concurring and dissenting:
Because of the Supreme Court’s strongly-couched dicta in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), I agree with my colleagues that the detention of Chamberlin after the initial investigatory stop was illegal.
However, I respectfully dissent from my colleagues’ conclusion that all the evidence derived by the officer after the placement of Chamberlin in the back seat of the police car was tainted by the illegal detention and therefore must be suppressed as the fruit of a poisonous tree.
My colleagues find that the officer’s initial observation of Chamberlin’s suspicious behavior, Chamberlin’s first statement about the Universal Furniture Store, and his statement regarding Franklin were completely untainted. All this evidence was obtained before the illegal detention.
But I wish to point out that the officer’s receipt of the radio message and his discovery that the check belonged to a third person, rather than to Chamberlin’s mother, were also untainted, because they had no connection with the illegal detention. The information in the officer’s possession at that moment made him suspicious of Cham-berlin’s earlier reference to the furniture store. Even if Chamberlin had been released before, the officer would have proceeded directly to the furniture store, where he would have obtained (without any hint of illegality) the evidence that was used to convict Chamberlin.
Since in fact the officer had Chamberlin in detention when the properly discovered facts pointed him toward the furniture store, he engaged him in further dialogue about the furniture store' and observed his nervousness and sweating. This evidence was the fruit of the illegal detention; however, it was not the source of the evidence obtained at the furniture store. The ille-*1270gaily-obtained evidence merely buttressed a determination, based on undeniably legal evidence, that the officer had already made.
When reviewing refusals to suppress evidence, we view the facts in the light most favorable to the Government’s position. E. g., United States v. Sherman, 430 F.2d 1402, 1404 (9th Cir. 1970), cert. denied, 401 U.S. 908, 91 S.Ct. 865, 27 L.Ed.2d 805 (1971). I believe that the facts that emerge under such a view compel a result different from that which my colleagues have reached. See United States v. Brandon, 467 F.2d 1008, 1010-11 (9th Cir. 1972).
I would affirm the conviction.