dissenting.
I respectfully dissent. This appeal raises questions far more complex than those addressed by the majority and forces us to consider issues left unresolved by United States v. Black, 675 F.2d 129 (7th Cir.), petition for certiorari filed, 51 U.S.L.W. 3026 (U.S. June 3, 1982). The Black court *344did not decide if a seizure of Black occurred because it found that objective justification sufficient to create reasonable suspicion existed. 675 F.2d at 136, 137. There was, moreover, no question that Black consented to the police-citizen encounter during the period in which the police garnered the objective justification. 675 F.2d at 131-32. Because the agents here did not have a basis for an articulable suspicion and because there is substantial evidence that Moya did not consent to the encounter, the seizure issue cannot be avoided here.
The degree of intrusiveness of stops that do not rise to the level of arrests may vary, and in order to be lawful in a given case it must be proportional to the degree of suspicion that prompted the intrusion. When little or no suspicion exists, therefore, very little intrusion is tolerable. Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979), strongly states this principle of proportionality:
In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant’s right to personal security and privacy tilts in favor of freedom from police interference.... [Ejven assuming that [a strong social] purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits.
See also Delaware v. Prouse, 440 U.S. 648, 649, 654, 99 S.Ct. 1391, 1393, 1396, 59 L.Ed.2d 660 (1979) (“the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests”); United States v. Bautista, 684 F.2d 1286, 1290 (9th Cir.1982) (prolonged questions must be “related in scope to the justification for their initiation,” quoting United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975), quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)); United States v. Ramirez-Cifuentes, 682 F.2d 337, 343 (2d Cir.1982) (court must “carefully measure[ ] the need for the stop against the nature of the intrusion suffered”); United States v. Nembhard, 676 F.2d 193, 202 (6th Cir.1982) (reasonableness of a stop is dependent on balance of public interest and private right to be free from arbitrary interference); United States v. Streifel, 665 F.2d 414, 422 (2d Cir.1981) (“[A]n officer having a reasonable suspicion, based on articulable, objective facts, that criminal activity is afoot may make an investigatory stop that is reasonable both in its duration and its intrusiveness .... In balancing the government’s law enforcement interests, it is generally true that the more intrusive the stop, the stronger the justification must be ... and that ‘if probable cause is lacking, the intrusion must be no greater than the circumstances require,’ ” quoting United States v. Vasquez, 638 F.2d 507, 520 (2d Cir.1980), cert. denied, 450 U.S. 970, 101 S.Ct. 1490, 67 L.Ed.2d 620 (1981), 454 U.S. 847, 102 S.Ct. 165, 70 L.Ed.2d 135 (1981)); United States v. Viegas, 639 F.2d at 45 (“The facts before the agents ... adequately justified the initial inquiry.... The slight intrusion of this encounter was supported by the [defendants’] evasive actions in the airport. ...”); United States v. Dodier, 630 F.2d 232, 234-35 (4th Cir.1980) (“The minimal intrusion on privacy rights by an investigative stop is permissible if ‘the police officer [can] point to specific and articulable facts which ... reasonably warrant that intrusion,’ ” quoting Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1879).
Whether an investigatory stop of limited intrusiveness is controlled by the fourth amendment therefore depends on the justification for even that limited intrusion. This rule is rooted in the Court’s interpretation of the fourth amendment as embodying the dual concerns of protecting privacy interests and avoiding arbitrary official action. See Michigan v. Summers, 452 U.S. 692, 701 & n. 14, 101 S.Ct. 2587, 2593 & n. *34514, 69 L.Ed.2d 340 (1981); Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890; Brown v. Texas, 443 U.S. at 51, 99 S.Ct. at 2640 (fourth amendment “assure[s] that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field”); Delaware v. Prouse, 440 U.S. at 654, 661, 662-63, 99 S.Ct. at 1396, 1400, 1400-1401; United States v. Brignoni-Ponce, 422 U.S. at 882, 95 S.Ct. at 2580; Terry v. Ohio, 392 U.S. at 14 & n. 11, 15, 21-22, 88 S.Ct. at 1876, 1879-80 & n. 11. If the threshold fourth amendment inquiry were limited to consideration of the physical circumstances of the stop, apart from the justification for the officers’ approach, the officers’ discretion to make arbitrary or discriminatory stops would be unfettered. See A Model Code of Pre-Arraignment Procedure § 110.2(l)(a) & Commentary 262-63, 269-70, 273, 276-77 (1975).
It is important to remember that Terry stops are valid only because of an exception to the usual rule requiring “advance judicial approval of searches and seizures through the warrant procedure.” Id. at 20, 88 S.Ct. at 1879. The exceptions to this general rule are motivated by necessity but are limited by the requirement that judicial approval be available after the fact if it is impossible in advance:
The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.
Id. at 21, 88 S.Ct. at 1879 (footnote omitted). Because reviewability is central to the scheme of this exception to the warrant requirement, declining to examine the justification for police conduct would be to abdicate a responsibility and to invite arbitrariness.
It is true that the Supreme Court has noted that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” Reid v. Georgia, 448 U.S. at 440 n. *, 100 S.Ct. at 253 n. *; Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. Asking a passerby for directions, see United States v. Viegas, 639 F.2d at 44, or questioning possible witnesses of a crime, see A Model Code of Pre-Arraignment Procedure § 110.2(l)(b) (1975), for example, may invoke no fourth amendment concerns. The reason for these exceptions, however, is not that “the law does not concern itself with trifles”; it is because these situations, unlike inherently confrontational ones, do not pose any risk of arbitrary or abusive exercise of discretion. But whenever an officer identifies himself as a drug enforcement agent and singles out an individual for questioning, the implication of suspicion and the potential for abuse are clear.
This is not to say that all intrusions, no matter how minimal, in which the risk of arbitrariness is present must be justified by a uniform degree of suspicion. Such a rule was rejected in Terry v. Ohio, 392 U.S. at 16-19, 88 S.Ct. at 1877-1878. Rather, the test is “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. Less suspicion is required to initiate a minor intrusion, therefore, than to justify a more severe restriction on liberty.
In assessing reasonableness the court must weigh the importance of the governmental and individual interests. See Michigan v. Summers, 452 U.S. at 702, 101 S.Ct. at 2594. It is not enough to say that, in a case like the present one, the limited nature of the intrusion makes the individual interest inconsequential when compared with th'e government’s overwhelming interest in controlling drug trafficking. If the government’s general interest were at issue, it would outweigh almost any individual interest and stretch fourth amendment protections wafer thin. That kind of balancing, however, is improper because the court’s duty is to “evaluate the reasonableness of a particular ... seizure in light of the particular circumstances.” Terry v. *346Ohio, 392 U.S. at 21, 88 S.Ct. at 1879 (emphasis added). See A Model Code of Pre-Arraignment Procedure, Commentary 276-77 (1975). When an officer cannot articulate suspicions concerning a particular individual, the government’s interest in controlling drug trafficking by that individual is small. Brown v. Texas, 443 U.S. at 52, 99 S.Ct. at 2641. In fact, the government then has an interest in avoiding arbitrariness.
The district court, relying upon Reid, supra, held that at the time the police officers approached Moya on the cab line, the officers did not have a basis for an articulable suspicion that Moya was involved in criminal activity. At 341, 345.
The district court found “that Moya showed no hesitancy in agreeing to respond to [the agents’] questions or in agreeing to remove himself from the taxi line and enter the terminal foyer.” At 341-342, 344-345. This finding is inconsistent with the testimony of the agents, and is clearly erroneous. The agents testified that although Moya agreed to the agents’ initial request to speak with him, he refused to give them any identification and denied that he had any. At 344-345. This version of the facts was accepted by the district court; it was critical to the district court’s determination that a basis for articulable suspicion had arisen:
The subsequent interview, however, was ample to justify detention of the luggage. The first question addressed to Moya at the time he was standing in the cab line was a request for identification. Moya’s contention that he had none was, of course, suspicious in itself.
At 345.
This cab line exchange raises a critical question. When a person refuses to comply with a police request for identification, does this form a basis for articulable suspicion? In Brown v. Texas, supra, the fact that a citizen angrily “refused to identify himself and angrily asserted that the officers had no right to stop him,” 443 U.S. at 49, 99 S.Ct. at 2639, did not give the officers a right to further detain him. Id. at 50, 99 S.Ct. at 2640. The police officers observed Brown in a high drug area, “looking suspicious,” walking away from another person. These observations, in addition to Brown’s refusal to identify himself, however, were insufficient to justify further detention of Brown. Id. at 52, 99 S.Ct. at 2641.
On the basis of Brown, then, if Moya, instead of denying he had identification, had refused to give the agents any identification, the agents would have had no basis for an articulable suspicion that Moya was involved in criminal conduct. The result, therefore, of the majority’s holding is that a citizen must assert his fourth amendment right in only one manner — or lose it. Such a strict rule favoring police over citizens is contrary to the spirit of the fourth amendment, to the balancing of private and public interests, and to our abhorrence at arbitrary police conduct.
It is clear that Moya was “seized” at some point during the encounter. After refusing to give the officers any identification, Moya agreed to step inside the terminal. This acquiescence does not amount to consent. A reasonable person faced with continued police questioning would not feel free to walk away. See Terry v. Ohio, 392 U.S. at 18, 88 S.Ct. at 1878 (“a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope”); id. at 28-29, 88 S.Ct. at 1883-1884 (“The Fourth Amendment proceeds as much by limitations upon the scope of government action as by imposing preconditions upon its initiation.”); United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982) (prolongation of questioning when preliminary questions fail to raise any suspicion contributes to finding that defendant was detained); United States v. Bautista, 684 F.2d 1286, 1290 (9th Cir.1982) (prolonged questioning must be justified); United States v. Berry, 670 F.2d 583, 597 (5th Cir.1982) (en banc) (“Statements which intimate that an investigation has focused on a specific individual easily could induce a reasonable person to believe that failure to cooperate would lead only to formal detention.”) (footnote omitted). See also United States v. Jodoin, 672 F.2d 232, 235 (1st Cir.1982) (when answers to initial questions produce additional suspicion they justify further questioning).
*347Even if Moya consented to step inside the terminal, the tone of the police-citizen encounter abruptly changed thereafter. After producing his plane ticket, Moya asked what the stop was all about. At 339. The agents ignored the question and continued to press Moya for additional identification. Id. Surely the aura of coercion must be found here when the officers refused to answer Moya’s question. Their refusal cannot be construed as creating a friendly, relaxed, and everyday tone to the police-citizen encounter, and it is clear error to conclude otherwise.
Unlike the defendant in Black, Moya’s identification provided no additional basis for suspicion. Black was travelling under an alias on a one-way first class ticket. 675 F.2d at 137. Black told the officers he had been picking coconuts to earn money. Id. Black’s story was implausible. Id. Moya’s identification, in contrast, was completely in order. At 339.
The only remaining fact, the denial of the plastic bag glimpsed as Moya produced his identification is a far cry from the narcotics placed in plain view in Black. 675 F.2d at 138. That denial is entitled to even less weight as a basis for an articulable suspicion than the earlier denial of identification. Obviously Moya did not want to produce the plastic bag. The district court held, in accordance with Brown, that Moya had a valid fourth amendment right to refuse to produce the plastic bag. At 346. Indeed, the district court found that Moya’s fourth amendment rights were violated when the police officers seized the plastic bag. Id. at 346. It defies logic to conclude on the one hand that the police officers could not seize the plastic bag, but that on the other the agents could seize the shoulder bag which contained the plastic bag. I cannot endorse this illogical result or the majority’s further erosion of the fourth amendment’s guarantees.