United States v. Kevin L. Montgomery

LEVENTHAL, Circuit Judge:

Defendant Montgomery claims on his appeal that the “routine traffic stop” that resulted in the discovery of an unregistered firearm in the car he was driving was a “seizure” lacking the justification required by the Fourth Amendment. Because we find that the stop was not based on an articulable suspicion of criminal behavior as required by the Supreme Court’s decisions, nor sufficiently justified as part of a systematically random program of traffic stops, we order the evidence suppressed and reverse defendant’s conviction for possession of an unregistered firearm.

I. FACTS

Metropolitan Police Officers Brown and Exum first observed defendant Montgomery driving a 1963 Ford in the vicinity of 11th and K Streets, S.E., between 5:30 and 6:30 p. m. on Friday, January 24,1975. The area is mostly residential with several cor*878ner grocery stores. A few minutes after the initial sighting, the officers again saw defendant driving in the same general area. They followed him around the block in their marked police car and decided to stop him.

The officers acknowledged at trial that defendant was traveling at a moderate speed, not violating any traffic laws. The officers had already checked out the license plates — the car he was driving had not been reported stolen — and they did not have any adverse prior information about either the driver or vehicle before making the stop.

Officer Exum approached the defendant and requested his driver’s permit and the registration of his vehicle. When defendant stated that he did not have the permit and registration with him, the officer relayed his name and date of birth through their police radio to obtain computer information from the WALES system (Wide Area Law Enforcement Service). This permitted verification of defendant’s claim that he had a valid permit. Five minutes later, the officers were told that there was an outstanding traffic warrant on defendant, and they proceeded to arrest him. During a search pursuant to the arrest, the officers recovered a .38 caliber bullet from appellant’s pants’ pocket. A subsequent search of the vehicle uncovered a .38 caliber revolver and an unregistered sawed-off shot gun. The trial judge denied a motion to suppress this tangible evidence. Defendant was convicted of possession of an unregistered firearm, and possession of a firearm not identified by serial number.

Both officers described the stop of defendant’s car as a routine traffic stop to check the possession and validity of the driver’s permit and automobile registration. However, both officers also put it that the defendant had aroused their suspicions. Officer Brown testified: “He aroused our suspicion, sir, in the manner in which he was encircling the area.” And later: “it seemed unusual that he would be circling like that. There was really no business places around and . . . ” Officer Exum testified: “I observed him appeared to be watching us in the rear view mirror and looking around” Q. And what did you think at that time? A. Well, you know, wondering why, you know, why . (pausing) he was riding around the area.” (Tr. 62-63)

If the officer’s initial stop of the car was proper, so were the subsequent arrest and searches. So the trial judge held, and that finding is supported by the record. If, however, the initial stop was a violation of defendant’s constitutional right, then all the evidence discovered as a result of the stop must be suppressed.

After oral argument, we asked government counsel to provide us with copies of any regulations or instructions bearing on the subject of these traffic stops, and any records made for police department use. In addition we held this case in abeyance pending the Supreme Court’s decision in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). Subsequently, memoranda were received from a defendant in another case, given leave to file amicus curiae, and the government.

II. STOP FOR SUSPICION OF WRONGDOING

The stop of a moving vehicle— even if the period of detention is brief — involves a “seizure” within the meaning of the Fourth Amendment. United States v. Brignoni-Ponce, 422 U.S. 873, 878-82, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); cf. Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such a seizure depends on a balance between the public interest and the individual’s right to privacy free from arbitrary interference by law officers. Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. 2574; Terry, 392 U.S. at 20-21, 88 S.Ct. 1868.

In Brignoni-Ponce the Supreme Court held impermissible under the Fourth Amendment stops for questioning by the Border Patrol which were not based on a reasonable suspicion. Although recognizing that a stop was a lesser intrusion than a search, the Court was unwilling to leave the *879use of such stops to the unlimited discretion of the Border Patrol. 422 U.S. at 882, 95 S.Ct. 2574. The principle established by Brignoni-Ponce, on analogy to the “stop and frisk” decision in Terry, 392 U.S. at 21, 88 S.Ct. 1868, is that a vehicle may be stopped for questioning of the occupants when an officer has specific articulable facts which, taken together with rational inferences from those facts, reasonably warrant suspicion of criminal conduct on the part of the occupants. United States v. Torres-Urena, 513 F.2d 540, 542 (9th Cir. 1975).

In reviewing an officer’s grounds for suspicion, courts are to use an objective standard: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a [person] of reasonable caution in the belief’ that the action taken was appropriate?” Terry, 392 U.S. at 21-22, 88 S.Ct. at 1880; Torres-Urena, supra, at 542. Any lesser standard, the Supreme Court has observed,

would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result which this Court has consistently refused to sanction. [citations omitted]. “If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.”

Terry, 392 U.S. at 22, 88 S.Ct. at 1880, quoting Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

The stop in this case appears to have been made in “good faith.” But in Terry and Brignoni-Ponce the Supreme Court made it clear that good faith, accompanied only by inarticulate hunch, is not enough for even the temporary “seizure” of a stop. And that is all that appears on this record. The officers saw defendant some four or five minutes after they originally noticed him, concluded that he had driven around the block, pulled their marked police car behind him and noted that defendant watched them in his rear view mirror and looked around. This may have been reason for an officer to become suspicious enough to keep an eye on defendant. But it can hardly be deemed to be an objective indicator of reasonable suspicion of criminal conduct. There are perfectly legitimate reasons for circling a block, perhaps looking for an address in an unfamiliar neighborhood, or for a parking place close to the address sought, or waiting to meet a friend when parking at or near the location is unavailable. We are no further influenced by the assertion that “defendant appeared to be watching us in the rear view mirror and looking around.” To consider mirror glance as enough for a seizure, however temporary, is to accept the adequacy of “inarticulate hunches.” Drivers simply do take notice when the police are nearby, and a person circling a block for whatever reason would take notice of a police car following him.

The inarticulate hunch, the awareness of something unusual, is reason enough for officers to look sharp. Their knowledge and experience identify many incidents in the course of a day that an untrained eye might pass without any suspicion whatever. But awareness of the unusual, and a proper resolve to keep a sharp eye, is not the same as an articulated suspicion of criminal conduct. Defendant’s acts, as reported, were too innocuous to warrant the intrusion of a temporary seizure for questioning.*

The general principle that the police may stop for questioning when they have a founded suspicion of criminal behavior includes as a necessary corollary the rule that the police may stop and question the driver of a vehicle when an infraction of the motor vehicle code is seen or suspected. It may be enough that the license plates of the car are partially obscured, or are clean when the rest of the car is dusty, or that some defect in the car is visible, or that the *880car is being driven in an erratic manner. Even a relatively minor offense that would not of itself lead to an arrest can provide a basis for a stop for questioning and inspection of the driver’s permit and registration.1 However, the stop here was not for an observed or suspected violation; the driver’s ability was unchallenged, the plates were visible, and the car had not been reported stolen. In sum, we do not feel that the prosecution has presented facts giving rise to a founded suspicion of wrongdoing.

III. PERMIT & REGISTRATION INSPECTION

We turn to the government’s contention that the stop was legally justified as a routine permit inspection. The government argues that police officers have “unqualified” 2 authority to stop motor vehicles for the purpose of inspecting the drivers’ permit and registration cards which operators of vehicles are required to carry.3 Reliance upon the “administrative” nature of the stop does not supply the requisite justification. “The fact that the purpose of [traffic stop] laws is said to be administrative is of limited relevance in weighing their intrusiveness on one’s right to travel . . . .” United States v. Martinez-Fuerte, 428 U.S. 543, 560 n. 14, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976).

A broad discretion to make the kind of temporary seizure involved in stops for permit inspection includes a significant intrusion on personal mobility and privacy. That kind of inspection stop involves not only a seizure of the car, but often, perhaps typically, a visual inspection of the interior of the car.4 The stop is not momentary, but leads to delay — several minutes — to complete a radio check for outstanding traffic warrants. A stop for this purpose will typically be inconvenient and, depending on the personalities and circumstances, may well be embarrassing, perplexing or even fraught with anxiety. A permit-inspection stop is less of an interference then a full search, but it has qualities of intrusiveness that cannot be gainsaid.

On the other side is the public interest in enforcing the vehicle control laws, and the permit and registration requirements. This *881interest is substantial, and must be given respectful consideration. Still, it would not seem to be any more weighty then our interest in stemming the flow of illegal immigrants into this country, see United States v. Ortiz, 422 U.S. 891, 900, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975) (Appendix to Opinion of Chief Justice Burger, concurring in the judgment). In addition, the need for individual traffic stops as a means of enforcing the traffic laws is less pressing if there are other less intrusive techniques which may be used to achieve the same goals. See United States v. Brignoni-Ponce, 422 U.S. 873, 883, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

We approach the problem before us with an awareness that the “practice of stopping automobiles briefly for questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use.” United States v. Martinez-Fuerte, 428 U.S. 543, 560 n. 14, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976). But this history does not answer the question before us: assuming that police do have the power to conduct stops for permit inspection, under what circumstances may it be exercised?

In Brignoni-Ponce, 422 U.S. at 883 n. 8, 95 S.Ct. at 2581, the Court observed, “Our decision thus does not imply that state and local enforcement agencies are without power to conduct such limited stops as are necessary to enforce laws regarding drivers’ licenses, vehicle registration, truck weights, and similar matters.” The Court did not discuss what kinds of “limited” stops it would view as “necessary” for the enforcement of these laws. Other Supreme Court decisions similarly reserve this question.5

The underlying reasoning of the border search cases, however, does provide a meaningful framework for analysis of the vehicle stop problem. First, in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the Court held unconstitutional the Border Patrol’s practice of searching automobiles without probable cause and without consent, simply because they could be found within 100 miles of a U.S. border. The Government attempted to justify this practice by relying heavily on cases dealing with administrative inspections. E. g., Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). In rejecting this line of argument, the Court emphasized that the search at issue “was conducted in the unfettered discretion of the members of the Border Patrol . precisely the evil the Court saw in Camara when it insisted that the ‘discretion of the official in the field’ be circumscribed by obtaining a warrant.” 413 U.S. at 270, 93 5. Ct. at 2538. The Court rejected the other administrative inspection cases partly on the grounds that the private motorist did not, like a businessman in an intensely regulated industry,6 subject himself to the full rigors of administrative inspection simply by using the public highways. See 413 U.S. at 271, 93 S.Ct. 2535.

*882In the next of this series of cases, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court was concerned with stops rather than searches. It held that members of a roving border patrol team could not stop and question passing motorists unless the officers had reasonable basis for suspecting that the private vehicles contained illegal aliens. The primary reason given for imposing this restriction on the operations of the Border Patrol was the Court’s appreciation that an unlimited discretion to stop vehicles was a threat to individual freedom to use the highways.

To approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. The only formal limitation on that discretion appears to be the administrative regulation defining the term “reasonable distance” in § 287(a)(3) to mean within 100 miles from the border. . . . Thus, if we approved the Government’s position in this case, Border Patrol officers could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000 mile border, on a city street, a busy highway, or a desert road, without any reason to suspect that they have violated any law.

422 U.S. at 882-83, 95 S.Ct. at 2581.

The Court further articulated its objections to discretionary stops in the companion case, United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), in which it struck down discretionary searches at fixed Border Patrol checkpoints. The Court recognized two grounds for distinguishing between police action taken at a fixed checkpoint and that taken by roving patrols:

First, a checkpoint officer’s discretion in deciding which cars to search is limited by the location of the checkpoint. That location is determined by high-level Border Patrol officials, using criteria that include the degree of inconvenience to the public and the potential for safe operation, as well as the potential for detecting and deterring the illegal movement of aliens.
Second, the circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.

Although the Court found that these differences were not sufficient to justify discretionary searches at the checkpoints, it noted that “the differences between a roving patrol and checkpoint would be significant in determining the propriety of the stop, which is considerably less intrusive than a search.” 422 U.S. at 894, 95 S.Ct. at 2587.

Finally, in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Court relied on these differences to uphold routine stops without suspicion at Border Patrol checkpoints. Checkpoint stops were seen to be less than roving stops because:

the subjective intrusion — the generating of concern or even fright on the part of ■ lawful travelers — is appreciably less in the case of a checkpoint stop.

Id. at 558, 96 S.Ct. at 3083. The fixed location was seen to be an important limitation on the discretion of the individual officials:

The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less *883room for abusive or harassing stops of the individuals than there was in the case of roving patrol stops.

Id. at 559, 96 S.Ct. at 3083.7

From these Supreme Court decisions we draw several conclusions. First, the intrusiveness of a police stop of a private motorist is to be measured not only by objective criteria, such as the period of time for which the vehicle is detained, but also in terms of the stop’s subjective impact. A roving police stop is a more serious intrusion than a predicted checkpoint inspection, because the unexpected stop is pregnant with greater annoyance and inconvenience, and more likely to frighten or embarrass.8

Second, the possibilities for stops that are harassing or more intrusive are heightened by a rule that vests the field officer with absolute discretion to stop and question passing motorists. Under that formulation there can be no effective control over arbitrary or harassing police action. The discretion of the field officer can be controlled, however, by a program staked out in advance by superior officials, which includes as safeguards specific instructions to be followed by field officers.

These principles, evolved for governance of the vexing problem of police checks for illegal aliens, can be given appropriate application so as to control police activities in enforcing the motor vehicle laws. An unexpected police stop for a driver’s license inspection may cause the same subjective reactions as a stop for any other law enforcement purpose.9 The same possibilities for police abuse are present in the unchecked power to make stops for asserted “traffic” purposes. However, the conduct of vehicle stops in accordance with instructions issued by the superior officials as part of a publicly understood program for enforcement of the motor vehicle laws may reduce both police abuse and citizen apprehension to a level consistent with the Fourth Amendment’s objectives.10

Martinez-Fuerte indicates one permissible format would use predetermined checkpoints, at which vehicles could be stopped for permit inspection. These could be changed to different locations, with frequent rotation. Public response to such a systematic program would insure that it does not become too burdensome to individual citizens. It would not be necessary to stop every vehicle passing each checkpoint, *884as long as a regular procedure was followed.11

Roving patrol cars might also be permitted to make vehicle stops assuming appropriate instructions. Random stops would be permissible, provided they are truly random. The important point is that the stops be made in some systematic fashion, prescribed in advance by superiors.

Stops are not random simply because they are left to the officer’s discretion. In that formulation there lurks the possibility that assertedly “random” stops will be used to harass where reasonable grounds for suspicion do not exist. The courts have had experience with stops represented as a “random traffic stop” but found to be a pretext for investigation of other matters.12

Our views on the problem of traffic stops are generally congruent with the decisions of other courts. The courts have approved the use of roadblocks and other systematic procedures for stopping automobiles for permit inspections.13 Yet several courts have disapproved of police techniques which permit field officers to single out individual motorists for questioning,14 and other courts have specifically reserved judgment as to the constitutionality of such discretionary stops.15 Of our sister circuits, only one, the Fourth,16 has announced that a roving po*885lice patrol has complete discretion in stopping individual motorists. With all deference, that opinion relied on precedents subsequently limited and questioned (see note 16), and chose to speak broadly on facts (the stop of a truck “tipped” on a warehouse theft) which came within the ambit of the Terry standard of articulable suspicion.

We have examined with particular care the decision of the District of Columbia Court of Appeals in Palmore v. United States, 290 A.2d 573 (1972), aff’d on jurisdictional grounds only, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1972). In that decision the court upheld permit inspection stops as necessary to enforce the motor vehicle laws. 290 A.2d at 582. It then confined its holding in the following way:

We hasten to add that the courts, including ours, have warned law enforcement officers, specifically and emphatically, that a so-called “spot check” is not to be “used as a substitute for a search for evidence of some possible crime unrelated to possession of a driver’s permit.” Min-cy v. District of Columbia, 218 A.2d 507, 508 (D.C.App.1966), (and the cases cited at 508 n. 3).

Id. While the language of this opinion is somewhat more permissive than our own, we note that it was decided before the Supreme Court’s decisions in Brignoni-Ponce and Martinez-Fuerte, and their guidance on the intrusiveness of discretionary stops.

Upon application of these legal standards to the facts of this case, it is clear that the police officers’ stop of defendant’s car cannot be justified as a “spot” check. The police officers admitted that defendant’s car had not been randomly selected, but chosen because it aroused their suspicion. Although the trial judge originally thought that the stop was justified as a “routine traffic stqp,” at the rehearing of the motion to suppress after the trial he concluded:

The evidence in this case was that the officer saw this defendant cruising repeatedly through a particular neighborhood, looking around in a suspicious manner. And from that a reasonably prudent officer could conclude that he might well have been trying to case some place in the neighborhood, or what not, . . .”

(Tr. 11).

In short, this was a stop to discover evidence where no adequate grounds for suspicion existed. This inspecting of defendant’s driver’s license was not conducted for the purpose of enforcing the vehicle control laws, but was a maneuver for investigating defendant’s “suspicious” conduct.

The considerations underlying our conclusion concerning the invalidity of the discretionary permit-stop are confirmed by the record evidence indicating how the so-called vehicle spot check program in force in the District of Columbia is being used. A departmental order states that officers are authorized to stop motor vehicles “at random” to determine whether an operator has in his possession a valid operator’s permit and recites that the justification for such “spot checks” is limited to assuring that only properly qualified persons operate motor vehicles.17 The reality, however, as it emerges in the testimony, is that the indi*886vidual police officer is free to use the vehicle spot check authority as a basis to stop and question any vehicle driver he pleases, on bare suspicion of other possible crimes past or potential.

Officer Exum’s testimony confirms the foregoing. On cross-examination the following colloquy occurred:

Q. . Officer, let me ask you this. What criteria, or what situations, under what situation or what criteria do you personally use in making what we call a routine traffic check, or spot check if someone has an operator’s permit, or a registration with him? (Pausing) In other words, in what situations do you make this traffic stop?
A. Well, there are several. If he commits a violation, you know, if he is acting in a suspicious manner and you observe him several times in any area, you know, that you may think he’s — he may be thinking about— he’s about to, or have committed a crime.

Additionally corroborative of the purpose for which spot checks are being used are the elaborate records which the police department requires the field officers to keep.18 After each stop, the officer is directed to fill out a card on which there are blanks for the citizen’s race, sex, date of birth, height, weight, color of eyes and hair, complexion, scars, tattoos, clothing, facial hair and nickname.19 Why would the police need this information, in addition to the name and address of the driver and the place, time and purpose of the stop, if the purpose is that of enforcing the motor vehicle code? Officer Exum’s testimony continues:

The main purpose of the spot check is to obtain the identity of the subject, a description of the subject. We have a 3 X 5 card that we put this information on and it is sent to the precinct of that area in case of ... a subject fitting a description, you know, later of crime committed in that area and the subject, if we get a lookout, we have a — we may have the description of that subject on a 3 X 5 card.” (Tr. 68).

Thus, in Officer Exum’s understanding, the spot-check program was to gather information about the whereabouts and activities of various “suspicious” citizens, in case a criminal act was later reported in the vicinity. Government counsel do not contend on appeal that the Exum testimony gives a misleading impression of prevalent police practice, but instead defend the result as permitted by the plenary discretion of police officers to make stops.

The exercise of the police power to stop motorists for such surveillance purposes is clearly contrary to the spirit of the Fourth Amendment. This is not to say that patrolmen may not observe and take notes of unusual, or even usual, occurrences on their beat; such vigilance is the hallmark of good police work. A policeman may address questions to anyone on the street. But the person may not be detained merely because he refuses to cooperate and goes on his way. White, J., concurring in Terry v. Ohio, 392 U.S. at 34, 88 S.Ct. 1868. Here we have an assertion of a police right to engage in greater intrusions — a right to stop a moving vehicle, and to compel responses (documents). The use of the state’s coercive power to detain citizens, without reasonable suspicion, and interrogate them to create a record of their activities, involves an interference with individual autonomy which cannot be reconciled with American notions of personal privacy and mobility.

We find in the District’s vehicle spot check procedures the same features that *887led, in Gomez v. Wilson,20 to judicial condemnation of the District’s program for surveillance of pedestrians. Under that program, the police could, regardless of whether grounds for a Terry stop existed, detain and question any “suspicious” person on the city streets about his or her activities. The information obtained from the interrogation was recorded on a form similar to the 3X5 card involved here, and then indexed and cross-indexed in police files21 This practice was held unconstitutional in a direct challenge in civil litigation,22 and the District did not appeal.23 That aspect of police power with which Gomez was concerned — discretionary authority to stop and question citizens — lies at the heart of the District’s traffic check program. Because it carries with it the same potential for abuse that was demonstrated in Gomez, that power must be subjected to clear programmatic instructions designed to reduce the intrusiveness of the stops and limit the possibilities for harassment. Indeed, we note that the practices declared unconstitutional in Gomez actually began as an extension to pedestrians of the “spot” check program involved in this case. See 323 F.Supp. at 90. This growth of one unconstitutional program from another evidences the potentially cancerous nature of excessive police power.

IV. CONCLUSION

Any decision that holds a “stop” to be an unlawful intrusion on privacy invites hyperbolic opposition on the ground of unreasonable interference with police officers who were only acting reasonably in coping with criminals. Of course those who come into court are criminals. The other citizens who were stopped and delayed in their pursuits are not charged and so the cases do not erupt in court.

Doubtless more crimes would be solved if all persons were subject to unrestricted police authority to stop and identify. Why not, it might be argued, since the innocent will have nothing to hide? If one is not sensitive to the implications for an open society, no amount of comment can explicate.

Once it is accepted that the police are subject to some restraint, the issue is one of drawing the line. In this case we have proceeded deliberately. There has been delay while we awaited Supreme Court guidance. And a court is cautious before determining to overturn a conviction notwithstanding evidence of guilt. Indeed, we denied defendant’s application for release pending appeal, despite the running of time on a sentence of an indefinite period, and notwithstanding the malaise signaled by the divergent rulings of the district court.

As to the merits, the Supreme Court has laid it out that the police do not have an unrestricted right to stop people, either pedestrians or drivers. The “good faith” of the police is not enough, nor is an inarticulate hunch. They must have an articulable suspicion of wrongdoing, done or in prospect. In this case there was nothing more than a hunch, the driver was circling the block in a residential neighborhood, and when he discovered that the police were following him he looked at them in the rear view mirror.

This record reflects another problem: the police approach that nothing much is involved in a stop to ask a driver for vehicle registration and permits. Of course, a vehicle stop gives more than that, an opportunity for surveillance. The power to make stops at will gives power to pick and choose arbitrarily. Some judges apparently seem ready to accept that position.24 Indeed, in *888the case at bar the trial judge began by accepting wholeheartedly the prosecutor’s argument that there was unrestricted authority to make a vehicle stop. Later on, he blended that with a ruling that in this case there was reasonable suspicion. Suspicion, perhaps, but reasonable and articulable suspicion? Not on this record.

What seems to be emerging is a third tier. Probable cause for arrest. Reasonable suspicion for a pedestrian stop. And “slight” suspicion for a vehicle stop to inspect papers. We do not think this is the fair import of the Supreme Court decisions.

We respect the need to enforce the motor vehicle codes, but this does not require authority for purely discretionary traffic stops. Where articulable grounds for suspecting a violation are present, the police may still stop and question. They may also stop motorists on a regularized basis — at checkpoints, or on a truly random selection. But the police cannot use “spot check” as a talisman to justify stops — while modifying the core concept of spot check to drop the characteristic of a sample or random selection, retaining only the characteristic of haste.25

Our ruling today is predicated on the assumption that systematic procedures available to the police are indeed adequate to enforce the motor vehicle laws. If these prove unworkable or ineffective, and the Metropolitan Police Department issues regulations in support of different procedures on the ground that these are workable, the issues raised herein will be ripe for reconsideration. Until that time, however, we expect that traffic stops will be made in a manner consistent with the freedoms of our citizens as outlined in this opinion.

In saying that the vehicle stop before us lacked justification we do not close the door to a systematic rethinking by the police department of the elements of a reasonable and perhaps necessary vehicle “stop” program. With efforts at the supervisory level to develop standards, and to proceed on something more than an assumption of virtually untrammeled latitude to stop vehicles for paper inspection, there may be room for an approach that permits a vehicle stop on an articulable suspicion that is not as strong as that required for a more protracted Terry stop. There will always be room for judgment of the individual police officer. The provision of standards as an even-handed framework for the exercise of judgment by the individual police officer provides the kind of restraint on arbitrariness that identifies the Supreme Court’s border area rulings. With his characteristic felicity, Justice Jackson struck close to the mark in discussing the philosophy of the equal protection clause. Concurring in Railway Express Agency v. New York, 336 U.S. 106, 112-13, 69 S.Ct. 463, 467, 93 L.Ed. 533 (1949), he said:

[N]othing opens the door to arbitrary action so effectively as to allow . officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.

Reversed and remanded for further proceedings not inconsistent with this opinion.

Cf. United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977) (observation of several factors listed in the DEA “drug courier profile” not sufficient for reasonable suspicion for a stop, since activities were consistent with innocent behavior).

. United States v. Weston, 151 U.S.App.D.C. 264, 466 F.2d 435 (1972). In that case a police officer on foot patrol saw a bag of trash thrown into the street from the left front side of an idling car. When the officer approached the car the defendant picked up the bag and returned it to the car. The officer then asked to see the defendant’s driver’s license and car registration, they were not at hand and this led to an arrest. Appellant argued the trash throwing was only a “minor” offense, which the officer had no intention of prosecuting (Appellant’s Brief at 13), and that the “incident was over” when the trash was removed (at 267, 466 F.2d at 438). The Court held, however, that the “progression of events warranted all that the officer did.” At 268, 466 F.2d at 439. The officer’s authority to make inquiry of the defendant was not terminated by the retrieval of the bag, and the defendant’s scofflaw conduct from the vehicle provided adequate grounds for a check to see whether his driving credentials were in order.

. Appellee’s Brief at pp. 14-15. “If the police are permitted only to stop motorists who actually violate the law or act suspiciously at a given time, effective enforcement of the traffic regulations would be thwarted.”

. The District of Columbia Motor Vehicle Code requires that “Any individual to whom has been issued a permit to operate a motor vehicle shall have such permit in his immediate possession at all times when operating a motor vehicle in the District and shall exhibit such permit to any police officer when demand is made therefor.” 40 D.C.Code § 301(c) (1973). Another provision of the Code requires that every vehicle be registered and that the registration be kept in the vehicle or in the operator’s possession. 40 D.C.Code § 104(a) (1973).

. Under the standard operating procedure of the District of Columbia police department, one officer will take a position on the right side of the vehicle where he can keep the occupants under surveillance, using a flashlight if necessary to peer into the interior of the car. A second officer can then approach the driver’s window and ask his questions with less chance of attack. See, e. g., Palmore v. United States, 290 A.2d 573, 581 (D.C.Ct.App.1972), aff’d on jurisdictional grounds only, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342. These precautions, one commentator has observed, “have the net effect of expanding the document check into a general inspection of a car’s interior and of its occupants.” Note, Automobile License Checks and the Fourth Amendment, 60 U.Va.L.Rev. 666, 672 (1974).

. In United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975), the Court noted that probable cause might not be required for inspections of private motor vehicles and stated “It is quite possible, for example, that different considerations would apply to routine safety inspections required as a condition of road use.” 422 U.S. at 897 n. 3, 95 S.Ct. at 2589.

In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Court recognized that a holding which prohibited all stops for questioning on less than some quantum of individualized suspicion might prevent enforcement of laws relating to drivers’ licenses, safety requirements, weight limits and similar matters. It reserved judgment, however, as to the circumstances under which such stops are permissible. Id. at 560 n. 14, 96 S.Ct. 3074.

. Almeida-Sanchez pointed out that in Colonnade the Court had stressed the long history of federal regulation and taxation of liquor, see 397 U.S. at 76-77, 90 S.Ct. 774, and that in Biswell the Court had noted the pervasive system of regulation and reporting imposed on licensed gun dealers, see 406 U.S. at 312 n.1, 315-16, 92 S.Ct. 1593. 413 U.S. at 271, 93 S.Ct. 2535.

. Because stops at a fixed checkpoint were seen to be minimally intrusive, the police were permitted to use their discretion to select from the cars passing the checkpoint a limited number for diversion and questioning. Martinez-Fuerte at 563-64, 96 S.Ct. 3074.

. The D.C. police have been sufficiently sensitive to the problem for the superiors to issue instructions that the officers give to each detained motorist a signed form explaining that they are only conducting a routine “spot” check. General Order No. 303.1 I.H. (Effective Date August 1, 1974) provides

Members of the department who conduct spot checks, in addition to extending the usual courtesies, shall carry and give to each motorist stopped for that purpose, a “Departmental Spot Check Form” explaining the purpose and necessity of the spot check procedure. The form shall be signed by the issuing officer and given to the motorist at the time the officer returns the operator’s permit and vehicle registration document.

See also Tactical Branch Memorandum by Captain Bryant A. Hopkins, February 25, 1975 (noting that field officers were not complying with instruction to give out forms, and emphasizing this requirement). The form, entitled “What This ‘Spot Check’ Means To You” states:

We as police officers, frequently stop motorists in various areas of the city for routine traffic or “SPOT” checks. This is done to combat the many serious injury and property damage accidents caused by unlicensed operators. We also do it to combat the extensive stolen auto problem which is not confined to any one area and affects many persons.

This document may moderate embarrassment or vexation for delay, but it does not eliminate the impact of the stop.

. In addition, a stop for permit and registration inspection, including inspection of both documents, completion of the Police Department’s Form 76, and a WALES computer check by radio, may take considerably more time than the one minute check for citizenship in the border stop cases. See United States v. Brig-noni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

. See Note, Automobile License Checks and the Fourth Amendment, 60 Va.L.Rev. 666, 693-95 (1974).

. See note 7, supra.

. E. g., United States v. Carrizoza-Gaxiola, 523 F.2d 239 (9th Cir. 1975); United States v. Cupps, 503 F.2d 277, 282 (6th Cir. 1974); People v. McPherson, 550 P.2d 311, 314 (Colo. 1976); State v. Colley, 229 N.W.2d 755, 758 (Iowa 1975); Palmore v. United States, 290 A.2d 573, 582 (D.C.1972), aff’d on jurisdictional grounds only, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1972); State v. Holmberg, 194 Neb. 337, 231 N.W.2d 672, 678 (1975); People v. Harr, 93 Ill.App.2d 146, 235 N.E.2d 1 (1968).

. United States v. Croft, 429 F.2d 884, 886 (10th Cir. 1970); People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39, 44 (1975); People v. Andrews, 173 Colo. 510, 484 P.2d 1207, 1209 (1971); Morgan v. Town of Heidelberg, 246 Miss. 481, 150 So.2d 512 (Miss.1963); Commonwealth v. Mitchell, 355 S.W.2d 686 (Ky.1962); see United States v. Cupps, 503 F.2d 277, 280 (6th Cir. 1974) (citing Mitchell, supra, with approval); see also People v. Swanger, 453 Pa. 107, 307 A.2d 875, 877 n.3 (1973) (distinguishing systematic or roadblock stops from selective enforcement).

. State v. Ochoa, 112 Ariz. 582, 544 P.2d 1097 (1976); People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975); People v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); see United States v. Croft, 429 F.2d 884, 886 (10th Cir. 1970).

. United States v. Cupps, 503 F.2d 277, 280 n.7 (6th Cir. 1974); United States v. De Marco, 488 F.2d 828, 831 n.6 (2d Cir. 1973); United States v. Nicholas, 448 F.2d 622, 626 (8th Cir. 1971).

Some state courts have upheld selective stops to enforce the motor vehicle laws, State v. Holmberg, 194 Neb. 337, 231 N.W.2d 672 (1975); State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973); Palmore v. United States, 290 A.2d 573, aff'd on jurisdictional grounds only, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1972); State v. Gray, 59 N.J. 563, 285 A.2d 1 (1971); but two of these decisions expressly state that a routine traffic stop may not be used as a pretext to investigate other suspected criminal activity. State v. Holmberg, supra, 231 N.W.2d at 678; Palmore v. United States, supra, 290 A.2d at 582-83. It has also been pointed out that the stop in State v. Allen, supra, could have been upheld on Terry principles of “articulate suspicion.” Note, Automobile License Checks and the Fourth Amendment, 60 U.Va.L. Rev. 666, 674 (1974).

. United States v. Kelley, 462 F.2d 372 (4th Cir. 1972).

The Fourth Circuit relied on a decision of the Eighth Circuit, United States v. Turner, 442 F.2d 1146 (8th Cir. 1971), which was later virtually confined to its facts. United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971). The Fourth Circuit also cited a 1965 decision of the Ninth Circuit, D’Argento v. United States, 353 F.2d 327 (9th Cir. 1965), cert. denied, 384 U.S. 963, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966), which in turn relied on that court’s decision in Lipton v. United States, 348 F.2d 591 (9th Cir. 1965). In 1975, the Ninth Circuit, taking note of the intervening Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), questioned the vitality and limited the scope of its earlier Lipton opinion. United States v. Carrizoza-Gaxiola, 523 F.2d 239, 241 (9th Cir. 1975).

The Fifth Circuit, in 1967, approved “reasonable roadchecks to ascertain whether man and machine meet the legislative determination of fitness,” Myricks v. United States, 370 F.2d 901, 904 (5th Cir. 1967), cert. dism’d, 386 U.S. 1015, 87 S.Ct. 1366, 18 L.Ed.2d 474 but the breadth of this holding is not clear. Similarly unclear is the scope of the Tenth Circuit’s decision in United States v. Lepinski, 460 F.2d 234, *885237 (10th Cir. 1972). Finally, it should be noted that all of these decisions preceded the Supreme Court opinions in Brignoni-Ponce (June 30, 1975) and Martinez-Fuerte (July 6, 1976).

. General Order, Series 304, No. 10 (Effective July 1, 1973) provides at p. 9:

D.C.Code § 40-301(c) (1967) provides that, for the safety of the public, every motor vehicle operator is required to obtain a permit and have that permit in his immediate possession while operating a motor vehicle in the District of Columbia. The operator is further required to exhibit the permit to any police officer upon demand. Because of these requirements, officers are authorized to stop motor vehicles at random to determine if an operator has in his possession a valid operator’s permit.

It continues at p. 10:

Vehicle spot check authority is a valuable tool in assuring that only properly licensed and qualified persons operate motor vehicles on District of Columbia streets. It has no other justification, however, and shall not be used as a means to support other police-citizen encounters not specifically authorized under one or more sections of this order.

. General Order 304, No. 10, supra, provides at p. 11:

Whenever a vehicle is stopped under motor vehicle spot check authority pursuant to part I, paragraph D of this order, in addition to the form explaining the purpose of the spot check which is to be given to the motorist, the officer conducting the vehicle spot check shall complete a PD Form 76, which shall be forwarded to his commanding officer.

. Police Department Form 76 (June, 1973).

. 323 F.Supp. 87 (D.D.C.1971), on appeal, 155 U.S.App.D.C. 242, 477 F.2d 411 (1973).

. 323 F.Supp. at 90 n. 4.

. 323 F.Supp. at 93.

. 155 U.S.App.D.C. at 245 & n. 10, 477 F.2d at 414 & n. 10.

. See, e. g., oral ruling of Corcoran, J., in United States v. Gibson (D.D.C. July 6, 1976):

“. . . as a matter of fact, 1 don’t find it an unreasonable procedure for the police to spot check a driver in this day and age when the automobile is king and there are so many *888horrible drivers on the road, and so many people are using the highways for illegal purposes.
[I]n the public interest, the police should have the power to spot check at will without having to find the driver speeding or to find the driver going down the wrong way, and what not, on a one-way street.”

This was called to our attention by memorandum of amicus curiae.

. The requirement of random or sample appears in the dictionary definitions of “spot check” contained in, e. g., Webster’s New In-ternan Dictionary, Third ed. (1961); American Heritage Dictionary (1969); Random House Dictionary (1966). Laxity appears in some dictionaries to permit use of the term in a secondary meaning, for a check made quickly even though lacking the characteristic of a sample. E. g. World Book Dictionary (1967 ed). This relaxation in language does not warrant relaxation in law.