dissenting.
This is an odd case and, no doubt for that reason, a difficult one to decide. The majority’s conclusions insofar as they go are quite defensible and, were I more certain about the legitimacy of the exclusionary rule as generally applied, I perhaps would concur. But given my reservations, I must respectfully dissent.
We have been taught by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that “the central inquiry under the Fourth Amendment” is as to “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Id. at 19, 88 S.Ct. at 1878. To aid that inquiry certain verbal formulas have been developed which when applied in an even handed manner provide some consistency in the treatment of so-called “stop and search” cases. As to stops the majority repeats and applies the formula that a valid investigatory stop must rest upon “a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” See Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). As to pat-down searches the majority states and applies the standard that such searches are permissible where the officer “has reason to believe that he is dealing with an armed and dangerous individual.” Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883.
Inevitably the specificity of these tests draws attention from the “central inquiry” appropriate to the application of the Fourth Amendment to a particular stop and pat-down search. So long as I frame the question this case presents in terms of the reasonableness of Officer Wolfe’s stop and pat-down search I encounter little difficulty. Officer Wolfe did what a competent officer would do under the circumstances. His conduct was reasonable. He had reason to be apprehensive about the purpose of the appellant’s actions and to be anxious about his own safety. The incidence of crime within the area, the vagueness of the appellant’s directions, the out-of-the-way nature of the spot at which the appellant asked to be left, the hour of the night, and the absence of any identification justify the conclusion that the limited intrusion of the appellant’s personal security resulting from ■Officer Wolfe’s stop and pat-down search was reasonable.
Difficulties arise, I acknowledge, when the verbal formulas are invoked. What, the majority implicitly inquires, suggests that appellant was, or had been, or might become involved in criminal activity, or that he was armed and dangerous? Other than what has been mentioned there is nothing. This is not enough for the majority. For *809me it is. I would hold that even under these formulas the evidence obtained by means of the stop and pat-down search is admissible. Alternatively, I would hold that the evidence is admissible because the stop and pat-down search was a reasonable intrusion of appellant’s personal security.
Whatever lingering doubt that might otherwise haunt my mind takes flight when the purpose of the exclusionary rule is recalled. Despite some uncertainty caused at least in part by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) it is now generally acknowledged that the rule was made by the courts and was designed to deter police behavior. See Schlesinger and Wilson, Property, Privacy and Deterrence: The Exclusionary Rule in Search of a Rationale, 18 Duquesne L.Rev. 225, 237 (1980). But see Sunderland, Liberals, Conservatives, and the Exclusionary Rule, 71 J.Crim. L. & C., 343, 375-77 (1980). This decision, however, will not deter officers who find themselves in a position similar to that in which Officer Wolfe found himself in this case. Nor should it. Officers so situated will not risk being slain on a back street because of this decision nor can I in good conscience ask them to assume such risks. The incidence of murdered policemen is too high to dismiss the risk lightly. The depth of my feeling can be evidenced by my affirmation that had I been Officer Wolfe I too would have stopped and conducted a pa1>down search of the appellant.
To me, therefore, the fundamental issue this case presents comes down to this: Should thé exclusionary rule be invoked when it, neither will, nor should, deter the officer from the intrusion in question. I think not. Thus, I respectfully dissent.