concurring and dissenting.
I join in parts I and IIIA of the majority opinion.
I respectfully dissent from parts II and IIIB on two grounds. First, I cannot agree that evidence obtained by police officers under the guise of a pretextual stop is admissible because on hindsight a court can objectively find grounds for the police to *221have had a reasonable suspicion. Second, I believe that the Armed Career Criminal Act (the ACCA or the Act) created a separate and independent offense for which the defendant was neither indicted nor convicted and, therefore, his sentence under the Act constituted a denial of due process.
I.
In its original declaration of the exclusionary rule, in Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914), the unanimous Supreme Court stated that if illegally obtained evidence could be used against a defendant the protection of the Fourth Amendment “might as well be stricken from the Constitution.”
The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.
Id. The exclusionary rule exists not to keep unreliable evidence out of court, but to deter police from illegal intrusions into individuals’ liberty and privacy.
The majority state correctly that “[t]he exclusionary rule was designed to deter unconstitutional conduct, not perjury.” Maj. op. at 215. I do not, however, base my conclusion that the officers violated the fourth amendment upon their having testified falsely, reprehensible as that may be. The officers acted unconstitutionally in stopping Hawkins and his companions when they did not, as demonstrated by their own statements, have a reasonable suspicion of criminal activity other than the grounds dismissed by the district court as pretextual.1 Neither the detective’s investigation report nor the officers’ own incident report even mentioned the events allegedly observed on Washington Lane.
The existence of evidence that would have made a suspicion of criminal activity reasonable does not alter the fact that the officers admittedly were not acting under any such suspicion when they stopped the Hawkins car. The stop by police officers without even believing they had a valid suspicion of criminal activity is precisely the behavior prohibited by the fourth amendment. The advantage of hindsight distorts the reasonableness inquiry in fourth amendment cases. Once we know that a search did turn up evidence of crime, we are more likely to view as well-founded suspicions which at the time would have appeared groundless, and arbitrary action of police as intuitive and discerning. Improper searches of the innocent are not the subject of exclusionary rule debates and thus only very rarely are brought to courts’ attention. The fourth amendment violation exists whether or not evidence is found; it occurs at the moment of the police intrusion. If the majority’s reasoning is to be accepted, then, there is no longer any reason for the exclusionary rule. If that rule has any value and application, as I believe it does, it must exclude evidence produced by officers who asserted no credible suspicion of criminal activity.
The majority seem to believe, by analogizing to the standard in warrantless arrest cases, that even if police officers have no suspicion for an investigatory stop the evidence they obtain is admissible if, on hindsight, “there was a reasonable objective basis for the stop.” Maj. op. at 215.2 I believe that this is an unwarranted extension of the objective probable cause stan*222dard for a full arrest to the reasonable suspicion requirement for an investigatory stop. Because an investigatory stop is less severe in its requirements than a warrant-less arrest, the Supreme Court has required only a reasonable suspicion standard. By its very terms, however, a suspicion in essence is perception or belief and is, therefore, inherently subjective.
The stop in this case was a brief, investigatory stop of the type considered in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).3 The law is much more fully developed on the standards for a full arrest than for a Terry stop and the probable cause standard has been held to be objective.4 Thus, it has further been held that the court may supply grounds not in fact relied upon to support probable cause for a full arrest.
The Supreme Court has declined to hold that the reasonable suspicion standard is similarly purely objective as to warrant a finding of such a “constructive suspicion.” The majority suggest, maj. op. at 213, that in the cases following Terry, the Court used an entirely objective analysis for the reasonable suspicion standard. I cannot agree. The language of the very decisions cited by the majority setting forth and developing that standard, unlike that of those discussing the probable cause standard, suggests that the suspicion must be both objectively reasonable and subjectively actual.
The language of the Terry opinion indicates only that officers’ subjective suspicions must be objectively reasonable, not that they may be supplied by the court. The later cases construing the Terry standard have consistently reiterated this analysis.
The Supreme Court specifically contrasted the probable cause and reasonable suspicion standards on this basis in Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), noting that
“probable cause" to believe that the suspect is involved in criminal activity ... is required for a traditional arrest____ However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity [to justify an investigatory stop].
Id. at 51 (emphasis added). Similarly, in United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 62 (1981), the Court stated that there are two elements of reasonable suspicion: (1) an assessment based on all the circumstances which (2) must raise a suspicion of wrongdoing. Finally, in United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607, the Court emphasized: “We are unwilling to let the [officers] dispense entirely with the requirement that officers must have a reasonable suspicion to justify” investigatory stops. (Emphasis added).
Accordingly, the court in United States v. Thompson, 712 F.2d 1356, 1359 (11th Cir.1983) stated:
Terry-type investigative stops satisfy Fourth Amendment strictures if the officer has an objective, reasonable suspicion of unlawful activity ... based on articulate and specific facts known to him when the seizure occurred.
Id. at 1361 (emphasis added).
In short, the Supreme Court has time and again defined the reasonable suspicion standard in subjective terms, in contrast to the probable cause standard, which preced*223ed the reasonable suspicion test and whose language could have been paralleled by the Court for the reasonable suspicion standard, had that been the Court’s intention. The Court did not say these stops are justified if a police officer has reasonable grounds to form a suspicion of criminal activity; it required that the officer does so suspect, and that there exist facts within the officer’s knowledge making that belief reasonable. When a court supplies the basis for what police in their own minds believe to be an impermissible stop, the rationale for the constitutionality of warrantless actions is undercut.
II.
When it comes to sentencing enhancement, I have no differences with the majority over the constitutionality or the propriety of penalty enhancement statutes. They are intended to deter the illegal use of firearms and assure adequate punishment for those who commit crimes with guns. Such statutes serve a laudatory societal purpose and this court has upheld their constitutionality.5 I believe, however, that the Armed Career Criminal Act does much more than enhance the sentence for an offense already punishable by statute, but creates an entirely new federal offense.
The typical sentence enhancement statute permits an increased sentence for the predicate or underlying offense. See United States v. Schell, 692 F.2d 672, 676 (10th Cir.), rehearing denied, (1982); Government of the Virgin Islands v. Henry, 533 F.2d 876, 878 n. 1 (3d Cir.1976). In the instant case, the Act, 18 U.S.C. App. § 1202(a)(1), provides that a felon convicted for possession of a firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both. On the other hand, a felon convicted of possessing a firearm who has three previous convictions for robbery, burglary, or both, shall be fined not more than $25,000 and imprisoned not less than fifteen years without suspension of sentence, grant of probation, or parole. Thus, the substantive offense for which Hawkins was tried and convicted carried a maximum prior sentence of two years, but the prison sentence imposed by the court carried a minimum term of not less than fifteen years. This is a prime example of “a tail which wags the dog of the substantive offense,” a concern expressed by the Supreme Court in its recent decision in McMillan v. Pennsylvania, — U.S. —, —, 106 S.Ct. 2411, 2418, 91 L.Ed.2d 67 (1986). The ACCA requires imposition of a separate and severely enlarged sentence, at minimum not less than seven and one-half times more than the maximum for the predicate offense.
In this case, the grand jury indicted Hawkins only for the unlawful possession of a firearm, “hav[ing] been previously convicted of a felony under Pennsylvania laws.” Hawkins’ indictment did not charge three prior burglary and robbery convictions and, as the majority note, maj. op. at 217, the trial court instructed the jury that in order to convict, it was required only to find beyond a reasonable doubt that the defendant had been convicted of one felony. Thus, in imposing the magnified sentence, merely by attributing to the firearm conviction the three prior felonies, the court sentenced Hawkins for an entirely separate offense for which the defendant was neither indicted, tried, nor convicted, and without affording him the full panoply of the “relevant protections which due process guarantees in ... criminal proceedings.” United States ex rel. Gerchman v. Maroney, 355 F.2d 302, 312 (3d Cir.1966).
I believe that the Act as applied in this case violates the due process clause of the Constitution. In McMillan, supra, the Supreme Court examined a state statute specifically to resolve whether that statute set forth a new crime or just a sentence enhancement. The Court set forth several criteria for this determination, under which the Act here clearly emerges as a separate crime. Unlike Pennsylvania’s mandatory minimum sentencing act which the Supreme Court of the United States held constitutional in McMillan, § 1202(a)(1) does not merely provide for a mandatory minimum sentence which does not exceed the *224maximum sentence provided for the enumerated felony charged in the indictment. By contrast, as mentioned above, the minimum sentence provided for in the ACCA multiplies many times the maximum sentence specified in § 1202(a)(1) for the indicted offense.
Again, unlike the Pennsylvania Mandatory Maximum Sentencing Act, the ACCA does not provide that the prior three felony convictions will be a sentencing factor that comes into play only after the defendant has been found guilty of the predicate offense. The contrast between the sentencing factor found acceptable in McMillan and the language of the Act as applied in this case is evident from Chief Justice Rehnquist’s analysis in McMillan:
Section 9712 [of the Pennsylvania Act] neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it ... [and] “ups the ante” for the defendant only by raising to five years the minimum sentence which may be imposed within the statutory plan.
Id. — U.S. at —, 106 S.Ct. at 2417-18 (footnote omitted).
In emphasizing the significance of the Pennsylvania statute’s not having raised the maximum penalty, the Supreme Court in McMillan contrasted that statute with the federal bank robbery statute, 18 U.S.C. § 2113(d),6 which sets forth a separate and greater penalty for bank robbery involving the use of a dangerous weapon or device. — U.S. at —, 106 S.Ct. at 2417-19. This circuit, among others, has examined § 2113(d) and held that it creates a separate offense, not merely a sentencing factor. United States v. Harvey, 439 F.2d 142, 143 (3d Cir.), cert. denied, 403 U.S. 934, 91 S.Ct. 2264, 29 L.Ed.2d 713 (1971); see also United States v. McKenzie, 414 F.2d 808, 811 (3d Cir.1969).
The enhanced offense in § 1202(a) resembles § 2113(d) much more closely than the Pennsylvania statute construed in McMillan in that it raises dramatically the minimum penalty and lacks any explicit language denominating it a sentencing factor rather than an element of the offense. Indeed, the provision in § 1202(a) differs from the statute construed in McMillan even more than does § 2113(d), in that § 1202(a) imposes a mandatory sentence and denies suspension, probation, and parole. The Pennsylvania statute construed in McMillan provided only for an increased minimum sentence not beyond the maximum. No part of § 1202(a) is identified as a sentence enhancement provision and nowhere does it set out appropriate procedures for a sentencing hearing.
In recently analyzing the ACCA, Judge Ruben writing for the Fifth Circuit observed:
The Act lacks other common indicia of sentence-enhancement provisions. It does not derive its penalty as a multiplier of § 1202(a)(1). Also, unlike typical sentence-enhancement statutes, 18 U.S.C. § 3575 (1982) and 21 U.S.C. § 849 (1982), for example, it is neither titled as a sentencing provision nor does it set out procedures for the sentencing hearing.
United States v. Davis, 801 F.2d 754, 756 (5th Cir.1986) (footnote omitted). Applying the reasoning used by the Court in McMillan and the rationale of Davis, the statute before us defines two separate offenses.
The majority conclude, relying largely on their interpretation of the legislative history, that the ACCA does not create a separate offense “but rather an enhanced penalty.” Maj. op. at 219. The majority view as a misstatement the legislative history which speaks of the new amendment as “adding a new offense.” H.R.Rep. No. 1073, 98th Cong.2d Sess. 4, reprinted in 1984 U.S. Code Cong. & Ad. News 3661, *2253666 (emphasis added). However, the legislative history is not as clear as the majority would have it.
*224(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
*225In referring to the legislative history, the majority quote from the House Report, maj. op. at 219, as support for the view that the provision does not create a separate offense but only an enhanced penalty. Even that section of the House Report, however, does not state that Congress was enhancing the penalty for the indicted offense, but rather that “we are ‘enhancing’ an existing Federal crime” (emphasis added). This is what the Fifth Circuit in United States v. Davis, supra, found when, although it perceived no ambiguities in the Act, it nonetheless reviewed the legislation at the urging of the Government. Acknowledging that it found some indication consistent with an intent to provide merely for sentence enhancement, the court also found other legislative notes “even more suggestive of an intent to create a new offense.” Id. at 756.
The majority cite to the opinion of a divided panel in United States v. Davis, No. 86-1103 (8th Cir. Dec. 18, 1986), and United States v. Gregg, 803 F.2d 568, 570 (10th Cir.1986), as supportive of its interpretation of the statute. The majority in Davis, however, merely stated a conclusion with little analysis of the legislative history of the Act. In Gregg, the court neither analyzed the ACCA nor reviewed its legislative history. Without any explanation, it too concluded that the provision did not create a new federal crime but only increased the penalty for an already existing federal offense. I find the careful and well-reasoned analysis of the Act by the Fifth Circuit to be the most persuasive.
III.
In summary, I believe that if the exclusionary rule has any remaining vitality, it must operate here where the officers themselves did not have the required suspicion of criminal activity, and conducted a stop and search on a pretextual basis in what was at least an attempted violation of the fourth amendment. I would therefore reverse the conviction and sentence, and remand the case for a new trial at which the illegally obtained evidence will be excluded.
Likewise, because of the language and structure of the amendment to section 1202(a), its legislative history, and the enormous disparity between the penalty for the underlying offense for which Hawkins was indicted and the sentence imposed upon him, I believe that Congress created a separate offense for the possession of firearms by a felon with three prior felony convictions. Hawkins was neither indicted nor convicted for this offense. Therefore, if Hawkins’s conviction is upheld, I would vacate the fifteen year sentence imposed upon him and remand for sentencing under the first sentence of section 1202(a)(1).
.' The Supreme Court has refused to allow pretextual arrests for minor offenses to support searches for greater offenses. United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). A fortiori, where the “offense” supporting the search is not only minor, but wholly fabricated, the search is improper, and the evidence must be excluded. United States v. Smith, 799 F.2d 704 (11th Cir.1986).
. The cases relied upon by the majority in support of an objective standard for the reasonable suspicion requirement, United States v. Lester, 647 F.2d 869 (8th Cir.1981), and Klingler v. United States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110 (1969), are each cases dealing with probable cause for arrest, not reasonable suspicion for a Terry stop.
. In Terry, the lower standard was justified to allow officers to search suspects upon apprehensions, not amounting to probable cause, because of danger from concealed weapons. A subjective standard is thus even more appropriate for a search incident to a Terry stop than to a full arrest: if the officer does not in fact have a suspicion that the danger may exist, there is no logical reason for the court to supply one.
. Probable cause exists when, at the moment of arrest, "the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 80 (1964). See also Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
. See, e.g., United States v. Davis, 710 F.2d 104 (3d Cir. 1983) (dangerous Special Offender Statute, 18 U.S.C. § 3575), cert. denied, 464 U.S. 1001, 104 S.Ct. 505, 78 L.Ed.2d 695 (1984).
. Section 2113(d) provides: