(dissenting):
In the traditional, what Anthony Amsterdam has called the “atomistic,” 1 approach to the Fourth Amendment, there were two questions: first, was the practice a “search” or “seizure” and, second, did it invade the constitutionally protected area of a person, his house, papers, or effects? Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in strengthening the “atomistic” focus, reframed the questions into one inquiry, whether there was an invasion of “what [a person] seeks to preserve as private, even in an area accessible to the public.” Id. at 351, 88 S.Ct. at 511. If so, the “Government’s activities [which] . violated the privacy upon which [the person] . . justifiably relied . thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment,” id. at 353, 88 S.Ct. at 512, “[f]or the Fourth Amendment protects people, not places.” *1349Id. at 351, 88 S.Ct. at 511. It followed from this that “the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure,” id., or I would add upon the presence or absence of any physical intrusion whatsoever.
Almost immediately, however, in Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),2 the Court redivided Fourth Amendment analysis into two parts to ask not only whether the individual harbored a reasonable “expectation of privacy,” Katz v. United States, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring),3 but also whether there had been an “unreasonable governmental intrusion.” Terry v. Ohio, 392 U.S. at 9, 88 S.Ct. 1868. The Terry approach tended “to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness.” Id. at 18 n.15, 88 S.Ct. at 1878.
Terry held that a “search and seizure” had occurred when the officer stopped the petitioner and frisked him, but further inquired as to “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. at 1879. In so doing, the Court considered the “general interest” of the Government in “effective crime prevention and detection,” permitting an officer “in appropriate circumstances and in an appropriate manner” to approach a person to investigate “possibly criminal behavior even though there is no probable cause to make an arrest.” Id. at 22, 88 S.Ct. at 1880. And the intrusion must be based on nothing less than “specific and articulable facts.” Id. at 21, 88 S.Ct. 1868. The Court concluded that a stop is justified when the observed conduct is sufficiently suspicious to suggest a crime is in the making and that a frisk or pat-down is not an unreasonable intrusion when the officer “is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous . . . ” Id. at 24, 88 S.Ct. at 1881. It examined in depth the manner and conduct of the pat-down, id. at 27-30, 88 S.Ct. 1868, eventually finding it not unreasonable. Terry presents, then, a kind of sliding-scale approach to the Fourth Amendment, carving out from the full protective impact of the Amendment police conduct exercised without probable cause, as long as it is based on “specific and articu-lable facts” and is not unreasonably “intrusive.”
Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), extended the Terry exception to include investigation of “possessory offenses,” in that case possession of a gun, and permitted the police officer to act on only an informer’s tip, without direct observation or authentication, but with “indicia of reliability” short of probable cause. Id. at 147, 92 S.Ct. 1921. The Court went on to hold that when the officer found a gun on the person searched, the probable cause requirement for arrest had been met.
The question in today’s case is whether we will now expand the Terry-Adams exception to a course of organized police conduct practiced by the Drug Enforcement Administration at airports across the country, not simply an individual police officer perceiving that a crime is about to be or has been committed. This case is just one of *1350many, we are informed by the Government’s successful petition for certiorari in United States v. Mendenhall, 596 F.2d 706 (6th Cir. 1979) (en banc), cert. granted, - U.S. -, 100 S.Ct. 113, 62 L.Ed.2d 73 (1979) (where the court of appeals held “that the so-called drug courier profile does not, in itself, represent a legal standard of probable cause in this Circuit,” id. at 707), arising out of a DEA program in operation at more than twenty United States airports. See Petition for Certiorari at 2-3 & n.l (citing cases). As the petition informs us:
Under the program, trained and experienced agents observe arriving and departing passengers on certain flights for characteristics and behavioral traits which, on the basis of their collective experience, have tended to distinguish drug couriers from other passengers. The DEA and its agents in the field have also developed relatively standard procedures for approaching and questioning individuals suspected of being drug couriers.
Id. at 3 (footnote omitted).
These traits and characteristics, sometimes referred to as a “drug courier profile,” include such elements as round trips of short duration between major drug centers, purchasing tickets with cash (and particularly small bills), no baggage except carry-on-items, deplaning last, and, in general, nervous or unusual behavior. See United States v. Van Lewis, supra, 409 F.Supp. 535 at 538.
Id. at 3 n.2. The Government Petition also says:
As a factual matter, there is no national profile; each airport unit has developed its own set of drug courier characteristics on the basis of that unit’s experience. While many of the salient characteristics are common to the guidelines of most, if not all units, there are some differences based on the particular experiences of different units and the peculiar characteristics of each airport. Furthermore, the profile is not rigid, but is constantly modified in light of experience.
The basic purpose of the profile is to inform, but not to serve as a substitute for, the agents’ judgment in particular circumstances.
Id. at 17 n.17.
What has happened, I fear, is that this court, in a series of cases 4 which have usually involved one very active DEA agent, has put its stamp of approval on a system of law enforcement, without full appreciation of its overall impact and implications. Each case individually may have seemed but a little step beyond Terry, but in so moving we have in effect given birth to a new DEA-airport exception that falls outside the protections of the Fourth Amendment. A facial reading of the eight “specific and articulable facts” in the instant case reveals the shallowness of the “reasonable suspicion” here. At least in Terry, the two men walked alternately past the store and back, peering in its window no fewer than twenty-four times, not exactly Vasquez’s two or three glances back. While the Supreme' Court in Mendenhall will, of course, tell us whether it will put its stamp of approval on this new exception, I do note that Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the companion case to Terry, pointedly limited at least the Terry search to a factual setting involving “the protection of the officer by disarming a potentially dangerous man.” 392 U.S. at 65, 88 S.Ct. at 1904; see also id. at 61 n.20, 88 S.Ct. 1889.
More recently, the Court has again reminded us of the narrowness of the Terry exception. While Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), involved a custodial detention and hence is different from our case, the Court did say:
Terry departed from traditional Fourth Amendment analysis in two respects. First, it defined a special category of Fourth Amendment “seizures” so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment “seizures” *1351reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons.
Because Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope. Terry itself involved a limited, on-the-street frisk for weapons.
Id. at 209-210, 99 S.Ct. at 2255 (footnote omitted).5
Respondent State now urges the Court to apply a balancing test, rather than the general rule, to custodial interrogations, and to hold that “seizures” such as that in this case may be justified by mere “reasonable suspicion.” Terry and its progeny clearly do not support such a result.
Id. at 211-212, 99 S.Ct. at 2256 (footnote omitted).
[Pjetitioner’s seizure [is not] even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any “exception” that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are “reasonable” only if based on probable cause.
Id. at 212-213, 99 S.Ct. at 2256.
I note also that in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Court was careful to say:
The Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. United States v. Martinez-Fuerte, 428 U.S. 543, 556-58 [96 S.Ct. 3074, 3082-3083, 49 L.Ed.2d 1116] (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878 [95 S.Ct. 2574, 2578, 45 L.Ed.2d 607] (1975); cf. Terry v. Ohio, 392 U.S. 1, 16 [88 S.Ct. 1868, 1877, 20 L.Ed.2d 889] (1968).
Id. at 653, 99 S.Ct. at 1396.
So, too, in Brown v. Texas, - U.S. -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Chief Justice for a unanimous Court said: “When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment.” Id. at -, 99 S.Ct. at 2640.6
*1352The Court’s language, then, in Sibron, Dunaway, Delaware, and Brown directs us to the overall implications of a widened Terry exception. If airports can support special police conduct, why not other public places — bus terminals, railroad stations, subway stops, restaurants, bars? If Agent Gerard Whitmore and DEA agents in general, why not any other officer “trained” to observe “suspicious conduct”? Once the dam is broken, a flood is likely to occur. Anthony Amsterdam has perceptively warned against the “perversion” of stop- and-frisk or similar limited-purpose police actions into general search warrants, putting, in James Otis’s words, “the liberty of every man in the hands of every petty officer.” 7
The Government will, of course, claim that this is a valid limited-purpose stop, although it strikes me as more for purposes of general investigation. In any event, before I would open up this door — even for such a good law-enforcement reason as stopping drug traffic between “source cities” — I would want to be sure of two things. The first is that this whole area be made the subject of rulemaking. This is, I believe, suggested by language in Delaware v. Prouse, supra, although the concept was also advanced in our United States v. Barbera, 514 F.2d 294, 302-04 (2d Cir. 1975). Delaware reads as follows:
To insist upon neither an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . Terry v. Ohio, supra, 392 U.S. at 22, 88 S.Ct. [1868] at 1880.
440 U.S. at 661, 99 S.Ct. at 1400 (emphasis added).
I would require some substantial and objective standard or rule to govern the exercise of discretion rather than depend simply upon the keen eye of Agent Whitmore 8 or any other agent. Thus, in Barbera, a “border search” case, we suggested the possibility of “legislation or departmental . rules and regulations subject to judicial review for reasonableness.” 514 F.2d at 302. Rulemaking could easily be done here by the Department of Justice or the DEA, and the benefits to be gained by citizens, the agency, and the courts would be substantial.9 The courts would then be relieved of their current unenviable task of asking themselves whether Maria Vasquez made one glance behind too many. Such factual line-drawing may be better made, at least as an initial matter, within a set of codified agency rules.
The second thing I' would need assurances of is that the rules were framed and enforced so as not to discriminate against any particular group on account of race, ethnic background, or the like. One has the uncomfortable impression here that, but for the Hispanic appearance of Flores and Vas*1353quez, they might not have been stopped.10 If that appearance were an overriding factor, United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (roving border patrol stops of cars based on appearance of Mexican ancestry held invalid), would come into play. Any set of rules or regulations should embody, I think, protections of this nature. As the Court said in Brown v. Texas:
[T]he Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.
- U.S. at -, 99 S.Ct. at 2640.
Accordingly, because neither of these conditions has been met, and because the incident in the instant case is not an isolated event, but rather part of a major law enforcement practice, a distinction the implications of which had previously escaped me, I respectfully dissent.
. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 367 (1974).
. See also its companion cases, Sibron v. New York and Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
. Justice Harlan’s phrase speaks to subjective expectations, a position which has logical problems (for one’s subjective expectations can always be diminished by mere governmental warning) and which he himself came to disregard, in United States v. White, 401 U.S. 745, 786, 91 S.Ct 1122, 1143, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting) (“The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.”).
. See majority opinion n.4.
. The Court characterizes Terry as allowing the less intrusive seizure, i.e., stop, “only for the purpose of a pat-down for weapons.” Duna-way v. New York, 442 U.S. 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979). One wonders whether the Court is really talking about a “search” rather than a “seizure,” or at least a combination of the two, for, as Terry defines, “it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’” Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968) (emphasis added). But if the Court’s reading in Dunaway is correct, then stops not related to weapons searches or safeguarding the public’s or police officers’ safety may fall outside the Terry exception.
. Brown appears, then, to have at least partially answered the question left open in Terry pertaining to what constitutes a “seizure.” Terry noted the following:
We thus decide nothing today concerning the constitutional propriety of an investiga-five “seizure” upon less than probable cause for purposes of “detention” and/or interrogation. Obviously, not all personal intercourse between policemen and citizens involves “seizures” of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred. We cannot tell with any certainty upon this record whether any such “seizure” took place here prior to Officer McFadden’s initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon constitutionally protected rights had occurred.
Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Prior to the pat-down in Terry, Officer McFadden had “approached the three men, identified himself as a police officer and asked for their names.” Id. at 6-7, 88 S.Ct. at 1872. So, too, in Brown, - U.S. -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979):
“The car entered the alley, and officer Venegas got out and asked appellant to identify himself *1352and explain what he was doing there.” Unless the interposition of a car makes a sufficient factual distinction, and it is hard to imagine why it would, the situations are virtually identical.
. Amsterdam, supra note 1, at 438.
. After all, although we know some of his successes, we do not know his failures. This is why many of these cases smack of wisdom bom of the event — after all, she did have heroin.
. Barbera, drawing from Professor Amsterdam’s article, Amsterdam, supra note 1, sets them out as follows:
Rulemaking, which could so readily be done here . . would (1) enhance the quality of [DEA] decisions (a) by focusing attention on the fact that policy is being made, (b) by putting the authority in responsible and capable hands, and (c) by promoting efficiency; (2) would tend to insure fair and equal treatment of citizens (a) by reducing the influence of bias, (b) by providing uniform standards, and (c) by guiding police behavior; (3) would increase the visibility of the decisions; and (4) offers the best hope for consistent obedience to and enforcement of the constitutional norms that guarantee the citizen’s liberty.
514 F.2d at 303 (footnotes omitted).
. Agent Whitmore’s testimony on cross-examination at the trial indicates that the Hispanic appearance played at least some part in the formulation of suspicion:
Q. [T]he fact that a person is of Spanish descent would leave you some suspicion per se is that correct?
A. It would make them, make us more aware of them.
Q. So, if somebody from Irish or Italian background had gotten off the plane and looked around and glanced back perhaps looking for someone you wouldn’t have been so suspicious of them, would you?
A. It would depend upon their actions.
Q. Well, in the exact same situation, if a man and a woman exhibited [sic] the airplane, the woman stopped and looked around and she was Irish or American you wouldn’t have been suspicious, that wouldn’t have been enough just glancing around?
A. If they had done it in the same manner that these people.
Q. Would the glancing around be enough to arose [sic] your suspicion?
A. Glancing around is not enough suspicion, no, sir.
Q. So you are telling us now that the glancing around and the Spanish, Hispanic descent is what aroused your suspicion, is that correct?
A. No, sir.
Q. Well, the Spanish descent is part of your criteria, isn’t it?
A. It is something that we take cognizance of.