DISSENTING OPINION OP
ABE, J.It appeal’s that the decision of the majority of this court concedes that the officers did not have probable cause to effectuate an arrest at the time they stopped the automobile. I agree. But this court then holds that the officers did not arrest the defendant but, in accordance with the rule of Terry v. Ohio, 392 U.S. 1 (1968), only stopped and detained him for investigatory purposes. I do not agree because the record indicates the officers stopped the automobile to arrest the defendant, not to investigate.
*506I.
WAS DEFENDANT ARRESTED WITHOUT PROBABLE CAUSE?
Officer Ledward testified as follows:
“I pulled the car over and I asked the driver to stop, and I came right out. As I got up to the car I did see the rifle on the back seat of the car.
“Q (By Mr. Campbell) Was any part of the weapon exposed when you walked up to the car?”
“A The butt part of the rifle was sticking out of this leather or the OD case.
“Q Did you see anything else in the car?
“A That I wasn’t able to see. I saw that and I was putting my attention on both parties.
« * « » «
“Q What happened after that?
“A Well — I went on the left side, the driver’s side—
“Q What did you observe?
“A —and Detective Kamakea went on the right side, and there was Officer DeCosta who pulled up when we told him we were going to stop this car. Right there we ordered the two out and they were placed under arrest by Detective Kamakea for possession firearms.”
Further, Officer Ledward on cross examination stated:
“Q You mean you had come out Oneawa and driven up Kailua Road?
“A No, we hadn’t touched Kailua. This is all on Oneawa. Detective Kamakea and I decided that we would stop them in that general area. In the event that we did, should they try to abandon and flee on foot, we would be able to catch. In the open area, why, they could go most any direction.
*507“Q Directing your attention at the arrest, how did you actually make the arrest?
“A I came out, like I said, from the passenger side of Detective Kamakea’s car, and I approached the driver. First, I told him to stop and he came to an abrupt stop. So I got out there and Detective Kama-kea got out, and I went out to the driver’s side and he went around to the passenger side.
*****
“Q Did you have your guns drawn when you pulled them over to the side?
“A Yes, sir, as I got off the car I had my gun di’awn and I think Detective Kamakea had his—
“Q Were there other police there as well?
“A Yes, there was another uniformed officer. That was Officer Melvin DeCosta who pulled up right in back
of the car in which Mr. Goudy was riding in.
* * # # *
“Q Prior to the arrest you said you pulled up alongside, you stopped the automobile, you ordered . them out of the car and you placed them under arrest immediately?
“A Yes, sir. Yes, ¿ir. Like I said, Detective Ka-makea placed both of the occupants under arrest.”
The other officer, Detective Kamakea testified as follows :
“A couple Of minutes later I saw this same person come back to the car carrying a rifle case in his right hand. I then observed him place the rifle in the back seat of the car and went back into this lane or driveway. And then a few minutes later he came with a brown paper bag under his arm, got in the car, conversed with the driver for a little while.
“Then the car started out, drove into another lane where they backed up and continued back on Oneawa Street in the Waimanalo direction, and Sgt. Ledward *508and I pulled them over fronting 43 Oneawa Street.
“When I approached the car I noticed the butt end of the rifle sticking out of the case which was on the back seat. I also noticed a package on the floor with some papers in it and the butt end of a pistol sticking out. I then placed both occupants of the car under arrest.
*»*■*»
“Q Will you tell the jury actually how you folks made the arrest — in other words, you came up to one side and then what happened?
“A When I pulled the car over I instructed Sergeant Ledward to get out first because I was in the middle of the roadway.
“Q Did you say anything to them prior to pulling them over?
“A I tooted my horn and I motioned and the driver pulled over. However, he didn’t pull over, he stopped right there, and this caused me to stop abruptly. Sgt. Ledward got out of the car, I got out on my side and went around on the passenger side. The driver in the meantime had come out of the car with his hands up in the air. Mr. Goudy was still seated in the passenger side.
“Q You said the passenger side, you mean the driver got out?
“A The driver got out of the car.
“Q With his hands up?
“A Yes. When I went around the vehicle, the passenger side, Mr. Goudy was still there, and I just happened to look in the back seat and I saw the rifle and the sheath partly exposed.
“I then opened the door to have Mr. Goudy. come out of the car and I saw the pistol sticking out of the package — the butt end.
*509“Q Okay. And then as you pulled up alongside, did you have your pistol drawn?
“A I did.
“Q Were you waving at them so that they would know — ?
“A No, not at that point.
“Q But you did have your weapon drawn when you pulled up. Did Officer Ledward have his drawn also?
“A I believe so. I am not sure.
*****
“Were there other policemen on the scene?
“A Several.
“Q How did they happen to get there?
“A I called them by radio.
“Q You called them as you were following the Barracuda?
“A Yes.”
In my opinion the foregoing testimony of the officers definitely indicates that at the outset, with no probable cause, they had intended to arrest the occupants of the black Barracuda, including the defendant, when the driver was ordered to pull over. Otherwise, why were the three other officers on their automobiles directed to converge to the area where the defendant was stopped? And I would hold that as soon as the driver was ordered to pull over the defendant was under arrest. The situation here is very similar to Henry v. United States, 361 U.S. 98 (1959), where federal agents waved a suspect’s automobile to a stop. The Supreme Court held that the arrest took place when the agents stopped the car.
As noted above, this court conceded that until “the door of the Barracuda was opened to let defendant out and the butt end of the Luger pistol was seen in open view *510on the floor” there was no probable cause for an arrest. Thus, as the United States Supreme Court has held time and time again such an arrest was illegal and unconstitutional, therefore, the pistol was illegally seized and such evidence should have been suppressed. Wong Sun v. United States, 371 U.S. 471 (1963); Henry v. United States, 361 U.S. 98 (1959); Johnson v. United States, 333 U.S. 10 (1948); Carroll v. United States, 267 U.S. 132 (1925).
II.
CAN THE STOPPING OF THE DEFENDANT BE JUSTIFIED AS TEMPORARY DETENTION FOR INVESTIGATORY PURPOSES UNDER TERRY v: OHIO, 392 U.S. 1 (1968), ASSUMING THAT ARREST HAD NOT TAKEN PLACE WHEN THE DEFENDANT WAS STOPPED BY THE OFFICERS?
It should be emphasized here that Terry makes clear that temporary detention for investigatory purposes comes within the purview of the Fourth Amendment of the United States Constitution and the United States Supreme Court at page 16 said:
“There is some suggestion in the use of such terms as ‘stop’ and ‘frisk’ that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a ‘search’ or ‘seizure’ within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” (Footnotes omitted.)
*511Also the Court in Terry carefully emphasized at page 30:
“We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”
It should be noted that the Court at page 19, in its footnote 16, stated:
“We thus decide nothing today concerning the constitutional, propriety of an investigative ‘seizure’ upon less than probable cause for purposes of ‘detention’ and/or interrogation. Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred. We cannot tell with any certainty upon this record whether any such ‘seizure’ took place here prior to Officer McFadden’s initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that *512point no intrusion upon constitutionally protected rights had occurred.”
In the light of the foregoing statements by the United States Supreme Court, it appears to me that in the absence of probable cause Terry cannot and should not be used by this court to support the proposition that under the Fourth Amendment of the United States Constitution or Art. I, § 4 of the Constitution of the State of Hawaii the defendant here was legally “seized” for investigatory purposes.
However, if Terry stands for the proposition that an officer may seize a person for investigatory purposes on evidence insufficient to effectuate an arrest, I believe Justice Douglas’ dissent in Terry is very apropos, whei*e at page 35 he said:
“I agree that petitioner was ‘seized’ within the meaning of the Fourth Amendment. I also agree that frisking petitioner and his companions for guns was a ‘search.’ But it is a mystery how that ‘search’ and that ‘seizure’ can be constitutional by Fourth Amendment standards, unless there was ‘probable cause’ to believe that (1) a crime had been committed or (2) a crime was in the process of being committed or (3) a crime was about to be committed.
“The opinion of the Court disclaims the existence of ‘probable cause.’ If loitering were in issue and that was the offense charged, there would be ‘probable cause’ shown. But the crime here is carrying concealed weapons; and there is no basis for concluding that the officer had ‘probable cause’ for believing that that crime was being committed. Had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one, for he can act only if there is a showing of ‘probable cause.’ We hold today that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action. We *513have said precisely the opposite over and over again.” (Footnotes omitted.)
I believe Justice Douglas correctly states the law because tbe United States Supreme Court has explicitly and clearly stated repeatedly that an officer may not act upon less evidence in making an arrest merely by avoiding making an application to a judge for the issuance of a warrant.1 Thus, it should be emphatically stated that the officers’ actions here should be sustained only if their actions would have been permissible had there been a judge at their elbow to issue a warrant.
I think that I am for “law and order,” as are all of the other members of this court; however, I do not believe that the pressure of the moment, as may be evidenced by this case, is reason enough for this court to water down a person’s fundamental rights under our Constitutions.
III.
IS THE TEEEY CASE APPLICABLE HEBE?
It is to be noted that the United States Supreme Court stated that Terry involved the issue of protective search for weapons and at page 29 said:
“Suffice it to note that such a search, unlike a search without a warrant incident to a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime. See Preston v. United States, 376 U.S. 364, 367 (1964). The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reason*514ably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”
• Thus, I believe Terry does not set up guidelines to determine the reasonableness of a temporary detention because as specifically stated the United States Supreme Court did not intend to cover that point and the decision was strictly on the issue of protective search as noted above. Therefore, in my opinion, this court errs in using the guidelines set up in Terry to justify protective search to justify temporary detention for investigatory purposes here.
Also, may I ask, what is the guideline which states “an intrusion upon personal liberty must be reasonable and based on something more substantial than inarticulate hunches, and that reasonableness is to be judged by an objective standard, namely, whether the facts known by the officer would warrant a man of reasonable caution to believe that the action taken was appropriate”? Yes, it may sound good and legalistic but it sets up no definite standard.2 To me, under such a guideline an officer may justify any action he takes if he is a good talker.
Further, I do not believe Terry is applicable here. What was the “criminal activity of a violent nature” involved here? The tip to the police was that there might be illegal traffic in guns or jewelry. This information does not in any way denote a “criminal activity of a violent nature.” *515Of course, the guns may later be used in commission of a crime; however, from the information available to the officers, how can this court say that the State was able to point to specific and articulable facts which, taken together with rational inferences from those facts that a crime involving violence was being or to be committed? The crime suspected was the illegal possession of firearms. I do not believe that such offense involves a high degree of potential violence.
In my opinion Sibron v. New York, 392 U.S. 40 (1968), decided on the same day as Terry, is closer to the facts of this case. There, the Brooklyn police observed Sibron conversing with six or eight known narcotics addicts. He observed Sibron enter a restaurant and talk to three more known addicts. At this point, the police approached Sib-roh, told him to come out of the restaurant and upon searching him on the sidewalk found narcotics. The United States Supreme Court held that the search was unlawful because the officer was seeking narcotics rather than acting from fear of his own safety.
I believe Sibron v. New York, supra, provides a clear factual contrast to Terry v. Ohio. In both Terry and Sib-ron the court emphasizes the reasonableness of a police officer searching a suspect when he is justified in believing the person whom he is investigating at close range is armed and presently dangerous to the officer or others.3 While Terry did not address itself to the “stop” or “seizure”4 Sibron did mention that “If [the officer] lacked probable cause for an arrest, however, his seizure and search of Sibron might still have been justified at the outset if he had reasonable grounds to believe that Sibron *516was armed and dangerous.”5 Of course, Sibron also focused on the search because no incriminating evidence arose to justify the stopping of the suspect. But assuming that for a stop to be “reasonable”6 there must be the same grounds as for a protective “pat down” then in deciding this case a comparison of Sibron and Terry should be made. In Terry the Court felt that the reasonable suspicion that the suspects were about to commit a daylight robbery was enough to “make it quite reasonable to fear that they were armed.”7 However, in Sibron, the Court felt it abundantly clear that the officer was only searching for narcotics and those circumstances did not give rise to a “reasonable fear of life or limb.”8 The Court also noted that the officer never even contended that he acted to protect himself.9 Therefore, the court felt that there was not available “particular facts from which [the officer] reasonably inferred that the individual was armed and dangerous.”10
The record in this case does not support the inference that Goudy was armed and dangerous within the meaning of Terry and Sibron. In the first place the investigation involved a transaction in contraband goods. This brings it within the Sibron situation of possession of narcotics and not within the Terry situation where an imminent armed robbery was suspected. The police stated they saw the rifle. This is the only possible link with Terry but is very weak because unlike Terry there was no indication that the suspect was presently dangerous to the officer or *517others. There is no indication in the record the police stopped the car to prevent a violent crime from occurring.
It should he also noted that Justice Harlan concurred in both Terry and Sibron on the grounds similar to those expounded by this court, i.e., that the short investigatory detentions without probable cause may be constitutionally permissible. But unlike in Terry, where he felt such a stop was justified, 392 U.S. at 34, in Sibron he felt the stop of Sibron was not permissible, 392 U.S. at 73, 74, even though New York Code Criminal Procedure, § 180-a, authorized an officer to stop a person short of an arrest where the officer “reasonably” suspected that the person stopped “is committing, has committed or is about to commit a felony.”
Thus, under Sibron, the evidence should have been suppressed.
I would reverse.
E.g., Carroll v. United States, 267 U.S. 132 (1925); Johnson v. United States, 333 U.S. 10 (1948); McDonald v. United States, 335 U.S. 451 (1948); Henry v. United States, 361 U.S. 98 (1959); Wong Sun v. United States, 371 U.S. 471 (1963).
It is to be noted that in “Street Encounters” and the Constitution: Terry, Sihron, Peters, and Beyond, 67 Mich. L. Key. 40, 64, Professor of Law Wayne R. LaFave, University of Illinois, stated:
“There is to be sure, some dictum in Terry which lends support to the proposition that stops for investigation are permissible on evidence insufficient for arrest, but the language affords few hints as to what the proper standards are. It is said, for example, that the officer’s conduct should be judged by this ‘objective standard: would the facts available to the officer at the moment of the seizure or the search “warrant a man' of reasonable caution in the belief,” that the action taken was appropriate?’ It would be hard to quarrel with this generality, although it is unclear what help it offers in the development of police guidelines.”
Terry v. Ohio, 392 U.S. 1 at 24. Sibron v. New York, 392 U.S. 40 at 63.
“The crux of this ease * * * is not the propriety of' [the officer] taking steps to investigate * * * but rather, [the search].”. Id. at 23. See also footnote 16 at p. 19 and Harlan X concurring opinion at 32.
/<2. at 63 (emphasis supplied).
Aside from there being a “reasonable suspicion.”
Id. at 28.
Id. at 64.
Id. at 64.
Id. at 64.