¶1DISSENTING OPINION TO OVERRULING STATE’S MOTION FOR REHEARING WITHOUT WRITTEN OPINION
¶2On original submission of these causes, a panel of this Court held that although the record did not affirmatively establish that appellants’ confessions were obtained by exploitation of their unlawful arrests, the State did not fulfill its burden in producing evidence which supported the conclusion that the appellants’ statements were not the product of an illegal arrest and detention. Thus the convictions were reversed.
¶3Officer R.D. Bowers of the Mesquite police department testified that on October 25,1978, he and his partner, Officer Peters, received a radio call that there were some suspicious people on Holley Street. Bowers and Peters arrived at the designated location and saw a pickup truck parked along the side of Holley Street. The appellants were standing by the tailgate of the pickup. Officer Bowers parked his car “[d]ireetly in front of their vehicle.” The record also indicates that another Mesquite police officer, Perkins, responded to the call but there is no indication in the record as to where he parked his ear, if indeed he did park his car. In fact, the record does not mention him beyond stating that he responded to the call; thus it is conceivable to believe that he did not stay at the scene. Bowers and Peters got out of the car, asked the appellants for identification and asked them what they were doing in the area since it was primarily a residential and business area and the businesses were not open at that time. The appellants replied that they were electricians and on their way to work and the clutch on the pickup had gone out. They furthermore volunteered that someone was on the way to help them.
¶4As the officers were talking with the appellants, the appellants walked to the side of the truck and at one point got in the truck and sat for some ten to fifteen minutes. While the appellants were sitting inside the truck, the officers, as a routine matter, radioed in a check on the appellants’ identification and the motor vehicle registration on the pickup. Bowers related that he and Peters were “talking to them about their purpose in being there and see*770ing if we could give them any help, and where they worked at and things and just generally carrying on a conversation while they were sitting inside the pickup truck” when they received a report that the appellants were known offenders. The officers continued talking to appellants as they waited for the result of the motor vehicle check. As they waited, the record shows that the appellants exited the pickup and walked to the front of the truck. On direct examination, Bowers testified that the following events then occurred:
“As I said when we was running this computer check, one of them wanted to get back in the pickup, and we had this N.C.I.C. hit that we ran on them on known offenders, and so for officer’s safety, I walked around there and opened the door for him to get the cigarettes, and in plain view, there was a gun case laying in the floorboard on the passenger’s side of the pickup.”
¶5The officer opened the gun case and found a .22 automatic. The officer then placed appellants under arrest for carrying a gun. After the appellants had been placed under arrest, the officers received a message that the pickup truck had been stolen from a parking lot in Cleburne.
¶6The pickup truck was impounded and returned to its owners, Jan and Ernest Cotton. The Cottons testified that after they got their truck back, they found a shotgun and a sack full of credit cards and drivers’ licenses in the truck.
¶7Sometime between the day of their arrest and October 28, appellants were transferred from the Mesquite City Jail to the Dallas County Jail. On October 28, David Ward, the investigator for the Erath County district attorney’s office went to Dallas with Detective Antonio Yidaurri of the Cle-burne police department to talk with the appellants regarding the property found by the Cottons in their truck and its connection to the instant offense. Both appellants were advised of their rights and, during their interviews with Ward and Vidaur-ri, both appellants confessed to the instant offense.
¶8On rehearing, the State argues that the panel opinion while concentrating on the State’s burden of proof in showing that the warrantless arrest was legal and in negating the taint therefrom fails to recognize that the appellants failed in satisfying their initial burden of proof, to wit: proving that there was in fact an arrest or detention prior to the finding of the gun and prior to the valid arrest following thereafter. Thus, the failure of the appellants to meet this threshold burden, that is, proving that there was in fact an arrest or detention prior to the discovery of the gun, closed the door on any further inquiry. The State cites us to several cases in support of its proposition including Alexander v. State, 131 Tex.Cr.R. 366, 99 S.W.2d 305 (1936). In Alexander, supra, the defendant asserted that the police made a search of his premises without a search warrant and thus the evidence obtained as a result of that search was inadmissible. This Court held that because Alexander failed to show that the officers did not have a search warrant the presumption prevailed that the officers acted in accordance with the law of the land.
¶9My own research reveals that in Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963), Justice Brennan, in analyzing the doctrine of “the fruit of the poisonous tree”, wrote that the crucial issue is:
“ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).” (emphasis added) Wong Sun v. U.S., supra, 371 U.S. at 488, 83 S.Ct. at 417.
¶10Thus, it is axiomatic that before the inquiry into the “fruit” commences, it must first be established that there is a “poisonous tree”. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1980).
¶11*771The panel opinion addressed this issue as follows:
“While it might be inferred from the scant record before us that the initial arrival of two patrol cars containing three apparently uniformed police officers, one parking ‘eye to eye’ with appellants’ truck and the other positioned behind, constituted a ‘seizure’ of appellants at that moment, we are reluctant to resolve the issue on this circumstance alone. For, though little is clear from this record, it does establish that at a later point appellants were in fact ‘detained’ by the officers to the extent that they had to ‘ask’ for cigarettes from the truck, and Officer Bowers, for his ‘own safety,’ felt an appropriate response to this request was that he should go to the passenger’s side, open the door and [(sic)] into the vehicle for them.”
¶12What constitutes a “seizure” under the Fourth Amendment? In U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), Justice Stewart wrote:
“We adhere to the view that a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but ‘to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.’ United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
“Moreover, characterizing every street encounter between a citizen and the police as a ‘seizure,’ while not enhancing any interest secured by the Fourth Amendment, would impose wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices. The Court has on other occasions referred to the acknowledged need for police questioning as a tool in the effective enforcement of the criminal laws. ‘Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515, [83 S.Ct. 1336, 1344, 10 L.Ed.2d 513].’ Schneckloth v. Bustamonte, 412 U.S. [218], at 225, 93 S.Ct. [2041], at 2046 [36 L.Ed.2d 854 (1973)].
“We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. See Terry v. Ohio, supra, 392 U.S. [1], at 19, n. 16, 88 S.Ct. [1868], at 1879, n. 16 [20 L.Ed.2d 889 (1968)]. Dunaway v. New York, 442 U.S. 200, 207, and n. 6, 99 S.Ct. 2248, 2253, 60 L.Ed.2d 824; 3 W. LaFave, Search and Seizure 53-55 (1978). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” (footnotes omitted) U.S. v. Mendenhall, 446 U.S. [544] at 554, 100 S.Ct. [1870] at 1877 [64 L.Ed.2d 497 (1980)].
¶13Using the above analysis, the record does not support the panel opinion’s interpretation of the facts. Although three officers responded to the call, there is no evidence that the third officer parked his car at the scene or even remained at the scene. Furthermore the record does not show that one *772of the police cars was parked “eye to eye” with the pickup truck. Thus the panel erred in inferring that the pickup truck was blocked in. Secondly, although one of the officers accompanied one of the appellants to the truck when he went to get cigarettes, this fact alone is not sufficient to show a “seizure”.
¶14When reading the record, I find that there is no evidence which shows that the appellants’ movements were in any way restricted. The appellants testified outside the presence of the jury but neither one testified that he felt restricted in his movement. Officer Bowers’ testimony indicates that he and Peters were merely visiting with appellants while they were waiting for their routine checks to be completed. At no time did he testify that the appellants were detained prior to their arrest for unlawfully carrying a weapon. The panel relies on Ebarb v. State, 598 S.W.2d 842 (Tex.Cr.App.1980), as authority for their holding. However, Ebarbcan be distinguished from the instant case in that in Ebarbthe sheriff testified that he would not have allowed Mrs. Ebarb or the other occupants of the car to leave once they had been approached. Ebarb v. State, supra, at p. 844, n. 1. There was no such testimony in the instant case.
“... Obviously, not all personal intercourse between policemen and citizens involve ‘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.” Terry v. Ohio, 392 U.S. 1, at 20, n. 16, 88 S.Ct. 1868, at 1879, n. 16, 20 L.Ed.2d 889 (1968).
¶15Based on the record before us, the appellants were not detained prior to the discovery of the pistol in the truck.
¶16We should next determine if the warrant-less arrest of appellants which occurred after the discovery of the pistol was proper. Appellants argue that the warrantless arrest was improper in that it was based on evidence found as a result of an illegal search. However, appellants have no standing to contest this search in that the pickup was stolen and they asserted no possessory interest in it. Viduarri v. State, 626 S.W.2d 749 (Tex.Cr.App.1981); Hutchinson v. State, 509 S.W.2d 598, 599 (Tex.Cr.App.1974). The record shows that appellants were arrested after the officers found the gun in the truck. Clearly the discovery of the gun gave the officers probable cause to arrest appellants.
¶17Because there was no detention prior to the discovery of the gun and because the officers, after finding the gun, had probable cause to make a warrantless arrest of appellants, I would hold that there was no poisonous tree and that the confessions of appellants were not tainted and thus were properly admitted.
¶18To the majority’s failure to do so, I dissent.