(dissenting):
I dissent. Even assuming that the police had sufficient specific and articulable facts at the outset to provide them with a reasonable suspicion justifying a Terry-type investigatory stop of Jackson, which is questionable, the record is clear beyond doubt that instead of merely making such a stop they immediately arrested Jackson without probable cause. Their later warrantless search of the car trunk was the fruit of that unlawful arrest. If constitutional rights are to mean anything, the evidence uncovered as a result of their unlawful arrest of Jackson must be suppressed, even though the effect may be to release a wrongdoer. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
We should not attempt to avoid the impact of the exclusionary rule through the subterfuge of characterizing an unlawful arrest as an investigative stop. To do so imperils our own integrity and undermines public confidence in the rule of law, which must be applied regardless how the chips may fall in a particular case. The words of the Supreme Court in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), are pertinent:
“There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine ‘[t]he criminal is to go free because the constable has blundered.’ People v. Defore, 242 N.Y. [13], at 21,150 N.E. [585], at 587. In some cases this will undoubtedly be the result. But, as was said in Elkins [v. United States], ‘there is another consideration — the imperative of judicial integrity.’ 364 U.S. [206], at 222 [80 S.Ct. 1437, at 1447, 4 L.Ed.2d 1669]. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandéis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 [48 S.Ct. 564, 575, 72 L.Ed. 944] (1928): ‘Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. ... If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’ ” (Footnote omitted). 367 U.S. at 659, 81 S.Ct. at 1693-1694.
The proof that Jackson was unlawfully arrested without probable cause is overwhelming and uncontroverted. Officer Smardz testified that he and his partner, Holycross, pulled over Jackson’s car and with guns drawn immediately ordered him out of it. After Holycross placed Jackson against his car and patted him down, while Smardz kept his gun out, Jackson was moved away from his own car and over to the police car. All of these actions took place before anyone’s attention had been drawn toward Jackson’s trunk. At the suppression hearing, Officer Smardz was asked, “[A]t the time that Mr. Jackson was taken by your partner over to the police car, was Mr. Jackson under arrest at that time?” As a law enforcement official well versed in *253the technique of making an arrest, he responded with an unequivocal “Yes.” He also testified that he believed his partner had formally placed Jackson under arrest. No other officer testified that Jackson was arrested at some later time. Throughout Smardz’s examination, he exhibited no awareness that the radio order to stop Jackson’s car had been unsupported by probable cause, or that he was supposed to have detained Jackson by means less intrusive than an arrest. When asked who gave him the authority to arrest, he merely replied, “Nobody. He was a suspect in a bank holdup.”
That there was an immediate arrest of Jackson before any search rather than merely an investigative stop is further confirmed by all of the other evidence. Before any attempt was made to open the trunk, Jackson’s car was literally surrounded by police. Police witnesses admitted that between five and ten cars and between a dozen and twenty-five officers1 were spaced around Jackson’s car, while he was kept away from the car, before the call came to search his trunk. This conduct alone has been properly held to be an arrest, not an investigative stop. See United States v. Beck, 598 F.2d 497, 501 (9th Cir. 1979) (where nine officers, without drawing guns, ordered a taxi off the road and surrounded passengers, show of force was sufficiently intrusive to constitute an arrest); United States v. Strickler, 490 F.2d 378, 380 (9th Cir. 1974) (arrest occurred when the car was surrounded by officers issuing orders at gunpoint). As we observed in United States v. Vasquez, supra, 638 F.2d at 520, “[I]f probable cause is lacking, the intrusion must be no greater than the circumstances require.” The siege of an individual by a large number of police cars and officers is inconsistent with the sense of restraint that is essential to the legitimacy of any investigative stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Duna-way v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); United States v. Vasquez, supra, 638 F.2d at 520-21.
Furthermore, Detective Young, who spotted Jackson in traffic in the first place and was armed with a description of the robbery suspect, acted in complete disregard for Jackson’s rights as an individual whom there was no probable cause to arrest. Young formulated the requisite reasonable suspicion for a Terry stop and radioed the order to stop Jackson’s car based only on Jackson’s race, his extremely general resemblance to the description given of the robber, the direction of his car’s movement, and his impassiveness as he drove by the bank during the post-robbery commotion. When Young and his partner, Sergeant Coyle, reached the scene of Jackson’s detainment, Coyle at once noticed that Jackson was wearing different clothes from those reported to have been worn by the robber and was at least 50 pounds heavier than the robber had been described to be. Young did not thereupon even bother to approach Jackson to ask him any question, ascertain his identity, or determine whether he fitted the description of the man he was seeking, as might have been expected of an officer executing a temporary detention. Instead, he admitted,
“I immediately went to the driver’s door of the ’69 Brown Dodge Coronet and crawled into the front seat and began to feel under the front seat and under the dashboard for weapons or possible evidence from the hold up, the bank hold up.”
This unlawful search took place before any attention had been directed toward the trunk. The warrantless search of portions of a car’s interior that are not in plain view is clearly unconstitutional unless its occupant has been arrested under the authority of either a valid warrant or probable cause, which was not the case here. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); United States *254v. Ocampo, 650 F.2d 421 (2d Cir. 1981). Young’s actions, which incontestably would have violated Jackson’s Fourth Amendment rights if he had been only stopped under the authority of Terry, reinforce the conclusion that Jackson was subjected to an arrest rather than an investigative stop.2
The majority misconstrues established law in refusing to view the openly visible drawing of police guns as relevant to the determination of whether Jackson was arrested or merely subjected to an investigative stop. When we declined to hold that the drawing of a gun automatically transformed a stop into an arrest in United States v. Vasquez, supra, relied upon by the majority, we did so in explicit reliance on the arresting officer’s testimony that his drawn gun was undetectable by the person he stopped, “at his side, not outstretched or otherwise in evidence.” Id. at 522. We then proceeded to hold, in accordance with the usual and appropriate approach to the impact of drawn guns, that “the arrest did not occur before the officers leveled their guns at the Mesas and ordered them out of their car.” Id. See also United States ex rel. Walls v. Mancusi, 406 F.2d 505, 508-09 (2d Cir.), cert. denied, 395 U.S. 958, 89 S.Ct. 2099, 23 L.Ed.2d 745 (1969) (“In the instant case the arrest, for purposes of constitutional justification, occurred at the moment Officer Johnson ordered relator out of the truck at gunpoint”); United States v. Oates, supra, 560 F.2d at 57. (In finding detention not to be an arrest, we noted that “while not dispositive, it is significant that here, unlike the situation in United States v. Lampkin, 464 F.2d 1093, 1094 (3d Cir. 1972), a case upon which appellant relies, Customs Security Officers Fromkin and DeAlfi did not approach Oates and Daniels with their guns already drawn”). Application of these principles to Jackson’s detention demonstrates conclusively and inescapably that he was under arrest when ordered out of his car by an officer with a drawn gun. I cannot join in the majority’s groundless assumption that Officer Smardz hid his gun from Jackson’s view and thereby avoided making an arrest at gunpoint. The record is entirely to the contrary. Smardz admitted that with gun drawn he ordered Jackson out of his car.
I am sympathetic to the majority’s solicitousness for policemen who approach a possibly dangerous suspect without probable cause to arrest him. But while officers are allowed to take certain limited steps to protect themselves from unnecessary risks, Adams v. Williams, supra, 407 U.S. at 148, 92 S.Ct. at 1924, this protection must be narrowly circumscribed in order to ensure that a person’s right to be free from excessive police intrusion is not unduly abridged. Id. The drawing of a gun by the police plainly represents a substantial intrusion upon an individual’s autonomy and peace of mind. Since the line between an investigative stop and an arrest is defined according to the degree of intrusiveness of the police activity, the use of a drawn gun of necessity becomes at least strongly relevant if not dispositive in determining the appropriate characterization of a detention.
The majority similarly misreads United States v. Oates, supra. There we did not find that the arresting officer’s belief that a suspect has been arrested was irrelevant in determining whether the suspect had in fact been arrested. Rather, we addressed only the question of whether the presence of probable cause is determined at the time when an officer first decides he will arrest a suspect or at the time when he actually places the suspect under arrest. We unsurprisingly held no more than that the legitimacy of an arrest is measured from the moment of arrest rather than from the time *255when the arresting officer thinks he has probable cause to make an arrest, saying:
“Appellant strenuously argues that what is of crucial importance here is the subjective intention of Agent Hammonds, reached before requesting assistance from the Customs officers but unexpressed to any of them, to arrest Daniels and Oates. Hammonds’ belief, however, that he had sufficient probable cause at this point to support an arrest, even assuming arguendo that belief to be wrong, and his intention to act upon that belief, are of no consequence here. What controls here is not what Hammonds subjectively intended to do but what he did.” Id. at 58.
Here, by contrast, Officer Smardz did not testify that he formed the intention of arresting Jackson in the future. He swore that Jackson was under arrest from the time he drew Jackson out of his car with his gun out of its holster. The Oates holding in no way undermines the legitimacy of Smardz’s belief or judicial reliance upon it.
Improper police activities will occasionally lead to discovery of probative inculpatory evidence of crime, as happened here. But we have long recognized that such post-arrest discoveries of evidence may not be invoked to justify unconstitutional police activity. See Wong Sun v. United States, supra, 371 U.S. at 484, 83 S.Ct. at 415 (“That result would have the same essential vice as a proposition we have consistently rejected — that a search unlawful at its inception may be validated by what it turns up”). By deterring police misconduct, this rule serves to guard the innocent against unwarranted police intrusion as well.
No amount of legerdemain by the majority can transform what was plainly an arrest in this case into a mere investigative stop. I cannot agree with the majority that an individual who is seized at gunpoint by an officer who later testifies that he was performing an arrest, who is drawn out of and away from his car and who is then surrounded by up to 10 police cars and 25 police officers and subjected to a warrant-less search of interior sections of his car that are not in plain view, all before probable cause for a search even arguably arises, has experienced only “a brief stop ... in order to determine his identity or to maintain the status quo momentarily.” Adams v. Williams, supra, 407 U.S. at 146, 92 S.Ct. at 1923; see also Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). Proper adherence to the principles of restraint enunciated in Terry v. Ohio and Adams v. Williams and in many cases thereafter mandates reversal here.3
. Sergeant Coyle stated that his car and four others had arrived at the scene of Jackson’s detention when he heard the thump in the trunk, and that more arrived thereafter. Officer Croft remembered 10 cars and 25 officers. Officer Smardz estimated that five cars had drawn up, with 10 or a dozen officers, by the time attention was drawn to the trunk.
. The opening of the trunk, which resulted in the discovery of the actual bank robber, is itself also not free from constitutional uncertainty. The trial court and the majority have both accepted Officer Coyle’s testimony that he opened the trunk after hearing a thump. Yet two other police officers, Smardz and Croft, stated without contradiction that an order came over the radio to search the trunk. This order was plainly not supported by probable cause. To the extent that the order formed the basis for the search of the trunk, the search was unconstitutional. The admitted presence of this order places a shroud of doubt over the claim that a thump provided the initial stimulus for the search.
. The government has apparently conceded that if the arrest was illegal its illegality fatally tainted Jackson’s confession. I therefore need not resolve whether I consider such a result mandated under the facts of this case by the Supreme Court’s ruling in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).