(dissenting) — It has been a long and difficult period of gestation for this case; in the interval, the defendant has been freed from prison. But, the significance of the issue now before us remains.
The majority makes the forthright declaration that "racial incongruity. . . should never constitute a finding of reasonable suspicion" justifying an investigative stop. Majority, at 346. While I agree with and applaud this statement, as far as it goes, I nonetheless cannot sign the majority opinion and therefore dissent.
*350At the outset, contrary to the majority, I see no confusion in the record and no need for remand. The source of the confusion lies not with the facts but with the trial court's and now the majority's mischaracterization of issues of law as disputed facts. Majority, at 340, 343-44. CrR 3.6 creates a duty for the trial court to set forth the disputed facts and its findings of fact, but in this case the facts were undisputed. As a consequence, the trial court, apparently, incorrectly labeled the issues of law as disputed facts. We should not continue this error. Further, CrR 3.6 does not create a duty that requires a trial judge to set forth " 'specific and articulable facts'" it "felt justified the investigative or 'Terry-type stop". Majority, at 344. That duty is on the police officer. Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The duty of the trial court and this court is to determine whether a stop was justified based on the evidence. See State v. Mennegar, 114 Wn.2d 304, 309-10, 787 P.2d 1347 (1990). A remand is unwarranted.
The evidence shows that, but for the race of the defendants, Officer Hershey would not have slowed down to look at them twice. As he testified, when he saw them he "became suspicious. It was unusual to see three black guys carrying items, walking, at least in that part of the city." Report of Proceedings, at 6 (Jan. 19, 1988). When asked to explain his statement — given a chance to deny that his suspicion was merely a racially motivated hunch — Officer Hershey stated that, based on his experience, "the whole circumstance" (which at that point consisted of three black men walking together on a street in Bellevue on an evening in late spring, one carrying a gym bag, one a brown paper bag, and one an item wrapped in a blanket) "[njormally" meant "a crime had just been committed . . .". Report of Proceedings, at 6 (Jan. 19, 1988).
This type of assumption by a police officer is simply unacceptable. The fact that Officer Hershey is black does not make it more acceptable, nor does the fact that, in this case, Officer Hershey's hunch turned out to be correct. Every*351thing that happened and everything Officer Hershey saw after he initially decided three black men walking in Bellevue must be up to no good is tainted by that decision, and this court should say so.
The majority's holding would allow Terry stops if there are sufficient "facts to support a legally justified and well-founded suspicion of criminal activity at the time" of the stop, regardless of whether the initiating factor in the sequence of events leading up to the stop was solely based upon racial incongruity. Majority, at 348.1 strongly disagree with this test.
The court has consistently applied the exclusionary rule where it has deemed it necessary to deter police misconduct and preserve the dignity of the judiciary. See State v. Bonds, 98 Wn.2d 1, 12, 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983). The same mandates should be applied here.
Racial incongruity overhangs this entire case like a noxious pall, and it will not be eliminated by the test set forth by the majority anymore than all the perfumes of Arabia would sweeten the little hand of Lady Macbeth.
Some might argue that adopting my view would merely encourage police officers not to tell the truth, unlike Officer Hershey who, to his great credit, did. Human nature being what it is, this gloomy view may have some force. There is, however, another more important characteristic of human nature which must be considered. If appropriate conduct is practiced, even hypocritically at first, the conduct will eventually become the belief. Put another way, the mask will become the face. The most celebrated literary example of this truth is the short story by Max Beerbohm entitled "The Happy Hypocrite" (see M. Beerbohm, The Incomparable Max 364 (1962)). And, as all sentient persons know, it happens as well in real life. However unhappily, the mask of civilized conduct may be put on and worn. For most who don it, the truth will ultimately shine through. Changed attitudes on the matter of racial equality and civil rights since 1954 bear testimony to this.
*352I would hold that if racial incongruity, alone, initiates the sequence of events leading to an investigative stop — as I am convinced it does here — then the conviction must be overturned. I think this court should do no less.
Utter and Smith, JJ., concur with Dolliver, J.