dissenting.
I respectfully dissent. The point at which I must depart from the majority is the holding that appellant was not arrested until the police spotted marijuana inside the plane. In my view, the arrest occurred earlier, when police blocked the taxiway and, armed with shotguns, ordered appellant to shut down his engines and leave the aircraft. As Judge Goldberg stated in his excellent dissent in United States v. Worthington, 544 F2d 1275 (5th Cir., 1977), cited by the majority in this case, ". . . when a police-citizen confrontation is accompanied by a greater degree of force and restraint directed toward the citizen than is ordinarily or necessarily associated with a policeman’s request to stop and answer some questions, it becomes the type of seizure that must rest on antecedent probable cause, whether or not it is within the traditional definition of arrest. From that perspective, I conclude that the seizure here required the traditional probable cause basis.” At 1282.
The majority addresses this issue by citing Worthington, supra, and United States v. Maslanka, 501 F2d 208 (5th Cir., 1974). In the first place, this court is not bound by precedent from the U. S. Court of Appeals; they are merely persuasive. Second, I am convinced that Judge Goldberg’s analysis in Worthington is correct and that of the majority incorrect. Third, the question of the degree of force used was not directly addressed in the body of the opinion in Maslanka. In the footnote cited by the majority here, the court noted that the arresting officer was alone on a country road with three men he had chased at speeds around 100 mph. In addition, the court noted, he had probable cause to arrest the driver, at least, for speeding, and did so prior to the discovery of marijuana.
The facts in Worthington are also much different from those here. There, agents were informed that a young man *14was going to transport drugs in a particular plane during a specified time period. Pursuant to that tip, several details of which had been verified, the agents followed Worthington for more than one day, bugged his plane, and finally confronted him when both planes were forced down by bad weather. In the instant case, the arresting officers knew nothing about 'appellee’s activities, just that Alabama officials wanted him held. They saw a plane land, blocked its movement completely and confronted appellant with the threat of deadly force for the avowed purpose of "holding him for Alabama.” I cannot accept that this procedure is consistent with a Terry investigative stop. With no information as to why they were acting, police officers armed with shotguns took custody of the appellant to "hold” him. That was an arrest and, since it preceded the discovery of the contraband, was not based on probable cause and was, therefore, illegal, requiring the suppression of the evidence seized. While the hands of the police should not be tied under clearly definable circumstances, reasonable and justifiable limitations should be applied.
I would reverse.