MERRITT, Circuit Judge.
The first sentence of the federal criminal [668]*668firearms law, 18 U.S.C. App. § 1202,1 limits the maximum sentence to two years for felons who possess guns. The question before us in this direct criminal appeal is whether the second sentence of § 1202, which increases the penalty for recidivists,2 enumerates only sentencing “enhancement” facts that need be shown only at the sentencing hearing and need not be alleged in the indictment under the Fifth Amendment 3 nor established beyond a reasonable doubt under the Sixth Amendment.4
This question is presented because the government did not charge-in the indictment or attempt to prove at the defendants’ jury trial their previous convictions. After finding the requisite facts concerning recidivism at the sentencing hearing, the District Court imposed a minimum sentence of fifteen years without parole. We hold that under McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and traditional principles concerning notice and proof of crimes, the second sentence of § 1202 creates an offense the elements of which must be charged in the indictment and proved in the liability portion of the criminal trial rather than simply established at the sentencing hearing.
In McMillan, Pennsylvania had adopted a new mandatory minimum sentencing statute requiring not less than five years imprisonment for a number of offenses if the defendant “visibly possessed a firearm during the commission of the offense.” All of the offenses subject to the mandatory sentencing statute (e.g., murder, rape, and robbery) were already serious crimes providing for maximum sentences substantially in excess of the five year mandatory minimum for use of a firearm. The Pennsylvania legislature expressly provided that the firearms factor which triggers the minimum firearm sentence is “not an element of the crime” to be charged and proved in order to establish criminal liability but is a sentencing enhancement fact to be shown at a sentencing hearing after conviction.
The Supreme Court, 5 to 4, upheld the Pennsylvania law because “it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.” 106 S.Ct. at 2418. The majority suggested, without holding, that the result would be different if “a finding of visible possession exposed them [the defendants] to greater or additional punishment.” Id. The four dissenters viewed the firearms factor as a necessary element of the offense to be charged and proved beyond a reasonable doubt under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), even though the minimum sentence remained within the maximum allowed for the crime. Therefore, it appears that all nine members of the Court would require notice in the indictment and proof beyond a reasonable doubt of a fact that increases the punishment beyond the maximum set by the legislature for the other elements of the offense. The majority and dissenting opinions in McMillan discuss at length the constitutional considerations and history concerning notice and proof of crimes that lead to this conclusion. We need not repeat that discussion here.
In the case at bar the crime charged in the indictment and proved by the government at the jury trial of the three defendants was the lesser firearms offense carrying a maximum of two years. [669]*669After the conviction of this offense by the jury, the court “enhanced” the sentence at the government’s request to a minimum of fifteen years without parole under the second sentence of § 1202 because it found each defendant also guilty of three previous convictions for robbery or burglary. This the Court may not do under the reasoning of McMillan because the prison sentence imposed exceeds the maximum prison sentence permitted for the crime charged in the indictment. A court may not constitutionally increase the level of punishment beyond the level permitted for the crime charged in the indictment and proved in the liability phase of the case. Therefore, we reverse the sentence imposed by the District Court and remand the case for resen-tencing within the maximum for the crime charged in the indictment.
Our holding conflicts with United States v. Gregg, 803 F.2d 568 (10th Cir.1986), — U.S. —, cert. denied, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987), United States v. Hawkins, 811 F.2d 210 (3d Cir.1987) cert. denied, — U.S. —, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Jackson, 824 F.2d 21 (D.C.Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 506, 98 L.Ed.2d 665 (1988); and United States v. West, 826 F.2d 909 (9th Cir.1987), which, except for a fleeting reference in Hawkins, 811 F.2d at 220, do not mention McMillan or indicate an awareness of its existence as a precedent. Judge Rosenn, in a cogent dissent in Hawkins, points out that the analysis in McMillan is controlling and requires notice by indictment and proof at trial because § 1202(a) “raises dramatically the minimum penalty and lacks any explicit language denominating it a sentencing factor rather than an element of the offense.” 811 F.2d at 224 (Rosenn, J., dissenting). The holdings in these four cases that the second sentence of § 1202 provides merely for “sentencing enhancement” by the court after conviction are inconsistent with the Supreme Court’s reasoning in the McMillan case. It seems clear under McMillan that an offense “which identifies conduct the legislature specifically intended to punish by a special sanction,” 106 S.Ct. at 2426 (Stevens, J., dissenting), must also be charged if it “exposes” defendants “to greater or additional punishment” than the conduct in fact charged in the indictment, 106 S.Ct. at 2418 (majority opinion). Judge Rubin’s opinion in United States v. Davis, 801 F.2d 754 (5th Cir.1986), which conflicts with Gregg, Hawkins, Jackson and West on this point, is consistent with the McMillan reasoning. We agree with Davis and Judge Rosenn’s dissent in Hawkins. We note that the Eighth Circuit is considering this issue en banc. See United States v. Cloyd, 819 F.2d 836, 838 (8th Cir.1987).
The dissenting opinion of our brother, Judge Krupansky, mistakenly states that the legislative intent is clear that federal courts should not require notice by indictment and proof at trial of the additional elements of the crime under consideration here. Although he is right that some members of Congress referred to the bill as providing only for an “enhanced” or “stiffer sentence for career criminals,” the drafters of the bill as introduced and considered in committee said: “The bill creates a new Federal crime of carrying a firearm ... where a defendant has two prior felony convictions for robbery or burglary.” S.Rep. No. 190, 98th Cong., 1st Sess. at 3 (1983).
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MERRITT, Circuit Judge.
The first sentence of the federal criminal [668]*668firearms law, 18 U.S.C. App. § 1202,1 limits the maximum sentence to two years for felons who possess guns. The question before us in this direct criminal appeal is whether the second sentence of § 1202, which increases the penalty for recidivists,2 enumerates only sentencing “enhancement” facts that need be shown only at the sentencing hearing and need not be alleged in the indictment under the Fifth Amendment 3 nor established beyond a reasonable doubt under the Sixth Amendment.4
This question is presented because the government did not charge-in the indictment or attempt to prove at the defendants’ jury trial their previous convictions. After finding the requisite facts concerning recidivism at the sentencing hearing, the District Court imposed a minimum sentence of fifteen years without parole. We hold that under McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), and traditional principles concerning notice and proof of crimes, the second sentence of § 1202 creates an offense the elements of which must be charged in the indictment and proved in the liability portion of the criminal trial rather than simply established at the sentencing hearing.
In McMillan, Pennsylvania had adopted a new mandatory minimum sentencing statute requiring not less than five years imprisonment for a number of offenses if the defendant “visibly possessed a firearm during the commission of the offense.” All of the offenses subject to the mandatory sentencing statute (e.g., murder, rape, and robbery) were already serious crimes providing for maximum sentences substantially in excess of the five year mandatory minimum for use of a firearm. The Pennsylvania legislature expressly provided that the firearms factor which triggers the minimum firearm sentence is “not an element of the crime” to be charged and proved in order to establish criminal liability but is a sentencing enhancement fact to be shown at a sentencing hearing after conviction.
The Supreme Court, 5 to 4, upheld the Pennsylvania law because “it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm.” 106 S.Ct. at 2418. The majority suggested, without holding, that the result would be different if “a finding of visible possession exposed them [the defendants] to greater or additional punishment.” Id. The four dissenters viewed the firearms factor as a necessary element of the offense to be charged and proved beyond a reasonable doubt under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), even though the minimum sentence remained within the maximum allowed for the crime. Therefore, it appears that all nine members of the Court would require notice in the indictment and proof beyond a reasonable doubt of a fact that increases the punishment beyond the maximum set by the legislature for the other elements of the offense. The majority and dissenting opinions in McMillan discuss at length the constitutional considerations and history concerning notice and proof of crimes that lead to this conclusion. We need not repeat that discussion here.
In the case at bar the crime charged in the indictment and proved by the government at the jury trial of the three defendants was the lesser firearms offense carrying a maximum of two years. [669]*669After the conviction of this offense by the jury, the court “enhanced” the sentence at the government’s request to a minimum of fifteen years without parole under the second sentence of § 1202 because it found each defendant also guilty of three previous convictions for robbery or burglary. This the Court may not do under the reasoning of McMillan because the prison sentence imposed exceeds the maximum prison sentence permitted for the crime charged in the indictment. A court may not constitutionally increase the level of punishment beyond the level permitted for the crime charged in the indictment and proved in the liability phase of the case. Therefore, we reverse the sentence imposed by the District Court and remand the case for resen-tencing within the maximum for the crime charged in the indictment.
Our holding conflicts with United States v. Gregg, 803 F.2d 568 (10th Cir.1986), — U.S. —, cert. denied, 107 S.Ct. 1379, 94 L.Ed.2d 693 (1987), United States v. Hawkins, 811 F.2d 210 (3d Cir.1987) cert. denied, — U.S. —, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987); United States v. Jackson, 824 F.2d 21 (D.C.Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 506, 98 L.Ed.2d 665 (1988); and United States v. West, 826 F.2d 909 (9th Cir.1987), which, except for a fleeting reference in Hawkins, 811 F.2d at 220, do not mention McMillan or indicate an awareness of its existence as a precedent. Judge Rosenn, in a cogent dissent in Hawkins, points out that the analysis in McMillan is controlling and requires notice by indictment and proof at trial because § 1202(a) “raises dramatically the minimum penalty and lacks any explicit language denominating it a sentencing factor rather than an element of the offense.” 811 F.2d at 224 (Rosenn, J., dissenting). The holdings in these four cases that the second sentence of § 1202 provides merely for “sentencing enhancement” by the court after conviction are inconsistent with the Supreme Court’s reasoning in the McMillan case. It seems clear under McMillan that an offense “which identifies conduct the legislature specifically intended to punish by a special sanction,” 106 S.Ct. at 2426 (Stevens, J., dissenting), must also be charged if it “exposes” defendants “to greater or additional punishment” than the conduct in fact charged in the indictment, 106 S.Ct. at 2418 (majority opinion). Judge Rubin’s opinion in United States v. Davis, 801 F.2d 754 (5th Cir.1986), which conflicts with Gregg, Hawkins, Jackson and West on this point, is consistent with the McMillan reasoning. We agree with Davis and Judge Rosenn’s dissent in Hawkins. We note that the Eighth Circuit is considering this issue en banc. See United States v. Cloyd, 819 F.2d 836, 838 (8th Cir.1987).
The dissenting opinion of our brother, Judge Krupansky, mistakenly states that the legislative intent is clear that federal courts should not require notice by indictment and proof at trial of the additional elements of the crime under consideration here. Although he is right that some members of Congress referred to the bill as providing only for an “enhanced” or “stiffer sentence for career criminals,” the drafters of the bill as introduced and considered in committee said: “The bill creates a new Federal crime of carrying a firearm ... where a defendant has two prior felony convictions for robbery or burglary.” S.Rep. No. 190, 98th Cong., 1st Sess. at 3 (1983). It is not clear what Congress thought about the question before us, and our search for evidence of legislative intent on this subject has disclosed nothing we would consider helpful. Neither do we think our brother’s argument concerning the prejudicial effect on the jury of the prior felonies is convincing in light of the availability of a bifurcated trial if necessary to avoid prejudice, see Spencer v. Texas, 385 U.S. 554, 566-68, 87 S.Ct. 648, 654-56, 17 L.Ed.2d 606 (1966), and in light of the fact that many statutes now require notice and proof of prior crimes as elements of the offense, see, e.g., (RICO) 18 U.S.C. §§ 1961(5), 1962(c) and 18 U.S.C. § 1737 (second offense of mailing pornography).
The defendants also contest the search of the trunk of their car, in which firearms and burglary tools were found. The three defendants, and a fourth individ[670]*670ual who later confessed that they were travelling to Georgia to commit a burglary, had rented a car in Nashville and were travelling through Chattanooga. The intuition of a detective specializing in burglary offenses, Del Thomasson of the Chattanooga Police Department, led him to suspect that the four might be engaged in criminal conduct because of the way they looked and the fact that their rental car seemed weighted down in the trunk. He and a partner stopped the car and observed four pairs of gloves of a type sometimes used in burglaries, a book with police radio frequencies, and a police radio scanner. Later a set of alligator clip jumper wires, sometimes used to bypass burglar alarms, were observed. Because of these items and the general appearance of the defendants and the car, the officers decided to seek a search warrant for the trunk after the defendants refused to open it. A state judge issued the warrant based on these facts, and the firearms and numerous burglary tools were found in the trunk.
The question is whether there was probable cause, or reasonable grounds to believe, that the defendants were engaged in criminal conduct. Although the probable cause is thin for the issuance of a search warrant, the jumper wires tip the equation in favor of the state magistrate’s decision. Detective Thomasson did not have to establish his suspicion by a preponderance of the evidence. He had to establish that he had reasonable grounds to believe the defendants were engaged in criminal conduct.
The Supreme Court has underlined this distinction, which is central to the probable cause determination. As the Court stated in Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983):
Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate’s decision. While an effort to fix some general, numerically precise degree of certainty corresponding to “probable cause” may not be helpful, it is clear that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” (citation omitted)
The gloves, wires, and police scanner and manual, taken together with the other suspicious circumstances noted by Detective Thomasson, push the case across the line of probable cause. We therefore decline to suppress the items of evidence offered at the trial as a result of the search.
In light of our disposition above, we need not reach the Leon issue raised by the Government: since there is probable cause to support the issuance of the warrant, we can avoid falling back on any good-faith reliance on the warrant by the officers. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). For the same reason, we need not reach the argument raised by the Government that certain defendants, as passengers in the car, lack standing to challenge the search. We have reviewed the other issues raised by the defendants and find them to be without merit.
Accordingly, the judgment of the District Court is reversed and the case remanded for further proceedings consistent with this opinion.