dissenting.
I dissent.
We are (or should be) bound by precedent on this court. In my view the panel decision in United States v. Clay, 640 F.2d 157 (8th Cir.1981), requires that we reverse.
The only factual difference between Clay and the present case rests on a distinction without any principled difference. In Clay, officers searching the premises ordered Clay, a black man, to enter. The officers then patted him down and discovered a gun. Here, the plainclothes searching officer invited Patterson, also a black man, inside the premises, listened to Patterson’s noncriminal reason for his presence and then conducted a patdown. Moreover, one of the officers acknowledged that upon entering the house, Patterson was not free to leave. Thus, in both cases, the seizure occurred at almost the moment of immediate encounter.
As the opinion in Clay observes: “Only specific articulable facts taken together with rational inferences warrant the intrusion of an investigatory search.” Clay, 640 F.2d at 159 (citing Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880).
Applying this principle, the Clay court stated:
In our view, Sgt. Moss had nothing more than “mere suspicion” of possible criminal activity or danger based upon appellant’s approach to the house. After reviewing the circumstances surrounding the stop as a whole, we conclude that Sgt. Moss did not have reasonable suspicion, based on objective facts that Clay was involved in any criminal activity. We hold that on the facts presented, the district court erred in refusing to suppress the gun seized. Such error went to the heart of the government’s case.
Clay, 640 F.2d at 162-63.
The same principle and result should follow here.