dissenting:
This is precisely the type decision which has given the exclusionary rule a bad name. *889The officers here did what their training had taught them to do; they did in fact what any citizen except the offender here would have had them do.1 Their conduct was reasonable under the circumstances; in my view they violated no one’s constitutional' rights. Yet two of my colleagues here hold that they crossed a constitutional line so fine that it has taken us more than a year of time to draw it.2
I
The majority holds that police officers on normal patrol in a neighborhood with which they are intimately familiar cannot stop a driver (or inferentially a pedestrian) to identify him when suspicious circumstances have been personally observed by the officers. In practical effect, they must wait for a crime to be committed before taking effective action. For continuous, prolonged observation of the suspect, keeping “a sharp eye” as recommended by the majority,3 will result in causing the suspect’s departure to wait for a more propitious time. And, according to the majority,4 the officers are forbidden even a simple stop to identify the suspect so that, if later a crime does occur with a description of the offender matching this suspect, the police will know for whom and where to look.
Within five minutes of the stop here the police had ascertained:
1. His name, address, physical description, date of birth, and auto operator’s license — which is all the police would have sought to ascertain if nothing further had come to their attention. But something did.
2. The suspect had an arrest warrant outstanding against him. The officers then conducted a search.
3. He had a .38 caliber bullet in his pants pocket;
4. A .38 caliber Smith & Wesson Magnum revolver without serial number, loaded with six rounds, in the car; and
5. An unregistered sawed off shotgun with shells in the car.
My colleagues would exclude all this on the ground there was no reasonable suspicion justifying the original stop.5
This standard cannot give us the reasonably effective police protection to which our citizens are entitled, nor does it permit the type police action which I believe the Supreme Court has sanctioned in its decisions for many years. All cases of this type turn on the combination of circumstances visible to the officers at the moment, and the combinations are of an infinite variety. This was a stop on suspicion which, however crudely, the officers did articulate.6 The officers were trained and experienced. *890They were thoroughly familiar with this neighborhood. Actions, gestures, even a failure of an individual to do the normal and expected thing, would carry positive meaning to them, would create a “reasonable suspicion” in them when the same incidents would neither attract notice nor much less create curiosity in the average passerby. The neighborhood was mostly residential, not business. The driver Montgomery was circling the block, repeatedly. “We saw him on several occasions in the area.” “. . . [I]t seemed unusual that he would be circling like that.” (Presumably the officers would not have stopped a driver doing the same thing for the same length of time in front of Union Station.) “. [T]he speed at which he was traveling? . [A] little slow, that’s all.” “He appeared to be watching us in the rear view mirror.” The date was in January, the time of the arrest was 6:00 p. m., street lights were on.
Of course, there are innocent explanations for all these observed activities. Likewise, there are innocent explanations for the wheel man parked in front of the bank while it is being robbed, running his engine in preparation for the getaway. There could be an innocent explanation for any conceivable set of circumstances, no matter how damning. The officers’ job is to look at what is visible,7 weigh the possibilities and probabilities of a valid innocent explanation as contrasted with the chance that mischief is afoot, and then determine on the spot at the moment if at least inquiry is warranted.
That is all the officers did here. Four federal judges have now analyzed this really simple, far from ordinary set of circumstances with the great clarity of hindsight. The District Judge and I think the officers had a reasonable suspicion and did the right thing; my two colleagues think not, and so the convictions for carrying a .38 caliber pistol and a sawed off shotgun will be voided.
II
It would be a useless expenditure of judicial energy for me to write a lengthy dissent in this case. The recent Supreme Court decisions on the Fourth Amendment and the exclusionary rule are there for all to read. The majority cite only Terry v. Ohio (1968)8 and United States v. Brignoni-Ponce (1975)9 from the Supreme Court10 on the critical issue of “Stop For Suspicion of Wrongdoing,” 11 and neither on its facts is decisive or even very helpful in deciding Montgomery’s case on motion to suppress. What we have here is a Terry -type stop, but of a driver, which necessitates stopping the car for a brief inquiry. I submit that, if Montgomery had been a pedestrian doing comparable things, the officers would have been entitled to engage him in conversation long enough to take a good look at him and establish his identity — which is all the officers wanted here, in the absence of discovery of any further suspicious circumstances.
*891The case which is closest on the facts and law is United States v. Willie Robinson (1973)12 in which the Supreme Court reversed a 5-4 en banc decision of this court suppressing evidence. In Willie Robinson the officer had learned that the record in the License Bureau did not square with the driver’s license previously exhibited by Robinson; here, comparably, the officers observed the suspicious circumstances of the driver’s conduct in the immediate neighborhood. In Robinson the officer’s knowledge was acquired some four days earlier; here the knowledge was gained a few minutes prior to the stop and acted on (necessarily) immediately. In both cases the officers had knowledge of suspicious facts which inspired their further inquiry, which in turn resulted in a search and discovered evidence of a hitherto unsuspected crime. Robinson and Brignoni-Ponce both hold that a stop on “reasonable suspicion” is valid, and that is Montgomery’s case.
To me it is highly significant that in the last complete term of the Supreme Court (September 1975 — July 1976) there were eight search and seizure exclusionary rule eases; in all eight the Court reversed a state or lower federal court decision suppressing evidence.13 Without in any way arguing that the facts in all these cases are comparable to that of Montgomery here, I submit that a reading of these eight decisions cannot do other than demonstrate that the hypertechniealities which were for some time in vogue are no longer to be applied in search and seizure cases, where the conduct of the officer in making a stop, an arrest, and accompanying search is eminently reasonable, in no way offensive to standards of reasonable proper conduct by which we would have police guided under equivalent circumstances in making stops and searches of any citizen, including ourselves. The message should come through loud and clear, especially to the court which decided Willie Robinson.
Ill
Not only is the majority decision, in my judgment, wrong on current Supreme Court standards, but it — the facts and the legal principles enunciated — serves as a perfect example of why we shall never be able to solve one of our most pressing urban social problems, so long as judicial decisions like this persist. Control of handguns in this country, whether by laws presently on the books or by any proposed laws of which I have heard, can never be remotely effective so long as the police are restricted in even inquiry, and likewise search and seizure, as the principles of this decision do here. We have laws in the District of Columbia sufficiently effective to convict Montgomery on two charges, and sufficiently broad to say that he could never legally have possessed that pistol and sawed off shotgun anywhere anytime.
Laws on the books are only as effective as they can be effectively enforced. No *892country in the English-speaking world14 (and none of which I am aware in those parts of the world having the European civil law system) has a rule excluding material evidence illegally obtained. In every country, material evidence, if probative and authentic, comes in without question as to the legality of its acquisition by the prosecution.15 Only in the United States must the police meet a standard of “reasonableness” or “probable cause,” imposed by a court after the event, such as laid down here, on penalty of having the evidence excluded and the prosecution quashed.16 And only in the United States do we have the terrible problem of the handgun, and crime attributed to handguns, in our society.17
This is an issue which I believe has been avoided and evaded by proponents of stricter gun control legislation, because, I suspect, the people most ardently championing stricter gun control are in many instances those who favor a very high standard of probable cause under the Fourth Amendment to justify police searches for weapons and the exclusionary rule as a penalty for violations. Without in any way taking either side in the gun control legislation debate, and without voicing any philosophical, historical, or legal argument on the proper standard of reasonableness under the Fourth Amendment, I simply point out this practical contradiction in the position of many sincere partisans in both debates.
I do assert that so long as courts adhere to a standard of reasonableness or probable cause as enunciated by the majority here on these circumstances, and then enforce the exclusionary rule (as we must under Su*893preme Court decisions), so long as we remain unique and refuse to formulate a standard of search and seizure found reasonable in England, Canada, and other civilized Western countries, just so long will we have the handgun and homicide problem in its present magnitude. And no laws, existing or proposed, no matter how drafted, will be able to deal with the problem, for the police will not be able effectively to enforce them, as they do in all other civilized parts of the world.
The easier rules of probable cause for search and seizure, reasonable suspicion to make an inquiry stop, and absence of the penalty of excluding the evidence, do not, of course, mean that the police in other countries are busily engaged in harassing citizens. What it does mean, as everyone who has traveled can testify, is that the criminal class do not often carry firearms. Knowing that they can be searched on very little suspicion, and that the weapon, if found, will not be excluded from evidence and that conviction will speedily follow, the criminals are careful to avoid having a firearm in their possession. The police know this, too, /. e., that very few known criminals will have a gun, so the police exercise their authority to search sparingly.
Thus, in other countries the police power to search actually produces fewer firearms in criminal hands, as both sides understand the rules. Here both sides understand the rules all right, but the rules are such that the criminal is tempted to carry a gun, and the policeman is tempted to “bust” the known or suspected criminal frequently. Result: millions of illegal guns, thousands of “illegal” searches, thousands of felons freed, thousands of firearm homicide victims.
Under the United States rule our citizens get the worst of it both ways:
(1) Criminals do carry guns — and use them.
(2) Knowing this, the police engage in far more searches and seizures, some of which are blatantly illegal.
Thus, the American public is harassed more by both criminals and police than in other countries.
IV
There are thus two parts to this entirely judge-made problem which we must face and solve. Sequentially, the first is the penchant for many judges to interpret broadly the Fourth Amendment condemnation of “unreasonable” searches and seizures. The second is the application of the exclusionary rule, once an “unreasonable” search has been found. The latter is a rule decreed by the Supreme Court, we judges on this Circuit have no option but to follow it; not being required by the Constitution, being only the method chosen by the Court to enforce a constitutional right', the exclusionary rule can be abolished either by the Court or by Congress.18
As to the first part of the problem, every judge should bear in mind that the Constitution only forbids “unreasonable searches and seizures.” We on this court can do something about this, within the guidelines of recent Supreme Court decisions. While we obviously cannot permit a search to be justified on the basis of what it produces, otherwise the police would promptly and repeatedly “bust” every known criminal (and some noncriminals) in the District and turn in for prosecution only those found to be carrying weapons or contraband, still that is far from what happened in Montgomery’s case. The police had a reason— slight perhaps, but a reason — discussed first among themselves and articulated later, to stop, and then to search, Montgomery. That stop and search cannot be said to have been without a reason, a perfectly valid reason, as the proof showed (the two weapons, ski mask, and bags were not in his car without purpose); this my two colleagues cannot deny. It was, therefore, not an “an reasonable” search and seizure within the Fourth Amendment. That search and seizure, and any like it, ought to be upheld by this or any court. That is why I dissent.
. See Griswold, Search and Seizure — A Dilemma of the Supreme Court, The Roscoe Pound Lectures (1975) at pp. 57-58:
While I was Solicitor General it fell to my responsibility to decide in many cases whether the United States should seek review of adverse decisions in lower courts in search and seizure cases. I developed in my own mind a working rule for this purpose, which I found fairly easy to apply, and which proved to be effective in many cases. It was a somewhat homely rule, and it was not formulated with the precision of a statute. It was as follows: If the police officer acted decently, and if he did what you would expect a good careful conscientious police officer to do under the circumstances, then he should be supported.
While this was formulated as a rule of action in seeking certiorari, not as a principle for judicial decision in a particular case, I submit it provides a good lodestar for guidance in discerning where the majority strays from the path of reasonableness and practicality here.
. Nineteen days of this period were subject to our order of 17 June 1976 awaiting guidance from the Supreme Court in United States v. Martinez-Fuerte (6 July 1976), and it is fair to say that prior to issuing the formal order we had delayed our consideration in the expectation of further Supreme Court guidance — all of which indicates the closeness of the decision here.
. Maj.op. at-of 182 U.S.App.D.C., at 879 of 561 F.2d.
. Ibid.
. We all agree that if the police action was lawful until the discovery of the outstanding warrant, all subsequent actions were valid.
. 1 App. 13, 33, 36, 65-67.
. Before removing the pistol and shotgun, the officers also saw two plastic bags and a ski mask in the car, but this observation was made at the precinct house. 1 App. 51.
. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).
. Plus a Ninth Circuit decision, United States v. Torres-Urena, 513 F.2d 540 (9th Cir. 1975). Cf. United States v. Magda, 547 F.2d 756 (2d Cir. 1976), and United States v. Purry, 178 U.S.App.D.C. 139, 545 F.2d 217 (1976).
. I agree that the stop should not be justified as a “Permit and Registration Inspection,” not because there cannot be such a stop, but because the officers’ testimony showed this was not the true basis. The District Judge correctly so found on rehearing the motion to suppress after trial. 2 App. 11. Since we all agree that on the facts the stop was not executed on the “Permit and Registration Inspection” basis (see Maj.Op. -of 182 U.S.App.D.C., 885 of 561 F.2d), it follows that no discussion of law on this point is necessary at all. Virtually all of the majority opinion from page 7 on is a gratuitous legal discussion of a non-issue. Since the officers admittedly made the stop on a “Suspicion of Wrongdoing” basis, the decision hinges on the law applicable to the facts giving the officers a suspicion of wrongdoing. On this issue I disagree with my colleagues, and it is this issue, not routine spot checks, on which this case turns.
. 410 U.S. 982, 93 S.Ct. 1500, 36 L.Ed.2d 177 (1973), reversing 153 U.S.App.D.C. 114, 471 F.2d 1082 (1972) (Opinion by Judge Wright for the four in plurality, Chief Judge Bazelon concurring specially, Judge Wilkey for the four in dissent). Former Solicitor General Griswold has stated that he was guided by his rubric, note 1, supra in determining to seek certiorari and in ultimately securing the reversal of the case. Griswold, supra at 64. He further commented:
The Robinson case . upheld the validity of the search. Not only did it support the validity of my rubric, but it also showed the inclination of the Court today to decide some of these cases on a fairly broad basis, for the Court held that a full search is not unreasonable, and is, thus, valid, whenever a valid arrest is made. This is a rule that police officers can understand.
Id. at 66. Emphasis added.
. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976); South Dakota v. Opper-man, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976).
. The leading case in the British Commonwealth is Kuruma v. The Queen, [1955] All E.R. 236, which arose from Kenya. In appealing the death sentence it was argued that the search, which uncovered a knife and ammunition, was illegal. In dismissing the appeal, the Privy Council held, in the words of Lord Goddard, C. J., that
In their Lordships’ opinion, the test to be applied in considering whether the evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.
Id at 239.
A century earlier an English judge put it more laconically, “It matters not how you get it; if you steal it, it will still be admissible in evidence.” Crompton, J., in R. v. Leatham [1861] 8 Cox C.C. 498 at 501.
The text on evidence most universally used throughout the British Commonwealth puts the rule:
It may therefore be concluded that, under English law, illegally obtained evidence is admissible, provided it does not involve a reference to an inadmissible confession of guilt, and subject to the overall exclusionary discretion enjoyed by the judge at a criminal trial.
Cross on Evidence (3d Ed., 1967), p. 267. See discussion generally pp. 266-270. . [T]he English authorities on the admissibility of evidence procured in consequence of an illegal search or other unlawful act . . are uniformly in favor of its reception although there are not many of them.” Id. at 266.
. “This evidentiary rule is unique to American ■jurisprudence.” Chief Burger, dissenting in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 at 415, 91 S.Ct. 1999, 2014, 29 L.Ed.2d 619 (1971). Two examples often cited in Anglo-American legal writings are illustrative. German law does not exclude illegally obtained evidence, except if in the judge’s opinion it has been obtained by a serious violation of fundamental rights. The nature of the illegality which is alleged to have been committed is thus evaluated. Clemens, The Exclusionary Rule Under Foreign Law: Germany (1961) 52 J.Crim.L.C. & P.S. 277. Israeli law condemns the exclusionary rule as useless and unjustified. As a more workable alternative, if an illegal search occurs, the court can charge the responsible individual, convict him immediately, or send him to another judge for trial, in a proceeding roughly comparable to our contempt actions. Cohn, The Exclusionary Rule Under Foreign Law: Israel (1961) 62 J.Crim.L.C. & P.S. 282.
. Remember that the “Exclusionary Rule” is totally judge-made; the Fourth Amendment only condemns “unreasonable searches and seizures.” Not only is the standard of what is “reasonable” for a policeman to do in making a search different in other countries from the high standard required by some courts here, but in no country is a policeman violative of the standard punished by excluding the evidence and freeing the felon.
. Of course I do not exclude other causes for this difference, such as historical tradition, geographical and environmental factors. But surely the factor I am discussing has a powerful effect in aggravating the problem.
. Chief Justice Burger, dissenting, in Bivens, supra at 421, 91 S.Ct. 1999.