2d 908, 911 (8th Cir. 1974), the court opined:

Unquestionably one of the most effective means of ensuring impartiality is the voir dire proceeding during which questioning will expose any latent bias entertained by prospective jurors. Such exposure is necessary if the parties are to be expected to exercise their challenges in an intelligent and informed manner. Justice White recognized this in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1964):

The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted.

Id. at 218-219, 85 S.Ct. at 835.

. See United States v. Robinson, 485 F.2d 1157 (3rd Cir. 1973); United States v. Booker, 480 F.2d 1310 (7th Cir. 1973); United States v. Powers, 482 F.2d 941 (8th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1426, 39 L.Ed.2d 479; Kuzniak v. Taylor Supply Co., 471 F.2d 702 (6th Cir. 1972) (appellant was Austrian national); United States v. Carter, 440 F.2d 1132 (6th Cir. 1971); United States v. Gore, 435 F.2d 1110 (4th Cir. 1970); Frasier v. United States, 267 F.2d 62 (1st Cir. 1969).

The majority cites United States v. Grant, 494 F.2d 120 (2d Cir. 1974), cert. denied, 419 U.S. 849, 95 S.Ct. 87, 42 L.Ed.2d 79 as an example of other circuits which have taken similar positions on this issue. Nowhere in Grant does the court hold that special circumstances must be shown before a black criminal defendant is entitled to inquire into potential jury racial bias. Rather, the court finds that the error, if any, in the trial court’s refusal to ask a question intended to discover racial bias, was harmless error in view of the overwhelming evidence of guilt. The court did comment as follows:

We believe it appropriate, however, to express our view that trial judges in the future should inquire into the subject of racial prejudice, if reasonably requested to do so by defense counsel.

494 F.2d at 122. In the footnote to this statement, the court observed that

[A] 11 six circuits to decide the question have held it to be error to refuse to permit reasonable inquiry into racial prejudice on voir dire, even absent the aggravating facts of Ham and Aldridge. (Citations omitted.)

Id., n. 6.

. The subsequent proceedings in the Ross case are of some import here. After the Supreme Court denied certiorari, Ross pursued his issue by way of application for the writ of habeas corpus. The United States District Court for the District of Massachusetts granted the application, and the decision was affirmed by the First Circuit in Ross v. Ristaino, 508 F.2d 754, (1 Cir. 1974). The court found it unnecessary to resolve the ambiguity which it believed the Ham decision to have created; that is, whether or not a criminal defendant must be “a special target of racial prejudice” before he is unqualifiedly entitled to inquire, on voir dire, into possible racial bias. Under either interpretation, the court found that Ross’ due process rights had been violated. The court did, however, assert that it is reasonable to conclude that a juror who is prone to racial bias would not confine his impartiality to cases in which race issues are directly involved. 508 F.2d 756, n. 4. The court also cited several state cases which hold that any black criminal defendant who requests a specific inquiry about racial prejudice is entitled to have some question asked. Id., n. 5.

. The general question as to bias which was asked by the court did not remedy the trial court’s error. United States v. Robinson, 466 F.2d 780 (7th Cir. 1972).

. As Justice Marshall noted in Peters v. Kiff, 407 U.S. 493, 503, 92 S.Ct. 2163, 2169, 33 L.Ed.2d 83:

[I]f we assume that the exclusion of Negroes affects the fairness of the jury only with respect to issues presenting a clear opportunity for the operation of race prejudice, that assumption does not provide a workable guide for decision in particular cases. For the opportunity to appeal to race prejudice is latent in a vast range of issues, cutting across the entire fabric of our society.

These observations are equally sound as applied to the issue before this court.