dissenting:
The district court determined that Officer Perry’s stop and frisk of Johnny Mi-chelletti was justified, and it refused to suppress the handgun found in Michellet-ti’s pocket. The majority affirms the district court’s decision. Because I do not find a sufficient reasonable suspicion to justify the frisk, I respectfully dissent.
There is no significant dispute about the facts. Because we are reviewing the district court’s legal conclusion that Perry had sufficient reasonable suspicion to justify the stop and frisk, the de novo standard applies. United States v. Richardson, 943 F.2d 547, 549 (5th Cir.1991).
In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court outlined an exception to the rule requiring probable cause to detain and search an individual. Under Terry, an officer may briefly detain someone if he or she has reasonable suspicion that the person has been, or is about to be, involved in some criminal activity. An officer then may also frisk the detainee for weapons if the officer is “justified in believing that the individual ... is armed and presently dangerous to the officer or to others.” Id. at 24, 88 S.Ct. at 1881. Thus, the suspicion that justifies a Terry stop does not also sanction a lawful patdown search unless the officers also reasonably suspect that the detainee is armed and dangerous. The majority’s opinion improperly treats these two requirements as one.
1. the stop
It is well established that an investigatory stop is proper only when the detaining officer has a reasonable suspicion “that criminal activity may be afoot.” Id. at 30, 88 S.Ct. at 1884. In the instant case, however, the record is devoid of any evidence that Officer Perry was warranted in suspecting that Michelletti violated or attempted to violate any criminal laws.
The district court concluded that Michel-letti violated section 101.72 of the Texas Alcoholic Beverage Code (TABC), which forbids the on-site consumption of beer purchased from a supplier licensed only for off-premises consumption.1 But even this important point is manifestly unestablished. As the majority concedes, the record does not reveal whether Alacran’s Bar *187carries the mixed-beverage permit that bars carry almost by definition. It is fanciful to imagine the converse, that a profit-seeking “bar” would hold merely an off-premise license and forbid on-site consumption. In short, only the implausible circumstance that Alacran’s Bar carried an off-premise license would support an arrest of Michelletti for violating § 101.72, inferred from his possession of the open container.
Other than § 101.72, TABC’s regulatory scheme generally governs the purveyors of alcoholic beverages, not the buyers. See, e.g., V.T.C.A., Alcoholic Beverage Code § 28.10(b) (prohibiting a mixed beverage permittee from allowing a patron to take a beverage off the premises), § 32.15 (barring the removal of alcoholic beverages from the premises of a private club), § 71.03 (forbidding an off-premise licensee from selling beer to be opened or consumed on or near the premises), and § 105.05(c) (prohibiting an on-premise purveyor from selling beer after 2:00 a.m.). The only other code provision that authorizes the arrest of a bar patron for possession of a beer outside a bar comes into play if the patron is consuming the beer after hours. Id. § 105.06. Perry, however, made no reference to the time when he stated that “it was a violation of Texas law to exit a bar in possession of alcoholic beverages.” Additionally, the district court found that the stop took place at 2:00 a.m. Under § 105.-06, no violation occurs until after 2:15 a.m.
The factually similar case of Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), is instructive. In Brown, a unanimous Supreme Court held that officers were unjustified in detaining the defendant as he was walking down an alley amid a “high drug problem area” merely because he “looked suspicious”:
The flaw in the State’s case is that none of the circumstances preceding the offi-eers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. Officer Venegas testified at appellant’s trial that the situation in the alley “looked suspicious,” but he was unable to point to any facts supporting that conclusion, [footnote omitted] ... The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct.
Id. at 52, 99 S.Ct. at 2641.
As in Brown, the record fails to establish that Michelletti’s detention was warranted by Perry’s asserted suspicion that Michel-letti himself was engaged in criminal behavior. I am willing to concede, however, that Perry may have possessed a good faith, though inaccurate, belief that Michel-letti’s possession of the beer outside the bar was prohibited by TABC regulations. Additionally, TABC § 101.07 charges all Texas peace officers with “detecting violations and apprehending offenders.” A brief stop of Michelletti could therefore be justified as part of an officer’s investigation of whether Alacran’s Bar was a mixed beverage establishment or private club that had allowed Michelletti to take his beer from the premises. Officer Perry, however, never claimed such a basis.
2. the frisk
Even assuming that, in light of all the circumstances, Perry had sufficient reasonable suspicion to conduct a valid Terry stop, I do not agree that he was justified in conducting the subsequent frisk. To determine the separate question of whether an officer was justified in frisking a detainee, we judge the facts against an objective standard: Would “a reasonably prudent man ... believe, based on ‘specific and articulable facts,’ that his safety or that of others [was] in danger”? United States v. Rideau, 969 F.2d 1572, 1574 (5th Cir.1992) (en banc) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883).
The officer in Terry had watched three men for ten or twelve minutes. Two of those men had walked a dozen times past a particular store window, studying it and consulting with each other. When the officer stopped the men to ask their names and business, they mumbled iharticulately. He therefore frisked them and discovered two revolvers. The Supreme Court held that a reasonably prudent officer could justifiably *188suspect the men were casing the store and were armed for robbery. In Rideau, two officers patrolling a high-crime area at night saw Rideau standing in the middle of the road. After the officers flashed their lights, Rideau stumbled out of the road. The officers approached Rideau, suspecting public intoxication. When they asked him his name, Rideau appeared nervous and pulled away, prompting the frisk and discovery of a gun. This court placed particular emphasis on both Rideau’s nervousness and backing away in holding that the officers were justified in suspecting he was armed and dangerous. Id. at 1575.
This court in Rideau emphasized that “the police [do not] have a right to frisk anyone on the street at night in a high crime neighborhood,” and they must be able to point to “specific and articulable facts indicating that their safety is in danger to justify a patdown.” Id. at 1575-76. Perry offered no specific and articulable facts here. Perry testified at the suppression hearing that Michelletti seemed suspicious because he had his right hand in his pocket; he drank beer with his left hand; he was calm, but “a little bit almost cocky”; and he made eye contact with the officers, but then looked away. Perry further stated on cross-examination that neither Mi-chelletti nor the other three men outside the bar did anything threatening. The officer admitted that Michelletti’s right hand in his pocket, his beer, and his attitude offered “[n]othing that would suggest he was armed at that time.”
This concession is significant. The conceded absence of “specific and articulable facts” is critical. As the Supreme Court first cautioned in Terry, an officer’s belief that a suspect is armed and dangerous cannot be based upon only a mere “inchoate and unparticularized suspicion or ‘hunch.’ ” Terry, 392 U.S. at 21, 88 S.Ct. at 1883. This important warning, not followed by the majority, was reiterated verbatim in the recent case of Maryland v. Buie, 494 U.S. 325, 332, 110 S.Ct. 1093, 1097, 108 L.Ed.2d 276 (1990).
Michelletti’s response when the officers confronted him also provided no justification for the frisk. Before asking any questions, Perry directed Michelletti to approach the patrol car, put down his beer, place his hands on the car, and submit to a patdown. Michelletti complied without comment or resistance. Unlike the situation in Terry, the officers here did not observe Michelletti acting suspiciously before accosting him. Unlike the officers in Terry and Rideau, Perry did not question Michelletti before conducting the frisk. Unlike the defendant in Rideau, Michelletti did not appear nervous, mumble, or draw away when confronted. He submitted to authority and did nothing that was potentially threatening. Neither was Rideau subjected to the intrusive frisk of being “put up against a wall or across a car and subjected to a shake down” as was Michel-letti. Rideau, 969 F.2d at 1575-76. And unlike the officers in United States v. Wangler, 987 F.2d 228, 231 (5th Cir.1993) (per curiam), who reasonably suspected the defendant was a drug dealer and had found guns near his truck on prior occasions, Perry did not detect a bulge in Michelletti’s front pants pocket.
Courts suppress evidence seized in violation of Terry and its progeny, even in potentially hazardous encounters such as roadside and on-the-street confrontations. See, e.g., United States v. Cole, 628 F.2d 897, 899 (5th Cir.1980), cert. denied, 450 U.S. 1043, 101 S.Ct. 1763, 68 L.Ed.2d 241 (1981) (suppressing the discovery of a pistol following patdown search because there was no proof that the suspect might be armed and dangerous); United States v. McQuagge, 787 P.Supp. 637, 653 (E.D.Tex.1991) (suppressing physical evidence, including firearms, where “there is no evidence in the record ... that the law enforcement officers who made the arrest reasonably believed the defendants were dangerous when they were stopped”); Harris v. State, 827 S.W.2d 49 (Tex.App.— Houston [1st Dist.] 1992, review denied) (suppressing crack cocaine because the frisking officer relied upon unparticular-ized hunches, not an articulated and individualized suspicion that the suspect was armed).
The United States Supreme Court has upheld the suppression of contraband dis*189covered similarly during an unjustified pat-down search in Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). In Ybarra, officers had a warrant to search a bar and its bartender for heroin. The officers also conducted a patdown search of Ybarra, a bar patron, despite the fact that Ybarra had made no gestures suggesting criminal conduct, no attempts to conceal contraband, and no suspicious statements. The Court held that the patdown of Ybarra was invalid because “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” 444 U.S. at 91, 100 S.Ct. at 342 (citing Sibron v. State of New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968)).
Certainly the late hour, the high-crime area, and the presence of other individuals outside the rear door of the bar justified the officers being on their guard. And viewed in a generous light, Officer Perry apparently possessed a good faith belief that Texas law had been violated, thus warranting further investigation. Michel-letti’s behavior, however, did nothing to raise the reasonable suspicion that he was armed and dangerous. While it is true that the patdown revealed a weapon, this impermissible search cannot be justified on hindsight. Accordingly, I disagree with the majority’s conclusion, and I would vacate the conviction.
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
July 7, 1993.
Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, E. GARZA, and DeMOSS, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the suggestion for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that this cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
. Even for a multiple offender, however, the penalties amount only to a fine between $100 and $200. Id. § 101.72(d).