DISSENT ON DENIAL OF PETITION FOR REHEARING
BISTLINE, Justice,dissenting on denial of Petition for Rehearing.
The Court today by a vote of four to one eschews an opportunity to engage in an intellectual and educational exercise, the purpose of which should be to rebuff defense counsel’s learned treatise dissecting the Court’s disposition of the constitutional validity of the roadblock and the ensuing seizure of and searches involving the defendant. An honest and open-minded reading of the petition and supporting brief is convincing that defense counsel’s thrust is not at all aimed at freeing Troy A. Gascon (although that would likely be a by-product if this Court were to at least engage in a conference discussion and consideration of the well-supported points of law which have been presented), but rather is aimed at enlightening the Court wherein it has erred in application of controlling federal case law precedent, and this Court’s recent Henderson decision.
The argument part of defense counsel’s supporting brief presents compelling reasons to which the Court, simply put, is unable to make a respectable reply. Instead it denies the petition for rehearing, which in recent months has come to be matter of rote, and smacks of indifference to the quality work product of counsel. The following excerpt from the brief is exemplary, and moreover, prepared without any thought of recompense.
*942ARGUMENT
I.
HAS THE IDAHO SUPREME COURT ERRED IN THE FACTS RELIED UPON IN ITS DECISION IN THIS CASE?
The majority opinion asserts that the officers at the roadblock had a description of the robber. No unity as to the nature of that description was ever demonstrated by the prosecution. The description stated as fact by the majority decision, 91.8 I.S.C.R. 506 is the recollection of one officer (Lamont Johnston). None of the other officers substantially corroborate the physical description of the suspect. No witnesses to the actual robbery testified at the suppression hearing so no details of the offense were presented to the court. No dispatch deputies testified to the timing or content of any information broadcast concerning the robbery or the individual committing the robbery. Four officers testified at the suppression hearing. They were all involved at the roadblock south of the Perrine Bridge. No officer testified that he had information that any vehicle had been employed in the robbery. The officers gave varying descriptions of the suspect they sought. (Lamont Johnson Transcript, pp. 27 & 34); (Larry Webb Transcript, p. 56); John Putzier Transcript, p. 115); Ronald Cogswell Transcript, p. 141). No officer testified that appellant was stopped because he fit the description broadcast. Rather, the stop was effectuated because the appellant was seen by officer Johnston to lean over into the passenger front seat area two or three times as he approached the roadblock (Transcript, p. 30). Upon seeing these movements, officer Johnston drove to the roadblock and told foot officers to stop the vehicle. Johnston used his intercom to inform officers that appellant had placed something under the front seat.
Officer Putzier had closely observed appellant and the interior of the vehicle as it passed by him. Officer Putzier saw nothing suspicious in the vehicle (Transcript, p. 116). He didn’t feel the driver matched the description of the suspect (Transcript, p. 121). He saw no furtive gestures as the vehicle approached him (Transcript, pp. 128-129). Deputy Putzier testified that no one at the roadblock knew what kind of weapon had been used in the robbery (Transcript, p. 137).
The majority’s assertion that the police ‘immediately set up an invisible roadblock’ is totally unsupported by the record. No evidence of the timing of the robbery was presented. The Attorney General’s office has been totally unable to point out such evidence in the record.
The assertion that Johnston saw Petitioner putting something under the seat as the car approached the roadblock (at 91.8 I.S.C.R. 506) is a conclusion based solely on observations of Petitioner leaning over to the passenger side of his vehicle. Johnston guessed that Petitioner was putting something under the seat and communicated it to other officers. The majority accepts this guess as fact.
The assertion that the roadblock covered the ‘quickest route to the interstate highway’ at 91.8 I.S.C.R. 506 is also unsupported by the record. No proof of the location of the robbed Twin Falls Bank and Trust was ever presented. No spatial relationship between the robbery and the roadblock was ever proven.
II.
DID THE MAJORITY OPINION MISAPPLY THE BURDEN OF PROOF IN THIS CASE?
The majority opinion repeatedly upholds police action because the justices cannot find the behavior unreasonable. The burden of proof in warrantless searches and seizures is upon the State to prove warrantless searches and seizures reasonable against a strong contrary presumption of illegality. Colorado v. Barrister, 449 U.S. 1, 1 of 1, [101] S.Ct. 42[, 66 L.Ed.2d 1] (1980), Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586[, 61 L.Ed.2d 235] (1979).
*943In order to validate the police seizure and search in this case, the state must prove them reasonable based on stated facts measured against an ‘objective standard.’ Delaware v. Prouse, [440 U.S. 648,] 99 S.Ct. 1391[, 59 L.Ed.2d 660] (1979). No such weighing of the State’s evidence is measured against any objective standard in the majority’s ruling on the roadblock, the stopping of Petitioner’s vehicle or search of his vehicle. The Court simply indicates it cannot find them unreasonable.
The majority opinion shifts the burden to Petitioner and deprives him of a full and fair opportunity to adjudicate his Fourth Amendment claims by misapplying the facts to the law and shifting the burden to Petitioner without notice.
III.
HAS THE IDAHO SUPREME COURT FAILED TO RECOGNIZE AND APPLY CORRECT UNITED STATES CONSTITUTIONAL STANDARDS GOVERNING ROADBLOCKS AND SEIZURES OF INDIVIDUALS.
The majority opinion declines to address and apply ruling Federal Standards governing the establishing of roadblocks. The decision upholds the roadblock totally based upon Idaho Code Section 19-621 and declines to discuss Federal case law governing temporary vehicle seizures generally. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391[, 59 L.Ed.2d 660] (1979); U.S. v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074[, 49 L.Ed.2d 1116 (1976)]; U.S. v. Cortez, 449 U.S. 411[, 101 S.Ct. 690, 66 L.Ed.2d 621] (1981), (temporary seizures of individuals generally combined with protective searches); Sibron v. New York, [392 U.S. 40] 88 S.Ct. 1889[, 20 L.Ed.2d 917] (1968); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868[, 20 L.Ed.2d 889] (1968), or what behavior by individuals seized temporarily may justify longer seizure; Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921[, 32 L.Ed.2d 612] (1972).
If the legislature did not intend to establish statutory standards of reasonableness in passing Idaho Code Sections 19-621 and 19-622 as found by the Court of Appeals and ratified by the majority opinion, what standard of reasonableness if the majority applying to Petitioner’s claim under the Fourth Amendment of the United States Constitution and Article 1, section 17 of the Idaho Constitution. No Federal standard of reasonableness is stated in the majority’s discussion of the legitimacy of the roadblock or the attempted stop of Petitioner’s vehicle. Such a failure to recognize and apply constitutional standards does not provide opportunity for a full and fair consideration of Federal Fourth Amendment claims.
The majority opinion offers no legal authority (Idaho or Federal case authority or statutes) to justify the stop of Petitioner’s vehicle. Failure to refer to and implement correct and controlling Federal constitutional case law deprives a Defendant of a fair and full opportunity to litigate Federal Fourth Amendment claims. Gamble v. State of Oklahoma, 583 F.2d 1161 (1978).
The majority opinion misstates the case by asserting that the state has proved that the police had a general description of the suspect and in a place likely for the suspect to make an escape. Nor is there anything in the physical leaning twice across the front seats of his vehicle to indicate that he has recently robbed a bank or is armed and dangerous. These factual determinations are not fairly supported by the record as a whole. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.[2d] 770 (1963).
The majority’s assertion that Petitioner’s activities in the front of his vehicle gave rise to a reasonable suspicion that he was the bank robber is simply an “ipse dixit” assertion. See, Logical Fallacies and the Supreme Court, by Andrew McClure, Vol. 59, Colorado Law Review, 741 at 802. Chief Justice Bakes simply asserts that it is true but offers no reasonable factual inferences or logical connection between circumstances and conclusions. It is evidently true because Justice Bakes says so.
*944IV.
DID THE SUPREME COURT MISAPPLY IDAHO CODE SECTIONS 19-621 AND 19-622 TO THE FACTS OF THIS CASE.
The majority’s discussion of Idaho Code Section 19-621 drops one of the statute’s predicates.
Therefore, if the police have a reasonable belief that a crime has been committed — as was the case here — and they have a basic description of the suspect — as was also the case here— Section 19-621 allows them to set up a roadblock as a likely escape route to apprehend the suspect.
No mention is made of the statute’s requirement that the suspect be using such highways and streets. Not only does the Supreme Court ignore that requirement in its holding of law, but at no point does the majority supply a factual justification for a finding that the robber in this case was using any streets of Twin Falls. The State bears the burden of justifying any warrantless search and seizure procedure whether statutory or otherwise.
The majority decision places the burden of showing non-compliance with Idaho Code Section 19-621 on the defense. By holding that ‘the police were not unreasonable in suspecting ... ’ the majority shifts the burden to the defense to show police procedures unreasonable. At no point does the majority make the constitutionally required finding that the state has proved that the police actions were reasonable. The cited Court of Appeals language ‘common sense suggests such a possibility’ makes manifest this ignoring of the state’s responsibility to establish probabilities based upon proof of specific and articulable facts in the possession of the police. Even the appellate courts of this state are unable to point to specific and articulable facts which would justify a reasonable man in believing the robber to be on the streets of Twin Falls. As argued above, the Prosecutor did not ever attempt to prove the content of the physical description communicated to the police. Nor did the officers testifying present any consistent description. No unified description of the suspect was ever proved. Nor was there a portrayal of the location of the robbery. The majority decision finds a ‘likely escape route’ without awareness of the location of the robbery. The majority holds that logistic realities support the police action when there is absolutely no portrayal of logistic realities by the Prosecutor in the record.
The shifting of the burden to the Defense is further accomplished by the finding that the Defense somehow waived asserting non-compliance with Section 19-622. The Prosecution never claimed that the roadblock was justified by Idaho Code Section 19-621 in the trial court. The prosecution argued Terry v. Ohio (Transcript, p. 198); Michigan v. Long, (Transcript, p. 201); Carroll, and U.S. v. Ross, (Transcript, p. 202); Pennsylavnia v. Mimms; Adams v. Williams; Chimel v. California; New York v. Belton, (Transcript, p. 205); New York v. Class, (Transcript, p. 206); U.S. v. Cortez, (Transcript, p. 208).
The Court of Appeals and majority opinion seemingly find Defense waiver of objection to a potential justification for a roadblock that was never asserted by the prosecutor in the trial court. The Prosecutor is allowed to fail to prove Compliance with Idaho Code Section 19-622 by simply laying low and not asserting that Idaho Code Section 19-621 justified the roadblock. This procedure denies Petitioner a full and fair opportunity to litigate these issues in the trial court. Stone v. Powell, 428 U.S. 465, 965 [96] S.Ct. 3037[, 49 L.Ed.2d 1067] (1976).
The effect of the majority opinion is to make establishment of roadblocks totally discretionary with the police of this state. Any crime justifies roadblocks because no use of a vehicle by suspects need be shown. Any location may be approved because the police are to determine any ‘tactical advantages’ which need only amount to a suspicion founded on ‘logistical realities.’ This mis-application of Idaho Code Section 19-621 is made even more destructive of previous standards controlling warrantless searches and sei*945zures by the shifting of the burden of proof to the Defendant to show unreasonableness.
V.
DID THE SUPREME COURT MISAPPLY MICHIGAN v. LONG and PENNSYLVANIA v. MIMMS, TO THE FACTS OF THIS CASE.
The majority opinion also misapplies Michigan v. Long, 463 U.S. 1032, 1035, [103] S.Ct. 3469[, 77 L.Ed.2d 1201] (1983) to the facts of this case. Long involved only two officers who had observed a serious traffic accident at night, along an isolated rural road. The suspect was non-responsive to questions and simply began to return to the open door of his vehicle. The suspect was felt to be under the influence of something. Officers first plain viewed a large hunting knife through the open door of the vehicle and then shined a flashlight inside the vehicle. Officers investigated one suspicious object in plain view which turned out to be marijuana and then noticed another pouch containing marijuana on the front seat. The suspect was placed under arrest for possession of marijuana and further search of the vehicle yielded more marijuana.
Long requires specific and articulable facts which taken together with rational inferences therefrom reasonably warrant an officer in believing the suspect is dangerous and may gain immediate control of a weapon. Michigan v. Long, supra, [103 S.Ct.] at 3481. The majority decision articulates no specific facts or reasonable inferences therefrom to justify a weapons search. There was no proof that the Petitioner matched any general description received by the officers. Only one officer claimed that he did. The majority decision is careful not to assert that the stop was based on Petitioner matching the description. With no evidence that Petitioner was the robber, in broad daylight, on a busy city street, surrounded by four heavily armed officers, the Petitioner compliantly walked to the rear quarter panel of his vehicle. It would be hard to imagine a factual situation further removed from what the officers were confronted with in Michigan v. Long. The factual determinations bringing this case under the purview of Michigan v. Long are not fairly supported by the record as a whole. Townsend v. Sain, supra. The Magistrate’s finding that the four officers were reasonably in fear of their safety when petitioner emerged from his vehicle at gunpoint misapplies Michigan v. Long.
The majority opinion also misapplies Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330[, 54 L.Ed.2d 331] (1977). Mimms authorizes asking an individual to step from his vehicle during a lawful stop. It also authorizes pat down of the individual in response to seeing a bulge in the suspect’s clothing consistent with a pistol. Mimms does not authorize exploratory searches of the interior of an automobile. Officers here had no reason to believe there was a bomb in the Petitioner’s vehicle. No court considering this case has advanced rationale for such a reasonable belief. As argued above, the police had no reason to believe Petitioner was the robber prior to the search of his vehicle. The ‘ipse dixit’ assertion referred to above is used as foundation for a reasonable belief that the Petitioner may have had a bomb in his car. Again the record in no way supports the factual conclusions. Townsend v. Sain, supra. Mimms is here misapplied to uphold a ‘dive in’ search based on nothing more than curiosity on the part of police officers.
CONCLUSION
The decision handed down by the majority April 4, 1991, substantially modifies preexisting Idaho law governing police roadblocks, investigative stops and protective searches associated with investigative stops. The decision makes this impact without careful discussion of controlling Federal precedent. Based upon the authority and arguments presented in this Brief and previous Appellate Briefs filed in this case, Petitioner requests a Rehearing.
Having noted that not one of the four justices comprising the Court’s majority responded to allay the concerns raised in my *946dissenting opinion, it comes as no surprise that the Court is not much concerned that it very well may have discombobulated the law in the process of making certain that Troy Gascon pays for his unsuccessful misdeed. In the eyes of some persons that may be seen as commendable. But, in a larger sense, where the stability of the law is concerned, it is regrettable, and I said as much in the closing sentence in my earlier opinion which issued along with the Court’s opinion in April of 1991.