(dissenting).
Defendant, Embry, was convicted on the basis of evidence which, in a motion to suppress, he argued was illegally obtained in violation of the fourth amendment. Embry argued that at the time the officers pursued him they lacked reasonable cause to detain or frisk him, and that his ejectment of the heroin from his pocket as the officers closed in was not a voluntary abandonment, but was coerced by the illegal pursuit. I conclude that both arguments are well founded and, therefore, dissent.
An understanding of the procedural history of this case is important to a proper development of the facts relevant to this appeal. Defendant was charged with unlawful possession with intent to distribute a quantity of heroin. The government’s case hinged upon the admissibility of the heroin which was the subject of a pretrial motion to suppress.1 Thus, Embry was either clearly guilty or clearly not guilty of the charge depending upon the outcome of that motion. After a pretrial suppression hearing, which consisted of the live testimony of three police officers, the court denied the motion. One month later the parties entered into the stipulation which is reprinted in the majority opinion, the purpose of which was to expedite the determination of guilt without a jury and without a trial. The majority relies exclusively on this stipulation which was solely concerned with the narrow question of guilt or innocence on the evidence whose admissibility had already been determined. Inexplicably, the portion of the transcript of the suppression hearing concerning the events surrounding Embry’s pursuit is wholly ignored by the majority. It is therefore necessary to summarize the testimony given at the hearing.
Officer Moore, who was stationed at headquarters, received numerous complaints concerning a large crowd gathered at Roberts Street and Centre Avenue that was making it difficult for children to reach the elementary school located a half-block away. One of the calls was from a personal friend who was the school principal.
Centre Avenue and Roberts Street form one of the main intersections in a high crime area of downtown Pittsburgh. There is heavy vehicular and pedestrian traffic at the intersection and a number of business establishments are located there which are open during early morning hours.
Moore dispatched a patrol car to the intersection to investigate, and, shortly before 8:30 a. m., personally drove by and observed the crowd. Moore gave no testimony concerning his observation, however, and no one testified concerning what transpired when the dispatched car arrived.
About 8:43-9:00 a. m., Officers Miller and Diskin, who had earlier overheard the dis*558patch from Moore to another car while cruising in the area, decided to investigate the intersection themselves. As the officers pulled up to the intersection, they observed five persons. Three men in front of Dickerson’s Cleaners were proceeding east on Centre Avenue, and across the street, leaning against Jerry’s Bar, were two men who were unknown to the officers. Diskin testified that though there was no crowd at the intersection, they stopped because the two men looked like drug pushers. This account was also contained in the official police report prepared by Diskin on the day of the arrest.
Upon alighting from the car, Miller accosted one of the men standing near Jerry’s Bar and asked, “Do you have anything on you”?I 2 When the man responded, “No,” Miller nevertheless gave him a body frisk. At this point, Embry, who had been standing six feet away, began to run west on Centre Avenue. Both officers immediately left the other man and pursued Embry for several blocks into a vacant lot. Miller witnessed Embry take an aluminum packet from his jacket pocket and discard it in the weeds, and Diskin, though he had not seen this activity, immediately handcuffed Embry who was lying prone in the weeds.
I
Once the officers began to pursue Embry, his liberty was restrained and he was thus “seized” within the meaning of the fourth amendment. United States v. BrignoniPonce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Since it is not contended that the officers had probable cause to arrest Embry, the threshold question is whether at the time of the chase, an investigatory stop could nevertheless be effected consistently with the fourth amendment.
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), the Court drew a carefully limited exception to the general requirement that probable cause must exist before a forcible stop is permissible. The Court approved a brief investigatory stop and protective frisk when a “ . . .police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity is afoot . . . .” 392 U.S. at 30, 88 S.Ct. at 1884. Because in Terry the seizure and frisk were virtually simultaneous, Terry expressly considered only the circumstances under which a limited protective frisk for weapons is permissible. Implicit in the Court’s holding, however, is that the officer must have reasonable grounds to suspect that criminal activity is afoot before he forces the encounter which justifies the frisk. 392 U.S. at 32-34, 88 S.Ct. 1868 (Harlan, J., concurring). Subsequent decisions of the Supreme Court reveal the accuracy of Justice Harlan’s explication of Terry.
United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), was concerned exclusively with the legality of a brief investigatory stop. The Court held that responses to questions asked by a border patrol officer must be suppressed in an Immigration Act prosecution because at the time that the officer stopped the auto at a traffic checkpoint he had not observed facts which would make it reasonable to suspect that the vehicle contained aliens who had illegally entered the country. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court held that an informant’s report that a man sitting in a parked auto was carrying narcotics and had a gun at his waist carried sufficient indicia of reliability to justify an investigative stop. The Court noted that “[sjome tips, completely lacking in indicia of reliability, would either warrant no police response or to require further investigation before a forcible stop of a suspect would be authorized.” Id. at 147, 92 S.Ct. at 1924.
Terry and its progeny do not license the police to stop individuals in public places on a bare suspicion or an intuition that they *559may be criminals, and it certainly does not permit random stops in an effort to turn something up. In every case, “the police officer must be able to point to specific and articulable facts which, taken together with reasonable inferences from those facts, reasonably warrant the intrusion.” 392 U.S. at 21, 88 S.Ct. at 1880.
Thus, once there has been a motion to suppress, the police must come forward with credible testimony of specific facts to which a judge can apply an objective.,standard. Id. at 21-22 & n. 18, 88 S.Ct. 1868. The testimony offered at the hearing does not point to a single fact that would suggest that Embry may have committed or was about to commit a crime. We are pointed to the infraction of no law of the Commonwealth which the officers might have had reason to investigate. The fact that two men are leaning against a building at a busy intersection in broad daylight is hardly reason to believe that they are engaged in criminal activity. Indeed, according to their testimony, the officers’ sole reason for stopping was because the men looked like drug pushers. Yet the officers failed to relate a single articulable fact which would justify a suspicion that the two men had violated the narcotics laws.
The majority nevertheless hold that Embry’s flight is sufficient evidence of a crime in progress to justify an investigatory stop. We have held that furtive actions and flight are as significant to the existence of reasonable cause as it is to probable cause. United States ex rel. Richardson v. Rundle, 461 F.2d 860 (3d Cir. 1972), cert. denied, 410 U.S. 911, 93 S.Ct. 971, 35 L.Ed.2d 273 (1973). But no case has been cited, and none has been found, holding that running on a public street in broad daylight is sufficient without more to establish that the person running is a criminal. We noted in Richardson that flight is a proper factor to consider “when coupled with specific knowledge on the part of the officer relating the suspect to evidence of crime. . . . ” 461 F.2d at 864 (emphasis added), quoting Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967).
The facts of Richardson demonstrate that which is missing here. In Richardson, at 10:00 p. m., the police witnessed four men fleeing from a drug store which had just closed in an area hard hit by robberies which usually occurred at closing time. These are articulable facts related by the officers which justified their belief that a robbery had been committed. Here, prior to the flight, the officers knew that Embry had merely been leaning against the building. Viewed objectively, what prompted his flight was not the desire to escape from the scene of a crime, but the desire to avoid being subjected to a forcible stop and frisk. See United States v. Margeson, 259 F.Supp. 256, 264-65 (E.D.Pa.1966); Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914, 916-17 (1973).
The majority hold that, assuming that running alone is insufficient, running only after witnessing another person being frisked supplies another fact from which it is reasonable to infer criminal conduct. With due respect, this reasoning stands the fourth amendment on its head. Had the police asked Embry to answer a few questions or to submit to a search, he could have answered “No,” and walked away. 392 U.S. at 32-33, 88 S.Ct. 1868 (Harlan, J., concurring); id. at 34, 88 S.Ct. 1868 (White, J., concurring). Because he did not wait to be forcibly searched as had the man standing near him, but ran instead, we are told that it is reasonable to believe that Embry was engaging in criminal activity. The hidden assumption is that only a criminal would object to being frisked. By parity of reasoning, every refusal to consent to a search is sufficient cause to conduct the search without consent.
II
Having concluded that the pursuit of Embry was an unlawful seizure, it remains to be determined whether the heroin retrieved by the officers was the fruit of the seizure or whether it was abandoned property as the majority hold, or in “plain view” as the district court held. The law of this Circuit, as elsewhere, is that contraband thrown *560into an unprotected area within the sight of police is nevertheless not voluntarily abandoned when the defendant’s action is induced by illegal police activity. E. g., United States v. Merritt, 293 F.2d 742 (3d Cir. 1961); Lawrence v. Henderson, 478 F.2d 705 (5th Cir. 1973); Fletcher v. Wainwright, 399 F.2d 62 (5th Cir. 1968). In Merritt and Fletcher contraband was thrown from a window into an unprotected area after police had illegally entered the premises, and in Lawrence, the contraband was hidden in a police car following an illegal arrest. Similarly, Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), held inadmissible heroin which was thrown on a public street as police illegally pursued the defendant on foot. Since Embry did not throw the heroin packet until after a chase of several blocks his capture was imminent, he did not voluntarily abandon it, and the heroin must, therefore, be suppressed.3 The plain view doctrine is also inapplicable since it is axiomatic that the police must properly be in a position to have the view. *
The only justification given for the ensuing arrest was observation by Officer Miller of the aluminum packet which he recognized as a typical heroin container. Absent this evidence, the officers lacked probable cause to make the arrest.
Ill
Wholly apart from the foregoing discussion, the arrest was illegal because at the moment that the arrest was made the arresting officer lacked probable cause. To establish probable cause, the majority rely upon the testimony of Officer Miller concerning his familiarity with narcotics packaging and recognition of the package thrown by Embry as such a package. Had Officer Miller made the arrest this testimony would be relevant. However, Officer Diskin testified that he did not see Embry throw the package and that Miller did not apprise him of it until after he, Diskin, had already begun handcuffing Embry. Transcript of Suppression Hearing at 30-32. The arrest occurred no later than the point at which Embry was handcuffed by Diskin, and at this point Diskin had seen or heard nothing but the running of Embry on a public street.
It seems to me that federal courts, above all, should be careful not to adopt the end justifies the means approach to law enforcement. Unless fourth amendment rights are implemented by the courts in unpopular cases, they will surely be compromised generally and our personal security and dignity sacrificed to that extent on the altar of expediency. I would reverse.
. Of course, the officers’ testimony concerning their observation of Embry discarding the heroin and anything found in a search incident to the arrest that followed must be suppressed as illegal fruits if the heroin itself is suppressible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
. Officer Miller explained that by this statement he meant — do you have any weapons. Neither officer contended that the frisk was effected for protective purposes, however, and there is simply no testimony which points to even a subjective belief that either man was armed or dangerous.
. The prosecution’s reliance upon United States v. Martin, 386 F.2d 213 (3d Cir. 1967) (per curiam), cert. denied, 393 U.S. 862, 89 S.Ct. 142, 21 L.Ed.2d 130 (1968), is misplaced. Unlike the situation before us in Merritt, supra, we found in Martin that the abandonment of narcotics was not induced by exploitation of the initial illegality which was not directed at defendant.