dissenting:
Granted that ever since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the line that the Supreme Court has drawn between the circumstances which justify a policeman stopping a stranger for investigation, and those which prohibit him from detaining a person who refuses to answer a question or a request for identification, is a shadowy one, I am unable to agree with the holding that the challenged stop here overstepped the bounds of police conduct set by the Terry opinion or by our decisions which have attempted to apply it.
The majority opinion points out that as the government no longer disputes that a Terry stop was effectuated when the police officer ordered one of the passengers (Evans) to stay inside the car and appellant to keep it parked, such action was proper only if the officer at the time had a reasonable suspicion of criminal activity based upon “specific and articulable facts.”1 I accept this premise, but am baffled by the conclusion that grounds for such reasonable suspicion were lacking here.
The transcript of the suppression hearing discloses that the particular criminal activity the officer suspected was that the car’s occupants were smoking narcotics. I submit that in the circumstances, such suspicion was highly rational.
In summing up at the request of the motions judge the reasons for his actions, the officer not only mentioned that the car was parked in a “favorite spot” in a narcotics area when he first saw the vehicle, but also explained:
[T]he second thing that aroused my attention was the fact that there were three subjects in there. It was warm and all four windows were up.
As I got closer I was able to tell that the motor in the vehicle was off and that there was a large amount of smoke inside the vehicle. To be perfectly honest at that time I believed that they were sitting inside the vehicle smoking narcotics.
I stopped my vehicle, and when I stopped my vehicle and they attempted to leave, I pulled away from the curb and exited from the rear of the vehicle. This sort of strengthened my feelings that there was something taking place inside the vehicle.
According to the majority, these observations by the officers did not constitute grounds for reasonable suspicion, for the behavior of the occupants of the car was capable of such a “common, obviously innocent explanation — smoking tobacco.” It seems to me, however, that this very inference is unreasonable, albeit within the realm of possibility. Irrespective of air conditioning, the confines of a sedan are such that it would be most unusual for its occupants, except in severe cold weather, to indulge in cigar or tobacco cigarette smoking without opening at least one or two windows. But if they were smoking some illegal substance, obviously it would be prudent to avoid detection by keeping the windows closed. Even defense trial counsel appeared to recognize that if the officers had indeed seen a smoke filled car with all its windows rolled up, their actions were justified, for his line of rebuttal was to present evidence showing that darkness of night would have prevented the officers from perceiving any smoke inside the car until the appellant opened his window.2
*137We have observed in several other decisions that the behavior of an individual which arouses the suspicion of a policeman should not be discounted merely because it can be construed as innocent. See, e.g., United States v. Bennett, 514 A.2d. 414, 416 (D.C.1986) (“Even if each specific action of appellee was ... susceptible of an explanation consistent with innocence of drug dealing, the observing police officer may see a combination of facts that make out an articulable suspicion”); Tobias v. United States, 375 A.2d 491, 494 (D.C. 1977) (“the mere possibility of innocent explanations would not suffice to diminish the likelihood of illegality appearing ... to prudent men possessing the knowledge and experience of the officers in the case”); Smith v. United States, 295 A.2d 64, 66 (D.C.1972), cert. denied, 411 U.S. 951, 93 S.Ct. 1932, 36 L.Ed.2d 414 (1973).
While the setting of the detention here does indeed resemble the situation in Jones v. United States, 391 A.2d 1188 (D.C.1978), which the majority cites, I think it significant that the degree of intrusion constituting the “seizure” in that case was considerably greater than the conduct now challenged. There the policeman ordered the occupants of the parked car to get out. This enabled him to inspect the interior of the car and uncover a cache of marijuana.
In contrast, the detention here merely consisted of an order to one passenger to stay inside the car and for the driver to remain parked. All that the officer then did was to request that a window be rolled down so that he could talk to the driver. Once the window was opened, releasing the acrid odor of smoke produced by marijuana laced with PGP, there was probable cause to arrest.
It is by no means clear that appellant himself knew the police had ordered his car to stop, for he denied that he had put the vehicle in starting gear. Apparently because the windows were rolled up, he did not hear any of Officer Scarpine’s verbal instructions; he testified that he became aware of the latter’s desire to question him only when the officer rapped upon the closed window. Thus, we cannot be sure that appellant at any time inferred that he was not free to leave until the officers had completed his instruction, notwithstanding the officer’s testimony that this was his intention.3
In my opinion, the degree of intrusion or restraint imposed by the police is always a relevant factor in challenged detention cases. The Supreme Court observed in its most recent pronouncement on this subject:
Both petitioner and respondent, it seems to us, in their attempts to fashion a bright-line rule applicable to all investigatory pursuits, have failed to heed this Court’s clear direction that any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account “all the circumstances surrounding the incident” in each individual case.
Chesternut, supra note 1, 108 S.Ct. at 1979 (quoting Delgado, supra note 1, 466 U.S. at 215, 104 S.Ct. at 1762).
Accordingly, it is my view that if we consider all the circumstances in this case, including the minimal restraint upon appellant, we should affirm the denial of the suppression motion for the reasons expressed by the motions court in the opinion accompanying this order.
. Terry, supra, 392 U.S. at 21, 88 S.Ct. at 1880. See also Michigan v. Chesternut, — U.S. -, 108 S.Ct. 1975, 1979 (1988); I.N.S. v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), for the proposition that no "seizure" occurs within the meaning of the Fourth Amendment, unless in view of all the circumstances a reasonable person would have believed that he was not free to leave.
. The motions court was plainly not impressed by this testimony, for the incident occurred in early twilight, Le., 9:00 p.m. on June 30th, shortly after the summer solstice.
. In Chesternut, supra note 1, the Supreme Court said:
Of course, the subjective intent of the officers is relevant to an assessment of the Fourth Amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted.
108 S.Ct. at 1980 n. 7 (emphasis supplied).