concurring:
In United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), Justice Stewart (joined by Justice Rehnquist) asserted that questioning by a law enforcement agent does not constitute a “seizure” under the Fourth Amendment unless “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), filed only five weeks later, Justice Powell (joined by the Chief Justice and Justice Blackmun) indicated that it was still an *345open question whether a “stop for routine identification questioning constituted a seizure .... ” 448 U.S. at 443, 100 S.Ct. at 2754-55 (Powell, J., concurring). Finding Justice Stewart’s analysis most consistent with the Court’s prior cases, I would adopt it to airport questioning of arriving passengers and affirm the judgment of conviction on that basis.1
Until the Court decided Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), it was unclear whether the Fourth Amendment applied at all to police-citizen encounters short of a full-fledged arrest or search.2 See generally 3 W. LaFave, Search and Seizure § 9.1, at 2-7 (1978). In Terry, the Court held that the Fourth Amendment required articulable and reasonable grounds for suspicion before a police officer could frisk a suspect in a street encounter. However, the majority and concurring opinions recognized that the Fourth Amendment’s ban against unreasonable seizures does not apply to police questioning in street encounters unless the officer has in some way restrained the liberty of the person being questioned.
Focusing on the frisk of the petitioner, the majority did not address the question whether reasonable suspicion was required before an officer could “seize” a suspect “for purposes of ‘detention’ and/or interrogation.” 392 U.S. at 19 n.16, 88 S.Ct. at 1878 n.16. It did note, however, that “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.” Id. Finding insufficient evidence in the record to determine whether the petitioner’s liberty had been restrained prior to the frisk, the court held that a search and seizure took place when the officer grabbed the petitioner and patted down his coat for weapons.
Justice Harlan, in a separate concurrence, objected that the Court could not consider the lawfulness of the frisk without first considering the lawfulness of the interrogation. Before the officer was justified in frisking a suspect, he must have constitutional grounds to insist that the suspect stand and answer questions. The officer “must first have a right not to avoid [the suspect] but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner’s protection.” 392 U.S. at 32-33, 88 S.Ct. 1885-86 (Harlan, J., concurring).
Justice White also wrote separately to address the question of interrogation in street encounters. He found no warrant in the Fourth Amendment for restraining a police officer’s liberty to approach people on the street and ask them questions: “There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way.” 392 U.S. at 34, 88 S.Ct. at 1886 (White, J., concurring).
Indeed, most of the commentators writing before Terry was decided assumed that the Fourth Amendment did not apply to non-coercive police questioning in street encounters. E.g., Bator & Vorenberg, Arrest, *346Detention, Interrogation and the Right to Counsel: Basic Problems and Possible Legislative Solutions, 66 Colum.L.Rev. 62, 64-65 (1966); Souris, Stop and Frisk or Arrest and Search—The Use and Misuse of Euphemisms, 57 J.Crim.L.C. & P.S. 251, 256 (1966). The issue as they saw it was the extent of police authority under the Fourth Amendment to detain a suspect for further questioning if he refused to answer questions voluntarily. Id.
Nothing done by the Court since Terry has undermined the principles set forth there. The Fourth Amendment’s bar against unreasonable seizures simply does not apply unless a law enforcement officer has in some way restrained the liberty of the person questioned. I take it that the majority does not disagree with this principle. Here, Agent Iglesias approached Ramirez-Cifuentes as she stood in the taxi line. He identified himself as a federal drug agent and showed his badge. Speaking to her in Spanish, he determined that she had come from Miami. He then asked to see her ticket. She produced a one-way ticket in the name of “Rosa Gomez” that had been paid for in cash. Next, he asked her where she lived and her name. Still suspicious, he asked to see her identification papers. When she said she had left them all at home, he asked her if she would step off the taxi line with him. After stepping to one side with Iglesias, Ramirez-Cifuentes consented to a search of her bag, in which the agent found cocaine. He then arrested her. At all times, Iglesias spoke in a conversational tone and behaved courteously. The issue presented is whether the defendant’s liberty was so restrained prior to her arrest as to invoke the Fourth Amendment’s ban against unreasonable seizures. I would hold that she was not “seized” until Iglesias placed her under arrest.
I do not doubt that Ramirez-Cifuentes felt constrained to respond to the questions posed by Agent Iglesias. An illegal alien, carrying narcotics, it would be surprising if she were not overawed by the agent. However, I do not think that the test should turn on the individual and idiosyncratic reactions of the myriad suspects that law enforcement agents approach with requests for information. Not only would such a test place an impossible burden on the agent to divine the mind of each such suspect, it would permit defendants to appear to cooperate voluntarily and later testify that they did so out of fear. See 3 W. LaFave, Search and Seizure § 9.2(g), at 52 (1978). Thus, the test of whether an individual’s liberty has been restrained must be an objective one — and Justice Stewart’s formulation of whether a reasonable man, innocent of any crime, would feel free to leave seems most appropriate.
It is true that most individuals do cooperate when asked for information by law enforcement agents. L. Tiffany, D. McIntyre, & D. Rotenberg, The Detection of Crime 59 (1967). Certainly, when Drug Enforcement Administration agents approach airline passengers for questioning, few, if any, refuse to cooperate. Note, Reformulating Seizures—Airport Drug Stops and the Fourth Amendment, 69 Calif.L.Rev. 1486, 1501 (1981). However, I cannot accept the argument that no reasonable person would ever feel free to walk away from a law enforcement agent who displays his badge and seeks to ask some questions. E.g., Preiser, Confrontations Initiated By the Police on Less Than Probable Cause, 45 Alb.L.Rev. 57, 81 (1980). There are many reasons why people choose to “stop and answer police questions .. . including a willingness to cooperate with police, a fear of police, a belief that a refusal to cooperate will result in arrest, or a combination of all three.” L. Tiffany, D. McIntyre & D. Rotenberg, supra, at 17. See also Note, supra, at 1499-1501. I believe that reasonable men, innocent of any crime, are motivated more by the spirit of voluntary cooperation and a sense of moral duty than by fear.
The moral obligation to cooperate with law enforcement agencies in the pursuit of crime has roots deep in our history. The duty of free citizens to respond to the “hue and cry” and pursue wanted criminals goes back to the Assizes of Clarendon (1166) and the Statute of Winchester (1285). See 1 W. Holdsworth, A History of English Laws 292 *347(3d ed. 1922). The failure to reveal a felony to the authorities was a crime at common law, misprision of a felony, 3 W. Holdsworth, A History of English Laws 389 (3d ed. 1923), and is still a misdemeanor in England, G. Williams, Criminal Law 423-27 (2d ed. 1961). See also Judges’ Rules, Home Office Circular No. 31/1964 (“citizens have a duty to help a police officer to discover and apprehend offenders”), reprinted in American Law Institute, A Model Code of Pre-Arraignment Procedure, Appendix VI, at 650 (1975). In the United States, misprision of a felony has been on the statute books since the first Congress. The statute, as amended, punishes with up to three years imprisonment “Whoever, having knowledge of the actual commission of a felony ... conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States... . ” 18 U.S.C. § 4 (1976). Although the legal duty to come forward with knowledge or evidence of crime has been undermined by the requirement of an act of concealment, Bratton v. United States, 73 F.2d 795 (10th Cir. 1934), the moral “obligation of all citizens to aid in enforcing the criminal laws,” Miranda v. Arizona, 384 U.S. 436, 481, 86 S.Ct. 1602, 1631, 16 L.Ed.2d 694 (1966), continues undiminished. See Roberts v. United States, 445 U.S. 552, 557-558, 100 S.Ct. 1358, 1363-64, 63 L.Ed.2d 622 (1980). See also Gisske v. Sanders, 9 Cal.App. 13, 98 Pac. 43, 44 (1908) (“The duty of every good citizen is, when called upon, to give all information in his power to the proper officers of the law as to persons connected with crime.... ”).
The circumstances of these airport investigations make it even more urgent that citizens respond to police requests for assistance. Agents must act almost instantaneously to determine which, if any, of the scores of people arriving at the airport may be carrying illegal drugs. The selection of suspects involves intuition, a sixth sense developed from experience in numerous similar situations. However, agents are not infallible. It is obviously critical that they not waste their time following or chasing innocent people. When innocent people are contacted by agents and asked a few simple questions that can quickly exculpate them, and free the agents to go about their urgent business, I cannot imagine that a reasonable man, mindful of his duties as a citizen, would be less than happy to cooperate. Where such intrusion is conducted in a civil and decent manner, it is not too high a price to pay for attempts by the government to control rampant criminal activity in the distribution of narcotics.
However, the spirit of cooperation has limits. As long as the officer’s demeanor and questioning is within the bounds of what is normally accepted in social intercourse, it is reasonable to presume that the citizen’s cooperation is willing and voluntary. But when the law enforcement agent adopts a menacing posture or makes requests that would be threatening or offensive if done by another private citizen, that presumption becomes less tenable. See State v. Harlan, 301 N.W.2d 717 (Iowa 1981). As Prof. LaFave puts it, the inquiry should be “whether the policeman, although perhaps making inquiries which a private citizen would not be expected to make, has otherwise conducted himself in a manner consistent with what would be viewed as a nonoffensive contact if it occurred between two ordinary citizens.” 3 W. LaFave, supra, § 9.2(g), at 53.
Applying these principles here, I would find that Ramirez-Cifuentes was not “seized” until Agent Iglesias placed her under arrest. He walked alongside her as she progressed in the taxi line, and asked her politely in Spanish her name and home and if he could see her ticket receipt and identification. Surely, an innocent passenger in her position would have been happy to comply with the agent’s requests. Cooperation entailed no delay and no more inconvenience than any social conversation. A closer question is whether the defendant was “seized” when the agent asked her if she would mind stepping off the taxi line so that they could converse without interference. Clearly, if Iglesias were a friend who had asked Miss Ramirez-Cifuentes to step *348aside in order to continue a conversation, her acquiescence could in no way be construed as a restraint on her freedom of movement. Here, Iglesias did nothing that a private citizen could not do. He did not assert any right or authority over Miss Ramirez-Cifuentes; he did not touch her or menace her in any way; and his tone of voice was polite and conversational. He asked her to do nothing extraordinary or offensive. The delay caused by stepping aside was minimal, no more than would be expected in a social setting. Accordingly, I would hold that this request did not constitute a “seizure” under the Fourth Amendment.
After stepping off the taxi line with Agent Iglesias, the defendant consented to a search of her bags. That search disclosed 540 grams of cocaine and Agent Iglesias then clearly had probable cause to arrest her.
It is true that the test I would apply allows law enforcement agents greater latitude in approaching persons and questioning them. Citizens innocent of any illegal activity cannot reasonably complain of such intrusion and interruption. It is necessary for the maintenance of a free society that all those who enjoy it must be prepared to assist the appointed officers of the law in their investigation of illegal activity. Of course, if law enforcement agents use street interrogations to harass citizens, such improper activities must be curbed. However, the inadequate resources of investigative personnel are unlikely to be wasted questioning those for whom there is no basis for belief that questioning will be fruitful. Moreover, to circumscribe street or airport questioning by holding it to be a “stop” subject to the Fourth Amendment would seriously hobble legitimate inquiries by law enforcement agents. The approach proposed by Justice Stewart is in my opinion the proper solution to the problem of balancing the individual interest in freedom from state interference and the public interest in the discovery and punishment of crime.
. A number of other courts have recently-adopted Justice Stewart’s test in Mendenhall. E. g., United States v. Black, 675 F.2d 129 (7th Cir. 1982); Gomez v. Turner, 672 F.2d 134 (D.C. Cir. 1982); United States v. Berry, 670 F.2d 583 (5th Cir. 1982) (en banc); Login v. State, 394 So.2d 183 (Fla.App.1981); State v. Harlan, 301 N.W.2d 717 (Iowa 1981).
. “There is some suggestion in the use of such terms as ‘stop’ and ‘frisk’ that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a ‘search’ or ‘seizure’ within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology.” Terry, 392 U.S. at 16, 88 S.Ct. at 1877.