Dissenting.
Because I agree with the decision of the Pennsylvania Common Pleas Court in suppressing the evidence in this case, I would hold that the District Court erred in deciding that Esco Wilson was not seized for purposes of the Fourth Amendment at the time he consented to the search of his automobile at a traffic stop for speeding on the Pennsylvania Turnpike. Accordingly, I respectfully dissent.
As the majority opinion makes clear, Wilson was arrested by a Pennsylvania State Trooper following a search of his stopped automobile and then prosecuted by the Commonwealth in the Common Pleas Court of Cumberland County where he filed a motion to suppress evidence obtained in the search. The Common Pleas Court granted the motion because the judge determined that Wilson’s consent was not an “independent act of free will.” This being the only evidence, the prosecution elected to nolle prosequi.11
Thereafter, federal authorities arrested Wilson and commenced a prosecution in the United States District Court for the Middle District of Pennsylvania on federal charges arising from the same incident. In response to Wilson’s motion to suppress, the government agreed not to offer any new evidence, but stipulated that the federal court could decide the motion solely on the basis of the transcript of the earlier state proceeding.
What appears on the surface to be a blatant exercise of judge shopping, that in theory smacks of double jeopardy, is justi*391fied by the government on the basis of what has come to be known as the Petite Policy, a procedure of the Department of Justice (“DOJ” or “the Department”) that was severely criticized by this Court in United States v. Grimes, 641 F.2d 96, 100-104 (3d Cir.1981) (Adams and Sloviter, Circuit Judges, Knox, District Judge).
The Petite Policy allows the Department, in certain circumstances, to institute a federal prosecution based on substantially the same act(s) or transaction(s) involved in a prior state or federal proceeding where the defendant has previously prevailed. See Rinaldi v. United States, 434 U.S. 22, 27, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977); Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960).
I.
At oral argument in this case, the court asked the government lawyer if the Justice Department gave the local federal prosecutor authority to commence a federal prosecution. This colloquy followed:
AUSA: [The Petite] Policy provides that there are various circumstances under which the Department will approve a subsequent federal prosecution on the same facts as a state prosecution and one of the circumstances under which the Department will do so is where there has been a suppression of evidence based on state law or on an erroneous interpretation of federal law by a state court.
COURT: And that was done here? Your office received the approval of the DOJ?
AUSA: I do not know whether that was done here.
COURT: Why is this case here? Freedman [the Pennsylvania Supreme Court Case relied on by the Pennsylvania Court of Common Pleas] involved the interpretation of federal constitutional law. What makes this case extremely unusual is that I have never seen a procedure where the federal prosecution proceeds, but then relies exclusively on the transcript of the state proceeding? Are you familiar with any other precedent?
AUSA: I have done it many times myself and it happens frequently. It does not happen all the time but it does happen and it happens where we feel that there was an injustice done.
I am troubled by a policy that automatically triggers a federal prosecution merely because “there has been a suppression of evidence based on state law or on an erroneous interpretation of federal law by a state court.” I believe this policy generates serious problems. It increases the caseload in federal courts, runs counter to modern concepts of federalism, denigrates the quality of the state-court system, trial and appellate, demeans the professionalism of state-court judges who have more experience, indeed much more experience, in deciding federal constitutional questions in criminal proceedings than federal judges and in view of the recent teachings of Smith v. Massachusetts, 543 U.S. —, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005), probably violates the Double Jeopardy Clause of the United States Constitution.
The very admission in open court that the federal government will initiate a new prosecution in cases where state courts suppress evidence has a pernicious effect on the rights of state-court defendants seeking to vindicate Fourth Amendment rights. The federal government’s message *392to state judges is clear: “Do not suppress evidence. If you do, we’ll institute a new federal prosecution on the same facts even though the investigation and arrest were made by state authorities and the state conducted the prosecution.” This policy allows the United States, in effect, to use federal courts to review any state judge’s federal constitutionally-based decision on a motion to dismiss.
To me, this is appalling.
I express the views that follow for the purpose of: (1) inviting the Supreme Court to re-examine its older cases on the Double Jeopardy Clause in light of its cases making the Bill of Rights applicable to state prosecutions by means of the Fourteenth Amendment; and (2) directing the attention of Congress to this practice.
II.
This practice of instituting a federal prosecution when “there has been a suppression of evidence based on state law or on an erroneous interpretation of federal law by a state court,” which apparently “happens frequently” is not in accord with the Department’s own guidelines implementing the Petite Policy. (See Oral Argument (quoted in full above).) First, the guidelines require, as a procedural prerequisite to initiating a federal prosecution subsequent to a state prosecution, approval “by the appropriate Assistant Attorney General.” U.S. Dep’t of Justice, United States Attorneys’ Manual § 9-2.031 (1997). There is no indication that approval was given in this case, and it seems unlikely that approval was given because the AUSA arguing the appeal did not know whether it had been given or not.
Second, and more importantly, the guidelines require that a “substantial federal interest” be involved which was “un-vindicated” at the state level and which can be effectively vindicated at the federal level through a “conviction by an unbiased trier of fact.” Id. The determination about whether a federal interest is involved is to be made on a “case-by-case” basis with a presumption “that a prior prosecution, regardless of result, has vindicated the relevant state interest.” Id.
Initially, I note that the explanation of the policy by the AUSA at oral argument seems at odds with a careful “case-by-case” approach. More fundamentally, the following inquiries expose what I take to be unwarranted assumptions, implicit in the Department’s guidelines, about what it takes to vindicate a federal interest: (1) Whether the federal interest in prosecuting drug dealers is exclusively a federal interest, or, if the interest is not exclusively federal, whether federal law promotes a far more effective vindication of the interest than the state law designed to vindicate the same interest; and (2) Whether federal judges have a superior competence, by reason of more experience, to preside over criminal cases which present constitutional issues. My answers, set forth below, lead me to question not only the conformity of the procedure followed in this case with the Department’s own guidelines,12 but also the continuing vitality of the Petite Policy itself.
*393A.
It is helpful first to compare the federal and state statutes and sentences for the charge of distributing and possessing with intent to distribute a significant quantity of cocaine. In the District Court, Wilson filed a conditional plea of guilty to 21 U.S.C. § 841(a)(1) for possession with intent to distribute more than 500 grams of cocaine. After his motion to suppress was denied, he was fined $300 and sent to jail for five years.
Pennsylvania law similarly prohibits “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance,” such as cocaine. 35 Pa. Stat. Ann. § 780-113(a)(30) (2003). Sentencing for violation of 35 P.S. § 780-113(a)(30) is governed by 18 P.S. § 7508(a)(2). Where the offense involves at least 100 grams of cocaine, it provides for a mandatory minimum sentence of five years in prison and a fine of $25,000 for first time offenders and seven years and a $50,000 fine for repeat offenders. § 7508(a)(2)(iii). The Pennsylvania law seems to punish drug dealers more effectively, or at least more forcefully, than the federal law.
If the federal interest is in prosecuting drug dealers, clearly a prosecution under the state statute would vindicate the relevant federal interest. I refuse to accept the notion that the federal interest is to demand convictions rather than prosecutions. I see nothing in the Constitution or any statute that so defines our federal interest.
There appears to be no reasonable justification for federal prosecutors becoming modern day Girolamo Savonarolas and insisting that because a cocaine dealer in a state court was turned loose after a Fourth Amendment hearing, they must prosecute again in order to combat wickedness and spread holiness of life. If we can agree that the federal interest is to insure that drug dealers be prosecuted, I submit that every state in this Nation has a similar interest, and this leads to the next question: Are state judges competent to try drug cases in state criminal courts?
B.
The brute fact is that state-court trial judges have more experience than federal judges in deciding federal constitutional issues that arise in criminal prosecutions. For example, in 2002, some 15.5 million criminal cases were filed in state trial courts,13 while in the federal district courts there were 67,000 in 2003 and 70,642 in 2004.14
The ratio of superiority of experience of state judges is approximately 2250 to 1. This means that, as a group, state judges had. 2250 criminal cases to every one of their federal counterparts.
In a more immediate locale, Pennsylvania Common Pleas Court judges handled 155,049 criminal cases in 2002.15 The fed*394eral district judges in the three federal judicial districts in Pennsylvania handled only 1394.16 This means that, as a group, Pennsylvania state judges had approximately 111 criminal cases to every one of their federal counterparts. In the district courts of the entire Third Judicial Circuit in 2002 there were 2939 criminal filings.17
To be sure, at the time the Supreme Court put its imprimatur on the Petite Policy, state judges had little or no experience with federal constitutional issues.
These cases were decided at a time when Fifth Amendment Double Jeopardy did not bind the states. When the Court decided Abbate v. United States, 359 U.S. 187, 194, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), and held that “[t]he Fifth Amendment, like all other guaranties in the first eight amendments, applies only to proceedings by the federal government, ... and the double jeopardy therein forbidden is a second prosecution after a first trial for the same offense under the same authority,” Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), had not yet applied the Fifth Amendment Double Jeopardy Clause to the states.
A popular saying seems appropriate here: “We’ve come a long way, baby.”
The time has come for the Supreme Court to revisit the issue, or for Congress to take ameliorative actions on the basis of the empirical data set forth above; data that demonstrates the overwhelming participation by state judges in criminal cases involving federal issues.
A brief list of the significant recurring federal constitutional issues facing state judges every day includes: Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (right to proceed without counsel); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (limited use of co-defendant’s confession); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (right to counsel during post-indictment lineup identification); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (right to counsel during custodial interrogation); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (right to exculpatory information in possession of prosecutor); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to court-appointed counsel); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (search and seizure).
III.
My analysis of the double jeopardy problems which inhere in the Department’s Petite Policy begins with endorsement of what this Court said in Grimes, and I incorporate by reference the discussion set forth therein in Part II. See 641 F.2d at 100-104. Succinctly, this Court is of the view that “permitting successive state-federal prosecutions for the same act may be viewed as inconsistent with what is a most ancient principle in western jurisprudence that a government may not place twice a person in jeopardy for the same offense.” Id. at 100. We noted that the predicate of the seminal case legitimating this policy, Bartkus v. Illinois, 359 U.S. *395121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), was that the Fifth Amendment Double Jeopardy Clause did not bind the states. Subsequently, Benton unqualifiedly held that the provision does apply to the states. 395 U.S. at 794, 89 S.Ct. 2056. After a discussion of Supreme Court cases that followed Bartkus and Abbate, we stated: “Whenever a constitutional provision is equally enforceable against the state and federal governments, it would appear inconsistent to allow the parallel actions of state and federal officials to produce results which would be constitutionally impermissible if accomplished by either jurisdiction alone.” Grimes, 641 F.2d at 102. “The ban against double jeopardy is not against twice being punished, but against twice being put in jeopardy.” William B. Lockhart, Yale Kamisar, Jesse H. Choper, Constitutional Law 696 n.a (1970) (citing Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963)).
A.
The Supreme Court has recently reconsidered the scope of double jeopardy protection in another context in Smith v. Massachusetts. In determining that double jeopardy attaches mid-trial where a judge ruled in favor of the defendant on a motion for a required finding of not guilty on one of the charged offenses, the Court considered it important that “the facts of this case gave the petitioner no reason to doubt the finality of the state court’s ruling.” Smith, 125 S.Ct. at 1135. The same is true here. I find no indication in the record that Wilson was forewarned that even if he prevailed in his state proceedings, he would still have to face a second federal prosecution.
More importantly, the Court stated:
Our cases have made a single exception to the principle that acquittal by judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty. United States v. Wilson, 420 U.S. 332, 352-353, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). But if the prosecution has not yet obtained a conviction, further proceedings to secure one are impermissible: “[Sjubjecting the defendant to post-acquittal factfinding proceedings going to guilt or innocence violates the Double Jeopardy Clause.” Smalis v. Pennsylvania, 476 U.S. 140, 145, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986).
Id. at 1134 (emphasis added).
B.
Moreover, there has been action by Congress subsequent to this Court’s 1981 decision in Grimes that has relevance here.
In 1996, Congress amended 28 U.S.C. § 2254 to provide:
(d.) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
The Court has explained: “Congress specifically used the word ‘unreasonable,’ and not a term like ‘erroneous’ or ‘incorrect.’ Under § 2254(d)(l)’s ‘unreasonable application’ clause, then, a federal habeas court may not issue the writ simply because that court concludes in its indepen*396dent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (“The focus of the latter inquiry is on whether the state court’s application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one.”) (emphasis added); see also Brown v. Payton, 544 U.S. —, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005) (recent decision of the United States Supreme Court affirming this principle).
There are important similarities between: (1) the statutory presumption in habeas cases at § 2254(d) that the state proceedings are presumed correct; and (2) the DOJ’s Petite Policy that presumes that a prior prosecution, regardless of the result, has vindicated the relevant federal interest. U.S. Dep’t of Justice, United States ‘Attorneys’ Manual § 9-2.031 (1997).
Putting aside the question of double jeopardy, it seems to me that if we are to put a defendant to the expense and agony of a second trial under Petite, the government should be put to the same test that Congress now requires of a habeas petitioner under § 2254. The government should have to show that the state court’s application of clearly-established federal law is objectively unreasonable, rather than merely incorrect. Absent a re-examination by the Supreme Court, it would take Congressional action to replace the policy described at oral argument in this case which allows a subsequent federal prosecution “where there has been a suppression of evidence based on state law or on an erroneous interpretation of federal law by a state court.”
I now turn to the constitutional issues presented in the case at bar.
IV.
The District Court erred in determining that Pennsylvania State Trooper Overcash obtained effective consent from Esco Wilson for the search of his bag and therefore erred in its denial of Wilson’s motion to suppress the evidence obtained from that search. This conclusion follows from a determination that Wilson was not seized for purposes of the Fourth Amendment. I begin with a discussion of the standard of review.
The government urges that a number of questions of fact and mixed questions of law and fact are contained in the ultimate legal issue before us. It contends that these questions of fact should be subject to a review for clear error by this Court.
I agree that, generally, factual questions and factual components of mixed questions are subject to a clear error standard of review. I also^ agree with the government’s specific determination of which issues are factual and the cases which support this determination. See United States v. Givan, 320 F.3d 452, 459 (3d Cir.2003); United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002); United States v. Coggins, 986 F.2d 651, 653-654 (3d Cir.1993).
There is an important factual difference between the cases cited by the government in support of its preferred clearly erroneous standard of review and the case at bar. In each of the cited eases, the district court judge was present during the proceeding that produced factual evidence. The judge smelled the smoke of battle and was therefore in a much better position to make factual determinations than an ap*397pellate judge who merely reviews a paper record.
Face to face with living witnesses the original trier of facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth .... How can we say the judge is wrong? We never saw the witnesses .... To the sophistication and sagacity of the trial judge the law confines the duty of appraisal.
Wainwright v. Witt, 469 U.S. 412, 434, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) (quoting Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) and Boyd v. Boyd, 252 N.Y. 422, 169 N.E. 632, 634 (1930)).
In the case before us, the district judge was not there. He relied entirely on transcript evidence from the suppression hearing in the Pennsylvania Court of Common Pleas. This departure from orthodox district court suppression procedures is relevant because the very reason we defer to factual findings made at the trial-court level is not present in this case. This Court is in exactly the same position as the District Court. Collectively, three judges of this Court can read the written transcript of the state suppression hearing, the briefs of the parties and question the lawyers during oral argument. Judge Guido of the Cumberland County Court of Common Pleas was in a better position to make factual determinations, but we are not reviewing the state court’s grant of Wilson’s motion to suppress. We must review the order of the District Court.
I would exercise plenary review of factual as well as legal determinations made by the District Court because the unique circumstances here make the reasons for the normal clearly erroneous standard inoperative.
V.
This Court has not heretofore dealt directly with the issue presented here: When questioning occurs after the purpose of a traffic stop has been completed and the officer states that a person is free to leave, under what circumstances does a second seizure arise requiring probable cause distinct from that which justified the initial stop?
Here, the panel is plowing new furrows in this Court. And I am quick to admit that this is a close issue over which reasonable minds may differ.
I conclude that the District Court erred in determining that Pennsylvania State Trooper Overcash obtained effective consent from Wilson for the search of his bag. I believe it erred in denying Wilson’s motion to suppress the evidence obtained from that search. Supporting these conclusions is my disagreement with the District Court’s decision that Wilson was not seized for purposes of the Fourth Amendment when the consent was given.
A.
I start with the testimony of Trooper Overcash:
Q. Go ahead. What did you do with that citation?
A. Well, upon completing that citation, I examined this rental agreement and observed that it was actually to be returned by August 17th, 2001. I did conduct an NCIC CLEAN check to see if the vehicle was stolen. That was negative. Upon completing that citation and examining the rental unit, I did return to Mr. Wilson’s vehicle.
Q. Did you issue him a citation?
A. Yes, I did.
*398* * * * *
Q. Wbat happened next, Trooper?
A. I issued the traffic citation to Mr. Wilson outside the vehicle. Upon issuing the citation, I advised him he was free to leave. He took a few steps towards his vehicle, and then I asked him a question about the rental agreement being expired, and he responded. He related that he usually rented them for a month, that he did a lot of traveling. I asked him what kind of work he did. He related [sic] he sold master compact disks to music stores for approximately $500.00.
(Transcript of hearing at 8-10 (emphasis added).)
Thereafter, Trooper Overcash was asked “What happened next?” by the prosecuting attorney 14 times in four pages of testimony. (Id. at 10-14.) Fourteen answers by the Trooper related to his seeking information from Wilson after he had “advised [Wilson] that he was free to leave” at the conclusion of the traffic stop.
I view as instructive the Common Pleas Court judge’s finding that Trooper Over-cash simply began asking about the rental agreement. It was the state court judge and not the district judge who was able to observe Trooper Overcash’s testimony first hand. (See Op. of the Ct. of Common Pleas at 84.) Because of the unique posture of this case which leads me to apply a completely de novo standard of review, I would credit the state court finding over the opposite finding made by the district court judge.
B.
United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), instructs that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 554, 100 S.Ct. 1870. Mendenhall set forth “[examples of circumstances that might indicate a seizure” including “threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language-or tone of voice indicating that compliance with the officer’s request might be compelled.” Id.
In determining that Wilson was not seized for purposes of the Fourth Amendment, the government and the majority rely on United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). In that case, three plainclothes police officers with visible badges and concealed weapons boarded a bus as part of a routine drug and weapons interdiction. Id. at 197, 122 S.Ct. 2105. One officer stood at the rear of the bus, a second stood at the front while a third officer went from passenger to passenger explaining his purpose and seeking permission to search their luggage. Id. at 197-198, 122 S.Ct. 2105. The officers all made an effort not to block the entrance or exit of the bus. Id. The Court focused on coercion by force. It determined that because “[t]here was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice,” there was also no seizure for purposes of the Fourth Amendment. Id. at 204, 122 S.Ct. 2105. Drayton focused on these factors not as a test for determining whether a seizure had taken place, but rather as factually relevant inquiries in determining whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 202, 122 S.Ct. 2105.
*399The facts in this case are quite different from those in Drayton. Wilson was not one of many passengers on a bus who were all being politely asked for permission to search their bags. Instead, he had been pulled over, had his license, registration and rental agreement taken from him and was then ordered out of his car to receive a citation for speeding. None of this interaction was voluntary in nature.
All of the interaction was made in the context of a legitimate seizure for the purpose of issuing a speeding citation; a legitimate seizure that ended when Trooper Overcash told Wilson he was free to leave. Unlike the situation in Drayton, where the bus passengers had not been seized prior to the onset of questioning, Wilson had been seized for the speeding violation.
To hold that the teachings of Drayton applies is to mix apples and oranges.
In the case at bar, after being told he was free to leave, Wilson was immediately asked another question that had nothing to do with a speeding violation, the only purpose of the original seizure. He was asked a question about his rental lease, at a time when the Trooper had already learned that the car was not stolen. He was then asked where he was going, and after he responded, the Trooper walked to the other side of the car and asked the two passengers where they were going. Then, the Trooper went to his car and radioed for backup.
In this factual context, the critical question is whether a reasonable person at this time would feel free to: (1) decline to answer the officer’s questions; (2) re-enter his car; (3) say “sayonara” to the cop and drive away.
The District Court determined that, as in Drayton, there was no coercive force present in Trooper Overcash’s encounter with Wilson, and by virtue of this conclusion, determined that a reasonable person in this circumstance would have felt free to decline to answer the officer’s questions and drive away. In reaching this conclusion, the District Court focused exclusively on what took place after Trooper Overcash told Wilson he was free to leave.
For Fourth Amendment seizure purposes, I agree with the District Court: Trooper Overcash’s statement that Wilson was free to leave effectively ended the seizure that was incident to the traffic stop. Moreover, this fact constitutes the basic jurisprudential distinction between the facts in this case and those in Drayton.
Yet, we are not precluded from considering the potentially coercive effect which the force used during that traffic stop, before Wilson was told he was free to leave, may have had on the subsequent interaction between Trooper Overcash and Wilson. In addition, the Trooper’s statement that Wilson was free to go was framed by an authoritarian context.
The government cites a series of cases from our sister United States Courts of Appeals which are more similar factually than is Drayton to the case at bar.18 Each *400makes clear that a seizure pursuant to a traffic stop ends when the person stopped is told they are free to go, or have their documents returned to them. Although each of the cited cases held that subsequent interaction between the defendant subjected to the traffic stop and the police officer was consensual, every one of these cases contemplates the possibility that a show of authority could result in a second seizure. In each of these cases, the followup question which re-initiates the conversation after the traffic stop seizure is general and non-threatening to a law abiding person. In contrast, Wilson was asked a very specific question about the expiration of his rental agreement which could be easily perceived as accusatory and threatening even by an innocent law abiding person.
I find the government’s reliance on Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), largely unhelpful. Although it is true that Robinette is factually similar to the case before us, I do not read it as supporting the government’s position. Rather, I read it as rejecting any per se rule that would require police officers to inform persons that they are free to leave after a valid detention before attempting to engage in a consensual interrogation. Id. at 36, 39-40, 117 S.Ct. 417. Robinette reaffirmed a factually-based reasonableness test and remanded to the Ohio Supreme Court to decide the case using a reasonableness test instead of a per se rule. Id. at 40, 117 S.Ct. 417. In interpreting the guidance of the United States Supreme Court on remand, the Ohio State Supreme Court determined that, based on the totality of the circumstances, the transition between the exercise of authority involved in the seizure pursuant to a traffic stop and the seeking of permission to search the vehicle had been so seamless that the officer’s questioning was impliedly coercive. See State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762, 770-772 (1997).
In Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903, 905 (2000), the case relied upon by the Common Pleas Court in this case, Freeman was pulled over and issued a warning for improper lane changes and windshield obstructions. After the officer had issued the warning and returned Freeman’s documents, he told her she was free to go and went back to his car. Id. The officer then got out of his car and returned to Freeman’s car, began questioning her and her passengers, ordered her out of the car and eventually obtained permission to search the ear and found drugs. Id. The court employed the test which has been articulated by the United States Supreme Court and found that based on the totality of the circumstances, a reasonable person would conclude that the officer’s previous statement indicating she was free to leave was no longer operative and therefore a second seizure had taken place. Id. at 907-908.
In Givan, a factually similar case, we expressed doubt about whether the second encounter was a seizure for purposes of the Fourth Amendment but decided the case on a different basis: Even assuming that the defendant was seized, there was *401“reasonable and articulable suspicion of illegal activity sufficient to extend the stop.” 320 F.3d at 458. Our doubt in Givan sheds little light on the present case in view of some relevant factual differences. In Givan, the officer asked the driver of the car if he would mind answering a few questions before he began his questioning and the officer also explained that consent to the search had to be voluntary and was not required. Id. at 459.
Our survey of the case law uncovers no case from our own Court or the Supreme Court that is specifically controlling.
Although this is a very close case, I conclude that, looking at the totality of the circumstances, a reasonable person in Wilson’s position would not feel free to refuse to answer Trooper Overcash’s questions or get in the car and drive away. To be sure, Trooper Overcash’s instruction that Wilson was free to leave must be considered as a fact tending to support the government’s contention that this was a mere encounter, rather than a seizure. I conclude, however, that the overall context in which the interaction between the Trooper and Wilson occurred outweighs this fact. As was the case in Freeman, Wilson had just been subject to a series of authoritative, albeit legitimate, commands by Trooper Over-cash: being pulled over; required to produce documents; required to exit his vehicle and proceed to the rear of the vehicle. Then, almost immediately after being told he could leave, he was asked a very specific question which a reasonable person could take as an accusation of some kind of wrongdoing (namely possessing a vehicle illegally) followed by a demand to know his interim, mediate or ultimate destination. This questioning was serious enough to warrant a call for backup. Although reasonableness is the test, it is beyond cavil that at this moment Trooper Overcash considered that he had made a second seizure of Wilson.
I, therefore, conclude that the District Court erred in determining that Wilson was not seized for purposes of the Fourth Amendment.
VI.
The Majority has based its holding on their conclusion that Wilson was not seized for purposes of the Fourth Amendment when he consented to the search of his bag. I have expressed my disagreement with this conclusion. I will not comment on the government’s alternative theories which, in my view, are also flawed.
ifc sH $ ifc
The teachings of Smith v. Massachusetts cast serious doubt on, if not completely vitiate, the continuing vitality of the Petite Policy. Additionally, as a matter of public policy, Petite fails to give proper respect to the ability of state law and state judges to vindicate federal interests. I am asking the Clerk to forward a copy of this dissenting opinion to the respective chairs of the Judiciary Committees of the United States House of Representatives and the United States Senate with a recommendation that they determine whether legislative action is needed.
On the merits of the case at bar, I would reverse the judgment of the District Court.
Accordingly, with respect, I dissent.
. "Nolle prosequi, filed 9-13-02. M.L. Ebert, Esq. Reason: 6/18/02 Court of Common Pleas suppressed drug evidence and all post-arrest statements thereby rendering this case non-prosecutable. Costs in the amount of $ 357.50 will be paid by the county. 8-02-02. Edward E. Guido, J.” Criminal Docket, Court of Common Pleas of Cumberland County, Docket Number CP-21-CR-0002085-2001, Page 6 of 7.
. I am quick to recognize that this Court in Grimes, and all other United States Courts of Appeals that have considered the question recognize our inability to invoke the Department's policy as a bar to federal prosecution. See, e.g., United States v. Snell, 592 F.2d 1083 (9th Cir.1979); United States v. Howard, 590 F.2d 564 (4th Cir.1979); United States v. Frederick, 583 F.2d 273 (6th Cir.1978); United States v. Thompson, 579 F.2d 1184 (10th Cir.1978)(en banc); United States v. Wallace, 578 F.2d 735 (5th Cir.1978); United States v. Nelligan, 573 F.2d 251 (5th Cir.1978); United States v. Hutul, 416 F.2d 607 (7th Cir.1969). The Supreme Court, in analogous contexts, has concluded that Department policies gov*393erning its internal operations do not create rights which may be enforced by defendants against the Department. See United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); Sullivan v. United States, 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210 (1954).
. Examining the Work of the State Courts, 2003, (National Center for State Courts) 38; see also id. at 40 (Table for 2002, state by state except Mississippi, Oklahoma and Wyoming).
. Judicial Business of the United States Courts: 2003 Annual Report of the Director [hereinafter "Report”], Table D, available at http://www.uscourts.gov/jud-bus2003/appendices/d.pdf (as of Mar. 10, 2005).
. 2002 CAseload Statistics of the Unified Judicial System of Pennsylvania 9, available at *394http://www.courts.state.pa.us/ Index/Aopc/Re-search/caseloads/ 2002Report.pdf (as of Mar. 10, 2005). The 2003 figure is 153,362. 2003 Caseload Statistics of the Unified Judicial System of Pennsylvania 9, available at http:// www.courts.state.pa.us/ Index/Aopc/Rese arch/caseloads/ 2003report.pdf (as of Mar. 10, 2005). In Philadelphia alone, there were 15,-092 new filings in 2003. Id. at 12.
. Report, supra, note 2.
. Id.
. See United States v. Taverna, 348 F.3d 873, 877-79 (10th Cir.2003) (determining that a defendant was not seized for purposes of the Fourth Amendment where the defendant, after receiving a traffic citation, was walking back to his vehicle when the police officer hollered after him and asked if he could visit about things, proceeded to ask about drugs and guns and finally obtained permission to search the vehicle after explaining that the defendant could refuse); United States v. West, 219 F.3d 1171, 1176 (10th Cir.2000) (determining that a defendant was not seized when the police officer asked about travel plans after having concluded the initial traffic stop by handing the defendant's documents back to him); United States v. Bustillos-Munoz, 235 F.3d 505, 514-15 (10th Cir.2000) (determining that there was no coercive show of authority, and therefore no seizure, when, *400as the defendant was walking back to his car, the officer asked if he had any guns or drugs in his car and the defendant responded no; the officer then asked for and obtained permission to search the vehicle and found drugs); United States v. Sullivan, 138 F.3d 126, 133-34 (4th Cir.1998) (determining that defendant was not seized for purposes of the Fourth Amendment where, after having his license and registration returned to him, the defendant was asked whether he had anything illegal in his car and when the defendant did not answer, the officer repeated the question several times yielding an admission by the defendant that he had a gun in the car).