dissenting.
It is not an easy task to dissent from an opinion by the respected majority nor to vote to suppress evidence, which ruling may free a convicted felon. Nevertheless, on the facts and the law, I am compelled to do both.
I believe that issue one is dispositive. That issue is as follows: “whether police officers may make a random stop of an automobile without reasonable suspicion, objectively gauged and based on articulable facts, that any occupants of the vehicle have committed a crime.” The answer must be no, and since the stop violated the defendant’s Fourth Amendment rights, the evidence arising as fruit of the unconstitutional stop and search must be suppressed.
A few comments on the facts in the case are in order. At the time of the stop, Trooper Roberts did not know who occupied the on-coming vehicle. See opinion at p. 1030. Trooper Walker, at the suppression hearing, testified that he was driving on Curry Branch Road and was checking all cars in the area. Trooper Walker stated there was no traffic violation except the oncoming car was in the middle of a one and one-half lane country road, the customary position of traffic, even a squad car. When the Roberts car came upon the squad car it swerved, an act that would seem to indicate greater prudence than meeting the squad car head on.1 The district judge, during the suppression hearing, asked the question, “Even if he had not been driving, in your opinion erratically, would you have stopped him anyway for a check?” The answer was “Yes ...” Despite the trial judge’s characterization, no witness had used the word “erratic.”
The record establishes that prior to the stop the state troopers were not looking for a particular car or make. They were checking every car on the road. Prior to the stop, they did not know whose car it was. Prior to the stop, the troopers did not know who was in the car.
The majority asserts that, based on objective observations, including the so-called *1035erratic driving, Trooper Walker had “reasonable suspicion to stop Tommy Roberts’ vehicle.” Of course, the Trooper did not know whose car it was or who was in it. His intent was to stop everyone on the road. In fact, even after stopping the car that fortuitously was occupied by Roberts, the Trooper stopped the next car that came along. Apparently, the only suspicious act of the driver of that car was to be on Curry Branch Road.
The trooper lacked the requisite individualized suspicion to make the stop in question. See United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1980). See also United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) at page 560, 96 S.Ct. at 3084: “to accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure. See Terry v. Ohio, 392 U.S. at 21 and n. 18 [88 S.Ct. at 1879 and n. 18].” See also Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1978), as follows:
To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra [440 U.S. 648] at 663 [99 S.Ct. 1391, 1401, 59 L.Ed.2d 660] [(1978)]. See United States v. Martinez-Fuerte, 428 U.S. 543, 558-562 [96 S.Ct. 3074, 3083-3085, 49 L.Ed.2d 1116] (1976).
The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed. We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have probable cause to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, [422 U.S. 873] at 880-881 [95 S.Ct. 2574, 2579-2581, 45 L.Ed.2d 607 (1975)]. See Terry v. Ohio, supra, 392 U.S. at 25-26 [88 S.Ct. at 1882-1883]. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Delaware v. Prouse, supra, [440 U.S.] at 663 [99 S.Ct. at 1401]; United States v. Brignoni-Ponce, supra [422 U.S.] at 882-883 [95 S.Ct. at 2580-2581]; see also Lanzetta v. New Jersey, 306 U.S. 451 [59 S.Ct. 618, 83 L.Ed. 888] (1939).
Id. 443 U.S. at 51, 99 S.Ct. at 2640. See also Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1978).
The Government has attempted to avoid the effect of the stated intent of the troopers to conduct a “moving road check” of all cars by asserting that from the totality of the circumstances the stop was reasonable. The majority agrees. I respectfully assert that the facts do not support such a conclusion. The troopers were commendably doing their duty, but they were admittedly engaged in a roving patrol stop. See United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1974):
Second, the circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.
These differences are relevant to the constitutional issue, since the central concern of the Fourth Amendment is to protect liberty and privacy from arbitrary and oppressive interference by government officials.
Id. at 894, 95 S.Ct. at 2587. Cf. Michigan State Police Dept. v. Sitz, 496 U.S. 444, *1036110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), re: stationary highway sobriety checkpoints.
The majority suggests an alternative reason to affirm, that is, Trooper Walker would have recognized Roberts as he drove past on Curry Branch Road. This holding alludes, I believe, to the inevitable discovery rule, which is an exception to the “ ‘fruit of the poisonous tree doctrine’ where it is shown that such evidence would have been discovered even if the illegality had not occurred.” 12A Fed.Proc., L.Ed. § 33:673. In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the Supreme Court held that “if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received.” This theory was not argued by the government, and the government has the burden on this hypothesis. Furthermore, the “inevitable” discovery of the defendant by the same officer who conducted the illegal stop is not, in my view, “sufficient to remove the taint” of the illegal stop. Id. at 448, 104 S.Ct. at 2511.
On the record, the finding of facts by the district court was clearly erroneous, and because of this, the law cited was inapplicable.
I have no disagreement as to the holding of the majority on the other issues, but based on the facts and the law it is my opinion that the stop violated the Fourth Amendment of the Constitution. I therefore respectfully dissent as to the holding on this issue.
. Q. Was he violating any laws?
A. Other than driving towards the middle of the road at the time, and then he swerved over to the ditch line. That was the only observation about his driving that I saw. We met as we were—he was coming up a hill and I was topping over a hill crest. It’s a country, gravel-type road.
Q. Couldn’t he have been swerving to try to keep from hitting your car?
A. That’s a possibility, yes.
Q. This is a one-lane road, isn't it?
A. It’s about a one-and-a-half lane road, I would—you can pass, but it’s not a very wide road.
Tr. Suppression Hrg., pp. 13-14.