(dissenting). Plaintiff Sandy Dixon, Jr. was stopped, frisked, and questioned by 2 police officers, the defendants Ronald Shiner and William Schmidt. Dixon answered their questions and was frisked, which was described by one of the officers as a light patting down. Neither before nor upon conclusion of such questioning was there reasonable cause to believe a felony had been committed, let alone reasonable cause to believe Dixon had committed a felony and, thus, the police officers, not hav*585ing obtained a warrant for Dixon’s arrest, were without authority to arrest him.1
However, before either Dixon or the police officers had left the scene, events developed in such a way that the police officers did then have both reasonable cause to believe a felony had been committed and reasonable cause to believe Dixon had participated in its commission. (See footnote 6) Thereupon the police officers arrested Dixon. He was detained some 7 hours and then released without charge. He was, apparently, innocent of the crime which prompted his arrest.
Dixon brought this action against the police officers charging he was unlawfully arrested. The trial judge, sitting without a jury, found that the initial stop, frisk and on-street questioning was an arrest and that, since the arrest was made at a time when there was not reasonable cause to believe a felony had been committed, in the commission of which Dixon had participated, the arrest was an unlawful arrest. The trial judge awarded Dixon $500 damages.
The police officers appeal, claiming the initial stop, frisk and on-street questioning was not an arrest. The majority refuse to consider that issue on its merits saying that to do so would be to permit the police officers to argue on appeal a theory not presented below. There is no factual basis for the majority’s premise other than the blurred meaning of the word “arrest”, for which definitional obscurity neither the police officers nor their counsel are responsible.
The source of the difficulty is that it once was commonplace to declare, but perhaps not to hold, that *586even a brief detention, especially by a police officer, is an arrest.2 More recently, as the propriety of stop and frisk came to be debated and litigated, it was sought to establish a distinction between an investigative stop and a taking into custody or formal arrest, it being asserted by proponents of stop and frisk that, while probable cause is required for an arrest, something less suffices for a stop and frisk. While the United States Supreme Court declined in the stop and frisk cases3 to distinguish between a stop and an arrest as such and declared both covered by the Fourth Amendment and the exclusionary rule devised for its protection, it is clear that the Court has recognized a distinction between a formal or technical arrest, requiring probable cause, and an intrusion or stopping falling short of formal arrest which the Court has now declared does not violate the Fourth Amendment if the exigencies of the situation do not allow adequate time for the police officer to obtain a warrant and he is able “to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant”4 the intrusion on the citizen’s privacy.
The United States Supreme Court had no need to redefine “arrest” in order to decide the stop and frisk cases. In those cases the question was not whether there had been an arrest, but whether limited seizures and searches of the kind described were protected by the Fourth Amendment as applied to *587the States through the Fourteenth Amendment which protects the people “against unreasonable searches and seizures.” The reluctance of the United States Supreme Court to redefine the term “arrest” lest some assume an intrusion or stopping short of arrest is no longer constitutionally protected, does not change the need in light of its ruling for a redefinition of terms. We can no longer use one term “arrest” to cover both a stopping for so-called field interrogation and a taking into custody. Until better terminology is coined, the terms “stop” and “formal arrest” are needed to make clear what we are talking about; to distinguish, if you like, between one kind of “arrest” and another, and to avoid precisely the kind of definitional difficulty which led the majority to conclude that the issue the police officers seek to raise on this appeal has not been properly preserved.
I.
The plaintiff Dixon had the burden of declaring the issues in this action. It was Dixon, not the police officers, who failed to state whether the police officers were charged with the tort of unlawful arrest on the basis of what occurred at the time he initially was stopped or on the basis of what occurred at the time he was taken into custody. Dixon’s declaration and his “plaintiff’s version” in the pre-trial statement5 charged the police officers *588with, an unlawful “arrest” without specifying •whether the claim was that the initial stop or the subsequent formal arrest was the allegedly unlawful arrest.
It is apparent from an examination of the trial transcript that Dixon’s proofs primarily challenged the formal arrest, the taking into custody and only incidentally, if at all, focused on the initial stopping as a separate, identifiable wrong with legal consequences for the purposes of this action separate and apart from the formal arrest itself. Since Dixon’s proofs challenged the taking into custody, it is understandable that defense counsel in his opening statement (referred to in the majority opinion) responded by saying the taking into custody, or formal arrest, was validated by probable cause, as it in fact was.
*589It was not until the defendants started to put in their defense and Dixon’s counsel had an opportunity to cross-examine officer Shiner that, for the first time in the entire action, Dixon focused on the stopping phase as a separable phase. What would the majority require defendants’ counsel to have affirmatively done at that juncture to preserve their right of appeal? Surely, it was not necessary for defendants’ counsel to have sought leave to amend the defendants’ answer to assert that the initial stop, frisk and on-street questioning was not an arrest despite the fact Dixon’s counsel had not yet amended Dixon’s declaration to state that the initial stop, frisk and on-street questioning was an arrest.
If, as the majority postulate, the police officers had contended they had probable cause to arrest Dixon when they first stopped and frisked him and commenced their on-street questioning, and the ■whole case had been tried on that issue, i.e., whether there was probable cause to “arrest” Dixon at that time, then possibly the officers should be precluded from asserting for the first time on appeal that they had the right to stop, frisk and question Dixon without regard to whether they had probable cause to do so. . However, there is nothing in the record which would support the majority’s conclusion that the police officers ever claimed, before or at trial, to have had probable cause to arrest Dixon when they commenced their on-street questioning.
Although the majority hold the police officers failed properly to preserve for review by us the meritorious questions, they emphasize the testimony of the police officers on cross-examination to the effect that Dixon was under arrest when he was first stopped. It is not claimed that Dixon was then told he was under arrest; on the contrary, the record shows he was not told he was under arrest until the *590formal arrest at which, time there was probable cause to arrest him.
The difference of opinion among legal scholars and the courts as to what constitutes an arrest or an unlawful arrest makes it apparent that a layman’s interpretation should not control our decision even if that layman be one of the parties involved. No doubt, police officers have been instructed that any stopping or detention can or may be regarded as an arrest. When one of the police officers in this case responded on cross-examination: “Yes, he [Dixon] was technically under arrest”, he was merely repeating that view of the law.
The police officers are no more bound by their at-time-of-trial legal characterization of what occurred than Dixon is bound by his at-time-of-trial legal characterization. Dixon testified he was arrested after the appearance of the Canadian soldier and the return of one of the police officers from the motel manager’s office, whereupon, testified Dixon, he was arrested at St. Clair and Jefferson where his car was parked, a short distance from where he was initially stopped.6
*591II.
The question presented is whether the stopping, frisking and questioning of the plaintiff Dixon was tortious. In the stop and frisk cases the question presented to the United States Supreme Court was whether the evidence seized as a result of the frisks conducted in those cases should he suppressed because it was obtained in violation of the constitutional guarantee against unreasonable searches and seizures. The Court held that even though there is not probable cause for an arrest it is not always constitutionally unreasonable for a policeman to seize a person and subject him to a limited search for weapons. In so holding the United States Supreme Court decided only the Federal constitutional question. The Court has not precluded a State from deciding as a matter of local law the extent to which it wishes to permit such seizure and search of persons short of formal arrest, as long as the standards for determining what constitutes a reasonable seizure and search are no less restrictive than the Federal standard.
Michigan law has not heretofore recognized a right in a police officer to make the kind of limited seizure and search, the so-called stop and frisk, constitutionally approved by the United States Supreme Court in the stop and frisk cases. Other courts have recognized such a right both by sustaining the constitutionality of stop and frisk legislation and by permitting the stop and frisk practice independently of legislative authorization therefor.7 No *592doubt, the United States Supreme Court’s declaration of constitutionality, coupled with its apparent justification of the practice as necessary and sound as long as it is undertaken within the narrow circumstances so held to justify such an invasion of the individual’s privacy, will provide the necessary philosophical basis which will lead before long to the recognition of some right of limited seizure and search by many, if not most, and perhaps all States either as the result of legislative action or independently thereof.8
Be that as it may, a citizen who wishes to stand on his constitutional right against self-incrimination need not answer any question put to him by a police officer,9 and under existing law no such failure to respond would in itself justify a police officer in taking him into custody. However, Dixon’s testimony shows that prior to his formal arrest he was cooperating with the police in an effort to clear himself of any suspicion of wrongdoing.10 He testified that he had “no objection” to the frisk and that he answered the police officers’ questions.11 It even ap*593pears that Dixon may have satisfied the officers, for he testified that they departed his immediate presence before the Canadian soldier entered Dixon’s automobile and sought to explain his presence there by telling the police officers that Dixon had driven him to the motel.12
In People v. Rivera (1964), 14 NY2d 441 (201 NE2d 32, 252 NYS2d 458), and State v. Terry (1966), 5 Ohio App 2d 122 (214 NE2d 114), appellate courts of New York and Ohio approved stop and frisk independently of enabling legislation. The police officers ask us to adopt those holdings in this case. The legal question thus presented is an important one, and, for reasons previously stated, it *594is properly raised before us. In my opinion the parties are entitled to our decision thereon.
No findings of fact were made by the trial judge as to whether the police officers in this case exceeded permissible limits of intrusion under the rule of law they would have us adopt, nor has there been any appraisal of the effect on any liability they may have of the fact Dixon chose to answer their questions and at trial testified he found the initial touching and intrusion unobjectionable.13 It would be entirely appropriate now to remand for additional fact findings, retaining jurisdiction. Fact findings would facilitate our consideration of the question of law which is here for decision, a question of first impression in Michigan. Alternatively, we can now decide the question of law and, depending on our ruling thereon, consider remand after it is decided for any additional required fact finding. One way or another we should reach the meritorious question presented and decide it.
“Any police officer may, without a warrant, arrest a person * * *. “(d) when he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it.” CL 1948, § 764.15 (Stat Ann 1954 Rev § 28.874).
5 Am Jur 2d, Arrest, § 1. Compare, Restatement, Second, Torts, § 112, which defines “arrest” as follows:
“An arrest is the taking of another into the custody of the actor for the actual or purported purpose of bringing the other before a court, or of otherwise securing the administration of the law.”
See, also, State and lower Federal court eases cited in footnote 7.
Terry v. Ohio (1968), 392 US 1 (88 S Ct 1868, 20 L Ed 2d 889), and Sibron v. New York (1968), 392 US 40 (88 S Ct 1889, 20 L Ed 2d 917).
Terry v. Ohio, supra, p 21.
(a) Declaration. Tbe declaration charged the defendants “did arrest plaintiff and by exercise of force and threats compel plaintiff to accompany them, and the said defendants, to the city of Detroit police precinct number 5, under pretense that the said plaintiff was sought for the commission of a crime.” Later: Defendants “did maliciously and without reasonable or probable cause whatsoever arrest and imprison plaintiff for a long space of time.” Surely the police officers were not obliged to conclude, indeed cannot be expected to have concluded, that Dixon’s declaration complained of the initial stop rather than the formal arrest.
*588(b) Answer. The police officers denied Dixon’s allegations, adding the arrest was a lawful arrest, relying on their statutory authority to arrest. That response, read in the light of Dixon’s declaration, could not be understood as a concession that the initial stop was an unlawful arrest or a claim that there was probable cause to make an arrest at the time of the initial stop.
(c) Pretrial statement. Dixon’s version was that the police officers wrongly placed him “under arrest.” The police officers’ version was that the “arrest” was lawful in that there was probable cause for them to believe a felony was being or had been committed and Dixon mas involved in committing it. It is now apparent that the pretrial statement failed in its purpose in that it did not summarize with specificity the factual and legal issues to be litigated (GCR 1963, 301); the pretrial statement did not specify whether the allegedly unlawful arrost was the stop or the taking into custody, or both. But the failure of Dixon’s version and of the police officers’ response to serve this pui-pose cannot be charged to the police officers who were required to respond only to that which Dixon claimed; and all he claimed was that he was unlawfully “arrested”. The police officers were not required to do more than state their denial.
One can hardly blame the police officers’ counsel for failing to clear up the ambiguity regarding the precise nature of Dixon’s claim. Dor all defense counsel knew, for all that appears from the declaration and Dixon’s version in the pretrial statement, all that Dixon intended to claim at trial was that the formal arrest was without reasonable cause; on the record so far then made, one cannot say such an interpretation was unreasonable. It was not the obligation of the police officers’ counsel to educate Dixon’s counsel concerning any deficiencies in his pleadings; it was not their obligation to highlight the feature of Dixon’s case on which he should concentrate.
Dixon told the police officers he arrived at the motel in an automobile then parked on St. Clair north of Jefferson, and that he was waiting for a friend. Within a few minutos and while the officers wore still at the scene, an individual dressed in the uniform of a Canadian soldier emerged from the motel carrying luggage heading for Dixon’s car. lie entered Dixon’s car and when questioned by the police officers declared that Dixon had driven him to the motel. Dixon was asked to accompany the officers to the ear. It appears from his testimony he had no objection to doing so, which is noi surprising since he must at that juncture have regarded it mosi fortunate the police officers were on the scene to remove this stranger who had just entered his automobile at 4:00 a.m.
A series of events then occurred which led to Dixon’s formal and most unfortunate arrest. The Canadian soldier dropped a key to a motel room which he studiously avoided picking up. One of the officers cheeked with the motel manager and learned that the room for that key was registered to neither Dixon nor the Canadian soldier, following which Dixon and the soldier were formally arrested.
Compare People v. Rivera (1964), 14 NY2d 441 (201 NE2d 32, 252 NYS2d 458), certiorari denied (1965), 379 US 978 (85 S Ct 679, 13 L Ed 2d 568), with People v. Peters (1966), 18 NY2d 238 (219 NE2d 595, 273 NYS2d 217), affirmed sub nom. Sibron v. New York (1968), 392 US 40 (88 S Ct 1889, 20 L Ed 2d 917) and authorities in those eases cited. See, also, State v. Terry (1966), 5 Ohio App 2d 122 (214 NE2d 114), affirmed Terry v. Ohio, supra; United States v. Vita (CA 2, 1961), 294 F2d 524; People v. Amos (1961), 190 Cal App 2d 384 (11 Cal Rptr 834).
Of. Tentative draft No 1, Model Code of Pre-Arraignment Procedure (1966), Art 2.
See Terry v. Ohio, supra (Mr. Justice White concurring).
No doubt a citizen’s cooperation could be obtained by police officers under duress. Surely, if police officers approach a citizen with drawn guns and ask for permission to question and pat him down, they will not be heard to rely on any consent given under those circumstances. The defendant police officers were working in plain clothes and did not draw their guns during the patting down and interrogation of Dixon.
Cf. Tentative Draft No 1, A Model Code of Pre-Arraignment Procedure (1966), § 2.03 ;
“(1) Authority to Bequest Cooperation. * * * Compliance with a request for information or other cooperation hereunder shall not be deemed involuntary or coerced solely on the ground
(a) that such request was made by one known to be a law en forcement officer; * * *
“(4) Bequest to Malee Search. [Reporters’Note: This section will deal with requests to search and consents thereto; it will be drafted in connection with the search and seizure materials.]”
The following is from Dixon’s testimony on direct examination;
*593“Q And now, at the time of your arrest, did anyone ask you if you had been engaged in any criminal activity?
“A No, what happened, I was down the street from St. Clair, just about a block away and these two officers came up to me and wanted to search me. I had no objection, and one made the remark while I was being searched that 'If he doesn’t have a gun, he is not the one.’ And the moment of a mention of the gun I wondered what was happening, that this could be very serious, guns being involved, and then they asked me what was my name. I told them and they wanted to know where I lived. I told them. And they wanted to know what I was doing down there and I told them I came down to pick up a Dan Smith. They wanted to know who was Dan Smith. I said he was a friend of mine and they left. And then they went back to the car. Back towards this motel. And later they came back, and when they came back they said to me, to come with them down to my ear. They had asked me the first time if I had a car, and I told them it was parked down the street. And now they wanted me to go down to the car. And I went with them, I walked to the yard of the motel and they said, 'Is that your car parked over there?’ I said it was over behind the hedges on the street. I said, ‘Yes.’ They said, ‘Walk over to the ear.’ When I walked over to the car, when I got over to the car, I saw the door was opened and this person was sitting there in the car, on the seat, and he jumped up and shouted, ‘This is my car. This is my car.’ ‘You Americans got all this big beautiful car.’ He said, ‘Look at what a beautiful Buick it is.’
“I was flabbergasted at this time, and most excited, and I looked on the back seat. There was a suitcase, it was opened and a lot of whiskey bottles and half-filled shaving bottles. I said, ‘Where did that come from?’ And I wasn’t allowed to say a word. That’s when I was ruthlessly handcuffed, and shoved in the ear and headed to the station.”
The police officers testified that the soldier appeared while they were still questioning Dixon. Dixon testified (see footnote 11) the questioning had concluded and the officers had departed his immediate presence before the soldier appeared
In this connection it should be noted that the trial judge awarded the plaintiff $500 damages because he had been detained in the station house 7 hours with resulting “humiliation, irritation, incarceration over night, and the missing of his church duties the next morning” even though the on-street “detention” prior to the defendant’s valid arrest could not have been for more than 5 to 15 minutes. It is apparent that despite the validity of the formal arrest the damages were awarded largely for the formal arrest and not for what occurred at the time Dixon was initially stopped.